R v Milos [2014] QCA 314

SUPREME COURT OF QUEENSLAND

CITATION: R v Milos [2014] QCA 314

PARTIES: R v MILOS**, Allen Marcel** (appellant/applicant)

FILE NOS: CA No 135 of 2013 SC No 17 of 2011

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 2 December 2014

DELIVERED AT: Brisbane

HEARING DATE: 22 August 2014

JUDGES: Fraser and Morrison JJA and Flanagan J Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Appeal dismissed.Application for leave to appeal against sentence is refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where the appellant was sentenced on 14 different drug related charges – where the appellant relies on eight grounds of appeal; consisting of four grounds of error in permitting the prosecution to adduce evidence; one ground of error in permitting the prosecution to lead evidence; one ground that particular counts should have been severed from the indictment; one ground that there was an error in allowing the jury to have certain evidence; and one ground that there was a miscarriage of justice in that the verdicts of the jury were against the weight of the evidence and otherwise unsafe and unsatisfactory – where there were telephone intercepts – where there were coded messages that were incorrectly dated – where there is handycam evidence recorded by the appellant – where there were various types of drug offences not related to the trafficking charge – where there were problems with the search warrant address – where there was an emergent search and a post-search approval order – where there may have been grounds for an interlocutory ruling regarding the search in the primary trial – where no application was made at trial and whether it is now too late to do so in this Court – where even if the search was unlawful the police were acting in good faith and the evidence could still be admitted – where a third of the jury indicated that they were not satisfied beyond a reasonable doubt on three separate counts – where the trial judge then gave a Black Direction – whether guilty verdicts were then returned for those counts – whether it was open to the jury to accept the evidence of a witness even though there were manifest difficulties with that evidence / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE –where the appellant challenged the factual basis upon which the sentence proceeded – where the appellant also contended that the sentence was manifestly excessive – where on appeal submissions were made regarding the factual errors of the primary judge, but little was raised regarding the contention that the sentence was manifestly excessive / Drugs Misuse Act 1986 (Qld), s 129(1)(c) / Evidence Act 1977 (Qld), s 132C(3) / Police Powers and Responsibilities Act 2000 (Qld), s 160(1), s 160(3), s 161, s 162(1)(a) / Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, applied / Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, considered / Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, applied / R v Kalaja [2012] QCA 329, considered / R v Markovski [2009] QCA 299, considered / R v Nabhan; R v Kostopoulos [2007] QCA 266, cited / R v Rodd; Ex parte Attorney-General (Qld) [2008] QCA 341, considered / R v Versac [2014] QCA 181, considered / Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66, applied

COUNSEL: A J Kimmins for the appellant/applicant / D C Boyle for the respondent

SOLICITORS: Guest Lawyers for the appellant/applicant / Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I have had the advantage of reading the reasons of Morrison JA. I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused. Subject only to the following brief observations, which I think are not inconsistent with Morrison JA’s reasons, I respectfully agree with those reasons.

In an interlocutory hearing before the trial commenced the primary judge held that the search of “Unit 30” allegedly occupied by the appellant was unlawful but that the evidence derived from that search should nonetheless be admitted at the trial. In so concluding, the primary judge held that the police had had reasonable grounds to suspect that evidence might be concealed or destroyed unless Unit 30 was immediately entered and searched, and the police had acted reasonably in conducting the search (a reference to the commencement of the search), in waiting for a Justice of the Peace to arrive (having ascertained that the appellant was not present), and in detaining the appellant upon his subsequent arrival. The primary judge nevertheless held that the search was unlawful. His Honour reasoned that when the police had ascertained that there was no one else in the unit and they had secured the unit and detained the appellant, the police no longer had reasonable grounds to suspect that evidence could be destroyed if an immediate search was not undertaken, that the failure of police to obtain a search warrant at that point was a breach of the requirements in the Police Powers and Responsibilities Act 2000 for a search of the premises, and the post-search approval which the police obtained under s 161 of that Act did not overcome that breach.

The primary judge’s conclusion that the grant of the post-search approval under s 161 did not render lawful an unlawful search is supported by authority.¹ I agree with that conclusion. Whilst a failure to obtain such an approval might constitute a ground for challenging the admission of evidence found on a search conducted without a warrant,² the administrative act of granting such an approval could not render lawful a search which was not authorised by the statute.

Section 160(3) of the Police Powers and Responsibilities Act 2000 empowers a police officer to enter a place and exercise search warrant powers at that place as if those powers were conferred under a search warrant in certain circumstances, including (s 160(1)) where the police officer “reasonably suspects… a thing at or about a place… is evidence of the commission of a part 2 offence… and… the evidence may be concealed or destroyed unless the place is immediately entered and searched.” Upon the primary judge’s findings the relevant police officers held such a reasonable suspicion. They were therefore lawfully entitled to enter Unit 30 and exercise search warrant powers under s 160(3). I agree with Morrison JA’s conclusion at [83] that the search commenced at the moment when the police opened the front door of the unit and entered the unit. In circumstances in which s 160(3) operated to confer the relevant search warrant powers upon the police officers, it is arguable that their search was not rendered unlawful by the events described by the primary judge, which arose only after the commencement of that search. However it is better to leave that question to be decided in a case in which it is necessary to decide it. For the reasons given by Morrison JA, if the search was unlawful upon the grounds found by the primary judge there was no error in the primary judge’s exercise of discretion to allow the relevant evidence to be admitted.

As Morrison JA has also explained, one of the appellant’s challenges to the primary judge’s interlocutory decision was based upon a transcript of what was said during the search which became available to the appellant only after that decision. It would have been open to the appellant to apply to the primary judge at the trial for leave to reopen that ruling on the ground that the appellant’s subsequent acquisition of the transcript amounted to “special reason” under s 590AA(3) of the Criminal Code 1899.³ The appellant’s failure to make such an application constitutes a ground for refusing leave to the appellant to adduce the transcript as new evidence in the appeal. Even if that evidence were admitted, however, for the reasons given by Morrison JA at [89] – [102] the primary judge’s interlocutory decision should not be disturbed.

MORRISON JA: The appellant was convicted on 8 May 2013 on 14 counts of various charges under the Drugs Misuse Act 1986 (Qld), following a 20 day trial in the Supreme Court. The appellant challenges his conviction, as well as seeking leave to appeal against the sentences imposed.

The details of the offences and the sentences imposed are set out below.

Count Number Charge Date of offence Sentence imposed

1 Trafficking in a dangerous drug (Methylamphetamine) Between 06/01/2010 / And 20/08/2010 13 years imprisonment

2 Possessing a dangerous drug in excess of 2 grams (Methylamphetamine) 03/03/2010 6 years imprisonment

3 Possessing a dangerous drug in excess of 2 grams (MDMA) 03/03/2010 6 years imprisonment

4 Possessing property obtained from trafficking in a dangerous drug 03/03/2010 6 years imprisonment

5 Possessing a thing for use in connection with trafficking in a dangerous drug 03/03/2010 6 years imprisonment

6 Possessing a thing used in connection with trafficking in a dangerous drug 03/03/2010 6 years imprisonment

7 Possessing a dangerous drug in excess of 2 grams (Methylamphetamine) 19/08/2010 6 years imprisonment

8 Possessing a dangerous drug (Heroin) 19/08/2010 6 years imprisonment

9 Possessing a dangerous drug (MDMA) 19/08/2010 6 years imprisonment

10 Possessing property obtained from trafficking in a dangerous drug 19/08/2010 6 years imprisonment

11 Possessing a thing used in connection with trafficking in a dangerous drug 19/08/2010 6 years imprisonment

12 Producing a dangerous drug (Methylamphetamine) Date or dates unknown between 04/08/0210 and 20/08/2010 6 years imprisonment

13 Possessing a dangerous drug in excess of 200 grams (Methylamphetamine) 19/08/2010 8 years imprisonment

14 Possessing a thing for use in connection with trafficking in a dangerous drug 19/08/2010 6 years imprisonment

General circumstances of the offences

In 2009 and early 2010 the (then) Crime and Misconduct Commission commenced a substantial investigation into drug misuse. The appellant was identified, in telephone intercepts conducted under the operation, as a participant in drug trafficking. Conversations on 7 January 2010 suggested that the appellant was involved in the sale of methylamphetamine. The calls also identified that the appellant was supplying methylamphetamine to a person called Carter.

On 3 March 2010 police conducted a search of a unit at Lambert Street, Kangaroo Point (“Unit 30”). The Crown case was that the appellant was the occupier of that unit. As a result of the search police found:

methylamphetamine – the subject of count 2;

3, 4 methlenedioxymethamphetamine (MDMA) – the subject of count 3;

$50,530 in cash – the subject of count 4;

clip seal bags, a quantity of capsules and a capsule filler – the subject of count 5; and

scales, mobile phones and SIM cards – the subject of count 6.

In addition the search revealed a piece of cardboard and a piece of paper which contained names and figures suggesting the sale of drugs to others on credit; and a number of text messages on phones, indicative of drug dealing. Scientific examination of the containers, found in the course of the search, showed the appellant’s fingerprints on plastic containers containing methylamphetamine.

Subsequently, on 19 August 2010, police conducted a search of a different apartment at Aurora Apartments in Queen Street (“Unit 87”). The Crown case was that the appellant was the occupier of that unit at that time. During that search police found the following:

methylamphetamine – the subject of count 7;

heroin – the subject of count 8;

MDMA – the subject of count 9;

$21,835 in cash – the subject of count 10; and

scales and mobile phones – the subject of count 11.

The search also revealed pseudoephedrine. Scientific examination found the appellant’s fingerprints on a plastic container containing pseudoephedrine and methylamphetamine.

During the search police also seized a handycam. On that was a recording, both video and audio, of the appellant. It was apparent that the handycam had been used to record some things, but then left to record after it was placed on the kitchen bench. Apparently the appellant was not aware that it was still recording. That recording revealed the appellant weighing powder in a container on electronic scales. It also showed him selling methylamphetamine to a person who came to the unit. It contained other conversations, which apparently related to the sale of drugs.

During the police search a receipt was located, relating to a storage facility. A search was then conducted of the storage facility, at which time police found the following:

items with substances indicating the extraction of pseudoephedrine, in preparation of the production of methylamphetamine – the subject of count 12;

methylamphetamine – the subject of count 13; and

pseudoephedrine, condensers and glassware, used or to be used in the production of methylamphetamine – count 14.

The appellant’s fingerprints were found on a juice bottle and a shoe box in the storage facility, and police obtained CCTV footage showing the appellant visiting that facility, or at least the shed in which that storage facility was located.

Insofar as count 1 (trafficking) was concerned, the Crown case relied upon the circumstantial evidence referred to above, but also the evidence of one Walker. He gave direct evidence of the involvement of the appellant in the sale of methylamphetamine. His evidence was that he had personally observed about 50 or 60 transactions at an apartment⁴ where the appellant lived prior to moving to Unit 87. Walker also gave evidence of travelling to Sydney on two occasions to obtain drugs or drug related goods on behalf of the appellant.

Evidence was also given by a night auditor (Mr Male), as to numerous people coming to the appellant’s complex, and specifically Unit 87, but only staying for short periods.

The appellant himself gave evidence at the trial. He admitted to drug use, but denied involvement in any business of selling drugs.

Grounds of appeal as to conviction and sentence

The appellant relied on eight grounds of appeal, which can be summarised as follows:

there was an error in permitting the prosecution to adduce evidence of two telephone intercepts on 7 January 2010;

there was error in permitting the prosecution to adduce evidence of the results of the search of Unit 30, on 3 March 2010;

there was error in permitting the prosecution to adduce evidence of text messages found on mobile phones discovered at Unit 30;

counts 3, 5 and 8 should have been severed from the indictment;

there was error in permitting the prosecution to lead evidence of the taped conversation between the appellant and police as the appellant arrived at Unit 30;

there was error in permitting the prosecution to adduce evidence that had been objected to, namely that contained on the handycam discovered at Unit 87 on 19 August 2010; and

there was an error in allowing the jury to have the list of evidence which was identified as being capable of corroborating Walker; and

there was a miscarriage of justice in that the verdicts of the jury were against the weight of the evidence and otherwise unsafe and unsatisfactory.

Finally, the appellant contended that the sentences imposed were manifestly excessive.

Mr Kimmins, appearing for the appellant, grouped the grounds for appeal, for the purposes of argument, in this way: first, ground 1; then grounds 3, 4 and 6 together; then grounds 2 and 5; then grounds 7 and 8. Then followed the submissions on sentence. It is convenient to deal with the grounds in that order. In doing so it is also convenient, where necessary, to summarise the competing contentions within that discussion.

Ground 1 – discussion

This ground concerned two telephone intercept calls between the appellant and Carter on 7 January 2010. They were not the subject of separate charges, but were put forward by the Crown as circumstantial evidence upon which the jury could rely, together with other evidence, in support of a conclusion that the appellant was guilty of count 1, the trafficking charge.

At a pre-trial hearing Boddice J held that evidence of the telephone intercepts was admissible. Having identified that whether those phone intercepts ought to be excluded was an exercise of the court’s discretion, requiring a consideration of not only the contents of the phone intercepts, but also a consideration of the case relied upon by the Crown, Boddice J had the following to say:⁵

“I am satisfied the intercepts are relevant to an allegation of trafficking in methylamphetamine. They constitute more than just propensity evidence arising out of uncharged acts. Depending upon the jury’s assessment of them, they are relevant to proving facts in dispute.

The telephone intercepts in question do not specifically identify that drug. Unsurprisingly, the intercepts used unrelated expressions. The Crown contends a jury, having regard to all of the circumstances of the case, could infer those conversations relate to the supply of the dangerous drug methylamphetamine. The defendant contends the jury could not draw such an inference.

Whilst at face value there seems to be merit in the defendant’s contention, the drawing of inferences is a matter for the jury, having regard to all of the evidence. A jury could, having regard to all of the circumstances of the case, draw the necessary inference.

I am satisfied the telephone intercepts in dispute are of probative value. I am also satisfied that that probative value far outweighs any prejudicial effect of the admission of the evidence.”

On appeal the appellant contended that the telephone intercepts were not probative of the trafficking charge and amounted to allegations of uncharged offences.⁶ It was contended that the prejudicial effect of the evidence outweighed its probative value and therefore warranted its exclusion pursuant to s 130 of the Evidence Act 1977 (Qld).

The respondent contended that the calls concerned the appellant’s selling methylamphetamine to Carter, and was therefore probative and admissible on the trafficking charge. It was said that the ultimate issue for the jury was whether the appellant was involved in trafficking of dangerous drugs, and that the telephone intercept evidence was circumstantial evidence that would support other evidence⁷ and permit the conclusion of guilt on the main charge. In that way the evidence was properly characterised as circumstantial, and not in relation to uncharged acts.

It should be noted that on the appeal it was accepted that the evidence was left to the jury as being circumstantial evidence. Further, it was accepted that the recordings of the telephone intercepts revealed dealing in drugs, but counsel for the appellant contended that there was an additional vice, namely that the conversations concerned drugs other than methylamphetamine, which was the drug the subject of count 1.

The telephone intercepts themselves relate to two telephone conversations between the appellant and Carter. The first telephone call lasted something over 12 and a half minutes.⁸ The second one was about one minute.⁹ In each case the call was made by the appellant to Carter. In each call various words are used as code for particular drugs or quantities of drugs: for instance “Arthur”, “walking sticks”, and “a daughter”.

There is no necessity to deal with the telephone intercepts in any detail. The first one includes exchanges on the following topics:

-the appellant offering to bring someone and to show someone how to “smash it if you want”, and Carter responding about the small amount he had and how he had gone around to various people, and thought he could “get something happen’ there regularly”;

-Carter talking about his “cash customers”; discussion about quantities or amounts that Carter would be “good for”;

-discussion about how much could be moved by Carter; the appellant telling Carter that all Carter had to do was to call him and “I’ll dash”, “I’m half an hour, an hour from anywhere”;

-discussion about quantities and timing, and offers from the appellant to provide “a walking stick every now and then”, and Carter responding in terms of “Arthur or a daughter”;

-Carter telling the appellant that if he had the “walking stick happening”, he could get back to the appellant within two days, and the appellant complaining that that was a long time;

-Carter explaining how he would not reinvest in some particular products until a more regular source came around; discussion about the profit that someone was making off a particular product, and how much profit “every time he sold one”;

-discussion about Carter controlling a person called West who was selling “the orange one”, and making a profit; and

-Carter explaining that in relation to “the orange thing”, he was only supplying small amounts, and he had to be careful how much he gave the recipient, because “it’s not moving fast enough”.

The second telephone intercept clearly contained a request by Carter that the appellant bring over an “Arthur … of the good one … the white one”. Carter identifies that as “two walking sticks” and asks how long the appellant would take to be there.

The telephone intercepts plainly involve discussion about the supply of drugs as between the appellant and Carter, and beyond.

In my view the appellant’s contentions on this ground cannot be accepted. The evidence was put forward as circumstantial evidence, and that was the way in which it was left to the jury.¹⁰ As is apparent from the reasons of Boddice J, that is the way it was treated at that time.

The telephone intercepts showed, as the appellant accepted, dealing in drugs between Carter and the appellant. As such it was circumstantial evidence going to the issue of whether the appellant was trafficking in methylamphetamine. That evidence could be put with other evidence, particularly that of Walker who provided direct evidence of trafficking, to be weighed as to whether it assisted in drawing the relevant conclusion on the main count. It was a matter for the jury to look at the evidence and the accumulation of circumstances, and decide whether guilt was the only rational inference that could be drawn. This was evidence of the appellant’s involvement in trafficking of a dangerous drug. It was therefore admissible and relevant.¹¹

The evidence of the telephone intercepts, being circumstantial evidence, fell to be assessed not in a piecemeal fashion, but in the context of the whole case. As was said by the High Court in R v Hillier:¹²

“Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield and inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.”

In my view Boddice J was correct in not excluding the evidence, but leaving it to the jury on the basis that the jury “having regard to all of the circumstances of the case, could infer those conversations relate to the supply of the dangerous drug methylamphetamine.”¹³

This ground fails.

Ground 3

Ground 3 relates to Boddice J’s refusal to exclude the evidence of certain text messages on mobile phones and a laptop computer discovered at Unit 30. The text messages were described in the following way:

“As to the remaining text messages still in dispute, like the telephone intercepts, their contents are cryptic. They do not specifically involve the discussion of drugs. It is the Crown case that that fact can be properly inferred by a jury having regard to the whole of the evidence.”¹⁴

The text messages were evidently put forward as all involving the appellant, as they were found on mobile phones and a laptop computer at Unit 30, which was occupied by the appellant. There were several objections taken to their admission, including that they did not identify trafficking in methylamphetamine, that on one phone the dates are all in January 2008 and therefore two years before the alleged trafficking period, and they evidence uncharged acts rather than constitute circumstantial evidence. The appellant contended that the evidence was of low probative value and highly prejudicial, and should have been excluded. For the respondent it was contended that it was circumstantial evidence, and therefore to be weighed by the jury along with all of the other evidence in the case, and not to be viewed on a piecemeal basis.

Boddice J dealt with the issue in these terms:¹⁵

“Whilst the messages may arguably have an unrelated explanation, they are being led in the context of a trial alleging trafficking in a dangerous drug over an extended period. A jury may properly have regard to all of those circumstances when assessing those text messages. Those messages and the details of the telephones are probative in the sense identified in Festa. Their probative value outweighs any prejudicial effect of their admission into evidence.”

The text messages reveal considerable traffic coming into phones found in the appellant’s unit. Even though they are coded in many cases, the topic could easily be inferred by the jury to be dealing in drugs. Thus, texts refer to:

the standard prices being charges for some product, the demand for it and what the appellant might charge for that product;¹⁶

enquiries as to whether it is a good time to come and see the appellant, and what time might be appropriate;¹⁷

requests to the appellant to permit someone to have “100” and arranging to give a call when that person was at the front of the unit;¹⁸

arrangements to meet at Stones Corner or the Greenslopes Shopping Centre on the rooftop car park;¹⁹

purchases of items in varying amounts such as “200,”²⁰ and “500”;²¹

requests as to whether the appellant needed any “hats”, and an explanation that the person was “finishing up doin sum up”, and offering to come over and see the appellant after “a drop or two”;²²

requests to see the appellant for “some blue ones”, and the apparent price of that “going a piano and a half for you”;²³ and

arrangements in relation to new phone numbers, whether certain phones could be used, and whether premises were under surveillance or bugged.²⁴

The texts which were dated in 2008 contained similar content. That content includes what appears to be transactions for an amount of items, and negotiation over the price, and items described as “honey snaps”, “snort”, and “hats”.²⁵

In respect of the 2008 text messages, there was evidence from a forensic computer analyst, Mr De Waard, that those dates were probably listed as 2008 simply because the date in the operating system of the relevant phone was set as 2008. In other words, the messages were probably sent in 2010 and not 2008, with the latter date simply being an error caused by the settings on the telephone.²⁶

The evidence of Mr De Waard was that all of the dates and times set on the mobile phones reflected in the text messages were set incorrectly.²⁷ That meant that text messages sent from those mobile phones recorded an incorrect date and time, because the “sent” times of a text are normally based on the mobile phone’s date and time.²⁸ The same applied to the handset which is the telephone the subject of the list of text messages which include those dated 2008.²⁹ As to that Mr De Waard said that the date and time on the handset was not correct when he examined it.³⁰ That meant that “sent to” messages would have recorded a wrong date. However, the “received from” messages would have left a date and time imprint from the mobile phone or other phone from which they were sent. Therefore, they were likely to be accurate, or at least did not contain the error as to the year.

Notwithstanding the recording of “sent to” messages as being in 2008, there are compelling reasons to conclude that they were in fact sent in 2010, and in the period that is relevant to the trafficking offence. An analysis of the messages sent to and from “Matt Aaron” (recorded as being 2008) reveals that they are part of a conversation between the appellant and Aaron in relation to the price of some particular product. In particular they include a sequence of messages which in fact occurred on 29 January 2010, going by the “received from” date and time imprints. They concerned the appellant seeking Aaron’s quote in relation to a particular product and Aaron responding that “I got charged 4 last time”, but Aaron had “a quote for 3”, to which the appellant responds “That’s the standard price we charge each other these days …”. Shortly thereafter the appellant reveals to Aaron that “my first quote was 2”, to which Aaron responds, “2 i haven’t heard of it being that cheap for some time”.³¹

In my view the answer to this ground is the same as that in respect of ground 1. The evidence was not put forward on the basis that it was uncharged acts, but rather circumstantial evidence which the jury might put together with other evidence, and from that infer guilt on the relevant charges. The evidence was relevant and probative as it revealed that in the particular period which is the subject of the trafficking count there was a considerable exchange of information on phones in the appellant’s possession, consistent with, and referring to, the supply of drugs. As Boddice J said, the jury may properly have regard to all of the circumstances when assessing the text messages, and that the evidence from the text messages was probative in the sense referred to in Festa v The Queen:³²

“If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration. It is not enough to say that it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. … That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence.”

I do not consider that it can be demonstrated that Boddice J erred in leaving the evidence of the text messages to the jury, to be considered as circumstantial evidence in the light of all the other evidence. Ground 3 fails.

Ground 4 – separate trials

This ground concerned the contention that counts 3, 5 and 8 should have been severed from the indictment. A pre-trial ruling was given in that respect with Boddice J refusing to sever those counts.³³

Counts 3, 5 and 8 were as follows:

count 3 – possession of MDMA in excess of two grams on 3 March 2010;

count 5 – possession of clip seal bags, a quantity of capsules and a utensil used in connection with the commission of a crime, on 3 March 2010; and

count 8 – possession of heroin on 19 August 2010.

The appellant’s contention was that counts 3 and 8 related to the possession of different drugs, and count 5 was concerned with possession of capsules and a capsule filler. Thus, it was said, the substantive nature of those counts differed from the other charges on the indictment. The contention was that evidence adduced in respect of those three counts was not relevant for other counts on the indictment, and thereby caused impermissible embarrassment and prejudice to the appellant. Boddice J referred to the fact that the drugs the subject of counts 3, 5 and 8 were found as part of a search of the various premises which formed the basis for other counts properly joined on the indictment. Thus, counts 3, 5 and 8 arose out of circumstances related to the other counts on the indictment. On that basis his Honour was satisfied that the counts were properly joined.

In terms of the exercise of the discretion to order a separate trial on counts 3, 5 and 8, Boddice J referred to the relevant consideration, namely that a separate trial would result in the same witnesses being required to give evidence in each trial. His Honour referred to the decision of this Court in R v Collins, ex parte Attorney-General:³⁴

“It is obviously desirable both in the interests of the due and expedient administration of criminal justice and in the interests of finality of litigation in relation to the particular accused, that there be a single and final inquiry into matters which arise out of or which essentially involve common issues of fact or law. Any injustice which such a course has the potential to produce is adequately catered for by the discretion to sever provided for in s. 597A. If nothing else, consistency in decision making would dictate that the one tribunal resolve such questions, little being gained from a fragmented approach. The simple means which the legislature has provided for giving effect to this policy is to allow the joinder of multiple counts in the one indictment in an appropriate case ‘so that the whole of the facts can be adjudicated upon by one jury’.”

His Honour expressed his conclusion on this question in these terms:³⁵

“The circumstances of the present case strongly favour counts relating to drugs found in the course of searches undertaken as part of the investigation of the count of trafficking in a dangerous drug being considered and determined by one jury. It is not in the interests of justice to sever those counts. This would result in multiple trials involving evidence being given by the same witnesses on multiple occasions.

Whilst the defendant contends that some prejudice may flow from a jury being informed that other drugs were located in the course of that search, any such prejudice is adequately met by appropriate directions by the trial Judge.”

In the course of argument the appellant sought to amend this ground so that count 5 was deleted, and instead count 9 was added. Thus the argument became that counts 3, 8 and 9 should have been severed. Count 9 was for possession of 1.091 grams (pure) of MDMA, discovered during a search of Unit 87.

The appellant’s contentions included that the prejudice that would be sustained from permitting counts 3, 8 and 9 to be tried at the same time as the others would flow from the attack on the evil of drugs in the community and drugs being a scourge of society, particularly due to the attack made on those topics in the media. It was said that counts 3 and 9 were possession counts, concerning MDMA in each case around the two gram limit. Count 8 concerned the possession of heroin, but there was no circumstance of aggravation. The contention was that if the trial proceeded on all counts leaving aside counts 3, 8 and 9, those counts would fall at the bottom end of the range of seriousness when compared to the others, and therefore there was a real prospect that those charges would not be proceeded with. The prejudice was also identified as being derived from the fact that the jury would be confronted with the prospect that the appellant, an alleged methylamphetamine trafficker, had access to ecstasy, heroin, cannabis and others, “almost like a smorgasbord of drugs”.

In my view the appellant’s contentions cannot be sustained. The three counts in question concerned possession of drugs which came to light as a consequence of the same searches involved in sustaining the other counts. Those searches also resulted in counts 2, 7 and 13, all of which were possession of methylamphetamine. The issues in respect of counts 2, 7 and 13 would be essentially the same as those in respect of counts 3, 8 and 9, namely whether the appellant had possession of the drugs, with the requisite knowledge of the drugs. In that respect the appellant confronted the same evidence (as to the searches and what was revealed), for counts 3, 8 and 9, as he would for counts 2, 7 and 13. As well the appellant confronted the presumption under s 129(1)(c) of the Drugs Misuse Act 1986 which provides:

“(1)In respect of a charge against the person of having committed an offence defined in part 2 –

(c)proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person’s possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place …”

Further, the appellant would have been confronted with his connection with drugs other than methylamphetamine in any event, by virtue of the text messages, telephone intercepts and handycam footage. In my view there is no discernable prejudice to the appellant by permitting the jury to hear that there was evidence that MDMA and heroin were found on his premises, when regard is had to the whole of the evidence.

Further, the contention that counts 3, 8 and 9 were essentially so small an offence in comparison to the others that there was a prospect that the Crown might not proceed with them after the trial when the other counts were concluded, must be rejected. Assuming counts 3, 8 and 9 were severed, one could understand the contention that if verdicts of guilty were obtained on the other charges, there may be a pragmatic view that counts 3, 8 and 9 added very little. However, that could not be the case if the appellant was acquitted on those other counts. What is more, counsel for the appellant accepted that the primary judge hearing the severance application could not be expected to speculate as to whether the Crown would or would not prosecute the offences. That concession makes it very difficult to criticise the primary judge for not taking that aspect into account.

Finally, the factors highlighted by this Court in Collins are apt. The desirability of having a single and final enquiry into matters which arise out of, or which essentially involve, common issues of fact or law, is, in my view the predominant consideration. There was no utility in having a separate trial of counts 3, 8 and 9 when the very factual foundation for them was the same as for the other counts, and in particular counts 2, 7 and 13.

In my view this ground fails.

Ground 6 – the handycam evidence

When the search was conducted at Unit 87 police seized a handycam recorder. On that device they found recorded audio and visual images, apparently accidentally recorded by the appellant, but unknown to him. That included visual and audio recording of the appellant selling methylamphetamine to a person on 28 July 2010. In the course of the conversation the appellant and the other person discussed drugs other than methylamphetamine, namely cannabis and MDMA. There is also a conversation about “weed”³⁶ and “eccies”.³⁷

An application was made during the trial to have part of that evidence excluded. The relevant part of the transcript of the recorded conversations includes these components:

at one point the appellant asks the other person what they need, and the other person responds “a game of … whichever one grabs your fancy”, and “can you grab a gram of the ice?”; the other person then says “not a gram”, but rather “a game” which is then identified;³⁸

a discussion takes place between the appellant and the other person about a particular product, with the appellant describing it as “nice and clear”, and asking how did it get so clear, to which the other person responds that “it’s a combined … MSN with a thing called … isanatol”; the other person then explains that it produces “no problem, doesn’t blacken the flame, nothing”; the appellant is then asked whether he wants some and when he agrees, the other person says “I can do that”; the other person then says he’ll “go get some MSN for ya”, and in that respect the appellant says “I can sell it to this, this fuckin’ panhead”;³⁹

there is a discussion between the appellant and the other person about paraffin oil and the use of that oil in relation to some particular form of drugs; the conversation continues with the other person referring to the use of glycerol and how much should be used; the appellant declines an offer to get some of it because “I don’t want it. I want it pure”; there is then a discussion about the drugs being examined and the fact that some long or thick bits had not been scrubbed out, and the impact of that on saleability;⁴⁰

the appellant asks whether the other person “can … get weed”, and the response is to ask how much the appellant wants;⁴¹

the other person observes that “there is money … in weed”, as well as in “pills at the moment, eccies”;⁴²

the other person then mentions that he got a sample of “a green shamrock” which he gave to a girl who said it was quite good; the appellant then mentions “blue triangles” and the fact that they are “around at the moment”;⁴³

the appellant and the other person then discuss “big eccies” which were white, as well as “the red ones” called “red devils” which “weren’t eccy”; the appellant then asks the other person to “Go and get me some of these red devils”;⁴⁴

the conversation turns to the “green shamrock”, and their price;⁴⁵

the appellant then refers to a particular person who he refers to as “a dog”, saying that people still deal with that person but “I’ve cut a whole, whole lot of them off … like it’s cost me money …”;⁴⁶ and

then in a subsequent conversation with unidentified female, the appellant explains that he had woken her up because he wanted to go and “if somethin’ strange happens and I don’t come back … At least you’ll fuckin’ know what’s going on”; the appellant then refers to having “Got some drugs”.⁴⁷

The contention was that those parts of the conversation should be excluded because they related to drugs that were not the subject matter of the trafficking charge. In that sense, as counsel for the appellant accepted, the contentions were the same as those which applied to ground 4 (the severance argument). It was said that the jury had to consider the evidence, which was not relevant for the purpose of the drug trafficking charge, as that charge was concerned with a specific drug, namely methylamphetamine. From that it was said that impermissible prejudice would flow.

The primary judge dealt with the application to exclude in this way:

“The passages criticised can be seen as discussions between [the appellant] and an unidentified male speaker about the availability of ecstasy tablets and include, for example, a passage by [the appellant] saying, ‘Usually I make cash, you know what I mean’, which may well be relevant to the production charges he faces as well – to the production charge and the associated charges he faces as well.

The references to weed which I take to be references to cannabis may be prejudicial in a minor way, but I think can also be dealt with by giving a direction that that should not be used as propensity evidence.

Overall, it seems to me that the conversation is one between two people about the availability of particular drugs, one of which, in particular, is the subject of a charge and where the passage contains a statement by the defendant that, usually, he, as I said, would make caps. It seems to me to be relevant in that context both to the possession of ecstasy charges and the production charges as it shows a familiarity by the defendant with the availability of ecstasy and the techniques and production of, at least, some drug.”⁴⁸

On the appeal counsel for the appellant accepted that the passages at AB 1997, referring (amongst other things) to isanatol, arguably referred to methylamphetamine. However, that concession was made in the course of maintaining the contention that unless there was scientific evidence to show that the things being discussed were methylamphetamine, or the ways in which to make methylamphetamine, there was still prejudice because the major charges concerned methylamphetamine and not all the other drugs referred to. It was put that it would be sheer speculation for the jury to come to a conclusion about whether what was being referred to was part of production of methylamphetamine, or something else.

In my view the appellant’s contentions for ground 6 cannot be sustained, just as they could not be sustained in relation to ground 4. The charges against the appellant included trafficking in methylamphetamine, possession of methylamphetamine, possession of MDMA and heroin, and possession of things used in connection with trafficking in a dangerous drug. The conversations that were recorded on the handycam clearly show the appellant being vitally interested in the purchase of drugs for sale, improving the purity of the drugs being discussed because of its impact on price, and the variable quality and prices of drugs including ecstasy (MDMA). In a circumstantial case, as this was, that evidence could be weighed by the jury and found to be of assistance in determining whether the appellant’s involvement was as a trafficker, and whether he should be found guilty of being in possession of the drugs other than methylamphetamine. The risk of prejudice flowing from this evidence was fairly small and was recognised by the primary judge. However, the primary judge correctly took the view that any prejudice could be overcome by appropriate directions being given to the jury as to the way in which the evidence could be used. Finally, the evidence from the handycam clearly pointed to the appellant’s involvement being as a trafficker in drugs, and not just a user. Appropriate directions could have been (and were) given to ensure that the jury did not use it as propensity evidence, but as circumstantial evidence to be weighed with the other evidence in the case.

I do not consider that it has been demonstrated that the primary judge’s discretion miscarried. Ground 6 fails.

Ground 2 – the search of Unit 30

This ground relates to the evidence obtained on 3 March 2010 when Unit 30 was searched. A pre-trial application was made to exclude evidence gathered during that search on the basis that the search was unlawful. The essence of the contention is that the police had a search warrant in respect of Unit 18 in the same block of units, which was, according to their information, where the appellant was residing. However, when they arrived they were informed that the appellant had moved to Unit 30, and so they proceeded to search Unit 30 without obtaining a new search warrant. The appellant contended there was no emergent search condition because the appellant was not present at Unit 30 when they arrived, and therefore there was no risk that evidence would be concealed or destroyed. Further, there were sufficient numbers of police officers in attendance to permit ample time and opportunity to obtain a search warrant in respect of Unit 30, and to secure the scene. No new search warrant was obtained and therefore the evidence was obtained unlawfully.

The details of what occurred during the search need to be referred to in some greater detail.

A search warrant was obtained under the Police Powers and Responsibilities Act 2000 (Qld) (PPRA). No issue was taken that the warrant was regularly issued. It specified the place to be searched as “Unit 18, 89 Lambert Street, Kangaroo Point 4169”. The offence specified was possession of methylamphetamine. That warrant was obtained at 1.43 pm on 3 March 2010, after earlier raids had been conducted in respect of other premises,⁴⁹ triggered by what had been discovered in the Crime and Misconduct Commission’s drug investigation.

Evidence in respect of what occurred at the premises themselves came principally from Detective Sergeant Turnbull (“Turnbull”). His evidence was that six officers attended to conduct the search, arriving in more than one vehicle. Upon arrival the police officers spoke to the on-site manager, who advised them that the person who had resided in Unit 18 had moved to another unit within the same block, namely Unit 30. The on-site manager had possession of the key to Unit 30 and volunteered it to the police.⁵⁰ There was a brief conference between the police officers and Turnbull and the others formed the view that there was a need for an emergent search to be conducted to prevent the loss of evidence.⁵¹

Turnbull explained that the basis for forming the view that an emergent search was needed included these factors:

information had been received that the appellant was a methylamphetamine dealer, and in possession of methylamphetamine at a unit at Kangaroo Point;

the appellant had an adverse history in relation to drug offences, namely trafficking in heroin;

the appellant had been stopped in Fortitude Valley in January, at which time he was in possession of a syringe, clip seal plastic bags and currency in the vicinity of $1,000;

as a consequence it was reasonably suspected that there would be methylamphetamine inside the appellant’s unit;

upon being informed that the appellant had moved to Unit 30, it was apparent that there was an unacceptable risk that a third party, namely the on-site manager, was now aware of the police presence, and why they were there;

further, the police were visible from the road and from the unit block, and did not know if they were being watched by other people;

methylamphetamine is a perishable item;

putting all those factors together there was an unacceptable risk that if Unit 30 was not searched immediately then evidence would be lost.

Police then went to Unit 30 and opened the door, using the key supplied by the on‑site manager. It was apparent when they entered the unit that no one was present and it was decided to call a Justice of the Peace to be present, so that the search could continue in the absence of the occupier.

At about that point three persons, the appellant being one of them, arrived at the unit. They were detained and searched, and the police proceeded with the search.

Turnbull’s evidence was that the police officers explained who they were, why they were there, and the appellant was provided with a copy of the original warrant, as well as a statement outlining his rights, responsibilities and obligations. The following day an application was made for a post-search approval order, which was granted.⁵²

Turnbull explained that he did not give consideration to phoning a Justice of the Peace to apply for an additional search warrant because of the risk factors to do with potential loss of evidence.⁵³ At no stage was permission asked of any of the three persons, to continue the search. The appellant was not told that the warrant that he was being shown related to a different unit.

On 4 March 2010 an application was made for a post-search approval order under s 161 of the PPRA. The application recited the essential facts concerning the discovery that Unit 30 was, in fact, where the appellant was residing, and the formation of the view that unless an emergent search was carried out evidence would be lost. The order was made by the magistrate that afternoon.⁵⁴ The order expresses the magistrate’s satisfaction that:

“in the circumstances that existed before the search the police officer, before exercising the powers under the Act, had a reasonable suspicion for exercising those powers; and there was a reasonable likelihood that the evidence would be concealed or destroyed.”

Under that the form of order contained three possible orders to make: first an order approving the search; the second, a refusal to make that order; and third, an order that the police retain the things seized. The notes on the form of order require the deletion of whichever of those is inapplicable. The magistrate circled the word “retain” in the third order, but did not delete either of the other alternatives. The consequence was that on the face of it the order both approved the search and refused to make an order approving the search.

Turnbull’s evidence was that an application was made for a post-search approval order, “where it was successfully granted”.⁵⁵ That order was admitted into evidence as exhibit 5. In neither the cross-examination of Turnbull, nor in submissions to the primary judge, did the appellant take the point that the post-search approval order was other than efficacious. That is reflected in the reasons of the primary judge where, in the context of referring to the failure to obtain a search warrant, his Honour said that “The obtaining of post-search approval did not overcome that breach”.⁵⁶ Similarly, in the course of discussing whether the conduct by the police constituted a deliberate, calculated breach, his Honour said:

“Their actions in seeking post-search approval for their conduct were consistent with the legislative intention when a search has been undertaken in an emergent situation.”⁵⁷

In my view, not much turns upon the fact that the magistrate did not delete one of the alternative orders in the post-search approval order.⁵⁸ Read as a whole, it is evident that the magistrate approved the search. That follows because the order expresses satisfaction that accords with s 162(1) (a) of the Act. Further, even though the magistrate did not delete that alternative order which would refuse an order, nonetheless the order permitting the police officer to retain the thing seized was left in the order, and the word “retain” was circled. In my view it is clear that the magistrate intended to approve the search, and the failure to strike out the refusal option was a slip.

The primary judge reviewed the circumstances surrounding the search, including that at the time the police ascertained that the appellant had moved to Unit 30, they were unaware as to whether he was present in his unit, and also unaware if others had observed their arrival. His Honour was satisfied that it was reasonable for police to be concerned that their presence at the unit block may have been observed by others, including the appellant.⁵⁹ His Honour also concluded that the circumstances were sufficient to have reasonable grounds to suspect that evidence may be concealed or destroyed unless Unit 30 was immediately entered and searched. Thus, the decision to conduct an emergent search of Unit 30 was reasonable in the circumstances.⁶⁰

His Honour held that the police acted reasonably in conducting the search, ascertaining that the appellant was not present, waiting to obtain a Justice of the Peace, and detaining the appellant. However, his Honour held that the search of Unit 30 was unlawful for these reasons:

“At that point, police had not searched the unit. They were, however, in control of the unit. They had secured its contents. They had detained the defendant. They knew there was no-one else in the unit. There was no reason, in those circumstances, why police could not then take steps to obtain a search warrant urgently by telephone or other electronic means. They no longer had reasonable grounds to suspect evidence could be destroyed if an immediate search was not undertaken. There was no need for that emergent search to proceed.

The failure of police to take steps to obtain the necessary search warrant was a breach of the PPRA requirements for the search of premises. The obtaining of post-search approval did not overcome that breach. The search of Unit 30 therefore was unlawful.”⁶¹

His Honour went on to consider whether he should exercise the discretion to permit the evidence to be adduced at the trial, notwithstanding the unlawful search. Relevant factors were identified as including: whether the police conduct was deliberate; whether the nature of that conduct affected the cogency of the evidence; the ease with which police might have complied with the law; the legislative intention of the Act; whether the conduct was encouraged or tolerated by those in higher authority; whether the conduct, if proved, would involve the Court itself giving effect to illegality or impropriety in a way that would be incompatible with the functions of the Court, or damage the repute or integrity of the judicial process; and whether the conduct would be contrary to, or inconsistent with, a right of the individual which should be regarded as fundamental.⁶²

His Honour concluded that the actions of the police, including the steps taken “in accordance with the PPRA to obtain a post-search approval”, indicated an intention on the part of the police to comply with the Act. His Honour’s conclusion was expressed in these terms:

“Those actions indicate an intention on the part of the police to comply with the PPRA. I am satisfied the conduct of the police in failing to obtain the search warrant was not deliberate. It was an oversight. It arose as a consequence of the circumstances which unfolded when they attempted to execute the search warrant previously obtained by them.

Whilst police ought to have secured the unit and obtained a search warrant for Unit 30, their conduct did not involve a deliberate, calculated breach of the PPRA. Further, their conduct did not in any way affect the cogency of the evidence obtained in the search. Their actions in seeking post-search approval for their conduct were consistent with the legislative intention when a search has been undertaken in an emergent situation.

In those circumstances, I am satisfied that to allow the results of the search to be admitted into evidence would not amount to the court condoning improper conduct on the part of police or be otherwise contrary to the public interest.

To the contrary, it is in the public interest for the evidence obtained in the present case to be led, and for a jury to determine the guilt or innocence of the defendant, having regard to all of the available admissible evidence.”⁶³

In the appellant’s outline two points were developed in relation to this ground. First, when the police arrived at Unit 30 there was then no risk that evidence would be concealed or destroyed, because no one was there. Secondly, there were sufficient police officers in attendance at Unit 30, that they had ample time to secure the scene, and then obtain a second search warrant, either by facsimile, email or telephone.

Both of those points were really advanced to support the contention that the search was unlawful. However, that is what the primary judge found, though for slightly different reasons. In that sense those points did not carry the appellant’s contentions very far. In any event, I do not consider them to be sustainable. Plainly when the police officers arrived at the unit block the only search warrant in their possession was one to search Unit 18, and not Unit 30. It was only upon their arrival that they ascertained that the appellant had moved to Unit 30, evidently so recently that public records of his residence had not been updated. The reasons given in evidence for apprehending that there was a danger that evidence might be destroyed or concealed were compelling. Enough police had arrived that their presence could well have been obvious to the appellant or to others who might notify the appellant. The police were not to know that he was not in his unit. Further, given that the search warrant in respect of the appellant’s premises had only been obtained because of the result of other searches earlier in the day, there was an added risk that warning might be given by one of the subjects of those searches. Furthermore, even if the appellant was not in his unit, other persons may have been, and they could have taken steps to conceal or destroy evidence.

Further, in my view it is not to the point to say that there were enough police there that they could have stopped and then obtained another search warrant. The search had commenced at the moment that police opened the front door of the unit and entered it in order to ascertain, at the least, whether the appellant or others were present. The emergent search began at the point where the front door was opened and the police entered. There was little point in stopping when the process had already commenced.

As developed in oral argument the appellant’s point was somewhat different. Although challenge was made to the basis for the police officers’ conclusion that an emergent search was necessary, the real point advanced concerned evidence which was not available before the primary judge on the pre-trial ruling, but only came later when a transcript of the events during the search was made available. That transcript⁶⁴ deals with the period of time commencing at about five minutes into the recording of the police officers’ activities. More specifically, it commences with the arrival at the unit of the appellant and two other persons, and police interaction with them.

The appellant’s contention was that the transcript revealed that the police officers, and more specifically Turnbull, were still acting under the invalid search warrant when they detained the appellant, and later conducted a search of Unit 30.

The transcript reveals the following:

at the point where the appellant was handcuffed and detained, the appellant was told:

“We’re conducting a search of your unit. I’ve received some information in relation to drugs ok? So we’re just waiting for a J-P to come and assist us with our search …”;⁶⁵

the police were concerned to keep the three individuals separate, and considered using one or more of the bedrooms for that purpose;⁶⁶

Turnbull looked for the original warrant and Sergeant Doran (“Doran”) asked “But you gonna – you just wanna execute it first?”, to which Turnbull answered, “Yeah I’m gonna do it on him in a sec”’⁶⁷

having seated the appellant on a bed, Turnbull identified himself, showed the appellant his identification, and then said:

“… what we have here is a search warrant to search these premises for methylamphetamine … you’re detained under the search warrant. That means you’re not free to get up and move around, ah unless you need to go to the toilet or anything like that just ask myself or one of the officers and we can accommodate you in that way. But mate you’re not under arrest at this stage but what you are is detained by virtue of a search warrant, do you understand that? …”⁶⁸

Doran identified himself saying, amongst other things: “… do you understand why we’re here, we’re executing … a search warrant? You understand that”;⁶⁹ and

the conversation with Doran continued, concerning who lived at the unit and whether the appellant had to answer questions, and concluded with Doran referring to a “Statement to Occupier”, saying: “… it’s your rights and obligations under the search warrant. … the search warrants fro [sic] methylamphetamine …”⁷⁰

Based on the transcript it seems plain that at least Turnbull and Doran said at the time that the search was being conducted under the search warrant issued for Unit 18. That was not the basis upon which application was made to a magistrate for a post-search approval order under s 161 of the PPRA. It is also not the basis upon which the evidence proceeded before the primary judge on the question of whether the items obtained during the search should be admitted into evidence or excluded. At that time the evidence before the primary judge was that the search was conducted as an emergent search, for the reasons detailed above, and that a post-search approval order had been obtained.

The appellant’s contentions in oral argument confront several difficulties. First, the information revealed in the police transcript might have given grounds to apply to have the interlocutory ruling set aside. However, no such application was made, even though the police transcript was available, at the latest, by the first day of trial. As a consequence the application to exclude evidence was litigated, on both sides, on the basis of the evidence which Turnbull had given before the primary judge. No application having been made to overturn that interlocutory ruling, it is in my view now too late to raise it in this Court.

Secondly, even if the police officers had believed that they were acting under the search warrant in their possession that was obviously a mistake. That search warrant was issued in respect of Unit 18, and not Unit 30. That would simply lead back to the point that the search was unlawful. The appellant’s contentions did not challenge the primary judge’s conclusion that the search was unlawful.

The real difficulty confronting the appellant was that the decision not to exclude the evidence, but to permit it to be admitted at the trial, was a discretionary one, made after the primary judge apparently took into account the relevant considerations applicable on that issue.

In Bunning v Cross⁷¹ the High Court considered the question of evidence that was obtained unlawfully, and whether it should be received at trial notwithstanding the contravention. Stephen and Aickin JJ⁷² referred to the differing statements of principle between Australia and England⁷³ and repeated the statement from Ireland which reflected the law in Australia at that time:

“Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.”⁷⁴

Having referred to the differing way in which the statements of principle were enunciated in England and Australia*,* the objects sought to be attained by the exercise of the discretion referred to were then the subject of this passage:

“What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with the broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.”⁷⁵

Stephen and Aickin JJ went on to identify the criteria upon which the discretion was to be exercised, noting that it could not be done in the abstract but only by reference to the case in hand.⁷⁶ In that regard the following criteria were identified:

unfairness to the accused does not enter into the equation; evidence obtained by means of an unlawful search can be used as long as the search is conducted in a way that provides all proper safeguards against the evidence being improperly placed in the accused’s possession;

whether the safeguards in place to protect the individual have been deliberately disregarded, or disregarded in a wholesale fashion;

whether the non-compliance with the statutory safeguards was isolated or merely accidental, involving no overt defiance of the will of the legislature, or calculated disregard of the common law;

whether the unlawfulness was other than the result of a mistaken belief on the part of the police officers, and not a question of deliberate disregard of the law. The real evil to be guarded against is a deliberate or reckless disregard of the law by those whose duty is to enforce it;

whether the unlawfulness of the conduct affects the cogency of the evidence so obtained; where the unlawfulness arises from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had; if other equally cogent evidence, untainted by any lawfulness, is available at the trial, the case for admission of evidence unlawfully obtained will be weaker;

the ease with which the law might have been complied with in procuring the evidence in question; in this respect a deliberate cutting of corners would tend against the admissibility of the evidence;

the nature of the offence charged; and

the legislative intent in relation to the safeguards in place.⁷⁷

Other factors were identified by the High Court in Ridgeway v The Queen:⁷⁸

“The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence – the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement – will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected it or accused persons generally will likewise depend upon the particular circumstances. Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.”⁷⁹

Other factors have been suggested from time to time, including:

whether evidence might be removed or destroyed if its seizure is seriously delayed;⁸⁰

a circumstance favouring admission of such evidence is where there is no unfairness to the accused;⁸¹ and

whether important common law rights have been interfered with.⁸²

In my view no error has been demonstrated in the primary judge’s exercise of the discretion. It is plain on the evidence adduced before the primary judge that the police officers were acting in good faith when they sought the search warrant relating to Unit 18. The only information they had at that time as to the appellant’s address was that relating to Unit 18. It was only when they arrived at the unit block that they were informed, for the first time, that the appellant had moved to Unit 30. Thereafter things moved at a fast pace, precluding any practical attempt to obtain an alternative search warrant.

Further, the evidence obtained in the course of the search was cogent in respect of the offences charged. In terms of the competing issues of policy, the public interest and safety would demand that action be taken to secure the drugs which were seized, to ensure they were not disseminated into the community, and retained in a way to ensure that evidence was not lost. In that sense the urgent steps taken by the police officers were justified by policy considerations.

When one considers the offences with which the appellant was charged, specifically trafficking and possession of methylamphetamine, the seriousness of the charges has to be weighed in the balance with the issue that the items seized under the search were unlawfully seized. The nature of those charges, and the repeated statements in various courts to the effect that drug trafficking is a scourge on society, suggests that if the balance of competing considerations is to tip any way, it should tip in favour of admission of that evidence.

Finally, on the day following the search the police approached a magistrate on an application to obtain a post-search approval order. That order was granted. They are factors which also tell against any conclusion that the conduct of the police officers in pursuing the search of Unit 30 was deliberate or defiant in the face of the legislation.

Put shortly, the police went to the premises where they thought the appellant was residing, only to find he had moved. Faced with the possibility that their presence had been detected, and that evidence would be removed or destroyed, they were justified in making an immediate search of the appellant’s real premises, including detaining him. The items seized in that search constitute cogent evidence of serious criminal offences. The police acted reasonably and responsibly in seeking a post-search approval order. Permitting the evidence to be adduced at the trial would not involve any incompatibility with the functions of the court, or damage the repute and integrity of the judicial process.

The importance to society of securing a conviction in a case of serious crime is exemplified in Williamson. There Byrne SJA concluded that a search was the product of a calculated disregard of the law.⁸³ Notwithstanding that the evidence was permitted to be adduced because it was vital to the prosecution case; so much so that the exclusion of the evidence “could well let a man guilty of serious crimes go free”, and that would “impose substantial social costs.”⁸⁴

Applying the above principles this ground fails.

Ground 5 – evidence from the taped conversation at the time of the search of Unit 30

This ground turns upon a conversation that was had with the appellant at the time that he was detained in Unit 30. The conversation commences at the point where the appellant had been detained and handcuffed, and then told by Turnbull that they had a search warrant to search the premises for methylamphetamine, and that the appellant had been detained under the search warrant.⁸⁵ Then the transcript records this being said:

“SCON TURNBULL: Ok, Allen um we’re gonna s– commence a search here, if we find some items of relevance you may be questioned in relation to those. If we do start asking you questions you have the right to remain silent. That means anything you do say is gonna be recorded and can be used as evidence, do you understand that? Furthermore if we do question you a reasonable time would be set aside for you to have a friend, a lawyer or a relative present once we conduct that questioning, do you understand that?

…

[Turnbull then says that Sergeant Doran will be introduced]

SGT DORAN: What’s your name, Allen is it? Allen my name’s Craig [INDISTINCT]. I’m a Detective Sergeant, I’m the senior officer here durin’ the search. Now you’ve probably had your, the search warrant explained to you, the copy of the Notice to Occupier, if you got any questions you need to ask during the search can you direct them at me? And I’ll answer ‘em as best as I can. So d– do you un– do you understand why we’re here, we’re executing - -

MILOS: Yeah.

SGT DORAN: A search warrant? You understand that? This is your unit? Oh you live here more or less? You’re the only occupier of this unit? Do you understand the question?

MILOS: Yeah I do.

SGT DORAN: Yeah so you’re the only occupier of this unit?

MILOS: Do I have to answer anything?

SGT DORAN: Well it’s it’s impor– do you live here by yourself, you don’t have to answer any ques– have you been given the warning?

SCON TURNBULL: He has mate.

SGT DORAN: Alright– sorry?

SCON TURNBULL: He has.

SGT DORAN: Yeah alright so you don’t have to answer– well a – if I ask you any questions about stuff we find here it’s up to you what you wanna ask, all I’m asking you now is whether you live here? Now there’s probably stuff all over the place that shows you do and if so [INDISTINCT] I’m just giving you the opportunity to show some level of cooperation.

MILOS: Yeah.

SGT DORAN: So is there anybody else that lives here with you?

MILOS: Nup. No.”⁸⁶

The appellant’s contention was that Doran’s suggestion that the police were giving the appellant “the opportunity to show some level of cooperation” constituted an inducement.⁸⁷ In support of that contention the appellant referred to R v LR⁸⁸ where this Court stated that the purpose of the provisions in the Act “is to ensure that a suspect is aware of, and in a position to exercise, the right to silence in the face of police questioning”.⁸⁹ In the circumstances the appellant contended that the “police conduct constituted trickery and was improper.”⁹⁰

As developed in argument on the hearing of the appeal the appellant’s complaint was twofold. First, the warning in relation to the right to silence was a qualified warning rather than absolute, the qualification being that he had the right to remain silent “If we do start asking you questions” about “items of relevance”. Secondly, the statement by Doran, namely that the appellant was being given an opportunity to show some level of co-operation, constituted the inducement following the qualified warning about the right to silence.

Application was made to the trial judge to exclude the evidence. The grounds of the application were the same as those advanced on appeal. The learned trial judge declined to exclude the evidence in these terms:

“Now, even though the warning here was given in respect of the likely presence of items of relevance in the unit it seems to me that it was given in a way substantially complying with the provision to which I have just referred.[91] It informed the defendant that he had the right to remain silent and told him that anything he said would be recorded and could be used as evidence. He was also informed that he would be able to have a friend, a lawyer or relative present. He was not explicitly told that he did not have to say anything or answer any question or make any statement unless he wished to do so but that seems to me to be implicit in the statement that he had the right to remain silent.

It was also argued that the statement by the [S]ergeant that he was giving the defendant an opportunity to show some level of cooperation was an inducement such as to require the subsequent evidence to be excluded. But it seems to me that in the circumstances where he has been warned in a manner which seems to me to be appropriate, that this further statement does not seem to me to be an inducement which should result in a ruling that the evidence should be excluded. In any event, I have a discretion as to whether or not the evidence should be admitted, and it seems to me that the statement that was made was not one that should encourage me to leave this evidence out of the trial and unavailable to the jury. Accordingly, I shall not rule it out.”⁹¹

According to the appellant the vice in the warning that was given was not simply that it was not absolute, but was followed by a question by Doran about whether the appellant was the only occupier of the unit. However, the appellant’s response was to question whether he was required to answer anything. That was followed immediately by Doran saying that the appellant did not have to answer any questions and asking whether he had been given “the warning”. That was then following immediately by another reminder that the appellant did not have to answer, and it was up to him what he wanted to say.

In my view the trial judge was plainly correct to conclude that the warning had been given in substance. The appellant was told that a search would commence and if the police found some items of relevance “you may be questioned in relation to those”. That was followed immediately by the sentences: “If we do start asking you questions you have the right to remain silent. That means anything you do say is gonna be recorded and can be used as evidence …” In my view the warning was not limited to a warning about questions asked about the “items of relevance”. That is too constrained a construction to put on what was said, particularly if one listens to the tape. Further, that it was understood in an unconstrained way is supported by the question asked by the appellant when he was asked was he the only occupier of the unit. His response was “Do I have to answer anything?” He was immediately told that he did not have to answer any questions.

I do not consider that the exchange with Doran, about giving the appellant the opportunity to show some level of co-operation, can in any way constitute an inducement. The learned trial judge was correct to find that it did not.

Ground 5 fails.

Ground 7 – list of evidence capable of corroborating Walker

The basis of this ground is that the learned trial judge erred in permitting a jury to have a list of evidence that was said to be capable of corroborating the account of Walker. The list contained 16 items of evidence grouped into four categories.⁹² The first was various pieces of evidence from the search of Unit 30. They included methylamphetamine, money, various items including clip seal bags and scales, the presence of the accused’s fingerprints on plastic containers containing methylamphetamine, and the text messages on the mobile phones. The second category was evidence from the search at Unit 87, containing much the same sort of items, including the accused’s fingerprints found on a plastic container containing pseudoephedrine and methylamphetamine, and the video and audio found on the handycam.⁹³

The third category consisted of evidence from a search of the storage shed. Again that included methylamphetamine, the accused’s fingerprints on various items,⁹⁴ tablets containing pseudoephedrine and CCTV footage of the appellant.

The fourth category consisted of the recorded telephone intercepts and evidence of numerous people coming to Unit 87 for short periods of time.⁹⁵

Something should be said of Walker’s evidence. He provided a witness statement covering the following essential points:

the appellant offered to help Walker out by giving him some work, as a consequence of which Walker had reason to visit the appellant’s apartment in Mary Street;⁹⁶

at the Mary Street apartment he saw the appellant sell drugs to various people, and witnessed discussions about the drugs, preparation of them, and the sale itself;⁹⁷

he saw the appellant make notes in a notebook, including a list of names with numbers against them;⁹⁸

he saw about 50 to 60 drug transactions take place at the Mary Street apartments;⁹⁹

he knew that the appellant had multiple mobile telephones;¹⁰⁰

he knew that the appellant went to live at Unit 87;

the appellant asked him to arrange for a storage unit so that the appellant could keep some of his things in it;¹⁰¹

the appellant told him where to go to get a storage facility, but to arrange it in Walker’s name and not the appellant’s name;¹⁰²

he arranged for the storage unit as requested and gave the keys to the appellant;

he witnessed the appellant handing large sums of cash to his brother and both the appellant and his brother having drugs in a plastic container in their garage;¹⁰³

in August 2010 Walker travelled to Sydney at the appellant’s request; the appellant gave him the number of a person to contact in Sydney; that person gave him a ticket to a cloak room from which a bag was collected and Walker took it back to Brisbane to the appellant;¹⁰⁴ the bag contained a large plastic container with a type of plasticine substance in it;¹⁰⁵

on another occasion the appellant asked Walker to take approximately $260,000 in cash to Sydney, giving him a mobile phone number to call when he got there; once Walker had made contact with the person nominated by the appellant, he handed the $260,000 to that person in exchange for a plastic shopping bag containing three separate heat sealed packages;¹⁰⁶

upon arriving back in Brisbane the appellant drove Walker to the storage sheds and, at the appellant’s request, Walker put the plastic bag in the storage shed;¹⁰⁷

the following day Walker saw the heat sealed packages in the appellant’s apartment and the appellant was weighing them; the appellant paid Walker $5,000 for doing the trip to Sydney for him;¹⁰⁸

on three occasions when Walker went to Unit 87 he observed the sale and purchase of drugs involving the appellant, with the transactions happening in the same way as they did at the Mary Street apartment;¹⁰⁹ and

in August 2010 Walker was at the appellant’s apartment when he saw a number of clear plastic containers on the bench top, containing a crystallised substance which Walker believed to be amphetamine.¹¹⁰

Walker pleaded guilty to a charge similar to trafficking in methylamphetamine, over a time span between June and August 2010, arising out of events when the police raided Unit 87.

The appellant sought to exclude the evidence in the list. The learned trial judge referred to the well-known passage in Doney v The Queen:¹¹¹

“The essence of corroborative evidence is that it ‘confirms’, ‘supports’, or ‘strengthens’ other evidence in the sense that it ‘renders [that] other evidence more probable’. It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it ‘shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.’

It is well settled the corroboration may be in the form of circumstantial evidence.

…

It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice.”

The trial judge noted that Walker’s evidence implicated the appellant in trafficking, particularly in a period starting in about June 2010. The question which arose was whether the evidence from the search of Unit 30 in March 2010, from which a conclusion that the appellant was trafficking could be drawn by the jury, confirms, supports or strengthens the evidence of Walker that he was trafficking at a later date. The trial judge reviewed the categories of evidence and concluded that each was a category of evidence which confirmed, supported or strengthened Walker’s evidence, and were therefore able to be used as corroboration by the prosecution.¹¹²

The learned trial judge gave careful directions to the jury as to how they should approach the evidence of Walker. Directions were also given to the jury as to the use that could be made of the evidence in the list. Having reviewed each category of the evidence his Honour went on:

“In view of the matters I have touched upon, it would be dangerous to convict the defendant on the evidence of Mr Walker unless you find that his evidence is supported in a material way by independent evidence implicating the defendant in the offence. There is evidence coming from independent sources, which I have just detailed as the corroborative evidence relied on by the prosecution, which is capable of supporting the evidence of Mr Walker in a material way.

It is a matter for you as to whether you accept that evidence. If you do accept it, it’s a matter for you whether you think it does support his evidence in this way.”¹¹³

The appellant did not make any complaint about the directions given by the learned trial judge. Rather, as argument developed on the hearing of the appeal, the appellant sought to argue that the list¹¹⁴ contained items of evidence which were not capable of amounting to a circumstance probative of the particular offence, even when taken in connection with other circumstances. Thus it was said that other than items 9, 10, 12 and 16, none of the others were capable of constituting corroboration.

I do not consider that the appellant’s submission can be sustained. The appellant was charged with trafficking in methylamphetamine between 6 January 2010 and 20 August 2010. Walker’s evidence directly implicated the appellant in trafficking between June and August 2010. Much of the detail given by Walker as to the way in which transactions he witnessed actually took place, was supported by the items of evidence which were found as a result of the search on Unit 87 and the storage shed in August 2010; similarly with the CCTV footage of the appellant attending at the shed identified by Walker, and the intercept telephone conversations. In my view the fact that similar items were found on a search in March 2010 at Unit 30, was equally capable of corroborating Walker’s account that at a later point in 2010 the appellant was still trafficking in methylamphetamine.

The danger in the approach of the appellant, which was to focus on one item or another from the list of items, is to look at those items in isolation from the other evidence. A piecemeal approach is not appropriate where the case is a circumstantial case.¹¹⁵

All of the items in the list consist of items of independent evidence which go to corroborate the account of Walker. The fact that the appellant was trafficking in amphetamine before Walker’s involvement is a relevant circumstance in terms of supporting Walker’s account that the appellant was in possession of and trafficking in methylamphetamine at a later time. The finding of methylamphetamine in the appellant’s units and in his storage shed are also factors going to support the veracity of Walker’s account. In my view each of the items fit within the scope of corroborative evidence as explained in Doney, in that it confirms, supports or strengthens other evidence (that of Walker) and renders that other evidence more probable.

I do not consider that it has been demonstrated that the learned trial judge erred in leaving that evidence to the jury, particularly in circumstances where the jury was directed, in a way about which no complaint is made, as to the way in which they could use that evidence.

Ground 7 fails.

Ground 8 – miscarriage of justice – unsafe and unsatisfactory

This ground relates only to counts 12, 13 and 14 on the indictment. They were for producing methylamphetamine (count 12), possessing methylamphetamine in excess of 200 grams (count 13), and possessing things for use in connection with trafficking (count 14).

The applicable principles on this ground are those stated in M v The Queen:¹¹⁶

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

…

And:

“In most cases a doubt experienced by the appellate court will be a doubt which a jury ought to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal or trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

The appellant’s contentions centre around the evidence of Walker. He testified that on two occasions in August 2010 he travelled to Sydney, returning with drugs which he provided to the appellant. On returning after the second trip (18 August 2010) Walker and the appellant went to the storage complex where storage unit 581 had been rented. Walker’s evidence was that the appellant had asked him to rent the storage unit in his own name, but for the appellant’s purposes. His evidence was that, in truth, the appellant was in control of storage unit 581. Indeed, when they arrived there on 18 August it was the appellant who gave Walker a key with which unit 581 was opened.

Unit 581 was searched on 19 August 2010, and in the process some of the drugs Walker referred to, and other items were discovered. The contents of storage unit 581 were the basis of counts 12, 13 and 14.

After deliberating for about a day the jury indicated to the trial judge that at least a third of the jury were not satisfied beyond reasonable doubt on those three charges. The trial judge gave a Black direction,¹¹⁷ and guilty verdicts were returned a little over an hour later.

The appellant’s contentions were that the appellant had taken out an agreement concerning storage unit 588, in the same complex. Storage unit 581 was rented in the name of Walker. Both the appellant and Walker had the access codes to both units. It was therefore right to conclude that Walker was the “occupier” of storage unit 581.

Walker*’s evidence*

Aspects of Walker’s evidence concerning his contact with the appellant and the drug related activities at the appellant’s units, and the trips to Sydney, have been referred to above in paragraphs [114] and [127] above. As to the storage facility and activities concerning its use, Walker’s evidence comprised the following aspects:

the appellant had asked Walker if he would “go and rent out a unit for him”; the appellant had one there already but wanted another one because he was worried about gear going missing;¹¹⁸

as a consequence Walker signed a contract for storage unit 581, obtained locks and keys and a pin number to get into the storage building itself; Walker said he “rented that on his [i.e. the appellant’s] behalf …”¹¹⁹

the appellant had his own PIN number for his own unit in the same storage building, and when Walker signed the contract he set his own PIN number;¹²⁰

storage unit 581 was “almost opposite” the storage unit rented by the appellant;¹²¹

Walker handed all the keys and the lock to the appellant;¹²²

the appellant told him to throw the paperwork away, but Walker put it in his bag;¹²³

on the occasion of returning from Sydney for the second time, the appellant and Walker went to the storage facility; the appellant was driving a white Skyline vehicle;¹²⁴ at the appellant’s direction Walker put the plastic bag he had brought back from Sydney into the storage unit, and handed the keys to Walker; having done so, Walker handed the keys back to the appellant;¹²⁵

the next day the appellant had retrieved the bag from the storage shed, and Walker could recall seeing it in the appellant’s unit, where the appellant was weighing up the contents;¹²⁶

in cross-examination Walker was questioned about a statement he had made to police on about 21 August 2010, in which he referred to the appellant having asked him to get a storage unit to keep some of his things in, because he wanted to keep some of his things safe; further, that the appellant told Walker to get the storage unit in his own name;¹²⁷

Walker said that he could not recall the appellant telling him that he was going to put drug paraphernalia in storage unit 581;¹²⁸

Walker was taken through a photographic exhibit showing items in storage unit 581, and asked in each case whether he had seen them in the storage shed, to which he answered “no” in each case;¹²⁹ Walker said he could not recall seeing them in the storage unit, he did not put them there, and the appellant “talked about putting stuff in there”;¹³⁰

Walker was cross-examined about the fact that he had not said to any police officer prior to his statement dated 23 March 2011, that the appellant had given a reason for wanting Walker to hire the storage unit;¹³¹ he was also cross-examined about his inconsistent statements as to having returned to the storage unit between the date it was leased (5 August 2010) and when he was arrested about two weeks later;¹³² Walker said that he had done so, even if he had not remembered it before;

Walker said that for a time he had access to the PIN number for the appellant’s storage unit, because the appellant had provided it to him; it was written on a piece of paper which was later discarded;¹³³

Walker said that what he did in Sydney, in terms of handing over the $260,000 cash, was all according to the instructions of the appellant;¹³⁴

on returning from Sydney on the second occasion, Walker said that the appellant picked him up from Albion Park at Breakfast Creek, and together they went to the storage shed; the appellant asked Walker to put the bag which he had brought back from Sydney, in the storage unit; for that purpose the appellant gave Walker the keys to open the lock; the appellant remained in the car;¹³⁵

when Walker put the package into the storage unit, he did not pay attention to what other items were in there; he just put the bag down and shut the door;¹³⁶ Walker accepted that it was possible that there was nothing else in the shed when he put the package there;¹³⁷

in cross-examination Walker was confronted on many occasions with his poor memory of events, and inconsistent previous statements; one example was in relation to his evidence that when the appellant collected him from the airport (on the second occasion of having been to Sydney) they went together to the storage unit; on 21 August 2010 Walker said to police that the appellant took him back to the appellant’s apartment, where the package was opened;¹³⁸ that was repeated on 15 March 2011, when Walker spoke to police again;¹³⁹ then on 22 March 2011 Walker told police that he was mistaken in the previous two versions, and in fact they went straight from Albion Park to the storage unit;¹⁴⁰ Walker did not dispute that he had said those things to police; saying: “I can’t dispute that. So I don’t know what to say. I don’t remember it.”;¹⁴¹

another example was that on 22 March 2011 Walker told the police that the package that was put in the storage unit was in a calico bag, which he identified as being a Star City laundry bag;¹⁴² Walker said that he had been confused, and the calico laundry bag was used on the first occasion when he went to Sydney;¹⁴³

in cross-examination Walker adhered to his evidence that, having placed the package in storage unit 581, he did not return to the storage unit and remove the package; however, he saw the package the following day at the appellant’s apartment;¹⁴⁴ he could not explain inconsistencies in terms of what he had previously told the police in July 2011, namely as to having a specific memory of seeing “macaroni and cheese packaging”, which was in the appellant’s apartment the following day, despite placing it in the storage unit the night before;¹⁴⁵

in cross-examination Walker denied any suggestion that the appellant’s role was subservient to Walker’s role in relation to trafficking in drugs, and the storage of the drugs in the storage unit; Walker said that the appellant “ran the show”, that he had witnessed the exchange of money and drugs by the appellant, and adhered to his version of events, namely that the trips to Sydney were at the instance of the appellant;¹⁴⁶ and

in re-examination Walker reiterated that when he and the appellant attended at the storage unit (after the second trip to Sydney) they did so in the appellant’s car, that the keys to the storage unit were given to him by the appellant, and then given back to the appellant, and Walker took very little time to put the package in the storage unit.¹⁴⁷

There was some corroboration of Walker’s account in relation to the storage unit. As a result of the search the appellant’s fingerprints were found on items in storage unit 581. Further, CCTV footage showed the appellant attending the shed. As to the fingerprints, the appellant criticised the evidence in two ways. First, the fingerprints were on moveable objects, rather than on storage unit 581 itself. Secondly, the Crown called two fingerprint experts and one of them identified more fingerprints than the other. It was contended that the fingerprint experts’ evidence suffered from the fact that neither of them made notes, there were no comparison charts showing the identification points between the fingerprints found and those of the appellant, and the jury were not given the number of points of identification.

The appellant also contended that the possession counts (13 and 14) were unsafe because Walker was, in fact, in control of storage unit 581, having leased it, and the keys to storage unit 581 were found by police in the Skyline vehicle, which was in Walker’s possession on the day he was arrested. Thus, it was said, the jury could not safely come to the conclusion that the appellant was in possession of the items under counts 13 and 14, rather than Walker.

The trial judge gave a careful and detailed summing up, dealing with Walker’s evidence at some length. The appellant made no challenge to what was said by the trial judge in his summing up. With reference to Walker the trial judge made these points to the jury:

Walker had pleaded guilty to crimes which arose out of the same events, and was giving evidence pursuant to an undertaking under s 13A of the Penalties and Sentences Act 1992 (Qld);

the jury had to approach their assessment of Walker’s evidence with caution, and should scrutinise his evidence carefully before acting on it;

Walker was likely to be a person of bad character, and for that reason his evidence may be unreliable and untrustworthy;

part of the caution about accepting Walker’s evidence was that the jury may come to the view that Walker had an expectation of being dealt with more leniently as a result of his co-operation, and therefore there was a strong incentive for him to implicate the appellant;

the jury should only act on Walker’s evidence if, “after considering it and all the other evidence in the case, you are convinced of its truth and accuracy”;

the appellant’s counsel had pointed to what was described as “incredible features” of Walker’s stories, and inconsistencies in his versions of events, as well as the incentive he had to give evidence against the appellant in order to lessen his own sentenced;

the prosecution had pointed to features of the evidence which suggested that Walker was being truthful and reliable; reference was made to the evidence obtained from the search of Unit 30 on 3 March 2010, and what was discovered in that search; reference was made to what was discovered in the search of Unit 87 on 19 August 2010; then the evidence obtained on the search of storage unit 581, which included the appellant’s fingerprints on various items, and CCTV footage in respect of visits using the appellant PIN number; reference was made to the intercept telephone conversations, and the evidence of numerous people going to and from Unit 87.¹⁴⁸

The learned trial judge then said to the jury:

“In view of the matters I have touched upon, it would be dangerous to convict the defendant on the evidence of Mr Walker unless you find that his evidence is supported in a material way by independent evidence implicating the defendant in the offence. There is evidence coming from independent sources, which I have just detailed as the corroborative evidence relied on by the prosecution, which is capable of supporting the evidence of Mr Walker in a material way.

It is a matter for you as to whether you accept that evidence. If you do accept it, it’s a matter for you whether you think it does support his evidence in this way.”¹⁴⁹

As to the issue concerning the fingerprint evidence, the trial judge identified to the jury that one expert “identified a number of fingerprints of the defendant that [the other expert] had not identified when comparing the same photographs”.¹⁵⁰

The primary judge reviewed Walker’s evidence in detail, doing so because of what he described as “his significance as a witness”.¹⁵¹ The review of Walker’s evidence occupied about nine pages of transcript.¹⁵² In the course of that review the manifest deficiencies in Walker’s recollection were dealt with, as well as the fact that some events that he was asked to recall occurred while he was under the influence of amphetamines. The inconsistent versions he had given on previous occasions (to police interviewers as well as a doctor) were also examined. Specifically in relation to counts 12, 13 and 14, the events surrounding what happened with the storage unit were reviewed in considerable detail. That detail included the deficiencies in his recollection of those events, the previous inconsistent statements, the fact that he said he was under the influence of methylamphetamine at the time, and areas where Walker had adhered to his evidence.

In relation to the fingerprint evidence, the trial judge reviewed the evidence of Sergeant Molinaro, who had established that the appellant’s fingerprints were on a shoebox, spoon, juice container, condenser and a flask found at the storage unit 581.¹⁵³ His Honour then reviewed the evidence of Sergeant Reid, the second fingerprint expert. He agreed with Sergeant Molinaro in respect of some prints that were found on some of the items. However, the jury were reminded that he did not identify the appellant’s prints on the spoon, juice bottle and condenser from storage unit 581. However, he agreed with the other expert in respect of a number of exhibits.¹⁵⁴

The trial judge also reviewed, again in detail, the evidence of the appellant. There is no need to detail the aspects of that review; it suffices to note that in many respects the evidence was directly contrary to that of Walker. In relation to counts 12, 13 and 14, the appellant’s evidence was that he had no idea about storage unit 581, and never went to it. Further, he had not seen the contents of storage unit 581 before, and said they were not put in there by him. His evidence was that he had nothing to do with putting the items in storage unit 581, and had no knowledge of methylamphetamine in the shed. Further, he did not get Walker to fly to Sydney on the first occasion, and knew nothing about the second trip, nor did he provide the $260,000 that Walker referred to.¹⁵⁵ His evidence was that he had lent his car to Walker shortly before the police raid on 19 August 2010, and did not take him to the airport, pick him up, nor take him to the storage unit on his return.¹⁵⁶ The appellant said he knew nothing about the juice bottle with his fingerprint. He could recall Walker going to Sydney on about 17 or 18 August 2010, but could not recall if he said why he was going, and felt that it was a spur of the moment thing. He could not explain how his own receipts ended up in storage unit 581.¹⁵⁷

The trial judge’s summing up to the jury included a review of the submissions on each side. That included a detailed review of the criticisms of Walker’s evidence, as identified by counsel for the appellant. The two trips to Sydney, and the appellant’s attack upon Walker’s evidence in relation to them, was the subject of detailed explanation.¹⁵⁸ Similarly, the attack made upon the fingerprint evidence was reviewed again, as was the question of who was in control of storage unit 581, as affecting the question of the possession charge in counts 13 and 14.¹⁵⁹

As he had done with summing up in respect of the submissions by counsel for the appellant, the trial judge reviewed, again in detail, the submissions on behalf of the Crown.¹⁶⁰

Discussion

The jury had the considerable benefit of actually seeing the witnesses whose evidence related to counts 12, 13 and 14. Specifically, they had the opportunity to see and listen to Walker and the appellant. Further, though it is less relevant, they got to see and hear the expert witnesses as to fingerprints. This Court has not had that advantage.

In my view it was open to the jury to accept the evidence of Walker, even though there were manifest difficulties with that evidence. Those difficulties included his very poor memory, inconsistencies and contradictions stemming from statements previously given to the police and to a doctor, the fact that some of the events he was purporting to recall occurred when, by his own admission, he was affected by methylamphetamine. Further there is the identified incentive that he may have felt to implicate the appellant because of his expectation of leniency due to his co-operation. All of the deficiencies in Walker’s evidence were highlighted by counsel for the appellant, and reviewed in considerable detail by the trial judge. The jury were warned about the dangers of acting on Walker’s evidence, and the need for caution and care in assessing his evidence before acting upon it.

Notwithstanding all of that, the jury obviously accepted his evidence. In my view it is not possible to say that they could not have accepted his evidence in respect of counts 12, 13 and 14. Those counts concerns what was found on a search of storage unit 581. That was leased in Walker’s name, but if the jury accepted Walker’s evidence, then they were entitled to proceed on the basis that that arrangement was one dictated by the appellant. The evidence concerning the package brought back from Sydney on the second occasion, and where it was placed, falls into the same category. If the jury accepted Walker, as was open to them, then they would proceed upon the basis that it was the appellant’s package, albeit placed in storage unit 581 by Walker. Further, they could proceed on the basis that it was the appellant who retrieved that package from storage unit 581.

On that basis, it was also open to the jury to find that there was a reasonable explanation for the presence of the appellant’s fingerprints on the items in the storage unit. Similarly, the question of the ownership of the items in the storage unit is resolved the same way.

I do not consider that the difference between the fingerprint experts creates such a difficulty that the jury could not accept that the items in the storage unit were those of the appellant, rather than Walker or someone else. The differences between the two experts were that: first, Sergeant Molinaro was able to identify prints on two items that Sergeant Reid did not; secondly, on one item, the juice bottle, Sergeant Reid identified one print, whereas Sergeant Molinaro was able to identify three prints.

The difference between the experts was not such that the jury could not accept the evidence of both. All Sergeant Reid said was that on the spoon and condenser he did not make a positive identification of any of the appellant’s fingerprints on the item. That is not to say that the fingerprints were identified by him as belonging to someone else. It was simply, as he said in respect of the condenser,¹⁶¹ that he was “unable to 100 per cent conclusively determine that it was him”. Sergeant Molinaro, on the other hand, said that in each case the prints that he identified were partial prints, not complete prints, and therefore he had to identify a useable part of the print.¹⁶² Further, on two of the items there was a degree of smudging which made it a difficult print to identify. However, he was confident that he could, in fact, identify the appellant’s prints. Sergeant Molinaro was confronted with the fact that Sergeant Reid had not been able to identify fingerprints to the same extent, but Sergeant Molinaro explained that he did not review Sergeant Reid’s case file, but “I was just given the form and I went through and did the examination and created my own opinions”.¹⁶³

When the fingerprint evidence was taken in total¹⁶⁴ all experts agreed that the appellant’s fingerprints were on a shoebox in storage unit 581. Inside the shoebox was a plastic container of methylamphetamine. The contents were the subject of count 13. The fingerprint evidence was corroborative of Walker’s account that those items belonged to the appellant. It was therefore open to the jury to find the appellant guilty of that count.

Further, all of the fingerprint experts agreed that the appellant’s fingerprints were on a juice bottle, which was one of a number of bottles found in a box which was contained in storage unit 581. The contents of the box were the subject of count 12. The fingerprint evidence was corroborative of Walker’s account, namely that the appellant was the owner of the items in the storage unit. For the same reasons as before, it was open to the jury to convict on this count.

For the reasons given above it was open for the jury to accept Sergeant Molinaro’s evidence of identification of the appellant’s fingerprints on items that were the subject of count 14. That evidence was corroborative of Walker’s account, namely that the items in the storage unit were those of the appellant. It was therefore open to the jury to convict on that count.

Ground 8 fails.

Was the sentence based on wrong facts; was it manifestly excessive?

The appellant raised two points on this aspect. The first was to challenge the factual basis upon which the sentence proceeded. The second was to contend that regardless of the findings on the first point, the sentence was manifestly excessive.

The first asserted factual error was that the primary judge erred in concluding that there was any real dealing in drugs whilst the appellant was at the Mary Street apartment. In order to demonstrate this the appellant pointed to separate periods of time dealt with in the evidence. The first was between 6 January 2010 and 2 March 2010, a period covered by the telephone intercepts and text messages. The second period related to the matters revealed by the search of Unit 30 on 3 March 2010. As to that the appellant pointed to the fact that the drugs discovered were of generally low percentage purity, and the pure quantity was not great. In so far as MDMA was concerned, there was no allegation that the appellant trafficked in that drug. The third period related to the time at the Mary Street apartment. That span dates from between 1 June 2010 and 19 August 2010.¹⁶⁵

The appellant’s point is in relation to the period of time covered by Walker’s evidence of conduct at the Mary Street apartment. The point centres around this statement by the primary judge in his sentencing remarks:

“Mr Walker’s evidence was to the effect that he observed about 60 drug transactions occurring at the Mary Street apartment before you moved to the Aurora apartment which was the subject of the second raid by police on the 19th of August 2010.”¹⁶⁶

In his statement¹⁶⁷ Walker had referred to visiting the Mary Street apartment “about a dozen times”, and that on most of those times he saw the appellant “sell drugs to about half dozen people”.¹⁶⁸ Shortly thereafter he estimated that: “In my time visiting [the appellant] at the Mary Street apartments I observed between 50 and 60 of these transactions take place.”¹⁶⁹ In his evidence-in-chief Walker repeated that he had been there about a dozen times,¹⁷⁰ and that he had seen “maybe 50 or 60 different types of transactions”.¹⁷¹ In cross-examination he was asked about the estimate of 50 or 60 different types of transactions, and his response was: “I think that’s a simple guesstimate, sir”.¹⁷²

He was cross-examined about what he had told police on 21 August 2010, which mentioned the appellant living at the Mary Street apartment, but did not give any details of drug dealing at that apartment.¹⁷³ When asked about the absence of that reference Walker responded, “I certainly never said anything to the police about Albion Park or anything like that either, so I still don’t understand the question, sir”.¹⁷⁴ Walker went on to explain that at the time of that interview he was “under the influence” of methylamphetamine.¹⁷⁵

He was also cross-examined about a statement made to the police in a record of interview on 15 March 2011. In that interview he was asked whether he had seen any drugs at the Mary Street apartments and Walker’s answer was that “I got to be absolute sure that I saw some. Mmm, white powdery stuff in a little plastic bag. I would have seen that once, twice … maybe, yeah”.¹⁷⁶ He was then asked what sort of quantities and agreed that it was “small”, and “really, really small”. He went on to explain that he saw that sort of quantity there “once or twice”.¹⁷⁷ When cross-examined about the difference in his memory between what he had said in March 2011 and what he had said in his evidence-in-chief, Walker acknowledged the difference and put it down to the quantities of amphetamines he was taking at the time, and the stress he was under.¹⁷⁸ However, he adhered to his evidence given in court, saying “I just know what the truth is now” and “I know what the truth is”.¹⁷⁹

The learned primary judge explained his reasons for accepting the evidence of Walker as to the activities at the Mary Street apartment. It was that there was evidence pre-dating Walker’s involvement, which warranted the conclusion of trafficking,¹⁸⁰ and evidence post-dating the Mary Street period, which also supported the conclusion of trafficking.¹⁸¹ His Honour also relied upon the evidence relating to the unexplained income for the period 1 January 2010 to 30 March 2010.

On that basis it was plainly open to the learned primary judge to sentence on the basis of Walker’s evidence as to the number of transactions that he witnessed at the Mary Street apartment. Furthermore, the convictions recorded against the appellant reflect the fact that the jury, notwithstanding the very detailed and stern warnings, accepted Walker’s evidence, at least in substance.

The next factual challenge related to Walker’s second trip to Sydney, on 17 August 2010. The challenge was as to the primary judge accepting that Walker went to Sydney on the appellant’s behalf. The contention was that it was:

“equally consistent that this trip by Walker to Sydney was undertaken on Walker’s behalf with [the appellant’s] knowledge or it being a joint enterprise”.¹⁸²

Walker’s evidence in relation to the second trip to Sydney is largely summarised in paragraphs [114], [127], and [131] above. It was mentioned in the statement given on 23 March 2011, as being “at the request” of the appellant, who gave Walker specific instructions as to what he was to do and paid Walker $5,000 for doing it.¹⁸³ The second trip was described in detail in Walker’s evidence-in-chief, once again in terms that Walker was doing the appellant’s bidding, and following his directions.¹⁸⁴ That version was adhered to in his cross-examination, with Walker acknowledging that he had imperfect memory of the details of the trip because it was highly likely that he was under the influence of drugs at the time.¹⁸⁵ He specifically denied that the trips to Sydney had anything to do with him or was for his business, saying “Absolutely not true, sir”.¹⁸⁶

On the evidence, even accepting that there were reservations about the wholesale acceptance of Walker as a witness, there was no reason why the primary judge could not sentence on the basis that the second trip to Sydney was as his Honour said, on the appellant’s behalf and in relation to a drug related transaction.

That the approach was open to the learned primary judge is supported by reference to the legislation and authority. Section 132C (3) of the Evidence Act 1977 (Qld) provides that a sentencing judge may impose a sentence on a factual basis if “satisfied on the balance of probabilities that the allegation is true”. For that purpose the finding of fact on which the sentence proceeds cannot be inconsistent with the verdict of the jury. In Cheung v The Queen the High Court said:¹⁸⁷

“The necessary consequence of the principles … is that, provided the facts found by a sentencing judge are not inconsistent with the jury’s verdict, a sentencing judge may well make an assessment of an offender’s degree of culpability which would not be supported by all, or perhaps any, members of the jury.”

The next contention concerned counts 7-11. In respect of counts 7, 8 and 9¹⁸⁸ it was contended that the jury were given the opportunity to convict the appellant on the basis of his being an occupier of Unit 87, where the drugs were found, and therefore there was no reason why he should not have been sentenced on the basis of conviction under the occupier provisions. As to counts 10 and 11¹⁸⁹ the contention was that the appellant was the only person present at Unit 87 when the police arrived, and it was therefore not difficult to say that those items were under his physical control or custody, even if he had no proprietary interest in them.

This challenge was advanced in the written outline,¹⁹⁰ but not advanced orally. It seems to depend upon characterising the finding of guilt in respect of each count as reflecting a conclusion that the appellant had a proprietary interest in each of the items, rather than being convicted of being in possession of them as an occupier, or having physical control or custody over them. There is no warrant for concluding that the appellant was sentenced for other than the sections provide, namely that he was in possession of those items on one ground or another. Given that the jury convicted the appellant of trafficking it is unlikely that they proceeded on the basis that the possession counts were the results simply of occupier’s liability. That is a reason why the primary judge should not have sentenced on that basis. In my view this point does not assist the appellant.

Manifestly excessive?

Some of the details of the offending conduct have been set out in paragraphs [8]‑[17], [27]‑[29] (phone intercepts), [39]‑[43] (texts), [59] (handycam), and [114], [127] and [131] above. The trial judge’s sentencing remarks reveal the following about how that conduct was treated for sentencing purposes:

there were 14 charges; one of trafficking in methylamphetamine, three of possessing methylamphetamine and MDMA in excess of two grams as separate charges, two relating to methylamphetamine and one relation to MDMA; two charges of possessing money obtained from trafficking in a dangerous drug; two charges of possessing things for use in connection with trafficking in a dangerous drug; two charges of possessing a thing used in connection with trafficking in a dangerous drug; two further charges of possessing dangerous drugs without a circumstance of aggravation; one count of producing a dangerous drug, based on the production of the precursor to methylamphetamine by extracting pseudoephedrine from tablets; and one count of possessing methylamphetamine in excess of 200 grams;

the offences related to three separate premises, all of which were the subject of police searches which revealed cash, various drugs, and equipment used in connection with trafficking and production;

the trafficking extended between 6 January and 20 August 2010; for the first three months of that period the appellant’s expenditure exceeded his known income by about $52,000, and cash in excess of $47,000 was found at Unit 30, as well as small amounts of drugs, namely methylamphetamine and MDMA;

after the first search the appellant was released on bail but recommenced trafficking almost immediately;

the trafficking at the next unit occupied by the appellant (the Mary Street apartment) was reflected in Walker’s evidence, particularly in the observation of about 60 drug transactions;

at the next unit occupied by the appellant, Unit 87, a search revealed 196.25 grams of pure methylamphetamine, 1.09 grams of MDMA and 0.012 grams of heroin, in addition to many other objects associated with drug trafficking, such as phones, scales and clip seal bags; other evidence established the regular number of visitors going to and from that apartment, as did the numbers of mobile phones and equipment found in the premises including the tick sheet; about $20,000 in cash was found in that apartment;

at the storage unit there was a quantity of pure methylamphetamine totalling 210.7 grams; also sufficient pseudoephedrine to produce 1,257 grams of methylamphetamine, and tools that could be used to produce pills; in addition a significant quantity of glassware of the type suitable for the production of methylamphetamine;

the appellant arranged for Walker to travel to Sydney to purchase a substance to be used in the production of methylamphetamine; that conduct “seems to reflect a serious involvement by you in trafficking at a relatively high level”;¹⁹¹

the prosecution were put to proof on insignificant small issues relating to continuity of evidence which added significantly to the length and cost of the trial, which itself extended over four weeks of sitting time; the appellant also required a committal hearing in two pre-trial hearings; all of that signified “a lack of contrition of any sort in respect of your activity”;¹⁹²

the appellant was born on 13 November 1978, and was 31 at the time of the offences, and 34 at the time of sentencing; he was a regular drug user and the trial judge assumed he was an addict with a bad habit;

the appellant’s criminal history included a conviction for trafficking in 2001, when he was about 21 or 22; on that occasion he pleaded guilty and was imprisoned for seven years with a parole release recommendation at three years into that sentence; there were multiple other counts relating to possession of dangerous drugs and other things;

prior to the trafficking conviction in 2001, the appellant had a previous history in respect of drug use starting when he was about 17, with regular court appearances thereafter; following his conviction for trafficking there were further convictions in respect of the use of dangerous drugs, “all of which serves to paint the picture of someone who is drug dependent but who is determinedly willing to continue to breach the law”;¹⁹³

Walker had been sentenced for his involvement, on a plea of guilty, to three and a half years imprisonment, suspended after one year; that took into account his co-operation in giving evidence against the appellant; however, Walker’s involvement was at a much lower level than that of the appellant;

the appellant’s trafficking was described as “serious”, and “substantial trafficking at a relatively high level in a drug distribution network”;¹⁹⁴ further:

“you were certainly apparently earning money at a significant rate, not enough to allow you to engage in an extravagant lifestyle perhaps – and there is no evidence of that nor of the trappings of wealth – but one where you had been supplying significant numbers of people with very dangerous drugs for what appear to be significant sums of money”;[196]

not only was the offending serious, it was also significant that it occurred against the appellant’s previous conviction for trafficking, and in circumstances where he re-engaged in trafficking immediately after being arrested in March 2010; thus the “risk of recidivism is significant having a regard to your history”;¹⁹⁵

the need not only for general and personal deterrence, but also a significant element of the protection of the community, loomed large.

Apart from the attack on the factual foundation for sentencing, referred to in paragraphs [153] to [165] above, little was said by the appellant in respect of the contention that the sentence was manifestly excessive, either in written submissions or in oral argument. In the end the contention came down to the consideration of three decisions which were contended to be comparable in one way or the other, namely R v Rodd; ex parte Attorney-General (Qld),¹⁹⁶ R v Kalaja,¹⁹⁷ and R v Versac.¹⁹⁸

Rodd involved an offender of about the same age, 29 to 30 years at offending, and 34 at sentencing. He was sentenced to nine years imprisonment for trafficking in methylamphetamine. His prior criminal history was of no particular significance to the sentencing, but included convictions for assault, possession of cannabis, dangerous operation of a vehicle, and breach of bail. The trafficking offence was over a period of 26 months; the offence of producing methylamphetamine was over the same period. The manufacture and sale was of large amounts of methylamphetamine, involving the services of a number of others who had allocated tasks, such as sourcing pseudoephedrine tablets, acting as lookouts, cleaning equipment and purchasing items. Police raids did not deter the production, as it was simply relocated. Rodd was the co-ordinator and purchased various chemicals. Tablets were sourced in Brisbane and Melbourne, and over one period of 18 months to two years one witness went on a run once a month; each trip would require between 300 and 350 chemists to be visited, and for such a run he was given $100,000 to purchase tablets.

Rodd lived an extravagant lifestyle and was in possession of very large amounts of cash. He used violence and threats of violence to control and manipulate his workers. He also threatened and intimidated witnesses who were summoned to appear before the Australian Crime Commission and even threatened people from inside prison. Whilst Rodd was a serious addict, commercial gain was not a secondary or ancillary aspect of his business.

Rodd pleaded guilty and was given some credit for that, but there had been a lengthy committal and two pre-trial enquiries. At trial he was sentenced, on the trafficking charge, to nine years imprisonment with parole eligibility fixed after six years. On appeal that sentence was increased to 10 years, with a declaration that the conviction was of a serious violent offence. As to the appropriate sentence de Jersey CJ said:

“[24]I respectfully consider that the sentence of nine years imprisonment imposed for the trafficking, even with the contemplation of parole after six years, was manifestly inadequate for this crime. The range from which the Judge proceeded, that is, eight to 10 years imprisonment, was too low. The relevant range in my view began at 10 years imprisonment, meaning that the serious violent offender declaration automatically applied (s 161A(a)(ii) Penalties and Sentences Act 1992 (Qld)). In the result, the penalty imposed failed sufficiently to account for the aspects of punishment and general deterrence discussed in [R v Tilley; ex parte A-G [1999] QCA 424], and gave too much weight to factors going to mitigation, particularly in view of Her Honour’s finding that the respondent’s commercial motivation was at least as significant as the relevance of his drug addiction.

[25]While a sentence of 12 or 13 years imprisonment would have been appropriate, in the event that the sentencing were proceeding afresh at first instance, the appellant sought before us no more than 10 years imprisonment, and the newly imposed sentence should not exceed that term, this being an Attorney’s appeal. As has been mentioned a number of times, a term of 10 years imprisonment will automatically attract the serious violent offender declaration, with the consequence that the respondent will have to serve at least 80 per cent of that term: s 182(2) Corrective Services Act 2006 (Qld). (There must nevertheless be a declaration: s 161B Penalties and Sentences Act 1992 (Qld).)”¹⁹⁹

Whilst it is true that the trafficking in Rodd was over a longer period, it involved manufacturing and distributing, and was on a larger scale and involved violence and threats, that case proceeded on a plea of guilty and in respect of an offender with a prior criminal history of “no particular significance”. By contrast, the appellant engaged in substantial trafficking at a relatively high level in a drug distribution network, had previously been convicted and imprisoned for trafficking, and continued the trafficking offences after having been arrested and released on bail. Further, the appellant did not proceed on a plea of guilty, and there was nothing to suggest any co-operation or contrition.

In my view Rodd is of some assistance in giving guidance as to the sort of term that would have been appropriate, but for the attitude of the Attorney-General in that case. The view of the court was that a sentence of 12 or 13 years imprisonment would have been appropriate.

Kalaja also proceeded on a plea of guilty. There were four counts of trafficking, involving cannabis, methylamphetamine, MDMA and GHB. The trafficking in cannabis was over a period of about three years, and the trafficking in the other drugs at various times within that period. The trafficking occurred whilst Kalaja was on bail. He was sentenced to 14 years imprisonment.

Kalaja was 27 to 29 at the time of his offending, and 32 at sentence. He had a prior criminal record for drug offences, and had been sentenced to imprisonment. He was a drug user but the criminal conduct was not simply to feed his addiction. His involvement in the offences was described as “high level, lengthy and brazen, illegal conduct”.²⁰⁰

Kalaja’s offending was as an integral part of the trafficking, over a three year period, in multiple drugs and in large quantities, for substantial monetary sums. There was, at least, $600,000 in unsourced income. Much of the offending conduct occurred whilst on bail, which was viewed as a seriously aggravating feature. However, his drug dependence and significant steps taken towards rehabilitation were accepted as being mitigating factors.

On appeal, the sentence of 14 years with a serious violent offence declaration was not disturbed. In the course of the reasons in Kalaja, the court reviewed a number of decisions including Rodd, R v Markovski²⁰¹, and R v Kostopoulos.²⁰² Markovski involved a sentence of 15 years for two trafficking offences by a 47 to 48 year old man who engaged in trafficking at “a very high level … in wholesale amounts … for … over eight months”.²⁰³ The court referred to a passage in the reasons of Keane JA²⁰⁴ where he said:²⁰⁵

“[53]Decisions of this Court show that in cases of substantial trafficking at a relatively high level in the drug distribution network, a sentence between 11 and 13 years imprisonment is the appropriate range where the offender is entitled to the benefit of a plea of guilty.²⁰⁶”

In Kalaja the court took the view that Markovski and Rodd indicated a basis for those offenders being treated more leniently than Kalaja. In each of those cases the trafficking period was shorter and neither had any relevant prior history.²⁰⁷

Kostopoulos involved a sentence of 15 years for controlling and financing a sophisticated and well-resourced trafficking operation at the highest level of drug trafficking. It involved cocaine, speed, ecstasy and GHB over a five month period, and sales conservatively estimated as amounting to $811,000. The offender was 41 years old and had a relevant criminal history, and used threats and violence in the operation of his business. The description by the court was that he was trafficking on a “grand scale”, and even with a plea of guilty a sentence in the order of 16 years would have been within the proper range. The court in Kalaja took the view that the facts under consideration there were more akin to those in Kostopoulos, than they were to Markovski or Rodd. Boddice J²⁰⁸ said:

“[16]Although younger than Kostopoulos, the applicant was not a youthful offender. He also had a highly relevant prior criminal history. Further, although not a financier of the trafficking business, like Kostopoulos, the applicant was an integral part of it. His involvement in the unlawful trafficking in drugs extended over a three year period. It involved multiple drugs, in large quantities, for substantial monetary sums. There was, at least, $600,000 in unsourced income. Much of the offending conduct occurred whilst the applicant was on bail for other offences. This seriously aggravating feature meant that but for the early pleas of guilty, the applicant could have expected to receive an effective sentence substantially in excess of the 14 years imprisonment imposed by the sentencing judge.”²⁰⁹

Kalaja involved trafficking on a more extended basis than in the present case, and involving trafficking in multiple drugs and for greater sums of money than in the present case. However, even with a plea of guilty substantially more than 14 years imprisonment might have been imposed. That, and the observations of Keane JA in Markovski, support the sentence imposed in this case.

Versac involved trafficking in heroin and other related charges, for which the offender was sentenced to an effective sentence of 12 years and two months, with parole after 10 years and 24 days. The sentence was 10 years and six months for the trafficking offence, which took into account 20 months of pre-sentence custody. Allowing for that, the effective sentence was 12 years and two months, with parole eligibility after serving nearly 83 per cent of the effective head sentence. Admissions were made to selling heroin over a period of six or seven months, but those admissions were not full or frank, and retracted at trial. The evidence revealed trafficking over at least a 12 month period and $1.14 million from unidentifiable sources. At the time of his apprehension Versac was in possession of $653,000 in cash. He was described as a “significant trafficker of drugs … considerably more significant than a person who operated only as a street level dealer”.²¹⁰ The sentencing judge proceeded on the basis that the major, if not the sole, motivation for the trafficking was profit. At the time of the offences Versac was about 35, and 40 at the time of sentencing. There was no plea of guilty to the trafficking and other charges²¹¹ and time was taken at the trial because of the denial that admissions made in a record of interview were true, and an allegation that they were as a result of duress.

The court was referred to a number of cases including Rodd, and the present case at first instance.²¹² Fraser JA²¹³ referred to the appellant’s circumstances of offending in these terms:

“The sentence of 13 years imprisonment in R v Milos for broadly comparable offending was attributable in part to the circumstances that the offender had a significant criminal history, including for trafficking, and that very soon after he was charged with trafficking and given bail he resumed that illegal occupation.”²¹⁴

Fraser JA went on to say, in respect of the sentence in Versac:

“[28]The effective sentence imposed upon the applicant is a severe one, especially in the deferment of parole eligibility beyond 80 per cent of the total period of imprisonment (see [10] of these reasons). However, the applicant’s minimum custodial period is four months less than the minimum custodial period of 10 years, four months and 24 days (80 per cent of 13 years) which would have been attracted by a head sentence of 13 years imprisonment, which I consider would have been within the sentencing discretion after the trial in the serious circumstances of this case. General deterrence must feature prominently in sentences for substantial trafficking in heroin for profit by a mature adult with a relevant criminal record. In circumstances in which the applicant was unable to invoke the mitigating effect of a plea of guilty with attendant remorse and the utilitarian benefit of avoiding a trial, the relatively small percentage increase in the effective minimum custodial period above the statutory minimum of 80 per cent does not justify a conclusion that the applicant’s sentence is manifestly excessive.”²¹⁵

The review of Rodd, Kalaja and Versac, and in particular the passages cited from the reasons of Keane JA in Markovski, and Fraser JA in Versac, demonstrate in my view that the sentence imposed on the appellant cannot be said to be manifestly excessive. For these reasons the application for leave to appeal against sentence should be refused.

Conclusion and orders

All grounds of appeal have failed, and the sentence cannot be demonstrated to be manifestly excessive. I would make the following orders:

Appeal dismissed.

Application for leave to appeal against sentence is refused.

FLANAGAN J: I agree with the reasons of Morrison JA and the orders he proposes.

Footnotes

1. See R v Williamson [2009] QSC 434 at [49], R v Fuentes [2012] QSC 288 at [35], R v Versac [2013] QSC 46 at [25] – [28]; cf R v Van Der Hoorn [2003] QCA 364 at 3 and R v Adamic (2000) 117 A Crim R 332 at 338 [22], in which the present point was not directly addressed. ↩

2. That is not relevant here. For the reasons given by Morrison JA, the post-search approval was not invalidated by the mistakes which his Honour has identified. ↩

3. See R v Nguyen [2002] 1 Qd R 426 at 431 [33], [35]. ↩

4. Referred to in evidence as the Mary Street apartment. ↩

5. AB 107-108. ↩

6. Appellant’s submissions, paragraph 20. ↩

7. Such as that of Walker. ↩

8. Transcript at AB 1859 – 1875. ↩

9. Transcript at AB 1876 – 1877. ↩

10. AB 2040. ↩

11. Palmer v The Queen (1998) 193 CLR 1, at [55]; Festa v The Queen (2001) 208 CLR 593, at [14]. ↩

12. (2007) 228 CLR 618 at [48].