The Queen v Edwards[1998] QCA 246

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 35 of 1998

Brisbane

[R. v.  Edwards]

THE QUEEN

v.

DAVID JOHN EDWARDS

(Applicant) Appellant

Pincus J.A.

Thomas J.A.

Derrington J.

Judgment delivered 25 August 1998

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL AGAINST SENTENCE ALLOWED.  SENTENCE OF FOUR YEARS IMPRISONMENT IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF A SENTENCE OF THREE YEARS IMPRISONMENT IMPOSED.  SENTENCE IMPOSED BELOW OTHERWISE CONFIRMED.

CATCHWORDS: EVIDENCE - Admissibility - search warrant - whether failure to specify precise technical reference to premises - whether any such defect necessarily renders warrant invalid - whether premises described with “reasonable particularity” for purpose of identification - discretionary power of court to exclude evidence obtained through warrant with technical defect.

EVIDENCE - Admissibility - application of Drugs Misuse Act s. 25 - discretionary power of court to exclude evidence where authorisation for video evidence not obtained - distinction between surveillance video and listening device - distinction of Invasion of Privacy Act 1971.

EVIDENCE - Identification of accused - effect of alteration to appearance at trial when identification not in issue.

FRESH EVIDENCE - No evidence that facts not known at trial.

JUDICIAL COMMENT - Effect upon fairness of trial of humorous judicial comment regarding matter not in issue.

LEGAL REPRESENTATION - Distinction between omissions constituting dereliction of duty and those made for tactical or forensic reasons when justifying new trial.

SENTENCE - Whether reduction in sentence ought to be made due to increased hardship imposed by psychological illness.

SENTENCE - Whether appeal against sentence inherently defeats an appeal against conviction.

Bunning v Cross (1978) 141 CLR 54

R v Vickery [1996] 1 Qd R 334

R v Birks (1990) 19 NSWLR 677

R v Miletic [1997] 1 VR 593

R v G [1997] 1 Qd R 584

R v Wakim [1998] 2 VR 46

Invasion of Privacy Act (Qld)  1971  

Drugs Misuse Act (Qld) 1986 s. 25

Counsel:  The applicant/appellant appeared on his own behalf

Mr M C Chowdury for the respondent

Solicitors:  The applicant/appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 21 July 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 25 August 1998

The appellant was convicted of one count of production of cannabis in excess of the prescribed amount and one count of possession of cannabis in excess of the prescribed amount for both of which he was sentenced to four years imprisonment.  His co-accused, a nineteen year old man called Sayers, was also convicted on the first count and sentenced to twelve months imprisonment, wholly suspended for two years.  The appellant was receiving a government subsidy for Sayers’ employment under a work-training scheme.

He was the owner of a property described as Lot 2 on Registered Plan 14109.  It is situate at 300 Old Palmerston Highway, Millaa Millaa in North Queensland having an area of approximately 101 acres.  Adjoining it was Lot 1 which is also at 300 Old Palmerston Highway.  It is owned by his former wife, Ms Miller, and has an area of approximately 32 acres.  Lot 300 had been subdivided in recent years as part of a divorce settlement.

On 25 July 1997 the police obtained a search warrant for fourteen days to expire on 8 August 1997 to enter and search the premises described as “Lot 300 Old Palmerston Highway, Millaa Millaa which is occupied by David John Edwards”.  They were unaware of the subdivision and transfer of Lot 1 to Ms Miller.

Whilst searching the whole of the land at 300 Old Palmerston Highway under the authority of the warrant, the police located a substantial cannabis crop on Lot 1 and kept it under personal surveillance.  Eventually the two accused arrived at the crop.  After casually inspecting it, both pulled out and threw away some plants, and from others they removed leaves which they took with them when they left.  The police recorded their observations by videotape which was presented at the trial.

Although the crop was growing on Ms Miller’s property, it was not entirely disconnected from the appellant’s.  She had given him permission to pump water from the dams on her lot to his own farm for legitimate gardening purposes.  To that end he had graded a track across the dividing fence line to the dam and pump.  From this graded track a small track that appeared to have been made with a chainsaw led to the site of the cannabis crop.

Some chicken wire was used to protect the crop.  There was a further roll of such chicken wire at that site and other similar chicken wire was found by the police on the appellant’s property close to his house.  He has tried to suggest that he was unaware until after the trial that the videotape revealed the presence of the roll of wire near the crop, and that this evidence would have reduced the probative force of the presence of the wire found at his home.  Whether it has that effect is very doubtful.  Further, it is not fresh evidence and there is no indication that it was not known to his legal advisers who may well have wished to avoid drawing attention to the wire and the implications of guilt that it may have provided and forego any slight benefit, if any, that may have been gained.

During their search the police also found two rubbish bins hidden in bracken on the appellant’s property about 200 to 350 metres across a ploughed paddock from his house.  The bins contained garbage bags a number of which contained cannabis.  One bag had been repaired with blue electrical tape similar to a roll found on a table in the lounge area of the appellant’s house.  The possession of this material was the basis of the second count on which he was convicted.

The appellant conducted his own appeal which went into a second day.  It may be noted that most of the many arguments presented by him consisted of points that had been made below, or variations thereon, and points that he now wishes had been taken below.  He seems to have assumed that he is not bound by counsel’s conduct of his case, and that he could make any allegations he wished about his counsel including allegations of incompetence.  The path to success upon an appeal by this means is a very difficult one, and in the absence of proper material, such allegations cannot be assessed, unless of course they can be seen to have substance by reference to the record.  By reason of the appellant’s pot-pourri of submissions it will be convenient to mention and deal with a number of them in the course of dealing with his argument overall.  It should not be thought however that this court is bound to respond to submissions of this kind that are not based on sworn material, usually with a waiver of privilege so that the allegations can properly be tested, and then only in circumstances where the alleged incompetence is of a flagrant nature that may be thought to have disturbed the foundation of a fair trial.

In relation to this count he contends that the cannabis found on his premises may well have belonged to persons who occupied his premises, with Ms Miller’s consent and in the appellant’s absence, some two years prior to his arrest.  At that time those people were convicted of the production of cannabis.  With this he would link the testimony of Detective Sergeant Schafferius which, he says, is consistent with it.  He said that Mr Schafferius admitted that the material that he found could have been a couple of years old.  In fact, the transcript of the trial shows that upon questioning as to the age of the cannabis, whilst unable to give a precise age, the witness conceded that it may “quite easily (have been) months”,  but he dismissed the notion that it was a couple of years, given natural decomposition of the plant.

In the search of the appellant’s property, the police also found clothing which was said to be similar to that which he was wearing when observed by them as recorded on the videotape.  He now challenges the identity of the check shirt which was tendered.  He says it is of a different colour, but that is totally irrelevant since in his evidence at the trial he admitted that he was present at the crop, and that was the only reason for the shirt’s admission into evidence.

He also complains that the clothing is soiled from legitimate work and suggests that in some way the jury would have drawn an adverse inference against him by assuming that the soiling was associated with work on the cannabis crop.  There is nothing to support the possibility of such an inference and it was not advanced by the prosecution.  The evidence revealed that he also farmed legitimate crops.  There is nothing in this argument.

When spoken to by the police, the appellant denied any knowledge of the bins of cannabis found on his property or of the cannabis crop.  He also said that he had never noticed the track leading to the crop.  This was manifestly false, and when the police later proved his presence there, he changed his story completely.

At his trial he gave evidence that with Sayers’ help he was attempting to conduct a market garden, and to that effect he had bulldozed the track from his garden to the pump which pumped water from his former wife’s dam.  He said that whilst walking on the track he and Sayers noticed the side-track which they followed to the crop and were surprised at its presence.  That this single association with the crop happened while the police had it under surveillance was, he says, pure coincidence.  He said that after inspecting it out of curiosity, they stole a few leaves opportunistically.

In the light of all the evidence, a viewing of the videotape leaves no room for the slightest suspicion of any truth in this story.  It also reveals the appellant’s unwillingness to accept his responsibility for the offence and a well-developed facility to misrepresent circumstances to try to escape it.

This became further manifest when, after their conviction, he and Sayers instructed their counsel to admit their guilt in his address on sentence and to apologise to the Court for having defended the charges.  He now says that this was untrue and that he agreed to it only for the purposes of enhancing Sayers’ chances of a lighter sentence though his admission would have made no difference to Sayers’ sentence.  His explanation of this was most unconvincing.  In his address on this appeal on the issue of sentence, he also seemed to be implying his guilt clearly, but in case he was speaking hypothetically, in fairness this should be disregarded.

He now names another person as the true cultivator of the crop.  He says that he withheld this at the trial because, notwithstanding the strength of the Crown case,  he had every expectation of acquittal and he did not wish to assist the police since he is opposed to the laws against marijuana.  The evidence that he advances in support of this is far from compelling, and is particularly unacceptable when measured against the weight of the contrary evidence and his own admission of guilt to the Court.  It is certainly not such that, having deliberately withheld it at the first, he should be allowed to use it for a second trial.

Among his many grounds of appeal, he has challenged the validity of the search warrant on various grounds.  The first is that the address to which it referred was incorrect.  Again, no such point was taken at the trial.    That aside, the claim that technically it did not refer to the subject land is not made out.  The land at that address was generally known as Lot 300 or number 300, Old Palmerston Road, and in his evidence, even the appellant himself described his address in that way.  The description of the land in the warrant was merely for the purpose of identification.  Providing that it was suitably identified, it was not necessary to use its technical Real Property Office description, and accordingly the description by which it was commonly known was adequate.  That identification was fortified by the warrant’s other reference to the occupation of the land by the appellant since he did occupy land at that address.  For these reasons, the description used did not defeat the validity of the warrant. 

Technically it extended to the whole of the land at that address, for it is not expressly limited to that part of the described land occupied by the appellant.  The reference to his occupation was no more than an added form of identification of the land, rather than as a limitation of its effect.  It could be said of the land known as Lot 300, Old Palmerston Road, that it was occupied by him, though it was also occupied by another.

Even if there had been some technical insufficiency of the description of the land to which the warrant applied, the conduct of the police was fully and satisfactorily explained, and if the issue had been taken at the trial, then on the Bunning v Cross^[1] principle, the Court’s discretion must clearly have favoured the admission of the relevant evidence.  Although full weight should be given to the need for the sufficiency of compliance with the prescribed conditions for search warrants, since they permit infringement of the ordinary citizen’s right to the privacy of his or her premises, there is no absolute rule as to identification of premises and no necessary exclusion of evidence obtained by means of a defective warrant.  The premises need be identified only with reasonable particularity^[2] and in a criminal trial the evidence obtained by means of a search warrant that is defective simply because the address is incorrect will not be excluded if the error is of a technical nature only and without any police misconduct.^[3]

The appellant also points out that the warrant’s endorsement shows that it was executed on 31 July 1997.  If that were so, he argues, the police were not authorised to be on Miller’s or his own property on 26 July, the date the surveillance video was taken;  but on all the evidence the endorsement is plainly incorrect.   Having obtained the warrant the day before, and having conducted their search in a manner totally conformable with their execution of it, there is no good reason why the police should not be believed to have conducted the search in the execution of it.  To have acted otherwise would have been pointless.  The issue was not raised at the trial where an explanation could have been given.  The implications claimed by the appellant are untenable.

He also spent some time challenging the identity of the warrant tendered at trial upon the basis that it did not correspond with his solicitor’s facsimile transmission copy, but the distortion in the printing of his copy where he claims discrepancies exist suggests very strongly that the distortion is due to the method of transmission.  In every other respect, the documents are identical.  Again this was neither raised at trial nor in his notice of appeal.

Again totally without evidence to support his claim, the appellant alleges that the police had no evidence such as they claimed in support of their application for the search warrant.

He also takes a related point that the police had no warrant or Court approval for video surveillance of the crop.  Accordingly, he claims the evidence relating to it was not admissible, even in the discretion of the trial Judge.  However, the Invasion of Privacy Act 1971, and R v Vickery^[4] which refers to its effect and on which his argument relies, do not apply because it is limited to the use of listening devices relating to private conversations.  That is not relevant here.

On hearing this, the appellant turned to an argument that this evidence should be excluded because there was no warrant obtained for it under the Drugs Misuse Act 1986.  Section 25 of that legislation empowers a Judge of the Supreme Court to issue an interception warrant to authorise, inter alia, the use of a visual surveillance device in a place specified in the warrant and to monitor visual images by means of it.

However, this Act does not prohibit the introduction of evidence obtained by means of such a device in the absence of such a warrant.  It merely authorises such action where otherwise it may be unlawful.  In the present case there was no unlawfulness associated with the act of video surveillance since the police were validly on the property and acting within the scope of their authority.  It is not the kind of activity to which s. 25 applies.  It was merely the mechanical recording by a police officer of what was being observed legitimately, much in the same way as a conversation with a suspect might be recorded by mechanical means.

Further, even if it had been irregularly obtained, since it was not absolutely excluded from evidence by any statutory provision, on the evidence presently available it should have been admitted in the exercise of the Court’s discretionary power.

Another ground of appeal arises from the appellant’s appearance at his trial with his hair dyed blonde with an orange hue.  He says that when the jurors were viewing the videotape of his actions at the plantation site, they were also looking at his hair in what he felt was a significant way.  He now claims that this disadvantaged him because the jury did not hear how the dyeing of his hair had an innocent explanation and would have taken an adverse view of him in the belief that he had been trying to alter his appearance.

That he did not refer to this in his evidence nor admit to the Court at an early time that he was the party in the videotape is, he says, one of the many faults of his counsel in the presentation of his case.  However, for reasons that have been earlier noted, this bare allegation does not justify further consideration by this Court.  He admitted in his evidence that he was indeed the person shown in the video, and it became plain in the trial that this was not in issue.  Consequently the jury could not have been left with any impression that he had been attempting to change his appearance for ulterior purposes.  This complaint lacks merit.  He further claims that a multiplicity of small matters such as this would have generated a substantial prejudice against him in the jury’s mind, but if each had simply no force whatsoever, they do not gain collective weight.

The same applies to his complaint of a gentle jest, made in the presence of the jury, by the learned trial Judge about “watching the grass grow” during a discussion with counsel about the length of time spent by the Court in watching the video of the surveillance of the cannabis crop while nothing had been happening.  The appellant concedes that the remark was apparently designed to reduce tensions in the courtroom but claims that in some undefined way it prejudiced him in the jury’s mind.  Since it was not in issue that a marijuana crop was depicted, and since the learned Judge’s remarks did not in any way suggest the appellant’s cultivation of it, which was the only issue, the remark was absolutely innocuous.  No objection was taken at the trial nor was His Honour asked to remedy any suggested prejudice.  The reason is plainly because there was none, as the appellant well understands.  It is another of his complaints as to his counsel’s inadequate defence of him.

He has referred to a number of suggested discrepancies in the evidence of the police, but they were either explicable or of little weight.  In some cases they were not explored in cross-examination at the trial, so an opportunity for explanation was not afforded to the witnesses.  No doubt those that were brought to the attention of the jury were given the weight that they respectively deserved, but having regard to the issues to which the trial was confined, at most they would have had little, if any, significance.

The same applies to the many other issues as to the police evidence which he raised, such as his belated claim that the number of marijuana seedlings in the plantation as deposed to by the police did not match his count of the number shown in a photograph of seedlings that was tendered.  However, it was not said to show all the seedlings so the point is meaningless.  Nothing on this point was raised at the trial where any explanations could have been provided.

So too, he challenges the number of plants overall which the police said they counted and which was supported by the expert’s certificate and not challenged at the trial.  Although the difference in number would not affect the technical basis of the charge the appellant says that this goes to the quality of the police evidence overall, and to the length of his sentence.

His claim is based upon his estimate of the number of plants shown in another photograph of the plantation, and it assumes that the photograph depicts the whole of it, as to which again there is no clear evidence.  The Court accepted his invitation to compare the photograph with the video evidence of the scene, and whilst it is somewhat difficult to say, it does not seem that the whole plantation is depicted in the photograph upon which he relies.  The video recording does not assist on this point of numbers, for although the area under cultivation was limited, as the police volunteered in their evidence, a reasonable visual estimate of the number of plants from such broad depictions is not possible.

In these matters the appellant has tried to take advantage of the absence of any investigation on his part of these issues at the trial.  Having regard to his apparent expertise in such manners which he manifested on his appeal and the time he spent inspecting the crop as revealed by the video evidence, his failure to raise them on his trial is unsatisfactory; and his behaviour in many other respects must throw grave doubt on his claim.   But the most cogent point is that there is just no acceptable evidence to support it.  Moreover, if the photographic evidence provided any reasonable alternative check on the number of plants alleged to have been located, it is most unlikely that the police would have fabricated or would have had any need to fabricate their evidence as to this count.  It would have been dangerous for them to have misbehaved in that way and the advantage to them would have been slight indeed.  There is nothing in this point.

He also alleges that the videotapes put in evidence were enhanced versions because, he says, they have greater clarity than the copies provided to the defence.  Again, no doubt for good reason, this issue was not raised at the trial although it was available at that time, and there is just no evidence to support the claim.  Even if the defence copy were not as clear as the original, that does not lead to any inference adverse to the latter.  Moreover, because of the nature of his defence it is difficult to understand how any enhancement would have been unfairly prejudicial to him.

He complains that the prosecution failed to lead evidence that fingerprint and other testing at the site of the respective offences failed to reveal any evidence of his involvement.  For what it was worth, it was open to the defence to have introduced this evidence through cross-examination or to have commented upon it in address to the jury.  Although there is no evidence as to the latter, presumably the appellant would complain that his counsel’s failure to do so was one more dereliction of his duty, but that does not follow.  It is usually found that negative testing results in such circumstances bear no implications favouring an accused, and counsel could well have followed the commendable strategy of avoiding such useless points.

  Although it is unnecessary to traverse the criticisms that the appellant sought to make of his counsel’s conduct of the trial, it may be noted that perusal of the record suggests that his defence appears to have been conducted competently despite the obvious difficulties his counsel must have encountered in dealing with a strong prosecution case.  Many of the omissions complained of would appear to have had good forensic reason, for, as it has been remarked above,  the appearance of pursuing points of little value which could be easily answered would probably have put the defence case in even a worse light.

There is no evidence to show what matters were avoided on tactical grounds, and even if his complaints were accepted, the totality of those that could possibly have any validity could not have affected the result.  Any concern for fairness that they could engender does not approach the degree of seriousness which the authorities require for a successful appeal on this ground: R v Birks; ^[5] R v Miletic; ^[6] R v G;^[7]  R v Wakim. ^[8]   As it is observed in Wakim:

Per Winneke A.C.J.  Decisions made during a trial as to tactics to be employed are decisions which depend on the judgment of counsel who is in a far better position to make these decisions than an appeal court.  That is why such decisions, even if believed to be unwise or unsound, will almost never found a successful appeal on grounds of miscarriage of justice.

Per Ashley A.J.A.  Where the conduct of counsel at trial, particularly in making a tactical decision, is called into question, intervention by an appellate court is proper only when there is present a “shock factor” - an instinctive recoiling from what was done - provided, of course, that the “shock factor” or reaction is present when the matter is considered from the perspective of a decision made at trial rather than with the excellence of vision which hindsight gives.

The application of these principles to the present case shows that the appellant’s complaints do not constitute any reasonable ground of appeal.

This appellant has failed to demonstrate any ground for thinking that the necessary level of incompetence (or any level of incompetence) was present or that any conduct by counsel could be thought to have deprived the appellant of a significant possibility of acquittal.

He also claims that the preparation of the defence was impeded as the result of the misconduct of his solicitor and counsel and the prosecution, but there is no reliable evidence that counsel was disadvantaged in the conduct of the defence.  It may be that many matters that the appellant wished to investigate were seen by counsel to be unhelpful, if not inimical, to his case.  No application for an adjournment of the trial was made.

Another ground of appeal is that during the course of the trial, two of the police witnesses who remained in Court after having given their evidence were whispering and sniggering together, and that they had flushed faces and expressions of derision at any suggestion of his innocence.  These allegations, first in the written submissions, were extended in the appellant’s oral address and affidavit to include the Court Bailiff, who was not suggested to be in the company of the police witnesses.  It is claimed that this would have been seen by jurors and would have influenced them.

Such conduct by police officers, in the presence of the jury, if it occurred, should not be tolerated, but in the absence of complaint and investigation at the time, it is not possible to attribute any unfair influence to the alleged conduct.

No complaint was made to the trial Judge, but the appellant has sought leave to file and read an affidavit supporting this claim.  Leave to do so should be given but it is not necessary to allow the prosecution time to answer it.  Any such untoward conduct would usually work against its perpetrators.  Moreover, it cannot be assumed that these persons, including the Court Bailiff, were mocking the appellant, as the appellant and his de facto wife interpret the alleged events.  The latter parties were no doubt emotionally stressed by the seriousness of the occasion, and the subjective interpretation which they applied is neither admissible nor acceptable.  However, it is unnecessary to rely upon that.  Neither alone nor in combination with any other features could it have amounted to any miscarriage of justice in the present case.

None of the remaining arguments that were advanced has any merit or impugn the fairness of the trial.  His case on appeal consists largely of alleged evidence which is not new in the sense that would permit its introduction now.  The appeal against convicted should therefore be dismissed.

It should be observed that the appellant is afflicted with a psychiatric illness of a bi-polar nature, but he says that this has been kept under control.  It certainly does not affect his cerebration for he has a quick, clever and agile mind, and is adept in recognising points to his possible advantage.  He gave evidence at the trial and was disbelieved.

Lest it be thought that the quality of his submissions indicates some adverse effect of his psychiatric illness that would have disadvantaged his appeal, it should be remarked that he appears to be unwilling to accept punishment for his offences and has taken every means that his fertile mind can produce to avoid it.  He ventilated all his arguments in full detail with a high level of articulation and awareness; and he has provided further written submissions since the hearing of the appeal.  Every argument has been exhausted, and any matter raised that showed any promise has been investigated fully by the Court.

Sentence

The appellant was sentenced to four year’s imprisonment so that he would normally be considered for parole after having served half of that sentence.

He is a mature man of forty-three years with a fairly serious history of offences, particularly in relation to drugs.  In 1991 he was sentenced to four year’s imprisonment for the possession and supply of heroin.  He has not been convicted of any offence of production of a dangerous drug, but that is of little relevance in the total context.

His lack of remorse is obvious and he seems to intend to defy the law.  In addition, in this offence, he corrupted a young man for whose job training he was receiving public monies.

The criminal enterprise in the production charge was not small but neither was it extensive, and while it was adequate it was not sophisticated.  The quantity of plants involved clearly indicated some commercial purpose.  The appellant’s suggestion that it was no more than sufficient to supply the producer and “an indefinite number of friends” with drugs for their own use on a non-commercial basis is not persuasive, though of course, that may have been part of the purpose of the scheme.  It is probable that the appellant’s late challenge to the number of plants found by the police stems from his realisation that this limited purpose that he now suggests loses credibility by reason of the number of plants found.

The sentence imposed below is at the higher end of the permissible range, but the deterrence factor must be given proper weight as to both the appellant himself and the community in general.  The appellant’s criminal record and attitude show that he needs strong deterrence.  As for community deterrence, the appellant himself told this Court that this offence is widespread in the area, and this is a factor which would have been taken into account by the learned sentencing Judge.

The only feature of the appeal which is at all arguable is whether sufficient allowance has been made for the additional hardship which the appellant will endure by reason of his psychiatric problems.  Although it must be emphasised that his trial and appeal were not adversely affected by this, there appears to be sufficient objective evidence to show that his incarceration will be more difficult for him than for someone not similarly afflicted.  In the absence of this factor the sentence might simply be regarded as falling at the high end of the range appropriate to these offences, but if that feature is given proper weight, the result is excessive.  For that reason, the sentence should be reduced to imprisonment for three years.