The Queen v Antipas[1999] QCA 168

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 17 of 1999

Brisbane

[R v Antipas]

T H E Q U E E N

v

TASE ANTIPAS

Appellant

McPherson JA

Moynihan J

Atkinson J

Judgment delivered 14 May 1999.

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 14 May 1999

1. The appellant was convicted at a trial in the Supreme Court of an offence under s 5(1) of the Drugs Misuse Act 1986 of carrying on the business of trafficking in dangerous drugs, namely heroin and another dangerous drug specified in Schedule 2 of the Act. As matters developed at the trial, there was evidence of numerous references to "speed", which Det Senr Const Lisa Morrow testified was an expression used by people interested in buying and selling drugs to denote methyl-amphetamine or amphetamine, which is a dangerous drug listed in Schedule 2. The dates between which the business was alleged to have been carried on were 27 August 1996 and 16 February 1997.

2. The prosecution evidence at trial consisted almost entirely of tape recordings of telephone conversations (of which there were nine) which had been intercepted, together with recordings of two conversations obtained by means of a listening device secreted in business premises at 3998 Pacific Highway, Loganholme. The premises were occupied by a Mr William Clare, who was the person with whom the appellant had been conversing on each of the occasions in question, and who was said by the Crown to be a supplier of drugs to the appellant. The telephone conversations were recorded on 28 August 1996; 12 September 1996 (two conversations); 26 September 1996 (two); 28 September 1996; 29 September 1996 (two); and 15 February 1997. Recordings of these conversations were admitted as exs 1 to 9. The two conversations in the premises at 3998 Pacific Highway were recorded on 28 January 1997 and 3 February 1997 (exs 10 and 11). In addition, the appellant was interviewed by police on 5 September 1997 and made comments on passages in the tape recordings exs 1 to 11, which were played back to him. The interview was videotaped and in that form was admitted as ex 12 at the trial.

3. The question before the Court on this appeal is whether there was evidence that justified the jury in finding the appellant guilty, or, as was submitted on his behalf, whether the verdict is unsafe and unsatisfactory.  No issue is taken with the learned judge's summing up, or with the admissibility or admission of any of the evidence at the trial. It should, however, be added that, in respect of the recording of the conversation on 28 January 1997 (ex 10), the trial judge considered that the poor quality of the recording was such that it could be relied on only to the extent that the relevant parts of it were played to the appellant and accepted by him in the course of the recorded police interview (ex 12) on 5 September 1997.

4. With these matters in mind, it becomes necessary to examine the recordings with a view to considering what evidence they provide of the charge against the appellant of carrying on the business of trafficking in heroin and another dangerous drug, namely speed. As to the elements of that offence, it is sufficient to say that it now appears to be accepted that trafficking in s 5(1) involves knowingly engaging in the movement of drugs from source to ultimate user (R v Elhusseini [1988] 2 Qd R 442, 450-451), and that carrying on business ordinarily implies the doing of a series of acts involving an element of repetition or continuity: R v Elhusseini [1988] 2 Qd R 442, 445, 451, 454.

5. As regards heroin, there are a couple of references in the tapes to morphine but only one specifically to heroin, which appears in the recorded conversation on 3 February 1997 (ex 11). The relevant portion of the transcription of ex 11 (which like other transcriptions uses the initials TA to identify the voice of the appellant, and WC to identify William Clare to whom he is speaking) is as follows:

"TA:... I've got pure heroin and its [ui ...] pure.

WC:It's ah.

TA:Not the kind of shit you gave me before."

* * * * * * * *

"TA:...Tell them to bring another pound and a half please, ok. I'll get this ready, with another pound and a half, I'll be able to, no problem, couple of grand each you know, for the boys, fucken dead money mate."

* * * * * * * *

"TA:... I don't fuck around. I just want to make a little profit ..."

6. It was submitted that the appellant's statement in that passage from ex 11 went no further than to constitute an admission that the appellant had pure heroin in his possession, not that he was engaged in trafficking in it, or carrying on the business of doing so. That might perhaps be a tenable argument if it was all that was said in the extract from that tape or others like it. Even in the excerpt set out, however, the appellant refers to having previously received from Clare a similar substance ("the kind of shit you gave before" and "another pound and a half"); and to his having "no problem" with another pound and a half,  which would or might result, as it would seem, in "a couple of grand each" for "the boys", from which he hoped or wished to make only " a little profit". The clear implication in that passage, even when taken in isolation, is that the appellant was arranging to buy some commodity, which plainly enough was heroin, of which he had bought some of much lower quality before, and was expecting to make a profit from reselling it. Statements like that, which are the res gestae or outward manifestations of business activity, taking the form of negotiations for supply at agreed prices in which complaints about the quality of  consignments previously supplied are commonplace, are cogent evidence of the fact that a business is being carried on of buying and selling a particular kind of commodity or commodities.

7. Even if heroin were the only substance that was being bought and sold, the extract from ex 11 would go some way to establishing that the appellant was guilty of the offence charged. But it is not the only substance discussed in the conversations. There are also various references to another substance which evidently requires "pressing", "cooking" and "glassware" to make it. There is a reference by Clare at one point to "ox blood capsules", about which the appellant asked for elucidation. Clare told him it was simply a form of speed, to which the appellant responded that he wanted to stick to something he knew. It was speed he wanted, and in a hurry. There were people "out there" screaming for it. Well, said the appellant to Clare -

"... give me that fucking speed now mate, cause I've got all kinds of, I'm doing all kinds of [ ... ui ...] you know ... But you'll have the rest of the speed tomorrow, won't you."

Mixed in with this and similar remarks, there are references to precise quantities in pounds required by the appellant; to "cutting" it; to sales and making a profit; and to "the boys", on the basis of which it was plainly open to the jury to conclude that the appellant was engaged in buying and selling more than one kind of drug for resale at a profit through a distribution network ("the boys") to the ultimate consumer. That the appellant was or may have been supplying drugs of more than one kind was no bar to his conviction under s 5(1) of the Act. A person may choose to specialise in supplying only one form of drug, or may conduct an emporium offering a range of drugs involving acts that can properly be viewed as the single continuing offence of carrying on a business of trafficking in dangerous drugs. See R v Jacobs [1998] 1 Qd R 96, 97, 98-99, 102.

8. The various tapes or transcripts from which the foregoing excerpts are taken convey a sufficiently precise impression of what the appellant was engaged in doing as to justify the jury in concluding that he was guilty of such an offence. It was, however, submitted that the Crown had not established that the appellant knew what "speed" was; or that he knew it was a form of the dangerous drug amphetamine; or that he was engaged in some form of attempt to obtain repayment of some money which he had lent to Clare. As to the first and second of these matters, it is enough to recall Clare's explanation to the appellant about the nature of ox blood capsules. They were, he said, simply a particular form of speed, to which the appellant expressed his wish to stick to something he knew. He never asked for an explanation of the word "speed", which he used himself on several occasions. Even more revealing perhaps is a passage in the police record of interview ex 12 (in which the designation LM is used as an abbreviation for Det Snr Const Linda Morrow, who was the interviewing officer):

"LM:What were you talking about there, where it says 'if they're thin, they can just fuckin' smoke then, fuckin' roll them onto cigarettes and it be just like fuckin' marijuana' ?

TA:Oh, the guys that was telling me about it, it be, if it's crap, you know, they usually put it on marijuana and they smoke it.

LM:Speed, we're talking about ?

TA:Yeah, speed. Yeah."

The plain inference is that the appellant knew that speed was something that consumers put with marijuana, and which they smoked.

9. There was nothing in the recorded conversations to suggest that the appellant was engaged in dealing in any substance, legitimate or otherwise, other than the drugs specifically mentioned, which were heroin, morphine, speed, and also marijuana (although it was not alleged to be one of the drugs in which he was trafficking). There are frequent references to "crap" and "shit", but those words were obviously being used simply as synonyms for the drugs that were the subject of negotiation and purchase. The appellant did not himself give evidence at the trial or call evidence on his behalf, and it nowhere emerges with clarity from any of the tape recordings that he had in fact lent money to Clare. The most that appears from ex 12 is the appellant's statement to Det Morrow:

"TA:Look, if I was dealing with this, I'd be a wealthy man, I'm struggling to even survive. I didn't like the stuff, I was involved with lending the money, and I got involved in this crap thing, I tried to talk to them about this, and that, to see how we could make a fast buck to give me money back. I could have made a f... if I went for it, I mean, I am struggling to survive. So I was a victim of getting with these guys and talking their language to try and make a big frigging deal so I could try and get my money."

A few questions later he explained that he knew or used the language of those with whom he was dealing because he was "trying to impress them so I could bloody try and get my money off these guys, you know". He had simply said to Clare that, if he had that speed, and gave it to him, he could "put it out"; but Clare never had any. "All I wanted" he added, "was to get my money out of things".

10. Such an explanation is, in fact, at odds with the whole tenor of the recorded conversations, which speak of the supplying of drugs not only for the future but in the past, of their quality and quantities, and of profits to be made. Nothing at all in the way of money owing by Clare was ever mentioned or discussed, let alone how much, or the arrangements for repaying it. The jury were plainly entitled to reject as quite unconvincing this attempt to explain what the appellant said he was doing, and to be left in no doubt that what he and Clare were talking about was selling and supplying heroin and amphetamines. If accepted, his unsworn explanation would have gone no further than to show he was prepared to engage in buying, selling and supplying drugs in order to retrieve money that was owing to him. It would not have signified that he was not, even if only for that limited purpose, carrying on the business of trafficking in one or more dangerous drugs including those named in the indictment or at the trial.

11. The appeal against conviction should be dismissed.

REASONS FOR JUDGMENT - MOYNIHAN J

Judgment delivered 14 May 1999

1. This appeal should be dismissed.  I agree with the reasons of McPherson JA and of Atkinson J.

REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 14 May 1999

1. I have had the advantage of reading the draft reasons for judgment of McPherson JA with which I agree.  The submission of the appellant that the Crown had not established that he knew what “speed” was or that he knew that it was a form of the dangerous drug amphetamine is particularly disingenuous in view of the fact that, according to the current edition of the Macquarie Dictionary, the colloquial meaning of the noun “speed” is “amphetamines”.

2. I agree that the appeal against conviction should be dismissed.