The Queen v Mehrez[1999] QCA 319

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 113 of 1999

Brisbane

THE QUEEN

v

ROBERT MEHREZ

(Applicant) Appellant

McPherson JA

Thomas JA

Derrington J

Judgment delivered 17 August 1999

Joint reasons for judgment of McPherson JA and Derrington J, separate reasons of Thomas JA concurring as to the order made.

APPEAL AGAINST CONVICTIONS AND THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS: CRIMINAL LAW - EVIDENCE - Confessions and admissions - Extortion and like offences - Fresh evidence

JURISDICTION - PRACTICE AND PROCEDURE - Matters connected with conduct of defence

Mickelberg v The Queen (1989) 167 CLR 259

R v G [1977] 1 Qd R 584

R v Shambrook (CA 359/1996; 21 Oct 1997)

Evidence Act 1977

Counsel:  Mr J Punch for the appellant/applicant

Mr R Martin for the respondent

Solicitors:  Legal Aid Queensland for the appellant/ applicant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 4 August 1999

JOINT REASONS FOR JUDGMENT - McPHERSON JA and DERRINGTON J

Judgment delivered 17 August 1999

1. Robert Mehrez appeals against conviction in the District Court at Southport on a charge of official corruption, which was count 2 in the indictment against him at the trial at which he was also convicted on count 1, which was a charge of extortion. Originally he also appealed against his conviction on count 1, but in this Court he sought leave to withdraw the appeal against that conviction, which has now been dismissed. It is nevertheless necessary to say something about the circumstances leading to the charge on that count in order to explain how the charge on count 2 came about.

2. In January 1998 two of the principal witnesses at the trial, who were Ji Matthews and Vaughan Scott, were asked by a friend of theirs named Tim Healey to dispose of some methyl amphetamine or "Ecstasy" tablets. At first Healey gave them, or one of them, 10 of the tablets and asked them to sell them. Later, after giving them a further 200 tablets, he told them his life would be in danger if the tablets were not sold at $40 each and the money paid over to his supplier. Within the next few days Matthews and Scott were introduced to the appellant and a series of telephone calls took place between them. The appellant told Scott that if payment for the tablets was not made by a particular day, people would be coming from Sydney to "fix him up", which he understood to mean that they would "smash" or kill him or them.

3. Eventually Scott and Matthews were told to come to room 2001 at Surfers International, where the appellant was staying. He demanded they pay $8,000 for the drugs, which he refused to take back. The appellant was described as being "pretty upset" and said his friends from Sydney were coming up in the morning and that Scott and Matthews would probably be killed. There was a reference to the appellant having a gun in the unit. Matthews finally said he would pay the money, and he was allowed to leave in order to go and get it. Instead, he went to the police station leaving Scott in the room. By the time the police arrived at Surfers International, the appellant was on his way out. They spoke to him on the street and then moved to a park near Billy's Beachhouse.

4. Det Dunn had a field tape recorder with him by means of which he recorded his conversation with the appellant (ex 3). Either then, or later in the formal police interview, the appellant confessed to having asked for the money from Scott and Matthews and also that threats were made about what would happen to them if they did not pay. He even named the person and identified the time of arrival of the aircraft on which he would be travelling from Sydney. While the appellant and the police were still at the park near Billy's Beachhouse, the appellant asked if he could speak privately to the senior police officer present. He was Det Snr Sgt Bennett, who was the operations co-ordinator at the Surfers Paradise Police Station. His evidence at the trial was that it was not his normal practice to take a field recorder with him when he went out on occasions like that, which is why he did not contemporaneously record the conversation he had with the appellant, which took place away from and out of earshot of the others. However, as soon as the conversation was over he borrowed Det Dunn's field recorder and used it to record his recollection of what had just been said to him.

5. When Det Bennett came to give evidence at the trial, he said he had an independent recollection of the conversation and was permitted to refresh his memory from the tape recording or a transcript of it. His evidence was as follows:

"Could you outline to the Court your recollection of that incident, please? -- With other detectives we had a meeting at Surfers Paradise Police Station and after that we proceeded to a small park near Billy's Beachhouse on The Esplanade, at Surfers Paradise, and as a result I saw the accused there and a number of other people. Detective Senior Constable Mick Dunn was actually speaking with the accused and was recording that conversation on a tape recorder. At some stage I walked away from the conversation and then I came back and when I came back the accused asked if I was in charge and asked to speak to me. I don't remember the exact conversation of how he asked, but that's basically how he asked.

Can you outline, please, from what you remember, the conversation - from what you remember now of the conversation? -- Well, after he asked to speak with me as I was in charge, we walked away from where Detective Dunn was, a distance of about ten metres in the park that I talked about, and he then - and at that time I didn't have a tape recorder on me and he then told me that there was some tabs up in his room and - I'm not really clear on the conversation, it's some time ago and I don't have a great recollection of it - basically he told me that what was in the room was ours if we wanted it, if you know what I mean.

Okay. After you had this conversation did you do anything so that you might be able to recall this conversation? -- Yes, immediately after I had the conversation with the accused, I walked straight back to detective Dunn and I then by my voice put immediately on Detective Dunn's tape recorder my exact recollection of that conversation with the accused."

In answer to a question from his Honour, Det Bennett said that "only a matter of ten seconds" had elapsed after walking back from the appellant before he recorded what had been said.

6. It was essentially on this account of the conversation that the Crown relied to prove the case on the corruption count 2 on which the jury found the appellant guilty. Det Dunn was able in his evidence to confirm that the appellant had asked to speak to Bennett, after which the two of them had moved away together. Dunn himself did not hear any of the conversation which then took place between them. Bennett was cross-examined about the advantages of carrying a field tape recorder, and as to why he did not have a field tape recorder with him on that occasion. He said he did not recall the appellant saying to him, "Fair cop Gov, you've got me fair and square". He also denied that what the appellant was "trying" to say to him was "they're not my drugs, they're not my tabs, you can take whatever you like; they're just not mine". Asked if he conceded that that was what the appellant "might have been trying to say" to him, or whether it was "possible" he was trying to say that, Det Bennett said, "Remotely possible, I suppose".

7. On the evidence given by Bennett about this conversation the jury were plainly entitled to convict the appellant on count 2. On appeal, it was stressed that Bennett had never at any time been asked to adopt the conversation in the form in which it was recorded by him, either when Bennett made the recording or at the formal later police interview with Dunn. The charge on count 2 was in fact not laid until after the appellant was convicted on count 1. On appeal, it was submitted that these circumstances aroused suspicions about Bennett's veracity to which the jury should have given effect. It was also submitted that counsel for the defence at the trial had failed to conduct the defence competently and that, for these and other reasons, the appellant should be acquitted, or else be granted a new trial, on the strength of what he could have said about the conversation with Bennett if he had given evidence at the trial.

8. At the appeal hearing, an affidavit was tendered to show what his evidence about the disputed conversation would or could have been. The affidavit is directed principally to matters relating to the sentence imposed, but in para 6 of it the appellant deposes that he was not guilty of count 2, and he denied offering Det Bennett the drugs. Paragraph 6 goes on:

"I said: 'I have been very stupid. There is no gun and no heavies. I was just trying to help a friend recover some money. You have got the drugs. They're not mine.  No harm is done. Can't you let me go?'

He said: 'Are you offering me a bribe?'

I said: 'No. I've just been stupid. Can't you let me go?'"

Paragraph 6 went on to add that there may have been other conversations which he could not recall; but that he had not offered Bennett drugs at all.

9. There are several features of this account of events that are less than satisfactory. In the first place, it does not claim to be any more than the appellant's "best recollection" of what was said in the conversation. He admits that there may have been other conversations which he cannot recall. According to the version or versions of it put by the defence counsel in cross-examination, Bennett was, in relation to the drugs, invited "to take whatever you like" or "you can take them, you can do what you like". By contrast, the version in para 6 of the affidavit deposes that the appellant said "You have got the drugs". It is difficult to understand why the appellant should have made a statement to that effect at a time when the police had not yet even begun to search unit 2001 in Surfers International. It was only when they did so that they found drugs there.  In the conversation recorded in ex 3, the appellant denied ever having been in room 2001. He did, however, later plead guilty to possession of the drugs there on the basis of his having been in control of the premises in which they were found. There are the references to "guns" and "heavies" in the latest version of the conversation set out in para 6 of the affidavit. Again, it is difficult to understand why the appellant should have volunteered any mention of a gun or guns, when there is no reference to guns in ex 3, which is Dunn's taped record of the conversation in the park. It was said that this could be explained by the fact that Dunn admitted he had switched off the recorder from time to time in order to conserve tape; but at the trial Dunn said he recorded all of the conversation that took place between him and the appellant in the park, and it was not put to him that there had been any mention in the course of it of a gun or guns.

10. In my opinion the evidence referred to in para 6 is lacking in the degree of cogency that is required to make it admissible as fresh evidence on appeal. It does not raise "a significant possibility" that the jury, acting reasonably, would have acquitted at the trial. See Mickelberg v The Queen (1989) 167 CLR 259, 273, 275, 291-301. There are too many inconsistencies with other evidence and other versions of it that were put (or not put) to prosecution witnesses at the trial. Moreover, the impression that Bennet's account of the conversation with him was accurate derives some independent confirmation from the appellant's statement recorded at the end of ex 3, which was:

"You in charge, I prefer to talk to you in private, like, it will make things easier for everyone, you know what I mean ...".

Considered objectively, making things "a lot easier for everyone you know" leads on quite naturally to the conversation with Bennett in which the bribe was said to have been offered, and which, in the taped record ex 3 itself, follows on sequentially after that remark by the appellant.

11. A "significant possibility" of acquittal is also a test or standard which has been applied where the appellant complains, as he does here, that the conduct of his counsel at the trial was so incompetent as to deprive him of a chance of acquittal. See R v G [1997] 1 Qd R 584, 587, where it was said that that test will not be satisfied, other than in wholly exceptional cases, in relation to decisions made in the conduct of the trial that might have involved both advantages and disadvantages for an accused person. See also R v Paddon (CA 122 of 1998; 28 Aug 1998), where these principles and those stated in R v Birks (1990) 19 NSWLR 677 and R v Miletic [1997] 1 VR 593 were considered and applied.

12. In the present case, the appellant complains that he should have been advised to plead guilty to count 1, and then to have given evidence himself on count 2 with a view to challenging Bennett's account of the conversation with him. Unlike counsel for the defence, however, we have not had the advantage of seeing any pre-trial statement from the appellant, or of having had a conference with him. Counsel may in fact justifiably have formed a professional judgment that the appellant would not have been an impressive witness. In view of the inconsistencies between his instructions to counsel at the trial about what he said in the conversation with Bennett, and the version he now gives as his "best recollection" of it, it is not possible to characterise counsel's advice that the appellant should not testify on his own behalf as the result of incompetence. It may be right to say that the evidence against the appellant on count 1 was strong enough to justify a plea of guilty on the charge of extortion; but, for reasons which we are not now in a position to identify, the prosecution did not at the trial tender the formal record of interview, of which a copy is exhibited to the appellant's affidavit on appeal. Perhaps prosecuting counsel was reserving it for use in cross‑examining the appellant if he elected to give evidence at the trial. Even if he had pleaded guilty to count 1, what he had said in that interview could have been used to destroy his credibility as a witness even if (as is the fact) it contains no reference to count 2.

13. The Crown did not on this appeal adopt the expedient of interviewing defence counsel about communications between him and the appellant at or before this trial that bore on the matters now put in issue by the appellant. See R v Paddon, above. In my opinion, it was not incumbent on the prosecution to do so in this instance. The advantages of the course followed by the defence at the trial are at least as obvious as the disadvantages now emphasised by the appellant. If the forensic tactics adopted on his instructions, or with his assent, at the trial had succeeded, the appellant would not have been appealing to this Court.  He cannot now complain that, because those tactics were not successful, he should now have an opportunity of a new trial in which to try out a different method of meeting the Crown case. There was no identifiable miscarriage of justice in the trial of the appellant. All of the evidence, including the additional material now before this Court, tends to confirm his guilt with respect to the second offence as well as the first.

14. The appellant also applies for leave to appeal against sentence. His Honour imposed a sentence of imprisonment for 2½ years on count 1 and one year on count 2. He ordered that they be served cumulatively. It was within his power to do so in the case like this involving two separate and distinct offences. An attempt to bribe a police officer not to prosecute for an offence is plainly a serious matter, in which the element of deterrence has an important function.  If the sentence imposed for it is not cumulative, there would be no disincentive against making such an attempt on any and every occasion on which a suspect found himself facing a charge. The learned judge recognised that the bribery attempt here was a "clumsy" one; but that is reflected in the relatively slight additional penalty imposed in respect of it.

15. His Honour reserved the major penalty of imprisonment of 2½ years for the extortion offence. It has some serious features. If, as the appellant asserted he was simply engaged, like everyone else in the case, in doing a favour for a friend, he nevertheless went to considerable lengths to carry out that favour. In doing so, his methods caused obvious distress to Matthews and Scott. The suggestion that they regarded the appellant's threats as something of a joke is not borne out by the evidence they gave nor by the appellant's own admissions to the police. When, in the formal record of interview, he was asked whether they were scared when he told them that someone was coming from Sydney, he said "Yeah; they were actually, Vaughan [Scott] was in tears". He admitted he told them he had a gun. When they came into the unit, he said:

"They were both pretty freaked out. They thought I was some sort of hit man or something ... they gave me about three thousand apologies and I did not say a word. I was just sitting there like, sort of laughing inside like; they were just fully hysterical. You know what I mean, I've got the money mister, we'll get it please mister".

One of them had then said "look, for insurance, Vaughan you stay here, and his mate said ... he was going to get the eight grand and come back ...".

16. The seriousness of what the appellant was doing is not mitigated by the fact, if it be the fact, that the appellant later gave them a drink and chatted with them in a more friendly fashion. Stick and carrot are a device commonly used to extort payment of illegal debts. The appellant may have thought it was all a joke but he did not convey that impression to the young men he was threatening. The appellant is himself a young man, who was aged 21 at the time of the offence; but, having regard to what he said to his victims, his conduct showed a strong streak of heartlessness. On appeal, his counsel asked us to characterise the appellant's conduct as stupid. He was certainly very frank in his admissions to the police at the formal record of interview on 31 January 1998. Why he should have been so forthcoming on that occasion may be difficult to understand. It may have been, as counsel suggested on appeal, due to his relative youth and stupidity; or perhaps he believed that his corrupt offer to Bennet would protect him from prosecution. If so, it is not surprising that his counsel advised him not to give evidence at the trial; nor that he was not asked about it in the formal police interview. At his own request the conversation with Bennett was conducted in private and Dunn may not have been aware of it when he conducted the formal interview, at which Bennett was not present.

17. The appellant has a minor criminal record, including a conviction for an assault occasioning actual bodily harm; for misleading police; and for stating a false name and address, which would have been relevant to credit if he had given evidence and been cross‑examined about it by leave under s 15(2)(a) of the Evidence Act 1977. On appeal a number of affidavits were tendered from the appellant, his relatives and friends, who attest to the appellant's hardworking and friendly behaviour and character, as well as his charitable disposition. His behaviour on this occasion tends to belie that assessment. In his own affidavit he says he was earning $750 per week from his business as a plasterer or concretor and wished to reach financial security before marrying his girlfriend of five years, by whom he has a 2½ year old son. His behaviour on this occasion was certainly uncharitable, even if it was, as be claimed, carried out simply to oblige a friend.

18. On this point, the material contained in the affidavits tendered on appeal are not such as to justify a reduction in the sentence imposed. They depose to matters of fact that were readily available at the sentence hearing. Some of that material was in fact related, even if in considerably less detail, by counsel for the appellant at the sentence hearing. Those affidavits ought not to be admitted on this appeal. The head sentence of imprisonment for 2½ years was within the range of penalties commonly imposed for offences of extortion. See, for example, R v Shambrook (CA 359/1996; 21 Oct 1997 (imprisonment for three years)); R v Coleman (CA 343/1995; 2 Oct 1995 (five years)); as well as R v Jessen [1997] 2 Qd R 213 (three years); R v Gardener (CA 248/1997; 7 Aug 1997 (three years)), to which Thomas J helpfully referred the Court on this appeal; and R v Amery (CA 119/1999; 18 June 1999), where imprisonment for only one year was regarded as lenient. In some of them, the sentence was partly suspended or a parole recommendation was made; but they were not cases in which the extortion was accompanied by the further offence of attempting to corrupt a police officer, as it was here. The submission that the appellant is young, has learned his lesson, and should be released forthwith greatly underrates the calculated seriousness of the offences he committed here.

19. I would dismiss both the appeal against convictions and the application for leave to appeal against sentence. I am authorised by Derrington J to say that he agrees with those orders and with these reasons.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 17 August 1999

1. I agree with the reasons of McPherson JA and Derrington J and will add the following comments.

2. No sufficient basis exists for thinking that the appellant was incompetently represented at trial.  In particular the decision not to call the appellant as a witness was plainly a proper forensic decision made in consultation with the appellant.  The Crown case of extortion was very strong indeed, and the appellant would more likely have made matters worse for himself by giving evidence designed to support his plea of not guilty.  The strength of the Crown case now seems to be conceded, not only by the abandonment of the appeal against conviction of extortion, but also by the present complaint that counsel erred in failing to advise the appellant that he could plead guilty, and that this might have enabled him to obtain a discounted sentence.  He now swears that he "regrets" that he pleaded not guilty to that charge.

3. Against this background the appellant concentrated his appeal upon the conviction on the second charge (bribery).  To support that appeal an application was made to call further evidence.  In my view the further evidence is neither fresh nor cogent.  This application and appeal afford a clear example of a litigant who fights a case on a certain basis, loses, and who then desires a second trial so that he can fight it on a different basis.  The evidence sought now to be admitted was his to give at the time.  The application to give fresh evidence on appeal fails at the threshold.

4. The evidence of Sergeant Bennett is on its face persuasive, and there was adequate evidence to sustain both convictions.  Indeed, apart from the appellant's application to call further evidence, the main submission on appeal is based on the fact that the sergeant did not record the conversation which ensued when, at the appellant's request, he spoke alone with Sergeant Bennett.  In some cases where police fail to use a recorder to record field conversations courts are rightly critical of the failure and tell juries that where no sensible reason is given for failing to record such a conversation the jury should regard it with suspicion.  In the present case the sergeant attended the scene not as an investigating officer but as a co-ordinator and he could hardly be expected to anticipate that the purpose of the appellant's request to speak to him would be to offer him a bribe.  He reacted quickly when the bribe was offered, and immediately dictated notes of what had occurred while the conversation was still fresh in his mind.  It was submitted that he ought to have done so in the presence of the appellant, and that the appellant has thereby been deprived of the opportunity of applying his own mind to the words of the conversation while it was still fresh in his mind.  It is nearly always possible with hindsight to think of some additional action that could have been taken by police.  In my view this omission by the sergeant was not a matter of a kind which has caused the appellant to have an unfair trial or to cause concern that his rights have been infringed by any unfair police practice.

5. The appeal against conviction of bribery should be dismissed.

6. The sentences imposed were respectively two and a half years and one year to be served cumulatively.  The question is whether a total sentence of three and a half years is excessive for the criminality displayed by the applicant.  I do not consider the result to be excessive.  The applicant was obviously available to act as a standover man for the purpose of recovery of a debt in the illegal drug trade.  His conduct revealed confidence and cruelty.  Persons such as those whom he threatened are normally reluctant to complain to the police, and deterrence of such criminal conduct is a matter of considerable importance.  The application for leave to appeal against sentence should be refused.