R v Rhodes[1999] QCA 55

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No  347 of 1998

C.A. No  349 of 1998

C.A. No  386 of 1998

Brisbane

[R v  Rhodes and Kissling]

THE QUEEN

v.

ALBERT JOHN RHODES

 Appellant

and

STEPHEN PAUL KISSLING

(Applicant)  Appellant

de Jersey CJ

McMurdo P

McPherson JA

Judgment delivered 5 March 1999

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

1. ALBERT JOHN RHODES'APPEAL AGAINST CONVICTION DISMISSED.

2. STEPHEN PAUL KISSLING'S APPEAL AGAINST CONVICTION DISMISSED AND HIS APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: Appeal against conviction - joint enterprise in trafficking, supply and possession of methyl amphetamine - joinder of charges- whether co-accused should have been granted separate trial- whether evidence against one can be lead as evidence against all - acts in furtherance of common purpose- whether telephone records properly admitted - whether judge should have warned jury of danger of convicting on accomplice’s evidence - effect of s 632 Code on judge’s power to give warning -whether judge should have directed jury on use of prior inconsistent statements of accomplice witness- jury request for redirection- "guilt by association"

Application for leave to appeal against sentence - whether sentence manifestly excessive - offences committed whilst on bail for similar offences- totality principle - parity principle - recommended parole date beyond halfway point of head sentence

Ahern v The Queen (1988) 165 CLR 87

Davies v DPP [1954] AC 378

Morris v The Queen (1987) 163 CLR 454

Postiglione v The Queen (1997) 189 CLR 295

R v Anderson CA 90 of 1998, unreported, 11 September 1998

R v Griinke [1992] 1 QdR 196

R v Siedofsky [1989] 1 QdR 655

Tripodi v The Queen (1961) 104 CLR 1

Criminal Code s 7(1), s 568(9) (10), s 597A, s 632

Evidence Act 1977 s 101(1)

Counsel: Mr S Hamlyn-Harris for the appellants.

Mr D Bullock for the respondent.

Solicitors: Legal Aid Queensland for the appellants.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 10 February 1999

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 5 March 1999

1. I have had the advantage of reading the reasons for judgment prepared separately by the President and McPherson JA.   I agree that the appeals against conviction should be dismissed and that the application for leave to appeal against sentence should be refused.

2. Subject to what follows, I agree with those reasons.  My qualification is that I am not prepared to say that it would have been preferable for the learned trial judge to have warned the jury in terms to examine carefully the evidence of Delacour and Comollatti because of its importance to the case and their possible motive to lie.  It fell very much to the learned Judge, having heard the evidence and seen the witnesses, in the context of the whole case, to form a judgment on that issue.  His Honour was plainly alive to the possibility of giving such a direction, but - as a Judge of substantial experience in this jurisdiction - he obviously reached the view that the very extensive re-reading of cross-examination especially of each of those witnesses, included in his summing up, was a sufficient reminder to the jury of the need for care and the reason for that.  I otherwise agree with the President’s reasons.

REASONS FOR JUDGMENT - McMURDO P.

Judgment delivered 5 March 1999

1. On 4 September 1998, after a three week trial in the Supreme Court at Townsville, Rhodes was convicted of one count of trafficking in methyl amphetamines, 13 counts of supplying methyl amphetamines, one count of possession of methyl amphetamines, and two counts of possession of Sudafed tablets in connection with the commission of a crime; Kissling was convicted of one count of trafficking in methyl amphetamine and three counts of supplying methyl amphetamines.  Both are appealing against those convictions on a number of grounds and Kissling also applies for leave to appeal against his sentence.

2. The appellants were charged jointly on a 23 count indictment which can be summarised as follows:

Count 1- trafficking between 1 July 1995 and 3 September 1996 (Rhodes)

Count 2 - trafficking between 1 July 1995 and 3 September 1996 (Kissling)

Count 3 - supplying between 31 December 1994 and 4 September 1996 to Comollatti (Kissling)

Count 4- supplying between 31 October 1995 and 9 December 1995 to Delacour (Kissling and Rhodes)

Count 5- possession of Sudafed tablets in connection with a crime between 31 July 1995 and 1 December 1995 (Rhodes)

Count 6 - supplying between 31 August 1995 and 4 September 1996 to Comollatti (Rhodes)

Count 7 - supplying between 31 August 1995 and 4 September 1996 to Comollatti (Rhodes)

Count 8 - supplying between 31 October 1995 and 9 December 1995 to Delacour (Rhodes)

Count 9 - supplying between 1 October 1995 and 9 December 1995 to Delacour (Rhodes)

Count 10 - supplying to Scott on 26 November 1995 (Rhodes) - the jury was discharged from reaching a verdict in respect of this count

Count 11 - supplying between 1 January 1995 and 4 September 1996 to Comollatti (Kissling)

Count 12 - supplying between 1 January 1995 and 4 September 1996 to Comollatti (Kissling) - Kissling was found not guilty of this count

Count 13 - supplying between 13 March 1996 and 14 July 1996 to Delacour (Rhodes)

Count 14 - supplying between 13 March 1996 and 14 July 1996 to Delacour (Rhodes)

Count 15 - supplying between 13 March 1996 and 14 July 1996 to Delacour (Rhodes)

Count 16 - supplying between 13 March 1996 and 14 July 1996 to Delacour (Rhodes)

Count 17 - possession between 13 March 1996 and 14 July 1996 (Rhodes)

Count 18 - supplying between 13 March 1996 and 14 July 1996 to Delacour (Rhodes)

Count 19 - possession of Sudafed tablets for use in connection with a crime on 29 June 1996 (Rhodes)

Count 20 - possession of cannabis between 13 March 1996 and 14 July 1996 (Rhodes) - Rhodes was found not guilty on this count

Count 21 - supplying between 28 February 1996 and 4 September 1996 to Comollatti (Rhodes)

Count 22 - supplying between 28 February 1996 and 4 September 1996 to Comollatti (Rhodes)

Count 23 - supplying between 28 February 1996 and 4 September 1996 to Comollatti (Rhodes).

3. To establish the charges of trafficking brought against each appellant, the Crown relied on a course of conduct over a period of time up until their arrest which included the conduct constituting the charges of supplying by Rhodes and/or Kissling to both Delacour and Comollatti.

4. The Crown case was that Rhodes, his de facto wife McBain, and Kissling were jointly in the business of manufacturing methyl amphetamine from Sudafed tablets and selling it for profit.  McBain pleaded guilty at the commencement of the trial and did not give evidence. 

5. The main witnesses in the trial were Delacour and  Comollatti who gave evidence of their dealings with each appellant.

The facts

Delacour's evidence

6. Despite the dates alleged in the indictment, the earliest evidence of joint involvement was in November 1995 when Delacour met Rhodes.  They agreed that Rhodes would supply amphetamines to Delacour which Delacour would  purchase from him an ounce at a time.  About a week later, Delacour bought an ounce for $5000 on credit (count 4).  He met Rhodes as arranged and Kissling was also present.  Delacour then sold some to an undercover police officer (Wiesenekker).  It was analysed as methyl amphetamine (count 4).

7. Rhodes told Delacour that he and Kissling were "cooks" and that Rhodes wanted to get his hands on glassware.  Other evidence established that Sudafed tablets contain pseudoephedrine from which methyl amphetamine can be produced by a chemical process using substances such as acetone.  Glassware is commonly used as a reaction vessel. Delacour had some glassware used for making amphetamines but did not know how to do it himself; he was holding the glassware for a woman he knew.  Kissling asked Delacour to give him the glassware and Delacour agreed, although this did not in fact happen.

8. On 3 March 1996, Rhodes told Delacour he would forgive his debt if Delacour wanted to do more business because he was "up and running" again.  Delacour then gave evidence of his dealings in amphetamines with Rhodes which established counts 8, 9, 13-16 and 18.

9. On 12 July 1996, Delacour was arrested in Townsville after being found in possession of substantial amounts of methyl amphetamine, money and connected drug items.  He was living under a false identity with false identification documents and had failed to answer his bail.  Delacour agreed to assist police and implicated the appellants.  On 17 December 1996, he was convicted of trafficking in methyl amphetamine and sentenced to five years imprisonment with a parole recommendation after serving 15 months.  He agreed that at one time he thought he would receive a 15 year sentence; he signed a statement for the police and a letter of comfort, which he knew would reduce his sentence, was handed up to the sentencing judge.  He agreed that "the system had delivered ... a reasonable result in return for what (he'd) told them."  He had other convictions for minor drug and street offences and a conviction for possession of property suspected of being stolen for which he was sentenced to six months imprisonment in 1997.  He had told untrue things to the undercover police officer Wiesenekker. 

Comollatti's evidence

10. On 3 September 1996, Comollatti was arrested after being found in possession of methyl amphetamines and cannabis.  She, too, agreed to assist police and also implicated the appellants.

11. Comollatti knew Rhodes and his de facto wife, McBain.  McBain approached her to buy Sudafed tablets and gave her money with which she bought Sudafeds for McBain on a few occasions.  McBain once gave her instructions in the presence of Rhodes as to the size of the requested boxes of Sudafed (count 5).  Comollatti assisted McBain in popping Sudafed tablets from packets.  She picked up a box of Sudafed packets addressed to a false name at a service station and delivered it to McBain.  On another occasion, she took a box containing glassware similar to that in school science labs from McBain to deliver to Rhodes.  The amphetamines in her possession at the time of her arrest were obtained from Rhodes from whom she was buying for her personal use.  Rhodes asked her to sell for him.  She bought pure amphetamines from Rhodes on three occasions (counts 21, 22 and 23).  She bought cut amphetamines from Rhodes on two definite occasions (counts 6 and 7). 

12. She met Kissling probably after meeting Rhodes and McBain.  At one stage, she owed $1,250 to Rhodes.  Kissling came in a car to pick her up to talk to  McBain about it.  McBain gave her cannabis to sell.  She saw Kissling, Rhodes and McBain together mostly at McBain's house at Black River.  Kissling came to her home looking for buyers for amphetamines.  She bought from him twice, one gram on the first occasion (count 3) and two grams on the second (count 11).  There may have been a third time but she was not sure.  This possible third occasion was count 12 on which Kissling was acquitted.  Kissling told her that he was interested in bigger buyers than her and she discussed with him a bigger buyer in Wollongong in whom he was interested, although nothing developed.

13. Comollatti went to Wollongong just before Christmas 1995, returning in late February or early March 1996.  At trial, she said the sales occurred definitely after her return from Wollongong but at committal she said she purchased from Kissling before she went to Wollongong.  In a statement dated 8 December 1996, she said she first bought from Kissling in early January 1996 although at trial she said she was definitely not in Queensland in January 1996. 

14. She had a bad memory for dates and years and had been using amphetamines for  one to two years prior to her arrest and was addicted.  She was vague and sometimes inconsistent although her evidence did establish the relevant counts charged, apart from count 12 which resulted in a not guilty verdict.  After Comollatti gave evidence, the Crown was given leave to amend the dates in those charges involving Comollatti to reflect the variations in her evidence.

15. On 16 December 1996, Comollatti was convicted of trafficking in methyl amphetamine and cannabis sativa and possession of methyl amphetamines and was sentenced to a total of four years imprisonment with a recommendation for parole after nine months.  She was released on home detention after serving six months.  She knew her cooperation with police would assist her to get a lesser sentence.  She had prior drug-related convictions.

16. All counts of supply in respect of which Delacour and Comollatti gave evidence implicating either of the appellants occurred before Delacour and Comollatti were arrested, that date setting the later date between which each supplying charge occurred.  The testimony of Delacour or Comollatti was the main evidence supporting each charge of supply and was the main evidence of each trafficking count.

Other evidence

17. Other evidence as to the trafficking charges included evidence of a fire on 29 June 1996 which destroyed Kissling's house at Bluewater.

18. Comollatti was at McBain's house when Kissling and Rhodes' daughter arrived.  Kissling's hand was bandaged.  Kissling said he had burnt down the house, there was a big explosion and he had been cooking on the stove.  McBain asked Comollatti to pop Sudafeds out of packets and hide the Sudafeds because the police would come shortly.  Comollatti burnt the empty packets and hid the tablets.

19. On 29 June 1996, after attending the fire at Bluewater, police found Kissling at McBain's house at Black River with his hand in a bucket of water.  A cut off 44 gallon drum had been used as an incinerator and a number of burnt Sudafed blister packs were found.  The next day they located $2,000 in cash, a radio scanner and a folder with police radio frequencies.

20. Police spoke to Kissling after the fire in an unrecorded interview asking, "What did you mean before when you said we were on the wrong track talking to you?"  Kissling said, "I'm not the Mr Big you think I am.  There's no Mr Big.  There is no great laboratory.  Someone's just picking up a few bits and pieces and goes off into the bush and cooks up a batch of speed.  It only takes a few hours.  There is no great laboratory.  I knew a bloke who could cook speed with a saucepan and a candle.  He was the best cook ever.  He can do 20lbs in 24 hours."

"What about your house burning down in Bluewater, we were told you were cooking at the time."  --- "I was there but I was out the back having a beer.  They were just breaking down Sudafed.  I don't do that.  That's shit work."

"How much cash have you got buried in the rainforest, 100 grand?" --- "No, only five figures.  I was trying to put some more away."

"Where is it buried?" --- "I'm not going to tell you that.  You'll take it."

Kissling denied knowing Delacour.

21. Delacour spoke with Kissling by phone.  He asked Kissling "if he had any gear or do any business ... he said not at that stage."  Later, Delacour said:

"I said to him 'I hear you had ... a bit of a fire out there' sort of thing ... He said that there was a stuff up and there was an explosion and that and that there was a fire at a property that he was living at Bluewater at the time. ... I spoke to (Rhodes) around the same time.  I said to him, '... I hear there was a bit of a problem out at Steve's place': he said, 'Yeah.  Young bloke needs his arse kicked' sort of thing, 'over it'."

It was put to him he did not have this telephone conversation with Kissling.  Delacour said,  "I know I did" adding "Well, there'd be phone records where I talked to him anyway."  These phone records were later produced.

22. Police officer Wiesenekker gave evidence without objection.  He was operating as an undercover police officer.  He purchased substances from Delacour on seven occasions from 16 November 1995 to 13 January 1996.  That material was later analysed and found to be methyl amphetamine.  Wiesenekker was cross examined at length by defence counsel who attempted to discredit Delacour through him and to establish a prior inconsistent statement made to him by Delacour.

23. Evidence was given of a consignment of Sudafed tablets from South Australia to Cairns which was intercepted and was subject to surveillance.  A tracking device was inserted.  The package was collected by Vicky Fowles and taken to an address where it was later picked up by McBain.  A woman identified from a photo board as McBain went to a business called Austek Professional Communications with a tracking device and asked for it to be identified. 

The appeals against conviction

Should Kissling have been granted a separate trial?

24. The learned trial judge refused to grant Kissling a separate trial.

25. Kissling and Rhodes were jointly charged in respect only of count 4.  The indictment contained 23 counts although count 10 was later withdrawn from the jury.  Counts 2, 3, 11 and 12 concerned Kissling only.  The remaining counts concerned Rhodes only.  Section 568(9) of the Criminal Code provides:

"Any number of persons charged with committing ... the same offence ... may be charged with substantive offences in the same indictment, and may be tried together ... ."

There can be no complaint that the appellants were properly charged in respect of count 4.  Although separate counts of trafficking were charged against each appellant, the trafficking counts were, in effect, the same offence: the appellants and McBain trafficking jointly in amphetamines.  The trafficking counts (1 and 2) were properly joined with each other.

26. Section 568(10) of the Criminal Code provides:

"Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together."

27. Consistently with the principles established in Tripodi v.  The Queen^[1] and Ahern v.  The Queen^[2], once the Crown produced reasonable evidence that Kissling, Rhodes and McBain were acting together in the trafficking, the Crown was entitled to lead as evidence of this joint trafficking, acts done or words uttered outside the presence of one appellant by the other appellant or McBain in furtherance of the common purpose of trafficking.  The evidence of acting in concert included Rhodes' claim to Delacour that both he and Kissling were "cooks"; evidence as to the manufacture of amphetamines from Sudafeds; requests to Delacour from both Kissling and Rhodes for glassware; Kissling's involvement in Comollatti's debt to Rhodes and McBain; Kissling's interest in bigger buyers; Kissling's admission to Comollatti that he burned down the house at Bluewater whilst "cooking" on the stove; the items found by police the next day at McBain's house; Kissling's presence at McBain's house on the day of the fire; and Rhodes telling Delacour about the fire "that there was a stuff up and there was a fire at a property that he (Kissling) was living at Bluewater at the time ... Young bloke needs his arse kicked".

28. The indictment charged the appellants with offences in counts 3-23 which also constituted evidence against both of them on the trafficking offences (counts 1 and 2).  Counts 3-23 therefore arose substantially from the same or closely related facts as the trafficking counts.  Count 10 was withdrawn from the jury and it is not suggested any particular prejudice resulted in respect of this count.    All charges were lawfully joined in accordance with s 568(10) of the Criminal Code, and moreover that joinder was appropriate on the facts of this case.  The desirability of having these interlocking issues canvassed in the one trial far outweighed any prejudice that could flow to the appellant Kissling.

The refusal of the trial judge to exclude evidence of telephone records which were not disclosed to the defence until during the trial.

29. The learned trial judge allowed evidence of telephone records to be given which was not disclosed to the defence until day eight of the trial and only after it had been put to Delacour in cross examination that a telephone conversation with Kissling had not taken place.  The police had obtained these records about two years before the trial.  They showed a phone call from Delacour to Kissling's mobile phone during the relevant period.  The prosecutor had mistakenly believed the records had already been provided in some form to the defence. Once he learned he was in error, he obtained copies for the defence.  The evidence was not led until some days later and Delacour was made available for further cross examination which was consistent with Kissling's existing case: it was suggested that Kissling's mobile phone number was diverted to another number and the call was never received by Kissling.

30. Counsel for the appellants conceded he could not point out any prejudice that flowed from the admission of the telephone records to the appellants.  There was no suggestion that the telephone records had been deliberately withheld from the defence.  In all the circumstances, the evidence of the telephone records was relevant and properly admissible and no injustice resulted.

The failure of the trial judge to warn of the danger of convicting on the unsupported evidence of Delacour and Comollatti.

31. Since 1 July 1997, s.  632 of the Criminal Code has provided:

"(1)  A person may be convicted of an offence on the uncorroborated testimony of one witness, ...

(2)  On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of one witness.

(3)  Sub-section (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses."

32. The learned trial judge was asked on a number of occasions to warn the jury that it was unsafe to convict the appellants on Delacour and Comollatti's evidence, because they were accomplices.  The involvement of Delacour and Comollatti in these offences on their own evidence places them in that class of persons whom the law recognises should be treated as accomplices: see Davies v.  DPP.^[3]

33. At least in respect of cases involving sexual offences, statutory prohibition on judges warning juries about classes of complainants does not take away the responsibility of a judge to warn juries of particular dangers in respect of witnesses, to avoid a possible miscarriage of justice.  See, for example, Crofts v. The Queen.^[4]  Sexual cases are particularly likely to arouse prejudice and special care must be taken in respect of them to ensure fairness.^[5]

34. In R v Anderson,^[6] Thomas and McPherson JJA., Ambrose J  agreeing, noted:

"Under s 632 of the Code (as amended) a Judge is no longer required by any rule of law or practice to warn the jury that it is unsafe to convict on the uncorroborated testimony of one witness.  Section 632(3) precludes a Judge from warning or suggesting in any way to the jury that the law regards any class of complainants as unreliable witnesses.  It is still however the case that Trial Judges give appropriate warnings to the jury in relation to the evidence of accomplices, usually by drawing attention to a tendency on the part of such persons to do whatever might be best suited to minimising their own role or exculpating themselves. ..."

Although s 632(2) does not require a judge to warn the jury, a judge is not prohibited from warning the jury of the dangers of a witness' evidence if such a warning is appropriate.   In many cases, such a warning will be desirable.  As Delacour and Comollatti were not complainants, s 632(3) provides no prohibition on the wording of any such warning.  The learned trial judge invited counsel to show why a special direction to the jury on their evidence was needed.  Counsel below did not put forward any factors which might warrant the warning, merely repeating their request for the warning.  In this Court, it was submitted the factors that warrant the warning are that the evidence in the case turned mainly on the evidence of Delacour and Comollatti and that each had a significant motive to give untrue evidence implicating the appellants and exculpating themselves.

35. Whilst his Honour did not give the directions sought, in his summing up he read to the jury the cross examination of Delacour and Comollatti as to their motives to give untrue evidence.  The issue was plainly canvassed at length in defence addresses.  The motives of Delacour and Comollatti and the significance of their evidence were  clear issues for the jury's consideration and were brought to the jury's attention by the judge in his summing up.

36. It would have been preferable had the learned trial judge warned the jury that the evidence of Delacour and Comollatti should be examined carefully before acting upon it because of the importance of their evidence to the case and the existence of an apparent motive to give untrue evidence to minimise their role and exculpate themselves by implicating the appellants.  Whilst such a direction will usually be given in a case such as this,  as the issue was clearly and fairly before the jury it cannot be said the primary judge's directions to the jury on this point resulted in any injustice.

The failure of the trial judge to direct the jury about prior inconsistent statements of accomplice witnesses and the use which could be made of prior inconsistent statements.

37. The learned trial judge refused a request by counsel for Kissling to specifically point out to the jury the inconsistent statements of the accomplice witnesses and the use which could be made of evidence of prior inconsistent statements.  The learned trial judge, in his summation of the evidence, pointed out many inconsistences in the evidence of Delacour and Comollatti.  He was not required to point out every one.  The learned judge did not err in this respect and counsel for the appellants rightly conceded as much.

38. Counsel for Kissling below requested a direction, consistent with s 101(1) of the Evidence Act 1977, that a prior inconsistent statement may be evidence of any facts stated therein.  The learned trial judge pointed out that one of the inconsistent statements of Comollatti proved count 12 against Kissling but counsel below persisted in his request for that direction.  Counsel in the appeal argued that the jury may not have been aware that inconsistent statements were not only relevant to credit but also evidence of the truth of those statements.  I cannot see how the failure to give that direction can have caused any miscarriage of justice in this case, especially as one consequence of such a direction would mean there was evidence on which the jury could have convicted on count 12, a count on which they were acquitted.  His Honour's directions were more favourable to the appellants than the requested re-direction.  Although significant prior inconsistent statements will often warrant a warning to the jury from the trial judge as to the unreliability of the witness, this will depend on the nature of the inconsistencies.  See Morris v.  The Queen^[7] and R.  v.  Siedofsky.^[8]   No injustice arises from his Honour's directions on this point.

The verdicts are unreasonable and unsupportable.

39. The appellants submit that the findings of guilt based on the evidence of Comollatti are unreasonable having regard to the inaccuracies and general unreliability of her evidence.   It was necessary for the Crown to amend the second of the dates in the counts to which her evidence related after she gave her evidence.  The inconsistencies in her evidence were canvassed fully in defence counsels' addresses and were directly adverted to by the learned trial judge in his comprehensive and fair summary of the facts to the jury.  Whilst Comollatti was vague as to dates, confused on some issues, and admitted being addicted to methyl amphetamine, she was consistent in her evidence that she obtained the methyl amphetamine from the appellants, except in respect of count 12 on which the jury acquitted.  If the jury accepted her evidence on these matters, as they were entitled to do and clearly did, there was ample evidence upon which they could convict the appellants on counts 3, 6, 7, 11, 21, 22 and 23.  I am not satisfied that her evidence was so unreliable as to make the verdicts unreasonable or to amount to a miscarriage of justice.

The learned trial judge erred in directing the jury as to what evidence of the actions and statements of each appellant could be considered by the jury as against the other.

40. His Honour's directions in this respect were as follows:

"When I told you yesterday that you have before you evidence of the actions  and statements of people like McBain and in the case of each of the accused men, the actions and statements of each of them can be considered in relation to the counts against the other as well as themselves.  There are some that do not fall into that category.  The conversation which the accused Kissling had on tape for example is evidence only against him. 

The alleged conversation, depending on what you make of it, in the car from Innisfail to Townsville or at Mission Beach is evidence only against him, not against Rhodes.  You are not entitled to take that into account against Rhodes.

Similarly, the statements which it is alleged Rhodes made to the police officer are evidence only against Rhodes, not against Kissling.  What you are entitled to take into account is actions and statements which are said to be done in the carrying out of the joint business which it is said they engaged in, such as in the case of McBain, the various activities she is alleged to have engaged in in relation to methyl amphetamine."

41. There was no request by counsel for a redirection on this point but later a jury question resulted in a redirection.  The jury asked,  "Could you please explain how they could be guilty by association?"  His Honour said:

"Now, I understand that to refer to two aspects of the matter about which I gave instructions.  The first is this, that where there is evidence that people are acting together in concert, then acts done by any of them in pursuing the common purpose can be taken into account against each of them.  Let us take the case of two persons acting in concert in the sale of methyl amphetamine.  If one person does any act, such as by way of sale, such as by way of obtaining methyl amphetamine, such as by way of obtaining Sudafed for the purposes of manufacturing methyl amphetamine, or such as by manufacturing methyl amphetamine, those actions, the actions of any one of those, can be taken into account, not only against that person, but against each of the parties to the common purpose.  So, it is a matter for you what you make of that evidence.  That is why you have heard evidence about, for example, what McBain is said to have done, and that consistent with that principle, you would be able to have regard to that evidence in considering the case against each of the two accused men. 

As I have already told you, you bear in mind we have not seen or heard McBain, she has not been called to give an account and she has not been able to be questioned.  Similarly in relation to each of the two accused men, you would be entitled to take into account actions of one against, not only that person, but against both of them.  Again it is a matter for you what you make of that evidence, how you assess it, how you evaluate it.  And so far as it comes from Comollatti and Delacour, whether you accept it or not, these are all matters entirely for you."

42. As I have earlier indicated, there was sufficient independent evidence of the joint participation of the appellants and McBain in trafficking in methyl amphetamine to permit the evidence as to the acts and declarations done or uttered outside the presence of one appellant by the other or McBain to be used as further proof of each appellant's participation in the joint trafficking.  The learned trial judge having properly reached that conclusion, correctly directed the jury as to the use they could make of evidence of the acts and words of each appellant and McBain done or uttered outside the presence of the other appellant, as evidence against both appellants, consistently with the principles set out in Ahern v.  The Queen.^[9]

The evidence of Wiesenekker

43. Although no ground of appeal was formulated in respect of Wiesenekker's evidence, during submissions it was suggested that the admission of his evidence may have resulted in a miscarriage of justice.  There was no objection to the admission of his evidence below.  It is difficult to see the relevance of his evidence, other than to establish that some of the material supplied by Rhodes to Delacour was in fact methyl amphetamine, a fact about which Delacour gave evidence.  There was extensive cross examination of Wiesenekker by defence counsel who sought to establish a prior inconsistent statement made to him by Delacour and to discredit Delacour.  It may even be that Wiesenekker gave evidence at the request of the defence.  Although the lengthy trial would have been a little shorter without his evidence, it is difficult to see any miscarriage of justice which occurred because of the admission of his evidence.

44. I would refuse the appeal against conviction in respect of both appellants.

The application for leave to appeal against sentence.

45. The applicant Kissling applies for leave to appeal against sentence on the ground that the sentence was manifestly excessive and the learned sentencing judge erred in fixing the fresh recommendation for parole.

46. Rhodes was serving a nine year sentence for trafficking in cannabis.  The Crown conceded below, as did the respondent here, that Rhodes was more culpable than Kissling, although Kissling's involvement was as a principal.  Taking into account the totality and parity principles as set out in Postiglione v.  The Queen,^[10] his Honour imposed a cumulative term of imprisonment of five and a half years in respect of the trafficking.  Rhodes makes no complaint about the sentence imposed.

47. McBain, who pleaded guilty was in effect sentenced to four years imprisonment with a recommendation for release on parole after 12 months.  She had prior convictions for prostitution, drink driving and possession of methyl amphetamine and cannabis, but had not previously been imprisoned.

48. Kissling is now 30 years of age and was about 27 at the time of the offences.  He has prior convictions for possession of cannabis, possession of tainted property and common assault.  More significantly, on 24 March 1997 he was sentenced for trafficking in cannabis (again with Rhodes) to imprisonment for four and a half years with a recommendation that he be released on parole after 15 months.  These offences were therefore committed whilst he was on bail for the offences of trafficking.  Kissling was sentenced to three and a half years cumulative imprisonment with a recommendation for release on parole on 1 January 2002.  The effect of the earlier sentence and the cumulative sentence was a term of imprisonment of eight years.  Parole eligibility in the normal course would arise after serving half that sentence, approximately 24 March 2001.  In ascertaining the appropriate recommendation for a date for release on parole, the learned sentencing judge said:

"It is impossible to approach this upon the basis of any mathematical calculations.  I will make a recommendation which fixes a date which I think is reasonable in all of the circumstances."

49. The parole date recommended by his Honour, 1 January 2002, means that Kissling would be eligible for parole approximately nine months later than in the normal course.  It is not suggested that such a recommendation is unlawful under the Penalties and Sentences Act 1992.  Although it is unusual, a recommendation for parole can be made beyond the halfway point of the head sentence.  See The Queen v Griinke.^[11]

50. A review of the schedule of sentences imposed for the offence of trafficking in amphetamines which was before the sentencing judge suggests that on these facts and without the mitigating factor of an early guilty plea, the applicant could have been sentenced to a term of imprisonment of between six and nine years.  As the learned judge made the sentence cumulative, acting on the totality principle, he reduced the sentence significantly.  The head sentence imposed was a moderate one and no complaint is made about it.  The parole recommendation was part of the sentence and must have been something his Honour considered when deciding on the appropriate head sentence.  His Honour felt it proper that the applicant should be considered for parole, in all the circumstances, on 1 January 2002.  The sentence imposed, when looked at as a whole, and including the date for recommendation for consideration for release on parole, is within the proper range.  I would refuse the application.

51. I would order that in each case the appeal against conviction be dismissed and that Kissling's application for leave to appeal against sentence be refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.  347 of 1998

C.A. No.  349 of 1998

C.A. No.  386 of 1998

Brisbane

Before  de Jersey CJ

McMurdo P

McPherson JA

[R. v. Rhodes and Kissling]

THE QUEEN

v.

 ALBERT JOHN RHODES Appellant

- and -

 STEPHEN PAUL KISSLING

(Applicant) Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 5 March 1999

1. The two appellants Rhodes and Kissling were tried and convicted on various counts in a single indictment against them both.  Count 1 charged Rhodes, and count 2 charged Kissling, with carrying on the business of trafficking in the dangerous drug methyl amphetamine between July 1995 and September 1996.  Rhodes was also charged in the same indictment, and convicted at the same trial, with a further 13 counts of supplying that drug and two counts of possession of Sudafed tablets in connection with the commission of a crime.  At the same trial on the same indictment, Kissling was convicted on two counts of supplying the drug.  The reasons of the President, which I have had the advantage of reading, set out in a convenient form the various counts in the indictment against each of the appellants, showing the counts in respect of which a verdict of acquittal was returned.  In respect of the other counts, each of the appellants was found guilty of the offences charged against him separately, as well as count 4, which was a charge against them both of supplying methyl amphetamine on an occasion between October 31 and December 9, 1995.

2. At the trial the prosecution made it clear that the case against the two appellants was that they, and a woman named McBain (who was the defacto wife of the appellant Rhodes), had carried on together, and for profit, a joint enterprise of manufacturing and selling methyl amphetamine.  That case was put forward at the trial not only in respect of counts 1 and 2, which charged each of them separately with carrying on a business of trafficking in the drug; but also in respect of the other counts, which (with the exception of count 4, which charged a single act of supplying by both appellants) charged each of them separately with different acts of possessing or supplying methyl amphetamine on different occasions.  In short, and despite the form of counts 1 and 2 and those other counts in the indictment, what the Crown was alleging against the appellants Rhodes and Kissling was that the trafficking charged in counts 1 and 2 constituted one and the same business, and that they had, by doing the acts of possessing or supplying charged against one or other of them separately in those other counts together with a joint charge in count 4, carried on that business of trafficking together.  To express it in another way, the particular acts of possessing or supplying, when taken together, amounted to a single business of trafficking that was said to have been carried on by both of them.  If that was established, each of the two appellants became criminally responsible under s.7(1) of the Criminal Code for acts done by the other in pursuance of a conspiracy to carry on the drug trafficking business in tandem.

3. The question raised on the appeal becomes much easier to understand, and to analyse, if, from the beginning, Rhodes, Kissling and McBain are viewed as the members of a partnership (for that is what it really was), who carried on the business of trafficking in drugs during the period alleged in the indictment. Such an approach to the matter is legitimate. In speaking of the rule that renders a statement of one co‑conspirator, made in pursuit of the common design, admissible against another or others, the High Court in Ahern v.  The Queen (1988) 165 C.L.R. 87, 95, said -

“The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business.  Indeed, conspirators have been described as partners in crime.  The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.”

So, in this instance, the case sought to be made out by the prosecution against the appellants at their trial was that they were each involved as partners in a business of manufacturing and selling amphetamines for profit.  Section 5(1) of the Partnership Act 1891 describes a partnership as the relation which subsists between carrying on a business in common with a view of profit; and it was the subsistence of such a “relation” that the prosecution set out to prove at this trial of the two appellants Rhodes and Kissling.

4. Once the relation of partners was shown to have subsisted between the appellants, or “reasonable evidence” of its subsistence had been provided by the prosecution (Ahern v. The Queen (1988) 165 C.L.R. 87, 100), various consequences followed.  One, which finds expression in s.8 of the Partnership Act, is that every partner is an agent of his other partners for the purposes of the partnership business. Another, stated in s.18, is that an admission made by any partner concerning the partnership affairs, and in the ordinary course of business, “is evidence against the firm”, meaning by that, all partners in the business.  Of course, the alleged partnership here of the two appellants and McBain had as its object the prohibited purpose of dealing in drugs.  Like the partnership between the two highwaymen which came before the Court of Chancery in Everet v. Williams in 1725, discussed in 9 L.Q.R. 197, neither law nor equity would lend its assistance to enforcing the rights or liabilities of the partners under the Partnership Act or otherwise.  That is why the High Court spoke of a conspiracy of this character not as a partnership, but as being analogous to it. In stating the ordinary consequences of carrying on a business in partnership, the Act simply codified the principles, which are essentially a branch of agency law, which apply whether the objects of the joint enterprise are good or bad.

5. With these matters in mind, it becomes relatively easy to dispose of the questions raised on this appeal.  First, there is Kissling’s complaint that he ought to have been granted a separate trial.  Section 568(8) of the Code authorises the joinder in a single indictment of “any number of persons charged with committing the same offence”.  The provision goes on to authorise them in that event to be tried together.  In the way in which the case against the appellant was conducted at trial, it is clear that both Kissling and Rhodes were being charged with the same offence of carrying on the business of trafficking.  They could therefore properly have been, and were, charged with that offence in the same indictment, and so could be, and were, tried in respect of it together.  Did it make any material difference to Kissling that, in form, he and Rhodes were charged separately in counts 1 and 2 in the same indictment with the same offence of carrying on the same business, and that they were tried together ?  Had they been charged in the same count with jointly committing the same offence, the case would have fallen directly within the terms of s.568(9).  They are not shown to have been either better or worse off by reason of their having been charged severally in counts 1 and 2, rather than jointly in a single count in the same indictment with committing what was said at the trial to be the same offence of carrying on a single business of trafficking.

6. The present case is really the converse of R. v.  Baynes [1989] 2 Qd.R. 431, where two individuals were incorrectly charged in a single count in an indictment with having committed what were in fact separate acts of rape on the same woman.  It was not a case where one of them was charged with helping the other to commit a single act of rape on her.  The conviction was nevertheless upheld because no substantial miscarriage had occurred at the trial.  The present case is, as I have said, the converse of that, because here the appellants were charged in separate counts when they could, or should have been, charged jointly.  As in R. v. Baynes, however, it is not possible to identify any ensuing prejudice as the result of the charges in counts 1 and 2 being laid in that form.  Provided it was made clear, as it was at the trial, that both appellants were being charged with the same offence of trafficking, there could be no prejudice to either appellant, and in particular none to Kissling, through his not having had a separate trial of the same offence that was alleged to have been committed by both him and his partner in crime.

7. Precisely the same reasoning applies in relation to the various counts against Rhodes of supplying or possessing the drug, of which only he,  and not Kissling, was charged.  If there was a joint enterprise or partnership of carrying on the business of possessing, manufacturing and selling amphetamines, then each act of possession, manufacture or sale by one was done or carried out on behalf of both or all members of the firm or partnership, and as the agent of or for the other partners or members.  In addition, the admission by one of them concerning the partnership affairs was, if made in the ordinary course of that business, evidence against all and against each of them.  The evidence of each particular act of possession or supply by Rhodes, if it satisfied those requirements, was therefore admissible against Kissling; and that would have been so even if he had been tried separately from Rhodes, and not jointly with him as in fact he was.  Under s.597A of the Code, the trial judge had a discretion to order separate trials if in his opinion either or both of the accused was likely to be prejudiced or embarrassed by being tried jointly.  His Honour exercised that discretion against so ordering, and his decision resulted in no perceptible miscarriage of justice in the case of Kissling or anyone else at the trial.

8. All this assumes that there was “reasonable evidence” in the prosecution evidence at trial that the two appellants, together with McBain, were carrying on together a business of manufacturing and selling drugs.  On this aspect of the proceedings, the evidence is collected in the reasons of the President.  There is not a great deal of it, which is perhaps not surprising when regard is had to the criminal, and consequently secret, nature of the business being conducted; but there was, in my opinion, enough to justify the inference that the three of them were acting together in manufacturing and supplying methyl amphetamine for profit. There were at least a couple of instances when the manufacture by “cooking”, or the selling of  methyl amphetamine, were discussed, or a sale was effected, in the presence of Kissling. Evidence of such occasions was given at the trial by Delacour and by Camollatti.  The charge or charges against Kissling were no doubt more difficult for the Crown to prove, because Rhodes seems to have done most of the selling or supplying; but there was also some evidence of one or more sales, or attempted sales or supplying by Kissling, and he appears to have engaged in the cooking or manufacture of the drug.  On one occasion, there was an explosion, as a result of which his hand was burned. The house at Bluewater, where this activity was alleged to have been taking place, was destroyed by fire.  There was expert evidence that explosions sometimes ensue when Sudafed tablets are heated, and the jury were certainly entitled to infer that something more volatile than porridge or spaghetti was being prepared on the occasion in question.  The joint charge in count 4 also went some way to proving that the two appellants were engaged in conducting a drug trafficking enterprise together, and so helped to lend a joint complexion to what might otherwise have looked like separate acts by Rhodes alone.

8. Taken together, there was, I consider, enough evidence of a joint enterprise or partnership in the unlawful business of manufacturing and selling drugs to render the evidence on any one of the charges in the indictment, whether it was against Rhodes or Kissling only, admissible against the other, irrespective of whether or not there was evidence that he was present at the time the relevant act of sale or possession or the relevant conversation took place.  The evidence of Delacour and Camollatti was therefore admissible against each of the accused at the trial.  As customers who bought drugs from a member or members of the partnership, they are, it seems, to be regarded as accomplices in the offence of drug trafficking; but I agree with the President, subject to the qualifications added by the Chief Justice in his reasons, that this was not an occasion on which any specific warning was called for in relation to their evidence, or to the fact that it was not supported or confirmed by other independent evidence at the trial.

9. I am somewhat less confident about the admissibility of the evidence given by Wiesenekker at the trial.  He was an undercover police officer, who testified to having bought methyl amphetamine from Delacour on various occasions.  On appeal, it was said that his testimony was relevant and admissible to establish that the commodity sold to him by Delacour was in fact methyl amphetamine, which was a matter about which Delacour himself gave evidence at the trial.  Given that it served that function, and also that there was no objection to it at the trial, there appears to be no valid ground for asserting on appeal that its admission led to a miscarriage of justice at the trial.  Such a conclusion should, however, not be treated as a general warrant for admitting, at the trial of a charge of trafficking in drugs, evidence that drugs bought not from the accused himself, but from someone else, who in turn claimed to have bought them from the accused, were later resold to a further buyer in the position of Wiesenekker. An “on-sale” further along the string of buyers is not itself evidence against the accused that he was trafficking in drugs, unless the intermediate buyer who sold to a witness of that sale is shown to have been the agent of the accused in supplying the drug. In practice, he is more often not an agent but an independent contractor, whose statements or acts would, without more, not ordinarily be admissible against the accused as the original supplier or source of the drugs. For such evidence to be admissible, it would generally be necessary for the subsequent purchaser from an intermediate seller to be able to testify of his own knowledge as to the source of the drug independently of anything he had been told about it by the person who sells or supplies to him.

10. On the other matters, I agree with what the President has said in her reasons.  The appeals against conviction should be dismissed, and Kissling’s application for leave to appeal against sentence should be refused.