R v Bujora[2001] QCA 310

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

BYRNE J

CA No 78 of 2001

THE QUEEN

v.

GEORGE BUJORAAppellant

BRISBANE

DATE 02/08/2001

JUDGMENT

BYRNE J: After a trial, the appellant was convicted of carrying on a business of unlawfully trafficking in heroin  between 1 June and 13 October 1999.

He appeals against the conviction. His notice of appeal states only one ground:  that the verdict was against the weight of evidence. Leave is also sought to appeal against the sentence as "manifestly excessive".

The appellant has argued additional grounds in respect of the conviction before us. 

English is not his native language, but his written submissions are quite comprehensible. Before us today, he has made additional oral submissions with no more than very occasional assistance from an interpreter.

The absence of an interpreter at the trial is nonetheless made a matter of complaint. The appellant says in his written submissions that he did not understand a lot of the things that happened at the trial and therefore could not advise his lawyers appropriately.

The appellant was interviewed by police twice. The interviews were recorded. They disclose an adequate comprehension of the English language. The appellant apparently understood the questions put to him, and responded as he wished, in English.

At the trial he testified, again without an interpreter. The transcript of proceedings suggests that a fair trial was not put at risk by the circumstance that English is not his first language. That impression is amply confirmed by his oral submissions today.

Then there is a complaint concerning the appellant's voluntary absence from the trial for a portion of the afternoon on the first day. 

The appellant was standing his trial for a crime, not a misdemeanour. So he ought not to have been permitted to be absent during part of the trial: contrast section 617(4) of the Criminal Code.

The question now, however, is whether this irregularity has occasioned a miscarriage of justice. 

The appellant had fallen ill, requiring medical attention. The Judge asked whether the appellant was content for the trial to proceed while medical attention was sought. He also inquired whether the appellant's experienced counsel was "comfortable" that he had sufficient instructions to cross-examine witnesses who might be called in the meantime.

His counsel was content with the proposal. The Judge informed the jury that the accused had consented to leaving for a while to get medical attention after having obtained the advice of his legal adviser "while witnesses who are less controversial", as the Judge described them, were called to testify.

The trial then proceeded for the balance of the afternoon in the absence of the appellant. 

There is nothing to suggest that a fair trial was put at risk through the irregularity. 

The witnesses who were called while the appellant was absent spoke of his having purchased airline tickets to Vienna in 1999 for cash, and of having bought a car in January 2000 for a little more than $12,500 cash.  Another spoke of buying heroin from a John Schofield, who was later to testify at the trial. A customs officer also testified.  He had searched the appellant's baggage and his person on the appellant's return to Australia in early January 2000. The officer had found about 9000 Deutschmark in a wallet which the appellant had said at the time was part of an inheritance. According to the customs officer, there was documentation tending to establish that fact.

Another customs officer who had examined the baggage of the appellant's wife testified.  She found about 10,000 Deutschmark.

The appellant's subsequent testimony justified the assumption made at the time of his absence that the great bulk of this material was uncontroversial. In any event, there is no basis for supposing that the appellant's absence mattered.  Certainly no such suggestion was made during the trial; and none of the witnesses called while he was away was sought to be recalled.

The appellant also complains that some witnesses gave evidence at the trial by telephone. He claims that he was not asked about this, and now says that he strongly disagrees with that course. 

At the commencement of the trial, an application had been made by the Prosecutor for the evidence of some witnesses to be taken in this way.  Rule 53 of the Criminal Practice Rules provides, in effect, that a Judge may direct that evidence at a criminal trial be taken by telephone.

The appellant was present in Court during this application; and although his consent was not necessary to the course, his counsel agreed to the procedure. Having regard to the content of the evidence adduced in this way, there is no basis for supposing that the appellant can have been prejudiced by the direction the Judge made.

Then there is a complaint that there was a deal of talk at the trial about money having been found at the appellant's house. He maintains that he was on trial for trafficking in heroin, and, as he put it, "not for the money". 

It is true that the prosecution case relied heavily upon police finding the appellant with a lot of money. He had been born in March 1956.  He was a pensioner. When the police came to his house on 18 January 2000, they found about $56,000 in cash. Of this, $9600 was money with noted serial numbers found in different packages. This $9600 had been provided by the police to operatives to buy heroin on several different occasions over a period of time.

When interviewed on the day the money was found, the appellant was asked by the police to explain the $56,000 cash. He said in effect that it was the proceeds of an inheritance and money received for compensation for injury. Interviewed again in March 2000, he was once more asked about the marked money. No explanation was forthcoming at that time.

At the trial, however, in his testimony the appellant offered an explanation for the money. It is unnecessary to dwell upon it here.  His evidence in that respect was adequately canvassed in the summing-up and exposed thoroughly for the jury's consideration. 

Plainly, the evidence concerning these funds, and what the appellant had said when taxed with respect to them, was logically probative of the prosecution case. 

Another point is made. This concerns the possibility that a juror may have known one of the witnesses. After the prospective witnesses for the prosecution were identified by the prosecutor at the beginning of the trial, one juror asked about a Bradley Phelps.  She wanted to know whether he was from the Melbourne/Dandenong area. When informed that he was in fact a police officer from Townsville, the juror indicated that she did not know him. So there is nothing in that concern.

Criticism is offered of the reliability of the evidence of John Schofield. It is pointed out that there were discrepancies between accounts he had given on different occasions. It was also submitted that Schofield must have been unreliable, and that he had been involved in heroin for many years.

Schofield, as the jury learned when he testified, was serving a sentence of imprisonment for five years for trafficking in heroin.  Schofield testified to having purchased heroin on four occasions from the appellant, whom he knew as "Michael". He later identified the appellant as photograph number 7 on a photoboard as the person with whom he had been dealing in these heroin purchases. He also made a dock identification.

The Judge directed the jury to scrutinise Schofield's evidence carefully. Mention was made of his heroin use over 30 years, of his serving the sentence of imprisonment, and of the desirability of looking for evidence tending to corroborate his testimony. No complaint, I should say, is made concerning the directions given with respect to identification. 

In short, the jury was appropriately alerted to arguable weakness in Schofield's account.

A complaint is made about representation. The appellant informed us that he was very disappointed in the way in which his defence was handled.  He says he did not have good relations with his legal representatives and that there were, as he put it, "understanding difficulties due to my language problem".

There is, however, nothing in the record to suggest a concern adequately based about the quality of the appellant's representation at the trial. 

As to the conviction, the prosecution case obviously had its strengths. It is not at all surprising that the jury did not find in the appellant's testimony a basis for the existence of a reasonable doubt concerning his guilt.

I turn to the sentence, which was of imprisonment for 12 years. The appellant had prior convictions for drug offences concerning possession and production of cannabis.  In 1998 he had been sentenced to a wholly suspended term of 12 months' imprisonment for the production of cannabis.

By June 1999, he had commenced his heroin trafficking business. All the indications are that the appellant was involved in a not insubstantial enterprise of distributing heroin, both to end users like Schofield and to retailers.

A sentence emphasising personal and general deterrence was therefore warranted. 

It is true that the sentence of 12 years will necessarily mean that the appellant will serve not less than 80 per cent of that term in custody. But that was also the position in The Queen v. Song Tan Do, CA 342 of 1999, a case decided on 14 April 2000, where a 22 year old who had trafficked in heroin whilst on bail was proved to have sold about $20,000 worth of heroin and on arrest had 77 grams of rock heroin containing 63 grams of pure heroin. He received a 12 year sentence, after credit for resource savings associated with a guilty plea was taken into account.

Here the marked money related to nine buys. Schofield gave evidence of another four purchases. In aggregate there are certificates relating to these 13 transactions showing 21.579 grams of pure heroin in respect of sales between June and October. 

The precise details of the business cannot be known. But the circumstances are not such as to demonstrate that the sentence is manifestly excessive.

I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

DAVIES JA: I agree.

WILLIAMS JA: I agree.

DAVIES JA: The appeal against conviction is dismissed. The application for leave to appeal against sentence is refused.