R v O'Connor[2002] QCA 467

SUPREME COURT OF QUEENSLAND 

THE CHIEF JUSTICE:  The appellant appeals against his conviction on one count of carrying on the business of unlawful trafficking in methylamphetamine and eight counts of supplying methylamphetamine.  For the trafficking he was sentenced to seven and a-half years' imprisonment.  He also seeks leave to appeal against that sentence.

The ground of appeal against conviction is that the convictions are unsafe and unsatisfactory.  The conviction for trafficking relates to activity over a period of approximately two years.  The eight specified supplies involve more than 100 grams of powder containing approximately 35 grams of methylamphetamine sold for a sum of $13,600.  The appellant provided the drugs to one Coates knowing that Coates intended to make on-sales to Scott who was a police undercover agent.

Coates was a distributor at street level with, as the learned Judge observed, the appellant more in the character of a wholesaler.  At the time of the offending the appellant was 49 to 50 years old with no greatly relevant prior criminal history.  His motivation was commercial.

The evidence against the appellant came substantially from two accomplices, Coates and Coates' mother Anne.  They gave evidence of purchasing amphetamine from the appellant on numerous occasions, either from the appellant personally or through a person who, on the Crown case, should be regarded as the appellant's agent, one Imhoff, and then of the subsequent on-sales to Scott.

As well as giving evidence of the sales, Coates and his mother gave evidence of a number of incriminating statements made by the appellant as to his method of operation and as to how Coates might proceed most profitably with on-sales.  Coates gave evidence of statements by the appellant as to a comparatively substantial level of profitability in his business and of seeing the appellant apparently with largish amounts of cash at his disposal.  Additionally, there was evidence of the locating of a mortar and pestle and glucodin at the appellant's premises, and of mobile phone contact, of not insubstantial extent, between the appellant and Coates and his mother over the relevant period.

On the other hand, the appellant gave evidence explaining his contact with Anne Coates through their mutual involvement in a charitable organisation and some related contact with her son.  The appellant gave an innocent explanation for his possession of the mortar and pestle and the glucodin.  He denied any unlawful involvement in drug activity.  The defence, additionally, called a number of witnesses who provided innocent explanations for aspects of the appellant's lifestyle said, on the Crown case, to be explained by his access to substantial amounts of money resulting from drug activity.  There were also witnesses who denied involvement in that activity which was alleged by Crown witnesses.

The appellant, through this appeal, has challenged the evidence of Coates and Anne Coates, pointing out that they were accomplices who, in respect of their own offending, received reduced sentences for their willingness to testify in accordance with their statements against the appellant, inevitably raising an issue as to their credibility.  The jury was appropriately warned in that regard.

The modus operandi of which they gave evidence is consistent to some extent with the phone records which tended therefore to give their oral evidence some support.  The appellant also criticised aspects of the evidence of Coates and his mother for its vagueness and inconsistency but those features were  unsurprising because the evidence related to events which occurred about 18 months earlier.

The appellant understandably lays emphasis on the contrary evidence adduced for the defence.  Obviously the jury was not therefore bound reasonably to entertain a reasonable doubt.  Then there is reference to the lack of evidence of dealing in drugs of an objective character; that is, apart from the mortar and pestle and glucodin, assuming the jury did not accept the appellant's explanation for the presence of those items in his house - and acknowledging that there was no evidence of drugs, for example, within the mortar and pestle.

The appellant was not a user, and in trafficking on this scale and of this wholesale character, it, again, is perhaps unsurprising that he may well have taken care not to have in his immediate possession material which would, if discovered, incriminate him.

The appellant contends, nevertheless, allowing for all of those responses, which are the sorts of responses customarily made by the Crown when such criticisms are levelled, that the aggregation of those points of criticism, especially in the context of the sworn contrary evidence for the defence, renders the convictions unsafe.  The task required of the Court is described in M (1994) 181 Commonwealth Law Reports 487, and Jones (1997) 191 Commonwealth Law Reports 439.

I have reviewed the record references provided for the appellant, in the context of the submissions and the summing-up.  I have broadly reviewed the evidence.  I am not satisfied that a properly instructed jury, proceeding reasonably, should in this case have entertained a reasonable doubt.  In the sort of review required of the Court by those authorities and the earlier authority of Morris, the Court does not ignore the advantage enjoyed by the jury in assessing the credibility of witnesses, based on observation of their demeanour and their presence generally.

This is a case where, as the criticisms levelled by the appellant show, questions of the credibility of witnesses loomed large.

Allowing for that, one looks to see whether there was nevertheless some compelling basis for concluding that the jury should, acting reasonably, have acquitted.  I have been unable to satisfy myself that the conviction is vulnerable in that sense. 

I would accordingly dismiss the appeal against conviction.

As to the application for leave to appeal against sentence, a sentence of seven and a-half years' imprisonment for this crime was well within range.  Comparison with the case of Everett, Court of Appeal 311 of 1998, in particular, and after making due allowance for Everett's more substantial criminal history, plainly demonstrates that this sentence of seven and a-half years was appropriately within range.

Reference was made by counsel for the applicant to Imhoff, who was sentenced to four years suspended after 14 months.  The learned Judge took the view that the applicant's involvement was more substantial than Imhoff's, and that seems to have been a reasonable conclusion.  But additionally, Imhoff pleaded guilty, and he was a user, whereas that is not the case with the applicant, who went to trial, and whose motive was purely commercial.  I believe those points of distinction sufficiently distinguish the case in terms of penalty in relation to the applicant from that of his co-offender Imhoff.

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

McPHERSON JA:  The appeal to this Court rested wholly or in part on the submission that the jury ought to have had a reasonable doubt about the reliability or credibility of two prosecution witnesses who were admittedly accomplices.  There is nothing about their evidence that is essentially implausible.  It was, in some respects, detailed and condescendent to particulars of time and place and occasion in the context of the drug dealing.

The jury were, of course, made aware of their status as accomplices and the potential frailty of such evidence through an appropriate warning which the Judge gave.  I am, in consequence, unable to see how it can be said that the jury ought to have or must have had a reasonable doubt about the voracity of those witnesses. 

On a reading of the evidence, as it stands in the record, I am not persuaded that they ought to have entertained such a doubt.  If it is necessary to go further I would also add that, from my reading of what they said, I am not left with a doubt about the appellant's guilt in this case.

As to sentence and in respect of the conviction as well, I agree with what has been said by the Chief Justice.

MULLINS J:  I agree with the reasons of the Chief Justice and Mr Justice McPherson and the orders proposed.

THE CHIEF JUSTICE:  The appeal against conviction is dismissed.  The application for leave to appeal against sentence is refused.