R v MacCormack[2003] QCA 280

SUPREME COURT OF QUEENSLAND

DAVIES JA:  The appellant was convicted after a trial on 17 March 2003 of importation of a prohibited import with a circumstance of aggravation.  The date of the offence was between 13 May 2001 and 22 May 2001.  He was sentenced to four years' imprisonment, cumulative upon a sentence he was already serving.  A non-parole period of two years was fixed.  He appeals against his conviction and seeks leave to appeal against his sentence.

On 19 May 2001, a package arrived at Brisbane Airport, airmailed from Jane Kennedy in Balham in London.  It was addressed to Master Shanon at 10 Gumleaf Drive, Southport.  It was intercepted by police at the airport and opened.  Inside was a toy car and a card.  Secreted under the base plate of the car, held in place by Phillips head screws, were 52.9 grams of MDMA and 4.2 grams of MDEA, narcotics in not less than trafficable quantities, which were the prohibited imports the subject of the conviction.

The drugs and base plate were replaced, the parcel was re-wrapped and it was then delivered to the address I have just mentioned, on 22 May.  The address was that where the appellant's co-accused, Karena, lived with Ms Eyears.

Within a short time of delivery of the parcel to that address, there was a phone call from Karena to the appellant and within a short time after that, the appellant drove to that address.  He avoided parking outside and appeared to attempt to conceal his entry to those premises.  In fact police officers who were watching the entry to the premises did not see him enter.

Shortly after the appellant had arrived at these premises, police, armed with a search warrant entered the premises where they saw Karena and the appellant seated at a table with a female person, who was later identified as Ms Eyears, standing nearby.  One of the officers could see into the laundry where he observed the parcel, sitting on one of the laundry tubs.  The lid of the box which contained, or which had contained, the toy car, was ajar some 15 millimetres.  The wrapping appeared to have been entirely removed, as it was not in sight.

One of the officers then searched the appellant's person.  On him was found a Phillips head screwdriver, a Travelex document and a handwritten note.  These were later admitted into evidence at the trial.  The first ground of appeal is against the admission.

Also admitted into evidence were other Travelex documents produced through a witness from the Travelex organisation.  The admission of these documents was the subject of a second ground of appeal.

The third ground of appeal was that the verdict of the jury was against the weight of the evidence and/or unsafe and unsatisfactory.  I will discuss those grounds in that order.

Ground 1 

Pursuant to s 3F(1)(f) of the Crimes Act 1914, s 3E thereof may permit "an ordinary search" or "a frisk search" of a person at or near the premises the subject of the search warrant if the officer suspects on reasonable grounds that the person has any "evidential material" or "seizable items" in his or her possession.  The search warrant expressly authorised the executing officer or a constable assisting to conduct an ordinary search or a frisk search of any person who was at or near the premises where the warrant was executed, if the executing officer or the constable suspected on reasonable grounds that the person had in his or her possession evidential material or any seizable item.

Constable Payne, who was the executing officer referred to in the warrant, swore that he saw that the package was partially open and he thought that the items in question, that is the drugs, were of a size that could be concealed on a person.  He also expressed concern about seizable items which could be for safety of the officers being on such a person.

In ruling on the objection to the admission into evidence of the items found on the appellant's person, the trial judge said and I quote:

"The issue, as I have said, is whether Payne suspected on reasonable grounds that MacCormack had on his person evidential material or a seizable item.  He certainly suspected evidential material.  It is not to the point that he did not find the particular evidential material which he suspected, namely, the drugs and/or the card, but rather other material, namely the screwdriver and the two documents.  I have concluded that he did have reasonable grounds for suspecting evidential material.  He knew the contents of the box.  He knew its size.  The box was open.  MacCormack was present on the scene.  In my view, the search was within the terms of the warrant and the evidence was lawfully obtained."

The appellant, through Mr Kimmins, submits that Payne could not have suspected on reasonable grounds that the appellant had possession of any evidential material, either the drugs or the birthday card which came with the package, when he did not even bother to check the package before searching the appellant.  The learned trial judge rejected such a contention and so do I. 

The box containing, or which had contained the toy car was seen by Constable Payne to be partly open and open in such a way that it could have been completely opened and partly reclosed.  Moreover sufficient time had elapsed between the delivery of the parcel to the premises and the arrival of the police to have enabled the removal of the drugs from the base of the toy car and their concealment on the person of the appellant or one or other of the other persons present in the premises.  These were, in my opinion, sufficient facts to induce the necessary state of mind in a reasonable person in the position of Payne:  see George v Rockett (1990) 170 CLR 104 at 112.  For that reason, in my opinion, the search of the appellant's person was within the terms of the warrant. 

It was not contended that the fact that no drugs were found on the appellant's person or that other evidential material, the Phillips head screwdriver and the documents were found on his person, in any way invalidated the search.  However, the admission of these documents was also made the subject of ground two. 

For the reasons I have already given, ground one fails.

Ground 2 

The items, other than the Phillips head screwdriver, found on the appellant's person were one Travelex document dated 13 May 2001 sending $554.15 to a man called Fred Brown who was otherwise unidentified and a handwritten document, headed "W/Union" which was undated but which appeared to relate to sending a sum of £3,000 to someone not identified in the document.  In addition, a witness from Travelex produced four Travelex documents showing transfers by the appellant, apparently either to Fred or Freddy Brown in London, sums of £580 on 3 March 2001, £80 on 26 March 2001, £1,350 at 12.57 a.m. on 13 May 2001 and £180 at 8.28 p.m. on 13 May 2001.

The officer from Travelex also produced its copy of the Travelex document found in the appellant's possession.  In none of these documents was Brown otherwise identified.

A person was enabled to and did collect the money in each case by answering a test question.  On the first two documents he or she was required to give a password which was "fish".  On each of the occasions on 13 May 2001 the person had to answer the question, "What is my dog's name" the answer to which was "Chops".

The question which the learned trial judge had to decide was whether, in each case, the evidence of the transfer of money by the appellant to a person in London in the circumstances which I have just outlined was circumstantial evidence supporting his involvement in the importation of the drugs which also came from London.

In my opinion it was.  In the first place the three transactions of 13 May 2001 were very close in time to that when, in the ordinary course of Air Mail Post it might be reasonably expected that, a parcel arriving in Australia on 19 May might have been posted in England.  The time of the transaction referred to in the document found in the appellant's possession coincided exactly with the time of the second of the transactions of 13 May 2001 evidenced by the documents coming from Travelex.

Secondly, in answer to the contention which Mr Kimmins made that the March transactions were so much earlier than the receipt of the drugs as to be irrelevant, all transactions involved payment to the same person or at least for the same purpose.

Consequently, if those of the latter date are admissible, then in my opinion so are those of the former.  And thirdly, there is the characteristic which all have that, even in respect of large sums, one of them is as much as £1,350, the person to whom it was sent was not identified.  And more importantly perhaps they were sent to a person whom the appellant must have contacted for the purpose of providing the password on the relevant identification number of the documents.

In the absence of any innocent reason for failing to identify the payee and to have gone to those lengths to conceal the identity of the payee, these circumstances assume a suspicious character consistent with a desire to conceal the identity of the payee.

Another explanation for these payments was of course given by Ms Eyears.  Sensibly the appellant does not rely upon this in respect of this ground for the question is whether, as part of the Crown case, these documents were admissible and Ms Eyears' evidence was given much later.

In my opinion, the payment of this money, unless otherwise satisfactorily explained, was a circumstance which together with others provided circumstantial evidence of his involvement in this offence.

The handwritten document is, in my opinion, in the same category.  Without some satisfactory explanation it supports the prosecution case that the appellant was involved in transfer of a substantial sum to England at a time contemporaneous with the sending of the drugs from England to Australia.  Its contemporaneity with this transfer is established sufficiently for that purpose, in my opinion, by its presence in the appellant's wallet on the 22nd of May.

Ground 3 

The appellant did not give evidence but Ms Eyears who was a friend of and who had cohabited with the appellant's co-accused gave evidence which, if believed, could provide an innocent explanation for the appellant having sent money, as he did, to England.  Ms Eyears was the woman who was found to be present when the police arrived at the premises on 22 May.  Ms Eyears gave evidence that she, the appellant and his co-accused became involved in a money game which was something like a pyramid scheme.  It had been set up in the United States but the contact they were given for the game was in England.

Consequently, the appellant and his co-accused, as well apparently as Ms Eyears for some time, sent money to England. 

By April or May 2001, according to Ms Eyears she had stopped playing the game but it appears from what the appellant and the co-accused told her they had joined in a further game. 

They mentioned to her somebody called Brown who was involved in running the game, apparently from England.  Brown was, of course, the name given as the payee on the Travelex documents. 

No doubt, if Ms Eyears was believed, and if the jury also believed that the appellant and his co-accused had been honest with Ms Eyears, her evidence would have provided an innocent explanation for the money the subject of the Travelex documents.  But it does not follow from this that the verdict was unsafe.  In the first place, the jury may well have thought that she was not telling the truth given her relationship with the appellant's co-accused and her presence at the time the parcel was unwrapped.

Alternatively, they may have thought that she was honest but that the appellant and his co-accused were not honest with her in giving an explanation to her of why, in April or May, they were sending money to a man called Brown in England.

Whatever view the jury may have taken of Ms Eyears' evidence, they were entitled to conclude, in my opinion, that there were just too many coincidences in this case to satisfy an innocent explanation for what occurred.

It was no more than 19 minutes after the parcel was delivered to the address to which I have referred that Karena phoned the appellant.  The phone call was made at 5.57 p.m.  By 7.10 the appellant's vehicle was observed travelling along Gumleaf Drive.  There was evidence that it took 15 minutes to drive from the appellant's residence to that address.  The manner in which he parked his vehicle and entered the house had the appearance of someone who did not wish to be observed, so also did the conduct of the appellant and his co-accused after they had observed a car which turned out to be the police vehicle parked in the street. 

By the time the police entered the premises at 7.35 p.m. the parcel had been opened and the lid was ajar.  The appellant had in his possession a Phillips head screwdriver of a kind which was necessary to unscrew the base of the toy.  And shortly before the sending of the drugs from England, the appellant had sent substantial sums of money to England.

In the absence of an explanation from the appellant for this circumstantial evidence a reasonable jury was entitled to conclude that the appellant had arranged and paid for the drugs to be imported into Australia.  I do not think that the jury's verdict was unreasonable and in my opinion the appeal against conviction should be dismissed.

I turn then to the sentence.  The appellant had been convicted in the Southport District Court on 16 January 2002 on eight counts of uttering, seven of forgery, one of fraud and two of attempted false pretences, all occurring in 1995 or 1996.  He was sentenced then to three years' imprisonment with a recommendation for post prison community based release after serving one year.  He was apparently still serving that sentence, not having secured his release, when he was convicted of this offence.

The appellant is 48 years of age having been born on 24 July 1954.  He was 46 at the time of this offence.  Apart from the offences to which I have just referred, he had no other criminal history.

The appellant's counsel has identified what he submitted had been three errors made by the learned trial judge in imposing the sentence which she did.  The first is that according to him the learned trial judge should have selected as the starting point a four year term rather than a five year term.

Secondly, it was submitted that the learned sentencing judge erred in failing to take full account of the totality of the combined criminality of this offence and the earlier offences.  And the third error, it was submitted, is that the learned trial judge gave insufficient acknowledgment to the loss of parole recommendation for the earlier offences.  The effect will be, it is submitted, that the appellant will have to serve the full three years of the earlier sentence. 

It was submitted that a sentence of three years' imprisonment should have been imposed cumulatively with a non-parole period of 15 months.  This would mean that, for his total criminality, the appellant will be required to serve a total of four years and three months.

As to the first of these, I do not think that a starting point of five years, adopted by the learned trial judge as a starting point for this sentence was excessive. 

The cases of Zehavi [1998] VSCA 81 (13 October 1998) and Benais [1999] NSWCCA 236 (26 July 1999), relied on by the learned trial judge show that her Honour's assessment in this respect was correct.  That is also borne out, in my opinion, by the schedule of offences to which we have been referred. 

Nor do I think there is any substance in the second complaint by the appellant; that the learned trial judge failed to take into account the totality of the combined criminality for this offence and the earlier offences.  On the contrary I think that by reducing her original assessment by one year she took adequate account of the total criminality.

The third criticism superficially has some greater substance, that is, that the consequence of the sentence now imposed is that the appellant will be required to serve substantially more than one-half of the sentence before becoming eligible for parole.  Initially it might appear that the consequence of the sentence is that the appellant will have been sentenced to a combined sentence of seven years' imprisonment, of which he will have to serve the full three years of his original sentence together with another two years, a total of five years.  However, it seems likely, and the learned sentencing judge took this view, that because of remissions the sentence which was imposed in the District Court will terminate effectively on 16 January 2004.  That is, that the cumulative sentence will commence to run at that time, that is, at the end of two years of the three-year sentence.

It is also the case that because the sentence which has been imposed in this case is for a Commonwealth offence, the appellant must be released at the end of the two-year period, so that whether one takes the original sentence as being one of seven years or six years' imprisonment, the appellant will in fact be released at the end of a period of four years of that total term.  On that assumption, which I make, as the learned sentencing judge did, I do not think the sentence which was imposed was manifestly excessive, and I would also dismiss the application for leave to appeal against sentence.

WILLIAMS JA:  I agree.

JERRARD JA:  I agree, and I add only that when assessing the credibility of the evidence given by Ms Eyears, upon which the appellant somewhat relied, the jury were entitled to have regard to her evidence that prior to the arrival of the investigating police officers, she had simply not noticed the parcel then in the laundry containing the drugs and which was visible to those investigating officers when they entered the room in which she was seen.  That parcel was addressed to a Master Shanon, and her evidence was that there were no children living at those premises at all, let alone any child by the name of Shanon.  I agree with the order proposed.

DAVIES JA:  The orders are as I have indicated.