SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with the orders proposed by His Honour, and with his reasons.

2. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with those reasons and with the orders proposed by him.

3. KEANE JA:  On 19 July 2006, the appellant was convicted upon the verdict of a jury of one count of trafficking in the dangerous drug cannabis sativa, one count of possession of a mobile phone that had been used in connection with the commission of the crime of trafficking in cannabis sativa, and three counts of unlawful possession of cannabis sativa, the quantity of which on each occasion exceeded 500 grams. 

4. On the trafficking charge, the appellant was sentenced to three years imprisonment, suspended after 18 months for an operational period of three years. He was sentenced to lesser concurrent terms for the other offences. One day in custody prior to sentence was declared to be time served under the sentence.

5. The appellant appeals against the convictions on the ground that the verdicts of the jury are "unreasonable and/or cannot be supported having regard to the evidence and/or are unsafe and unsatisfactory in the administration of justice".

6. The appellant also sought leave to appeal against the severity of the sentences imposed, on the ground that they were manifestly excessive. Unsurprisingly, having regard to the distinctly lenient sentence imposed in respect of the trafficking offence, the application for leave to appeal against sentence was not supported by argument.

The case at trial

7. The offence of trafficking was alleged to have been committed between 28 March 2004 and 17 May 2004.

8. The principal witness for the Crown on this charge was the appellant's co-offender, CD. CD gave evidence that he was introduced to the appellant by a mutual friend in Toowoomba in March 2004. The appellant told CD that he (the appellant) had access to hydroponically grown cannabis. CD told the appellant that he (CD) knew where supplies of cannabis grown outdoors could be obtained. They discussed the possibility of supplying cannabis to others, and exchanged mobile telephone numbers.

9. According to CD's evidence, the appellant subsequently telephoned CD and the two of them met up and travelled in separate vehicles to a hippy commune near Dundee in New South Wales. The appellant purchased four half pound bags of cannabis from people at the commune. According to CD, the appellant brought his own scales to the commune. The appellant paid about $5,500 in cash for the cannabis. He paid CD $250 to $300 for acting as the middle man. CD said that this took place a couple of days before CD's mother's birthday which was on 1 April 2004.

10. According to CD, on a later occasion in mid-April 2004, the appellant sent a text message and then CD telephoned the appellant and arranged for them to meet at a cross-road "halfway between Dundee and the Old Grafton Road". There, a "hippy gentleman", who had come to the meeting in company with CD, delivered five pounds of cannabis to the appellant for approximately $10,000 in cash. CD received between $250 and $500 from the appellant on this occasion. The cannabis was put into the back of the appellant's red Celica motor vehicle, and the appellant drove back to Toowoomba. He telephoned CD confirming that he had made it back to Toowoomba safely.

11. On 11 May 2004, the appellant telephoned CD and arranged to meet him near the commune. They met on 15 May 2004. The appellant had something between $25,000 and $30,000 in cash. He handed over about $30,000 to the "hippy gentleman", and received in return a quantity of cannabis in sealable plastic bags which were then placed in a white plastic bucket and in CD's esky. The white plastic bucket and the esky were put in the back of CD's car. CD said that it had been agreed between the appellant and himself that CD would take the cannabis back to Toowoomba for the appellant. The appellant and CD drove back in their respective cars. The appellant was driving his red Toyota Celica.

12. In the early hours of 16 May 2004, CD was stopped at a police road block at the Queensland/New South Wales border. His vehicle was searched, and the cannabis in the esky and the bucket was discovered. Police also discovered a leather shoulder bag containing a small amount of cannabis and $1,200, a blue shoulder bag contained cannabis resin and scales.

13. The appellant drove on past CD and the police. He subsequently approached the road block from the Queensland side of the border. He was stopped by police for a random breath test. He returned some 20 minutes later and drove past the road block for a second time. One police officer gave evidence that the appellant appeared to be interested in CD and his vehicle. CD had, however, made no mention of anyone else being involved with the cannabis which had been found in his vehicle. On CD's evidence, the appellant drove across the border a total of three times, the first time being when he followed CD through the road block without being stopped.

14. When CD was released from police custody in Warwick, he telephoned the appellant. They arranged to meet and the appellant collected CD. CD's evidence was that, at that meeting, CD told the appellant that he had not told the police anything about the appellant, and the appellant said that he would look after CD financially. Subsequently, the appellant gave CD $2,000. The telephone records show contact on 11, 15 and 17 May and that the appellant was in Warwick on 17 May 2004.

15. Thereafter, CD tried to telephone the appellant but succeeded only in reaching the appellant's answering machine.

16. On 15 September 2004, while searching the appellant's premises for other reasons, police seized the appellant's mobile telephone, which contained CD's number. They also discovered a recorded message from CD on the appellant's answering machine. The message made reference to the cannabis CD had been found with and was to the effect that the appellant had not kept his part of the bargain.

17. After police reviewed the appellant's telephone records, they interviewed CD again, and CD implicated the appellant. He agreed to provide evidence against the appellant and did so. CD was sentenced under the provisions of s 13A of the Penalties and Sentences Act 1992 (Qld).

18. On 13 December 2004, the red Toyota Celica was located by police at the home of another person. On 15 December 2004, a fingerprint comparison was made with the prints located on the cannabis bags found in CD's possession on 16 May 2004. The appellant's fingerprints were identified on one of the bags of cannabis.

19. At trial, the appellant did not give evidence.

The appeal

20. The principal point made by the appellant on his appeal was that CD's evidence was "obviously fabricated to relieve himself of the charge of trafficking and reduce his sentence".

21. The appellant relies heavily in this regard upon the circumstances that CD had been given the benefit of a discounted sentence under s 13A of the Penalties and Sentences Act.  While that is a circumstance which should lead to careful scrutiny of CD's evidence, the jury were given a warning to that effect by the learned trial judge who adverted specifically to problematic aspects of CD's evidence.

22. Thus the jury were made well aware by the learned trial judge of the necessity to scrutinise CD's evidence with great care because of the circumstances which might suggest that his evidence was unreliable. Having been so instructed, it was a matter for the jury whether they were disposed to act upon CD's evidence, which was, after all, uncontradicted.

23. The discrepancy between the police evidence and CD's evidence as to the number of times the appellant drove past them at the border road block would have been obvious to the jury. It was expressly adverted to by the appellant's counsel at trial. The jury may well have resolved this difference on the basis that the police had simply failed to observe the appellant's vehicle on one occasion as it passed across the border following CD because their attention was focussed upon CD's vehicle and its contents.

24. The appellant also argued that CD's explanations in cross-examination for his high levels of personal expenditure were unconvincing, and that the jury should have inferred that it was CD, not the appellant, who was the true drug dealer. Once again, the assessment of CD's credibility was a matter for the jury.

25. There was other evidence which tended to provide support for aspects of CD's version of events. The appellant's fingerprints were identified on one of the bags of cannabis located in CD's vehicle on 16 May 2004. The tape recording of CD's message on the appellant's answering machine was consistent with CD's account. It was also supported by the telephone records showing extensive telephone contact between their respective telephone numbers.

26. The appellant complains that the telephone records show calls from the appellant to CD only between 25 April 2004 and 21 May 2004, which was inconsistent with CD's evidence of the timing of the first call from the appellant, ie on about 29 March 2004. CD may have been mistaken as to the telephone service used by the appellant prior to 25 April 2004; but, in any event, the jury were entitled to accept that CD was essentially truthful while being vague or mistaken on some details of the chronology.

27. The appellant also argued on appeal that he did not give evidence at trial upon the advice of his counsel that "it was an open and shut case with little to no evidence to support the crowns [sic] case and by taking the stand I would wave [sic] the right of last address to the jury".

28. The appellant, in his submissions to this Court, said that his own assessment of CD's evidence was that it was not convincing, and would be unlikely to be believed by the jury. The appellant's own view seems to have accorded with the tactical judgment made by his counsel. It cannot be said that the desirability of retaining the right to the "last word" to the jury in such a case did not afford a reasonable basis for the advice on which the appellant said he relied in refraining from giving evidence.^[1]  The right to the "last word" is highly prized by jury advocates.  It is a right claimed every day in jury trials throughout the State.  Furthermore, by not giving evidence, the appellant avoided being confronted by difficult questions relating to the nature and extent of his involvement with CD raised, inter alia, by his fingerprints on the cannabis found in CD's possession, his interest in CD's vehicle at the border crossing, and his frequent telephone contacts with CD.  In these circumstances, the appellant's complaint about the conduct of the trial affords no basis for impugning the fairness of the trial. 

Conclusion and order

29. The verdict of guilty was one which, upon the whole of the evidence, was reasonably open to the jury.

30. I would dismiss the appeal and strike out the application for leave to appeal against sentence.