SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused for the reasons given by Holmes JA.

[2] It is common ground that the recorded intercepted telephone conversations to which the appellant was not a party were admissible as evidence of the appellant's involvement in the common purpose of trafficking with the makers of the recorded telephone conversations.[1]

[3] Some judges may have considered it prudent in this case to have taken the more detailed approach favoured by Chesterman JA in his reasons and to have directed the jury in the terms discussed by Mason CJ, Wilson, Deane, Dawson and Toohey JJ in Ahern v The Queen,[2] applying those principles to the facts of this case.  The appellant now contends that the failure to do so is an appellable error of law. 

[4] This case was, however, very different to Ahern.  The appellant's lawyer at trial took a different approach to that of his lawyer on this appeal.  At trial, the appellant's lawyer astutely and frankly acknowledged that the directions now sought would not have been helpful to the appellant's case.[3]  No doubt that was because the direction that the appellant now contends should have been given would have required the judge to point out the extensive body of evidence capable of supporting a common purpose of trafficking in dangerous drugs between the appellant and the participants in those telephone conversations.  The appellant's trial lawyer told the judge that the re-direction proposed and ultimately given by the judge was "very acceptable from [his] point of view".[4]  In these circumstances, I remain unpersuaded that the judge's limited re-direction as to the evidence of recorded telephone conversations to which the appellant was not a party amounted to a "wrong decision of any question of law".[5]  Nor am I persuaded that the judge's directions fell below the duty of a judge to explain to the jury how the relevant law applied to the facts of this case.[6]  For these reasons, in addition to those given by Holmes JA, I am not persuaded that the judge's directions in any way have led to a miscarriage of justice.[7]

[5] During the trial, the appellant made a number of formal written admissions in a document which was tendered.[8]  These included the admission that a schedule headed "Document C" "accurately records the records of the telephone companies as to the time, date and place of when the telephone calls recorded in the document were made, and the numbers utilised in those calls".[9]  The admission uses the word "record" to mean "list" or "set out" rather than "tape record" or "to keep an account of something that has occurred or been said".  In the ordinary course, Document C and the attended admission concerning it would have been with the jury in the jury room as an exhibit when they retired to consider their verdict.  There is no suggestion that did not occur in this case. 

[6] The appellant submits that the judge erred in failing to distinguish in her directions to the jury between the two groups of telephone calls listed in Document C which did not involve the appellant's telephone number.  The first group were not the subject of intercepted tape recordings, whilst the second group were.  The submission seems to be that the judge should have made reference to this difference in the Ahern-type directions. 

[7] The terms of the admission made by the appellant at trial and Document C make plain that Document C is evidence only of telephone company records as to the time, date and place of telephone calls between the telephone numbers there set out.  The schedule does not state whether any of those calls were tape recorded.  It does not provide evidence of the content of any of the telephone calls it lists.  The schedule is not direct evidence of who made the calls listed in it, but it provides circumstantial evidence of that.  It is not evidence of the kind with which Ahern is concerned.  The direction now sought by the appellant would only have confused the jury as to the otherwise clear and self-evident terms of Document C and the admission relating to it.  The circumstances of this case did not require the direction now sought by the appellant.

[8] If I am wrong and the judge erred in her directions to the jury in a way contended for by the appellant, then, despite that error or errors, the appeal should be dismissed.  That is because, for the reasons given by Holmes JA, "no substantial miscarriage of justice has actually occurred".[10]

[9] I agree with the orders proposed by Holmes JA.

[10]  HOLMES JA:  The appellant was tried on one count of trafficking, three counts of producing a dangerous drug with a circumstance of aggravation, and four counts of producing a dangerous drug simpliciter.  He was convicted of all counts, save one count of producing a dangerous drug with a circumstance of aggravation; on that count, a conviction of the offence simpliciter was returned.  He appeals against his convictions on the ground that the learned trial judge failed properly to direct the jury as to the use of telephone intercept evidence admitted under the Tripodi[11] principle (that where two or more persons combine in a common unlawful enterprise, the acts and declarations of each in furtherance of the common design are admissible against the other participants, notwithstanding that the latter were not present when they were done or made).  There is also before the court an application for leave to appeal against sentence, although no grounds for that application were stated in the notice of appeal, and the appellant’s counsel did not seek to advance any submissions in respect of it.

The Crown case

[11]  The offences on which the counts in the indictment were based were said to have occurred at various times during a period from 1 July 1997 to 1 October 2003.  The trafficking count encompassed both methylamphetamine and cannabis.  The latter involved a lesser operation, of no real significance to the appeal against conviction, in which the appellant had engaged in buying and selling cannabis.  As to the charge of trafficking in methylamphetamine, the allegations against the appellant were, in broad terms, that he and others acquired ingredients for the manufacture of methylamphetamine, produced the drug at various places and sold it, in the process moving large sums of money about.  The seven production offences, all of which involved methylamphetamine, were thus said also to constitute part of the trafficking. 

[12]  The Crown case relied heavily on evidence from the appellant’s former de facto wife, Debra Dangerfield, and her son, Corey.  They gave evidence of the appellant’s involvement in “cooks” of methylamphetamine and his possession of large sums of money; they had themselves acted on his behalf as couriers of cash and drugs.  One of the appellant’s co-offenders, tried separately from him, was a man named Michael Falzon; another was Stephen Philp, who was charged on the same indictment with a separate count of trafficking and jointly with the appellant in respect of some of the production offences. 

The schedule of telephone calls

[13]  The appellant and his associates obtained hypophosphorous acid, needed in the preparation of methylamphetamine, from Debra Dangerfield’s brother, who worked for a mining company and was able to arrange its supply.  Over a period from January 1999 to October 2000, an employee of the company ordered 140 litres of the acid (although the company did not use the product).  Between January 1999 and February 2001, 129 telephone calls were made between the appellant and his de facto wife’s brother.  Corey Dangerfield gave evidence that in September 2000 the appellant had procured him to pay $10,000 to his uncle in exchange for a supply of hypophosphorous acid. 

[14]  To show that the appellant had been in telephone contact with his de facto wife’s brother, a schedule, made up from telephone records, was tendered.  It showed, for the period from 7 January 1999 to 28 February 2001, the telephone numbers between which calls were made; the names of the subscribers to the relevant telephone services; and the date, time and duration of each call.  As well as the 129 calls involving the appellant, the same schedule showed seven calls made between Corey Dangerfield and his uncle; three on a day on which Corey Dangerfield withdrew $10,000 from a bank.  Those calls were not monitored or recorded; the tendering of the schedule seems simply to have been by way of confirmation that contacts were made between the relevant persons at the relevant times. 

The intercepted telephone calls

[15]  From December 2002, however, phone calls between the appellant and his associates were intercepted and recorded.  Transcripts of those conversations were provided to the jury.  Those relevant to this appeal occurred in September 2003.  The appellant was a participant in most of the intercepted conversations, but there were 16 conversations which occurred between his associates and other persons, in which he was not involved.  The trial judge’s direction as to the use to be made of those 16 conversations, admitted under the Tripodi principle, was at the heart of this appeal.

[16]  In early September 2003, the appellant was making attempts to obtain pseudoephedrine.  He made a number of calls to a man named Phillips, in the course of which he suggested visiting the latter, but received limited encouragement.  Phillips put him off, saying he would not “know for a few days”; the appellant should not “hurry down”.  At one point, the appellant proposed that he would “slip up to that bank” (an expression, on the Crown case, used for secreted moneys) and “rip down”; Phillips demurred, saying he would “catch up with” the appellant. 

[17]  The first of the conversations not involving the appellant occurred in the context of that series of calls.  After speaking to the appellant about his lack of progress, Falzon rang Phillips, who said that the appellant was “jumpin’ the gun a bit”.  Falzon reported back to the appellant that Phillips had said, “there was nothing to get excited about”.  The appellant responded that he had another job and would do the “ks”.  (That seems to have been a reference to alternative arrangements the appellant was then making to go to Sydney in order to obtain pseudoephedrine through a man named Parkes).  In a later call to Phillips on 11 September, made, apparently, en route to Sydney, the appellant asked whether Phillips had “paperwork”; he, the appellant, had some, but needed the same amount again.  If Phillips could not oblige he would have to “chase another bloke”.  Phillips said he had no paperwork. 

[18]  In the first part of September, the appellant also took part in a number of telephone calls to Parkes, leading up to his journey to Sydney.  Parkes in turn made telephone calls to a man named Kalpaxis (on the Crown case, a supplier of pseudoephedrine) in order to set a time for meetings; three of their conversations were intercepted and recorded.  The appellant arrived in Sydney on 13 September.  On the following day, he went with his co-accused, Stephen Philp, and Parkes to Kalpaxis’ premises.  The appellant and Philp returned from Sydney by vehicle under police surveillance and were intercepted at Tugun on 15 September, when 7.7 kilograms of powder, containing 1.245 kilograms of pseudoephedrine, were found in their car.  When interviewed, the appellant said that some people he did not know had asked him to bring the packages containing the pseudoephedrine to Brisbane, assuring him that they did not hold drugs.  The finding of the pseudoephedrine gave rise to the last (in sequence and in time) of the production counts against the appellant.  He was charged on the basis that the obtaining of the pseudoephedrine and its movement into Queensland amounted to an act preparatory to production of methylamphetamine. 

[19]  After his arrest, the appellant was held in custody until 27 September.  Philp was also held in custody, but was released on 19 September.  On that day, Kalpaxis telephoned Parkes and told him that he would “be thinkin’ about this time next week not this week”, because an unidentified person had said “next week”; the inference being that they were speaking of Kalpaxis’ obtaining further supplies.  Philp, on his release, made a number of phone calls to Parkes, who, in turn, made more calls to Kalpaxis.  The Philp-Parkes-Kalpaxis calls (six of them) were, on the Crown case, directed at obtaining more pseudoephedrine.  In the course of making arrangements with Parkes for him to come to Brisbane, Philp told him that the appellant was in custody.  He gave Parkes the telephone number of a man named Stephen Wragg and told him to ring the number when he was “ready to rock ‘n’ roll”.  Wragg would then get onto another man, “Bubbly”, identified by the Crown as John Sutherland. 

[20]  On 24 September, Sutherland rang Parkes and asked when he was coming “up this way”; Parkes responded that it would be the next week.  On 28 September, Philp rang Wragg and said that “old mate” would probably call later.  However, on the same day, Parkes, heading north from Kalpaxis’ residence in Sydney, was stopped in his vehicle at Coffs Harbour; 20,000 tablets, around 21 per cent pure pseudoephedrine, were found in his sedan.  On 29 September, Philp twice spoke to Wragg, asking whether “old mate” or “that bloke” had been in contact.  On 30 September, the appellant, who had been told of Parkes’ apprehension, rang Wragg and told him to make sure his house was tidy, because the “bloke” had “run into a … pothole”; Wragg passed on that warning in a call to Sutherland on the same day.

The summing-up

[21]  The appellant did not give or call evidence.  In the course of a long summing-up, the trial judge told the jury that the trafficking case encompassed all the drug related activity alleged against the appellant, so that the evidence on the production counts was also relevant to the trafficking count.  In contrast, the individual production counts concerned specific events only.  No complaint was made of that direction.  Her Honour went on to remind the jury of the evidence relevant to each of the counts in turn, beginning with the trafficking count.  Towards the end of her review of the trafficking evidence, she reminded the jury of the telephone conversations intercepted by the police and the content of some of those calls.  The judge concluded her discussion of the trafficking evidence by saying, “that’s all evidence that’s relevant only to count 1, the trafficking charge”.  She then said she would turn to count 3 (the first of the production charges). 

[22]  The learned judge duly went on to direct the jury as to the evidence relevant to each of the production counts in turn.  She referred again to the telephone intercepts in the context of the last of the production counts, in dealing with the Crown’s allegation that the appellant had lied when he said that people he did not know had induced him to bring the packages from Sydney.  Her Honour explained that the evidence relied on by the prosecution to demonstrate the untruth was, in part, telephone intercepts of the appellant’s conversations with Parkes, showing that he had arranged with the latter to go to Sydney to pick up the substances brought back. 

[23]  The learned judge went on to deal with the subsequent intercepts:

“Now, the prosecutor then referred you in detail from the telephone intercepts afterwards. They're not relied upon to show that that's a lie. They're relied upon to show the continuing commission of the offence of trafficking and the events after that date and the arrest at Tugun concern Mr Parkes being picked up, and you've been referred in some detail to those matters.

He was picked up in New South Wales, at Coffs Harbour, with 4.4 kilograms of tablets, not powder, tablets.”

That direction was given towards the close of the summing-up.

[24]  When the jury had been sent out, counsel for the Crown pointed out that the learned judge had not given any direction as to what use the jury could make of telephone intercepts which did not personally involve the appellant.  Her Honour invited a submission from the solicitor who represented the appellant.  He maintained that the direction already given on the telephone intercepts was adequate and that:

“to focus particular attention to conversations had between other parties, would focus them unduly on those conversations.” 

He disagreed with the proposition that any special mention should be made of them. 

[25]  The learned judge, notwithstanding, devised a short direction which she read aloud to the legal representatives in the absence of the jury.  The appellant’s solicitor described the proposed direction as “very acceptable from my point of view”; counsel for the Crown similarly said he had no difficulty with it.  It was in these terms:

“You have heard evidence in the telephone calls of conversations between people other than Mr O'Brien.  Now, you may only use that evidence against Mr O'Brien if you are satisfied beyond reasonable doubt that he was acting in common purpose with those persons and that what was said was in furtherance of that purpose.  Otherwise, you can not use conversations to which he was not a party against him.”

The appeal against conviction turned on that direction.

The complaints made of the direction

[26]  Counsel for the appellant here said that the direction was inadequate, because it was too general and ambiguous.  The learned judge had:

“merely referr[ed] the jury to the law ... and [left] it to them to apply it to the facts of the case.”[12]

Her Honour should, counsel submitted, have identified the parties to each of the “phone calls between people other than Mr O'Brien”.  And she should have identified the common purpose in furtherance of which each of the calls was said to be made: it should have been said in each case whether it was trafficking and/or production.  As given, the direction was capable of being understood as suggesting a common purpose for all the conversations which extended to the trafficking and all of the production offences.  Moreover, the judge had failed to explain “how the evidence concerned was to be utilised” by the jury.

[27]  Counsel also complained that the learned judge had failed to distinguish, in referring to telephone calls, between the entries on the schedule showing telephone contacts between Corey Dangerfield and his uncle, on the one hand, and the later intercepted telephone conversations (between members of the group comprising Falzon, Phillips, Philp, Parkes, Kalpaxis, Sutherland and Wragg), of which transcripts were available, on the other.  She should have referred specifically to the former set of calls, and made it plain that they did not fall within the direction.

[28]  Finally, counsel said, the learned judge should have added to her direction this passage from the suggested direction in the Supreme and District Courts Benchbook for “Evidence in Conspiracy Cases”:

“In your consideration of this sort of evidence (of the acts and declarations of (A & B)) as evidence of the existence of the alleged conspiracy and the defendant’s participation in it you should give consideration to (any shortcomings in the evidence including if it be the fact that there has been no opportunity to cross-examine (A) and/or (B) and the absence of corroborative evidence). So you should scrutinize this sort of evidence with care and you should not conclude that a defendant is guilty merely on the say so of another alleged co-conspirator.”

(The authority cited in the Benchbook for that passage is The Queen v Ahern).[13]

Discussion and conclusions

[29]  It was not incumbent on the learned judge to identify the parties to each of the relevant conversations.  Each of the transcripts bore the names of the participants at its head; it was self-evident between whom they were occurring and whether the appellant was or was not a party.  And, as counsel for the respondent Crown pointed out, the dates on which all but the last of the production counts were charged as occurring preceded the commencement of the telephone intercepts.  There was little prospect, therefore, that the jury would regard the evidence of telephone conversations as relevant to those earlier production offences, as opposed to the trafficking.  In any event, the order in which her Honour dealt with the evidence relevant to the respective counts in summing-up made it clear to the jury that the telephone intercepts in general bore no relevance to any but the trafficking count and, insofar as a lie was told, the last of the production counts. 

[30]  The learned judge, before giving the contentious direction, had already explained that the Crown relied on telephone intercepts “to show the continuing commission of the offence of trafficking”.  I do not think that there is any risk that the jury would have supposed, when her Honour referred again to “common purpose” in the direction on the use to be made of telephone conversations in which the appellant was not a participant, that she was speaking of any different common purpose.  In fact, the calls between Philp, Parkes and Kalpaxis in the course of arranging the supply of pseudoephedrine in Sydney on 14 September could also have been used by the jury as evidence of the last of the production counts.  The failure to mention the possible relevance of those conversations to that count (except as evidence of a lie) operated purely to the benefit of the appellant.  As to the complaint that the jury was not told how the evidence was to be used, it was apparent that the learned judge was speaking of its use against the appellant to support the Crown case on trafficking.  Counsel for the appellant did not suggest what more could sensibly have been said as to “how the evidence … was to be utilised”.

[31]  It is entirely improbable that the jury would have taken the learned judge’s reference to “evidence in the telephone calls of conversations between people other than Mr O'Brien” as referring to the entries on the schedule for calls between Corey Dangerfield and his uncle.  That schedule listed the bare details of the telephone calls by reference to time, phone service number and participant; there was no evidence as to what was said in the conversations themselves.  But if the jury did regard the direction as applying to those calls, it was favourable to the defence: the jury, having no information as to the content of those calls, could not have been satisfied beyond reasonable doubt (as the judge directed it must) “that what was said was in furtherance of that [common] purpose”.  Consequently, in conformance with the direction, it would have regarded itself as unable to use those schedule entries as evidence against the appellant. 

[32]  Finally, I should say that I do not consider that it was necessary or even appropriate in this case to add to her Honour’s direction the passage quoted from the Benchbook.  The appellant was not charged with conspiracy.  This passage from Ahern is apposite:

“The significant distinction between conspiracy and other offences for present purposes is that indicated in Tripodi, namely, that on a charge of conspiracy combination is also an element in the offence and not merely a ground for the admission of the evidence.  The question does not, therefore, arise in cases other than conspiracy of the use of evidence of the acts and declarations of others to prove the combination except as evidence of separate acts from which a combination might be inferred.  Once there is reasonable ground for inferring a combination in cases other than conspiracy, acts and declarations of the participants in furtherance of the common purpose may be used to prove, not the fact of participation in the combination, but the offence charged.” [14]  (Footnote omitted).

The evidence contained in the telephone conversations was not relied on by the Crown to establish the combination for an unlawful purpose or the appellant’s participation in it, but rather as evidence of the trafficking itself.

[33]  And it was not suggested that there was some reason for supposing the participants in the telephone conversations were acting other than spontaneously, so as to require a special warning in respect of the content of what they said.  (The learned judge had given the directions one would expect as to the dangers of acting on the evidence of the Dangerfields, as indemnified witnesses).  The only “shortcoming” alluded to by the appellant was the difficulty in understanding some of the more cryptic references in the telephone conversations.  That was not a matter in relation to which the court had any special knowledge which might assist the jury.  The problem was manifest; it did not require a direction.

[34]  In my view, the complaint that the learned judge’s direction was inadequate is not made out.  It was not necessary for her Honour to explore the detail of the telephone intercepts in more detail at that point; and plainly enough the appellant’s legal representative at trial was more than content with the learned judge’s approach.  I might say that, had I reached any different view, I would have regarded the case as one where the proviso[15] was appropriately applied.  The evidence of the Dangerfields was amply supported by scientific evidence of indicia of methylamphetamine production at some of the sites they identified, and by financial analysis which showed that the appellant and Falzon and their companies had expended more than their ascertainable income by almost $2 million, over a period from 1999 to 2003.  That evidence, taken with the content of the intercepted telephone calls between the appellant and others, the surveillance evidence relating to the appellant’s activities and those of Parkes and Kalpaxis in Sydney, and the finding of pseudoephedrine in the vehicles driven respectively by the appellant and Parkes, put the appellant’s guilt of the charges beyond any rational doubt.  The appeal against conviction should fail.

Sentence

[35]  The appellant was sentenced to 14 years imprisonment.  Her Honour found as a fact on sentencing that the trafficking, notwithstanding the dates on the indictment, commenced shortly prior to the appellant’s first obtaining of hypophosphorous acid on 20 January 1999.  It extended, nonetheless, for almost five years, a period during part of which the drug was a schedule 2 drug (up to 21 September 2001) but for the remainder was a schedule 1 drug; with the consequence that the maximum imprisonment changed from 20 years to 25 years.  The appellant had, of course, been convicted after a trial, having shown no remorse.  He was 61 years of age; the learned judge described him as having a “dreadful criminal record”, from 1962 to November 2002, for offences of dishonesty and violence.  The only mitigating factor raised was his poor health; his solicitor said that he suffered from emphysema and asthma.

[36]  In the absence of submissions as to any error in the exercise of the sentencing discretion, I do not think it necessary to say more than that the sentence imposed is supported by decisions in cases of comparable seriousness: see, eg, R v Jacobs,[16] R v Lowe,[17] and R v Cannon.[18]

Orders

[37]  I would dismiss the appeal and the application for leave to appeal against sentence. 

[38]  CHESTERMAN JA:  The facts and circumstances relevant to the appeal are set out in the judgment of Holmes JA.  It is not necessary to repeat them.  The trial judge evidently overlooked the need to instruct the jury on what use they could make of the intercepted telephone conversations to which the appellant was not a party.  The conversations were admissible, and were admitted without question or comment.  Nevertheless their admission did not comply with what Dixon CJ, Fullagar and Windeyer JJ in Tripodi v The Queen (1961) 104 CLR 1 at 7 called the “empirical but practical and convenient test”, and what the High Court in Ahern v The Queen (1988) 165 CLR 87 at 92 called “the rule of thumb”, of admissibility, the presence or absence of the accused when the statements in question were made.  For that reason, because the conversations were admissible on a particular basis, the jury should, I think, have been instructed on the point when the evidence was led.  I apprehend that to be the practice of trial judges careful to ensure that juries have an adequate understanding of what use they can make of particular evidence.  Such an instruction will generally be called for when admissible evidence, which does not conform to the “empirical test”, is led.

[39]  That was not done in this case and the only instruction given was by way of redirection when the trial judge’s omission to deal with the point had been brought to her attention by the prosecutor.  The direction given, which Holmes JA has set out, was extremely brief though its content is not in question.

[40]  The basis on which the conversations were admissible was explained in Tripodi at 6-7:

“... when a substantive crime ... is charged ... it is the ingredients of the substantive crime that must be proved ... .  When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the ... others ... .  ... the ... reason for admitting the evidence of the ... words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to ... speak in furtherance of the common purpose on behalf of the others.”

[41]  The trial judge gave an exceedingly succinct direction.  Her Honour referred only to “evidence in the telephone calls of conversations between people other than (the accused)” and explained only that the jury “may only use that evidence against (the accused) if you are satisfied beyond reasonable doubt that he was acting in common purpose with those persons and that what was said was in furtherance of that purpose.”

[42]  The pre-condition to the admission of such evidence is that there be a combination or pre-concert of persons, including the accused, who come together to commit a crime.  Evidence of acts or words done or spoken by any one of those persons is evidence against the others if spoken or done in furtherance of the common criminal purpose.  It would have been useful to tell the jury something along those lines.  As well the direction ought to have identified the evidence in question, that is the particular telephone calls, which were not numerous, and to have referred, even if briefly, to the evidence supporting the existence of the pre-concert, and to have identified the common purpose.  Only by doing so could the trial judge have instructed the jury, as is his or her task:  Fingleton v The Queen (2005) 227 CLR 166.

[43]  Notwithstanding these omissions and, what I would regard as deficiencies in this particular direction, the appellant was not deprived of a fair trial.  In the particular circumstances of this case the direction was enough.  Holmes JA has explained why.  The direction received the express assent of the appellant’s legal representative at the trial:  the evidence in question could only sensibly be understood as relating to the charge of trafficking by reason of the occurrence of the conversations in the chronology of the offences (though the jury was left to discern that for itself, without assistance from the trial judge):  the evidence of combination or pre-concert between the accused and the others was overwhelming.  Indeed the case for the prosecution was so strong that even if the direction amounted to a misdirection the case would be an appropriate one for the application of the proviso.

[44]  I agree that the appeal should be dismissed and that the application for leave to appeal against sentence should be refused.