R v Lansdowne[2017] QCA 184

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  At a trial over three days in the Supreme Court at Brisbane, the appellant, Paul Jeffery Lansdowne, was on 28 September 2016, convicted of two offences and acquitted of a third.  The convictions were for the following offences:

• Count 1 – that between 22 February 2013 and 25 June 2013 at Eerwah Vale and elsewhere in Queensland, he carried on the business of unlawfully trafficking in the dangerous drug methylamphetamine;^[1] and
• Count 3 – that on 10 May 2013 at Eerwah Vale, he unlawfully had possession of the dangerous drug methylamphetamine.^[2]

The acquittal was on Count 2, namely, that on 21 March 2013 at the Gold Coast and elsewhere in Queensland, he possessed a sum of money obtained from trafficking in a dangerous drug knowing it to have been obtained from trafficking.^[3]

2. On the following day, the appellant was sentenced on Count 1 to four years’ imprisonment suspended after two years.  On Count 3, a conviction was recorded but the appellant was not further punished.
3. The appellant filed a notice of appeal against his conviction on 11 October 2016.^[4]  The grounds of appeal were amended by leave granted at the hearing of the appeal on 5 May 2017.

The appellant’s alleged offending

4. In January 2013, police began Operation Kilo Deacon to investigate the commission of drug offences in the Sunshine Coast area.  The appellant, Michael Smith, Steven Smith and Joshua Carew were targets of the investigation.
5. The prosecution case was a circumstantial one.  There was no direct evidence, from an eyewitness or otherwise, of the appellant’s trafficking in drugs or of his being in possession of them or a substantial amount of cash.
6. In the course of the investigation, police obtained warrants to intercept telephone communications between the appellant and others.  They also obtained a warrant to install a listening device at the appellant’s residence in Eerwah Vale.
7. The intercepted and recorded communications, together with other evidence, constituted the Crown case for the three counts.  Count 1 was particularised in detail as follows:^[5]

“The defendant carried on the business of trafficking in the dangerous drug methylamphetamine, by:

1. sourcing methylamphetamine and/or precursor chemicals used to produce methylamphetamine from Craig Ward or associates of Craig Ward;

-the methylamphetamine thereby obtained was distributed by the defendant and/or Michael Smith, Steven Smith, Joshua Carew or others, in Queensland and the defendant benefited from the distribution;

-the precursor chemicals were provided by the defendant to Michael Smith, Steven Smith, Joshua Carew or others, in Queensland who used the chemicals to produce methylamphetamine, which was then distributed by the defendant and/or Michael Smith, Steven Smith, Joshua Carew or others, in Queensland and the defendant benefited from the production and distribution;

-the defendant paid Craig Ward for the methylamphetamine and/or precursor chemicals sourced;

-some of the occasions in which the defendant obtained methylamphetamine and/or precursor chemicals used to produce methylamphetamine from Craig Ward or his associates and/or paid Craig Ward or his associates for the methylamphetamine and/or precursor chemicals sourced are as follows:

1. On 23 February 2013;

2. On 21 March 2013;

2. Possessing methylamphetamine the source of which is unknown for distribution to others in Queensland for the defendant’s benefit.  Some of the occasions that occurred are as follows:

1. on 10 May 2013;

2. on a date unknown between 22 February 2013 and 6 June 2013 which was supplied to the electrician

3. The defendant had an interest in methylamphetamine possessed and/or produced by Michael Smith, Steven Smith, Joshua Carew or others, and such methylamphetamine was possessed or produced for the purpose of being distributed in Queensland and the defendant was to benefit or benefited from that distribution.  Some occasions in which that occurred were as follows:

1. 10 May 2013;

2. 13 June 2013.

4. Planning the future procurement and distribution of methylamphetamine.”

Counts 2 and 3 were particularised respectively as possession of $20,000 at the Gold Coast known to be proceeds of trafficking, and possession of an unknown quantity of methylamphetamine at 680 Browns Creek Road, Eerwah Vale.^[6]

8. The intercepted communications consisted of both text messages^[7] and oral communications.^[8]  Certain of them occurred during the period 23 February 2013 to 11 March 2013.^[9]  The Crown alleged that they revealed that the appellant had arranged to meet Michael Smith at the latter’s house at about 8 am on 23 February 2013 and that after the meeting had taken place, the appellant travelled south to meet Ward at Dreamworld around midday.  It was further alleged that the jury would conclude that at that meeting the appellant engaged in a drug related transaction with Ward, either one in which he sourced drugs or chemicals for the production of drugs, or both, from Ward, or one in which he paid Ward for a previous drug supply.
9. The intercepted communications for this period also revealed that between 28 February 2013 and 10 March 2013, the appellant and Ward made efforts to arrange another meeting.  Ultimately, they agreed to meet at 10 am on 12 March 2013.
10. In the course of the investigation, police also conducted several tactical intercepts.  On 11 March 2013, they intercepted a vehicle being driven by Carew in which Michael Smith was a passenger.  During a search of the vehicle, police found $14,900 in cash in a bag belonging to Smith.^[10]  The Crown contended that this money was intended to be given to the appellant who, in turn, was to give it to Ward.  Evidence was adduced from a forensic accountant that a review of Smith’s bank accounts did not identify any contemporaneous withdrawals which might account for the cash in his possession.^[11]
11. Following this intercept, the appellant cancelled his meeting with Ward the following day.  This, the Crown alleged, was because of the tactical intercept, referring to a text message the appellant sent to an associate saying, “Had a few problems today.  Well, Smitty did, my partner.”^[12]
12. A second group of intercepted telephone communications related to the period 12 to 20 March 2013.  They included a voice mail left by the appellant for Ward indicating that the former would be down to see the latter on 19 or 20 March.^[13]  On 19 March, the appellant and Ward made an arrangement to meet on 21 March at 10 am.^[14]
13. On 21 March 2013, the appellant contacted Ward at 7.47 am and told him that he was near Grafton.^[15]  He again made contact with Ward at 9.15 am and told him he was about 35 kilometres away.^[16]  The appellant and Ward then met at the Star Hotel in Macksville south of Coffs Harbour in New South Wales.^[17]  Ward’s vehicle was followed by police after the meeting.  The pursuit was observed by Ward and he told the appellant about it.^[18]
14. Another police vehicle intercepted Ward’s vehicle at a small township on the Pacific Highway.  Upon search of the vehicle, $20,000 in bundles of $50 notes was found in a black sock in the glovebox.  The bundles were held together with rubber bands.^[19]  Ward told police that he carried cash because he bought and sold cars.  He had not used the cash because he did not like the colour of the car that he had intended to buy.^[20]
15. A swab was taken for DNA analysis from 10 of the rubber bands.^[21]  For six of them, the major component of the mixed DNA profile had the same DNA profile as the appellant;^[22] for two of them, the appellant could not be excluded as a contributor;^[23] and for the other two, the sampling was insufficient for further analysis.^[24]  For the six, the expert scientific evidence was that the presence of the appellant’s DNA was more likely the result of primary transfer.^[25]  However, the possibility of secondary transfer could not be excluded.^[26]
16. After he was intercepted by police, Ward again telephoned the appellant.^[27]  He told him that he had been intercepted by the “D’s” and that the money had been seized by them.  He said that there were about five or six police cars involved.  Ward also informed the appellant that he had told police that the money was to buy a car from the appellant, but that the sale had not taken place.  Ward said, “I wanted to pay fifteen, you wanted twenty-five, so we just couldn’t come up with a deal.”  It was in these circumstances, Ward told police, that he had taken more cash than he was prepared to pay the appellant.  The Crown contended that the explanation given to police by Ward was plainly false.
17. The car that the appellant was using at the time, a Holden Senator sedan, was registered to Jordann-Leigh Earthrowl, his goddaughter.^[28]  After his conversation with Ward, the appellant telephoned her mother, Nicole Earthrowl, and told her, “You know Jordann’s car… He only offered fifteen for it”.^[29]  In a subsequent telephone conversation that day, the appellant spoke to Ward about how “he was just trying to sell the car”.^[30]
18. The Crown contended that the appellant was trying to elaborate a basis for the false explanation given by Ward to police.  In a subsequent telephone conversation on 6 June 2013, he spoke to Jordann and informed her that he had just been interviewed by police.  He told her what she should say to them if they came to speak to her about his selling the car on her behalf.^[31]
19. As to the amount of $20,000, the Crown alleged that it was the proceeds of the appellant’s trafficking business; that it had been in his possession earlier that day; and that he had given it to Ward as payment for methylamphetamine or chemicals for the production of methylamphetamine, or both, that Ward had previously supplied to the appellant.
20. Some 25 listening device recordings made between 9 May 2013 and 24 June 2013 were adduced into evidence.^[32]  Overall, the listening device recordings were relied upon as evidence of statements by the appellant throughout the period consistent with his involvement in the possession, production and supply of methylamphetamine beyond personal use on his part, and of his efforts to avoid coming to the attention of the authorities.  In the conversations in which the appellant participated, the terms “ice”,^[33] “goey”,^[34] “half”^[35] and the “cutting”^[36] of drugs, were used.
21. In particular, conversations on 10 May 2013 included the appellant speaking of being “about to get the drugs out” and making “the balls”.^[37]  A conversation on 6 June 2013 contained a disclosure by the appellant that he had supplied drugs to an electrician who had done work at his premises.^[38]  A later conversation on 13 June 2013 related to a proposed production of methylamphetamine at Michael Smith’s house.^[39]
22. As well, a forensic analysis of the appellant’s bank statements was conducted.  It revealed unsourced income in the amount of $14,300 for the period 22 February 2013 to 1 April 2013.^[40]

The pre-trial hearing

23. The appellant’s trial had been listed to begin on 14 March 2016.  Before empanelment of the jury, defence counsel, who had been very recently briefed, intimated that an application would be made to exclude all 28 conversations that had been recorded by the listening device and certain of the intercepted telephone conversations.  For that and other reasons, the trial did not proceed.
24. Later that day, the defence filed an application for an exclusion ruling in relation to that material and certain other evidential material.^[41]  A pre-trial hearing of the application began that afternoon.  It was resumed on 18 March 2016 and concluded that day.  I note that it was the pre-trial judge who subsequently presided at the appellant’s trial which began on 26 September 2016.
25. As to the listening device recordings, on 14 March 2016 the Crown filed written submissions addressing the relevance of each of the recordings in support of its admission.^[42]  Further written submissions on this topic were filed by the Crown on 18 March 2016.^[43]
26. The learned pre-trial judge dealt with the recordings in numerical order according to their date and time sequence.  Frequently her Honour would express a preliminary review on the Crown’s argument in support of admission and defence counsel, by not making any specific submission, would indicate acceptance of the preliminary view expressed.  Her Honour excluded three recordings (11, 12 and 13).  The remainder were admitted, some of them subject to editing directed by her Honour.
27. For the purposes of the appeal, counsel for the respondent prepared a schedule, Annexure “A” to the Respondent’s Outline of Submissions, summarising the oral and written submissions of the parties at the pre-trial hearing with respect to each recording and her Honour’s preliminary view with respect to the admissibility of each of them.  The appellant’s counsel did not challenge the accuracy or comprehensiveness of the schedule.^[44]  The schedule indicates that, as to the remaining 25 recordings, defence counsel made concessions in relation to the admissibility or partial admissibility of 12 of them (1, 2, 4, 5, 6, 14, 15, 20, 21, 23, 24 and 28) and no submissions in respect of two of them (22 and 27).  Her Honour rejected defence counsel’s submissions concerning the remaining 11 recordings.

The grounds of appeal

28. The appellant relies on the following grounds of appeal:
    1. The learned judge erred in not granting the pre-trial application to exclude listening device material in its entirety heard on 14 March 2016 and 18 March 2016; and/or
    2. The verdict of guilty in relation to Count 1 (trafficking) was inconsistent with the acquittal of Count 2 (possessing property obtained from trafficking); and/or
    3. The verdict was otherwise against the weight of the evidence and was unsafe and unsatisfactory; and/or
    4. That the trial judge’s failure to give a propensity or bad character warning about the contents of the listening device conversations was an error of law and/or resulted in a miscarriage of justice.
29. Grounds 1 and 4 are concerned with the same evidential subject matter.  It is convenient to deal with them first.

Ground 1

30. In written submissions, counsel for the appellant, who was not defence counsel at trial, contended that all conversations recorded on the listening device should have been excluded by the learned pre-trial judge in exercise of the discretion granted by s 130 of the Evidence Act 1977 (Qld).  In summary, it was submitted that the evidence was unduly general, prejudicial and not probative of the trafficking offence charged.^[45]
31. In developing this ground of appeal, the appellant, in written submissions, acknowledged that, consistently with the decision of the High Court in R v Hillier,^[46] in a circumstantial case, individual items of evidence are to be considered for their admissibility within the context of the whole of the evidence, and not in a piecemeal fashion.^[47]
32. This ground of appeal challenged the admission of each of the 25 recordings as were admitted, including those with which defence counsel had indicated acceptance of the preliminary view in favour of admission expressed by the learned pre-trial judge, or for which no submission against it had been expressed.  Reasons for rejection for each of the recordings were given in the appellant’s Outline of Submissions on appeal.  However, at the hearing of the appeal, counsel for the appellant, who, by then, had had the opportunity of considering the schedule Annexure “A”, did not develop those reasons.
33. That that course was taken is unsurprising.  Having considered them, I accept that the 25 conversations were relevant in that they offered an evidentiary basis for reasoning by inference from them and other evidence, to a conclusion that the appellant was in possession of and otherwise involved in dealing with illegal drugs, and that he did so in a commercial context.  That is so even from the first of the recorded conversations on 9 May 2013 concerning the appellant’s unprofitable pizza business.  Such evidence was relevant to motive on his part to engage in some other profit making activity.
34. I do not accept that this evidence, aspects of which I have detailed, was not probative of the trafficking count.^[48]  To the contrary, it was clearly so as circumstantial evidence.  It is comparable with the circumstantial evidence that this Court held was properly admitted in R v Chilnicean.^[49]  Moreover, as counsel for the appellant properly conceded, it was not the only circumstantial evidence of the appellant’s participation in trafficking in methylamphetamine.^[50]  There were, also, his intercepted telephone conversations, the scientific evidence relating to his DNA and the forensic accounting evidence.
35. The recorded conversations were not “unduly general”.  They were, by their nature, prejudicial to the appellant but they were not unduly so as might justify exclusion.  The appellant was not tainted with “guilt by association” because others participated in the conversations.
36. The appellant has failed to establish that the decision of the learned pre-trial judge not to exercise the discretion to exclude the recordings that were admitted, was vitiated by any error of the kind described in House v The King.^[51]  Furthermore, no miscarriage of justice arising from the admission of the recordings has been shown.  This ground of appeal must therefore be rejected.

Ground 4

37. This ground was added by leave at the hearing of the appeal.  It was advanced in circumstances where no request for such a ruling was made by defence counsel prior to the commencement of the summing-up when directions were being discussed.  That omission, the appellant submitted, could not be attributed to any forensic advantage that defence counsel might have hoped to secure by it.
38. In support of this ground, the appellant submitted that all of the conversations recorded by the listening device “operate[d] as a form of propensity or bad character evidence”.^[52]  That was “because the appellant discussed previous and current drug use, past interactions with law enforcement and was a party to conversations where other persons discuss methylamphetamine production matters”.^[53]  The recordings were “apt to prejudice the appellant and should have been accompanied by a warning” of the kind endorsed by the High Court in BRS v The Queen^[54] and Roach v The Queen.^[55]
39. The respondent submitted that the recordings were not led as propensity evidence and had not required a warning on that account.  Also, as to bad character, it was submitted that the directions that were given were sufficient.
40. In this case, the Crown relied on the recordings for Counts 1 and 3.  The prosecutor provided powerpoint slides to the jury in her address which set out quotations from the recordings.^[56]  The jury were invited to draw conclusions from them that the appellant was in possession of commercial quantities of methylamphetamine during the alleged trafficking period on at least three occasions; that Carew produced some methylamphetamine at the appellant’s house on 10 May 2013; that the appellant anticipated coming into possession of methylamphetamine which was to be given to Carew to distribute on 28 May 2013; and that a production of methylamphetamine was proposed to take place on 13 June 2013 at Michael Smith’s house.^[57]  Indeed, the only evidence of the Count 3 offending was a recording statement by the appellant on 10 May 2013 that he had “a bit of goey”.^[58]
41. The learned trial judge referred to the recordings in the summing-up.  Her Honour gave the following direction relevant to them:^[59]

“In the course of the intercepted telephone calls and recorded conversations, it is said that Mr Lansdowne made statements which the prosecution relies on as pointing to his guilt.  And they were outlined for you today in Ms Marco’s (the Crown prosecutor’s) address.  If you accept them as having been made by Mr Lansdowne and as true, it is up to you to decide what weight you give them and what you think they prove.  He also made statements which you might view as indicating his innocence.  And some of those were touched on by Ms Bain (defence counsel) in her address.  You are entitled to have regard to those statements, if you accept them and to give them whatever weight you think appropriate, bearing in mind that they’ve not been tested by cross-examination.  In relation to both the statements which the prosecution relies on as indicating guilt and those which point to innocence, it is entirely up to you what use you make of them and what weight you give them.”

As well, her Honour summarised the submissions made to the jury by the prosecutor and defence counsel in relation to the recordings.

42. Upon the conclusion of the summing-up and after the jury had retired to consider their verdicts, the learned primary judge enquired of counsel whether there was anything arising from the summing-up.  The following exchange then took place:^[60]

“MS MARCO:  There were two matters that I just wanted to raise.  The first was that neither party asked your Honour to give this direction, but I noticed that when Ms Bain was addressing the jury, she, in effect, gave them the propensity warning about not convicting the defendant for the offences if they were satisfied that he was a user of drugs.

HER HONOUR:  Well, no, I don’t think that’s a – I took that as being part of the – you don’t convict just because you don’t like people that use drugs.  You convict or you consider the evidence relevant to the charges.

MS MARCO:  Okay.  It just flagged in my mind that maybe they did need to be given a propensity warning.

HER HONOUR:  I didn’t think so.

MR BAIN:  No, your Honour’s comment about my submission was correct, with respect.”

43. Defence counsel agreed with her Honour’s view that she had not meant to imply that propensity evidence had been led.  Both her Honour and defence counsel were correct.  The recordings were not adduced as propensity evidence, that is to say, as evidence apt only to show that the appellant had a propensity or disposition to commit the charged offences.^[61]  There was no need therefore for a warning to be given to the jury against misuse of the recordings on that account.
44. In so far as the recordings did reveal the appellant as a drug user, the learned trial judge directed the jury in the following terms:^[62]

“You should dismiss all feelings of sympathy or prejudice whether it be sympathy for or prejudice against the defendant or anyone else.  When Ms Bain addressed you she acknowledged that Mr Lansdowne was a user of methylamphetamine.  Don’t let prejudice that you might ordinarily hold against someone who is a drug user affect the way you go about evaluating the evidence in this case.  No feeling of sympathy or prejudice has any part to play in your decision.  You must approach your duty dispassionately, deciding the facts upon the whole of the evidence.”

This direction was both appropriate and adequate as defence counsel implicitly acknowledged in the exchange which I have set out.  No further direction was then sought.

45. It remains to note that there was, in any event, a sound forensic reason for not seeking an additional direction with respect to “bad character” evidence.  In order to give such a direction, it would have been necessary for the learned trial judge to repeat details of the appellant’s drug use and, perhaps also, his association with others who were involved in drug trafficking.  Defence counsel may well have reasoned that it was in the appellant’s interests that those details not be repeated.
46. For these reasons, the learned trial judge did not err in law.  No miscarriage of justice was occasioned.  This ground of appeal cannot succeed.

Ground 2

47. The appellant submitted that the verdict of acquittal on Count 2 was inconsistent with the convictions on Counts 1 and 3 so as to render the latter unsafe and unsatisfactory.  Underlying this submission was the proposition that the verdicts were not properly reconcilable.^[63]
48. The relevant test is one of “logic and reasonableness”.  It is for the party alleging inconsistency to satisfy the appellate court that the verdicts cannot stand together because no reasonable jury who had applied their mind properly to the facts in the case could have arrived at them.^[64]
49. To my mind, the verdicts were reconcilable.  Count 2 alleged possession of $20,000 obtained from trafficking.  As the learned trial judge instructed the jury, it was an element of the offence charged, that the sum of $20,000 was obtained from trafficking and that they had to be satisfied as to that beyond reasonable doubt in order to convict on Count 2.^[65]
50. There was scant evidence from which the jury might have reasoned that the sum of $20,000 intercepted by police on 21 March 2013 was the proceeds of trafficking in a dangerous drug.  That it was associated with trafficking in that it was to be a payment for drugs or chemicals that had been supplied or was a pre-payment for drugs or chemicals to be supplied, did not establish its provenance in drug trafficking.
51. The jury may well have accepted as truthful and reliable the evidence led as to events on 21 March 2013 and as to the presence of the appellant’s DNA on the rubber bands, but not have been satisfied that it proved beyond reasonable doubt that the $20,000 was, in its entirety, the proceeds of trafficking.^[66]  Thus the verdict of acquittal did not necessitate a rejection of the evidence led as to those matters.  Nor did it, by implication, bespeak doubt in the jury’s mind as to the reliability of the other evidence led with respect to Counts 1 and 3.
52. For these reasons, this ground of appeal has not been made out.

Ground 3

53. This ground of appeal requires this Court to undertake an independent assessment of the sufficiency and quality of the evidence at trial and to decide whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each count on which he was convicted.^[67]  In the recent decision of R v Baden-Clay,^[68] the High Court emphasised that this task is to be undertaken with particular regard for the advantage enjoyed by the jury.
54. With regard to Court 3, there was a recorded statement made by the appellant on 10 May 2013 that he had “a bit of goey”.  That, together with the evidence that “goey” is a street term for methylamphetamine provided a sound basis for the jury to have been satisfied beyond reasonable doubt that, on that day, the appellant unlawfully possessed methylamphetamine.
55. As to Count 1, the prosecution case was that the appellant trafficked in methylamphetamine either as a principal of a trafficking business, or as a party to the carrying on of such a business.  The jury were so directed.^[69]  They were also instructed that as well as selling them, trafficking in drugs can encompass knowingly engaging in the movement of drugs along a distribution chain from source to end user.^[70]
56. Having considered the intercepted telephone conversations and recordings admitted into evidence, I readily conclude that they provided evidence of the appellant’s participation in an ongoing enterprise in which methylamphetamine was sourced, cut and distributed on a commercial basis.  The nature and extent of his participation, as disclosed by his own statements and acts, was not consistent with possession of the drug merely for personal use.  In this regard, it is sufficient to refer to his efforts to meet up with Ward, his involvement in the contrived explanation for the presence of the $20,000 in the vehicle driven by Ward and his participation in the recorded conversations on 10 May 2013 relating to methylamphetamine production.
57. In my view, it was open to the jury on the evidence to have been satisfied beyond reasonable doubt that the appellant was guilty of the trafficking offence alleged in Count 1.  This ground of appeal must fail.

Disposition

58. No ground of appeal has succeeded.  This appeal must therefore be dismissed.

Order

59. I would propose the following order:
    1. Appeal dismissed.
60. MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the order his Honour proposes.
61. ATKINSON J:  I agree with the order proposed by Gotterson JA and with his Honour’s reasons.