R v Heilbronn[2017] QCA 21

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Philip McMurdo JA and the orders proposed by his Honour.
2. PHILIP McMURDO JA:  After a 17 day trial the appellant was convicted of the following offences:
   1. trafficking in dangerous drugs, namely cannabis and methylamphetamine, over approximately seven months in 2011;
   2. producing methylamphetamine in June 2011;
   3. producing cannabis during the period of his trafficking offence; and
   4. possessing cannabis in October 2011.
3. For the offence of trafficking he was sentenced to 11 years’ imprisonment with the necessary declaration of a serious violent offence.  For the other offences he was sentenced to concurrent terms of 15 months’, two years’ and fourteen days’ imprisonment.  A total of 997 days of pre‑sentence custody was declared as time served.
4. He appeals against each of his convictions upon the ground that there was a miscarriage of justice from the risk that at least some of the jurors saw and were prejudiced by a television news report of this case which was broadcast on the first evening of the trial.  Upon this basis, an application by his counsel to discharge the jury was made and refused early in the trial.  He also appeals against his conviction for the production of cannabis upon the ground that the verdict on that count was unreasonable.  And he applies for leave to appeal against his sentence of 11 years’ imprisonment upon the ground that it is manifestly excessive.  He has abandoned some of his original grounds of appeal including the challenges to other convictions upon the grounds that they were unreasonable.

The prosecution case at trial

5. The appellant’s trafficking was in and around Townsville.  For the most part his trafficking was in cannabis.  His supplier lived on the Gold Coast.  The appellant would organise someone to take large sums of money to the Gold Coast in exchange for drugs which would be picked up by a different person arranged by the appellant.  The courier of the cash would travel by plane and the courier of the drugs by bus or train and using a pseudonym.
6. One of the couriers used by the appellant was a man whom I will call G, who was a witness in the prosecution case.  He testified to transporting large amounts of cash and cannabis for the appellant.  He also identified the appellant’s voice in a number of intercepted telephone conversations recordings of which were in evidence.  From G’s evidence and the recordings, the prosecution identified at least seven transactions in which the appellant purchased cannabis.
7. In April 2011 there were two transactions, one involving a payment of $90,000 and the other an amount of $120,000.  In the third transaction, 40 pounds of cannabis were supplied which, according to other evidence, would have cost at least $100,000.  The fourth transaction, which occurred between mid‑April and mid‑May, was not the subject of telephone intercept evidence and was proved by G’s testimony.  The quantity was not proved.  In the fifth transaction, the appellant acquired 17 pounds of cannabis.  The quantities for the sixth and seventh transactions were not proved.  There was evidence of another supply to the appellant which was prevented by the arrest of the supplier immediately ahead of a meeting which the appellant had arranged for that evening.  The supplier was arrested with some 50 pounds of cannabis found in his car.
8. Other telephone intercepts evidenced the day to day activity of the appellant in selling cannabis throughout the Townsville area.  One of the appellant’s distributors of cannabis was a man called Bright, who was recorded in several telephone conversations with the appellant about that activity as well as the production of cannabis, as I will discuss below in respect of the distinct challenge to that conviction.
9. The prosecution case also relied upon two supplies of methylamphetamine to the appellant.  The first was in July 2011, the drug being carried by G.  The second was in August 2011, the drug being carried by a man called Alexander.
10. G testified that in the July transaction, the appellant gave G cash to be paid to the supplier.  G flew from Townsville to Brisbane where, as arranged by the appellant, he met the supplier and paid him the $10,000.  The supply price was $12,500 and intercepted telephone conversations recorded the supplier asking the appellant for the balance and the appellant confirming that he would send him the balance by a money order.  G was given a package which he carried on a bus back to Townsville.  G said he could see a white substance in a cryovac bag within the package.
11. The second transaction involving methylamphetamine was not completed because the courier was intercepted by police on his way to meet the appellant.  The courier, Alexander had travelled to Brisbane to collect the methylamphetamine and returned to Townsville by train.  Intercepted telephone conversations between Alexander and the appellant recorded the appellant’s instructions to take the ferry to Magnetic Island to meet the appellant there.  Police attended the ferry terminal and arrested Alexander, finding him in possession of four individual blocks of methylamphetamine each weighing about one pound.  The total pure weight of methylamphetamine was 318.4 grams.  Alexander was then in the company of Bright.  The telephone with which he had been speaking to the appellant was seized.  When Alexander did not arrive at his scheduled meeting with the appellant, text messages appeared on his phone in which the appellant was asking where he was.
12. The appellant’s trafficking occurred over a period of more than six months.  It was a sophisticated commercial wholesale operation.  In sentencing the appellant, the trial judge found that “a turnover of cannabis in the order of half a million dollars, or thereabouts, can be safely inferred” and that the appellant “might have been making a profit per pound of the order of $1,500 per pound”.  As to the four pounds of methylamphetamine which the courier Alexander was carrying, the trial judge found that the wholesale price of that material would have been of the order of “$70,000 to $60,000 per pound”.  His Honour said that the evidence did not establish that the appellant “was as busy in wholesaling methylamphetamine as he was in wholesaling cannabis” but that “the sheer quantity of the amount of methylamphetamine … intercepted on 27 August 2011 establishes a preparedness to actually involve himself in the trafficking of a large quantity of methylamphetamine …”.
13. The count of the production of methylamphetamine which was left to the jury was that the appellant had done acts preparatory to production without actually producing any of the drug.  Those acts included the acquisition of pseudoephedrine, a wok, a PH meter, iodine and hydrochloric acid.
14. The offence of production of cannabis was alleged to have occurred at a remote grazing property.  It is convenient to discuss the evidence on that count later when considering the separate challenge to that conviction.
15. The appellant did not give or call evidence.

The news broadcast

16. The application to discharge the jury was made on the morning of the fourth day of the trial.  A recording of the news item, which had been broadcast on a Townsville station earlier in the week, was played to the trial judge.  The broadcast contained footage showing the appellant leaving the watch‑house and attempting to cover his face from cameras as he did so.  At the same time, the viewer was told that this had been a long‑running operation by police culminating in the seizure of considerable amounts of money and drugs.  The viewer was then told that the appellant was presently in custody and the next image which appeared was a photograph of what were apparently the four blocks of methylamphetamine which had been seized at the ferry terminal.
17. The appellant’s trial counsel, as did his counsel in this Court, argued that the broadcast was prejudicial to a fair trial because a viewer would infer that having been granted bail, the appellant was in custody because of something which he had done to warrant his bail being revoked or because he was serving a sentence.  It was and is submitted that the prejudicial impact was exacerbated by the photograph of the methylamphetamine.  It was submitted that there was a real risk that one or more of the jurors had seen the broadcast.  Counsel submitted that the fact that the trial was at an early stage was also a consideration in favour of discharging the jury.
18. In response, the prosecutor fairly identified another relevant consideration as it then appeared to him, namely that there would be an issue for the jury of the identification of the appellant and that the footage of the appellant in the broadcast might prejudice his case on that issue.  The trial judge asked the prosecutor whether it was his submission that a fair trial could not be had with the benefit of a “properly worded direction” to which the prosecutor answered: “a direction may not cure the prejudice”.
19. In his ruling on this application, the trial judge said that the broadcast had some “prejudicial aspects”, one being to identify the defendant as a person alleged to be at the centre of a group trafficking in drugs, another being the display of the photograph of amphetamines “in the context of an audio that identifies the defendant” and a third being “the voice‑over that the defendant is currently in custody.”  His Honour said also that it was “of concern … the film showed the defendant, perhaps apparently walking out of or away from the watch‑house, a circumstance that would, or might, to an attentive viewer appear to be interesting or significant in light of the … subsequent statement that the defendant is in custody [or] in other words, that the defendant had done something, or there was some circumstance that had warranted his being placed in custody when he had previously not been in custody.”  His Honour noted the concerns expressed by the prosecutor “that the collective effect of the broadcast might be so prejudicial and might so affect the minds of a juror, who had seen it, that the risk of a fair trial … might not be able to be cured or corrected by a properly formulated direction.”  The trial judge referred to the inconvenience which would be occasioned by the discharge of the jury, this being a long case which could therefore not be quickly rescheduled.  But his Honour’s conclusion that the jury should not be discharged came from his view that any potential prejudice could be corrected by a properly worded direction.
20. When the trial resumed before the jury on the following morning, his Honour directed the jury as follows:

“What I’m about to say concerns a news broadcast on television on the evening of Tuesday the 15th of March earlier this week. The broadcast occurred in the 7 pm news bulletin on WIN News. In part, the broadcast reported upon the fact that this trial had commenced and on some of the evidence to be given at the trial or the evidence opened by the prosecution. This part was routine and unremarkable.

But there aspects of the broadcast that went beyond the opening of the evidence and are matters of concern from the perspective of a fair and a just trial. Film showed a male person in or about the precincts of the court house and the watch-house who may or may not have been the defendant. The broadcast purported to identify the person as the defendant in this trial. The broadcast also contained some film footage displaying, from some earlier occasion, what may or may not have been amphetamines or some other dangerous drug. Whatever it was that was photographed and displayed has not been the subject of any evidence at this trial. There was also in the broadcast a statement made to the effect that the defendant was currently in custody.

I want to remind you of the oath or affirmation that you took that you would conscientiously try the charges against the defendant and decide the charges according to the evidence and only upon the evidence. And I also want to remind you of what I said to you at the beginning of the trial, that is how essential it is that you remain unbiased and impartial between the prosecution and the defendant. Your adherence to those principles are important in securing a fair and a just trial.

I am now going to give you a specific direction and it is to ignore that television broadcast if any of you saw it or, if its occurrence or content has been referred to in conversation with anyone else. None of the matters concerning the broadcast that I have mentioned are part of the evidence in this trial. I do not know whether any of you saw the broadcast or know anything of it and I do not propose to make inquiries of you. The important thing for you to realise and to act upon is that you should ignore the statements, film or photographs that are not part of the evidence. You should not speculate upon matters not the subject of evidence and you should put them out of your mind.

Whether or not the defendant is or has been at any time in custody is not the matter of any evidence before you. It is, as a matter of law, irrelevant to your deliberations and it should not form any part of the content of your deliberations in deciding whether the defendant is guilty of any of the charges against him nor should you speculate about these issues. So if I can repeat and reinforce what I have said and on earlier occasions, you should ignore any television or press reporting, specifically on the WIN News on the 15th of March but any other television, radio or press reporting of or concerning this trial or the defendant. If any of you saw or knew of this broadcast, not only ignore it, do not mention it to any of the other jurors.

And finally, you should bear in mind what has been said on a number of occasions: the defendant is presumed to be innocent. The prosecution must prove its case against the defendant in respect of the charges beyond reasonable doubt. The defendant is under no obligation to offer any explanation or to prove his innocence. Your verdict at the end of the trial, whatever it is – guilty or not guilty – must be based solely on the evidence, not on any outside information or influence.”

21. The question for this court is not whether there was an error in the exercise of his Honour’s discretion in refusing to discharge the jury.  It is whether the result of the refusal occasioned the risk of a substantial miscarriage of justice.^[1]  The consideration of that question is affected by the course of the trial.  In particular, as the trial progressed, any question of identification, at least by reference to the appearance of the appellant, was not a real issue.  And the identification of the appellant’s voice in the recordings of telephone conversations, which was given by the witness G, was not challenged in cross‑examination.^[2]  There was a question of the identification of a man described as having a pony tail by a witness who owned the property on which, unknown to him, cannabis was grown.  But the weight of that evidence was not enhanced by the broadcast.  The appellant’s argument in this court does not suggest otherwise or that, more generally, there was any issue of identification for which he was prejudiced by the broadcast.  Rather the argument focuses on the depiction of the appellant as being in custody although previously on bail, the effect of which is said to have been exacerbated by the photograph of the drugs.
22. There was no criticism which is made of the direction which his Honour gave to the jury after the refusal to discharge them.  The jury was instructed in clear terms to ignore the broadcast if they had seen it and not to enquire about it if they had not.  It is to be assumed that, in general, juries follow directions given by trial judges^[3] and there is no reason to suppose that this jury did not do so.
23. For the respondent it is argued that the likelihood of any prejudice was even less for the fact that there was no verdict returned until 7 April 2016, some eight sitting days and 14 calendar days after the jury was not discharged.  In effect it is argued that any impression from the broadcast would have been lost by the conclusion of the trial.  However if this broadcast did create a risk of prejudice of the extent suggested by the appellant’s argument, it could be said that the length of the trial was immaterial because the jury’s consideration of the evidence throughout the case could have been infected by the broadcast.
24. I have watched the recording of the broadcast and my impression is that any juror who had seen it was unlikely to have been affected by it, even without the clear instruction of the trial judge.  It is unlikely that any juror had such an understanding of the bail laws as to speculate about what the appellant may have done to have lost his bail.  And if there was such a risk, in this case it should be assumed that it was avoided by the trial judge’s direction.
25. It follows that the ground which is argued for challenging all of the convictions should not be accepted.

The offence of the production of cannabis

26. There is a distinct challenge to the verdict on this count upon the ground that the verdict was unreasonable.  Although this ground was not advanced by any oral argument, it was not abandoned and it remains necessary for this court to determine whether it was open to the jury to convict on this count.^[4]
27. The telephone conversations played to the jury included three occasions in April 2011 when the appellant discussed his obtaining cannabis seeds.  He referred to them as “a bag of pebbles” or “ball bearings” for the “old green garden”, but these references were clarified by his reference in one of the conversations to “ball bearings, if you know what I mean, some seeds”.  For the appellant, it is argued that at its highest, this evidence showed that the appellant had an interest in obtaining something which could have been cannabis seeds but that there was no evidence that he had acted upon this.
28. The prosecution case was that the appellant had grown cannabis on a grazing property owned by a man called Mains, who was unaware that his property was being so used.  It was approximately 600 acres and carried 100 head of cattle.  There was no permanent residence on the property but there was a camp shed containing beds and a kitchenette.  The property was reached by a track leading to a gate at the boundary which was secured with a padlock and chain.  Undeniably there was a cannabis crop grown on the property during the relevant period in 2011.  An investigating police officer, acting in a covert capacity, searched the property in October 2011 and found a cannabis crop comprising about 60 plants, situated approximately two kilometres from the camp shed.  The plants were then in a poor condition.  He described them as being possibly three months old.  They were growing on a site of about 200 metres in length.  There was extensive piping connecting the plants to water tanks and seed‑raising mix and fertilisers were also found.  A battery powered electric fence had been set up surrounding the crop.
29. Mr Mains testified that the appellant’s associate Bright, who was involved in the trafficking business as I have already discussed, asked him whether he could go onto the property to hunt pigs.  Mr Mains agreed and gave him a key to the gate.  Mr Mains said that during the relevant period, he saw a white twin cab utility on his property which he could identify as Bright’s vehicle.  He said that Bright was with four men, one of whom had a pony tail (as did the appellant).  Mr Mains observed another car on the property, the registration number of which he recorded on a piece of paper which was tendered at the trial.  His record was that it was a “Nissan twin cab ute” with the registration number 934GMG.  It was proved that the appellant had a Nissan Patrol wagon with that registration number.
30. There was evidence from a nephew of Mr Mains, a Mr Jeffrey, who had known Bright and correctly identified him from a photo‑board.  Mr Jeffrey said that he also observed the four men and recalled seeing a vehicle which he described as being a “dark colour four by four”.  The appellant’s vehicle was dark maroon in colour.  Mr Jeffrey recalled that the four men had then said that Bright was supposed to be arriving with dogs for their hunting trip.
31. On 31 May 2011 the appellant was recorded in a telephone conversation with Bright, talking about “Wayne” (which was Mr Main’s first name) and saying that Bright could “go up after dark … go up there and bloody take that gear … all your pig huntin’ gear … so it won’t look suss … looks like you’re going up for a hunt”.
32. A fortnight later Bright was recorded telling the appellant that he had been up “there” twice and that he would come back and “grab” the appellant in the morning.  In that conversation the appellant discussed with Bright whether two cars should be taken and whether “it might be safer … to have me drivin’ in front … to keep any eyeball around”.
33. On 27 June 2011 Bright was recorded telling the appellant that he was waiting for him, to which the appellant responded: “are you still up there?”  Bright then said that he could only get (telephone) reception at the (water) tank.  On the same morning, the appellant was recorded telling another person that he was going to Mingela, which was the location of the property.  On the same day, he was recorded saying to another person that he was “going up there on his own to … make sure the … water’s still trickling through …”.
34. There was evidence from Mr Mains that on 6 August 2011 he installed a camera on the property gate but that he had not seen it since.  There was a recording of a conversation between Bright and the appellant on 15 August 2011 when Bright was on the property.  On 19 September 2011, the appellant spoke with Bright and asked him where the camera and the keys were.  Bright answered that he had put them “back in the shed … under the post where you told me to put [them].”  After a further exchange about the location of the camera and the keys to the gate, Bright said that he would be returning and would “grab a couple of things on the way back … some seeds and shit on the way back.”  On the following day they discussed the size of the crop, the appellant saying that “hopefully it’ll recoup enough …”.
35. Overall there was abundant evidence that the appellant was frequently in contact with Bright about Bright’s activities on the property and that Bright was there to grow cannabis rather than to hunt.  There was evidence that the appellant was there on some occasions.  In particular, the presence of the appellant’s car was conclusively recorded by the property owner.  And there was the evidence of the appellant’s acquisition of cannabis seeds.  The appellant had a close knowledge of what was at the property, referring in the recorded conversations to the camera, the keys and the water tank.  And of course Bright was a person who then worked for the appellant in his drug trafficking business.
36. In my conclusion it was open to the jury to be satisfied of the appellant’s participation in the growing of this cannabis crop and to thereby find the appellant guilty on this count.

Appeal against sentence

37. The appellant was born in July 1974 and was therefore aged 36 and 37 over the offending period and 41 when sentenced.  He had a criminal history beginning in 1992 and continuing through to 2009, mainly for drug offences.  But he had never been to gaol.
38. As already noted, the appellant had spent nearly a thousand days in pre‑sentence custody.  There was evidence of efforts made by him towards rehabilitation.  Whilst on remand he had completed some educational courses and there was favourable evidence from a prison chaplain.  But the sentencing judge found that his prospects of rehabilitation were limited and that his pleas of not guilty had demonstrated an absence of remorse.
39. His Honour judge described the evidence as “overwhelming” in proving the appellant’s guilt of trafficking in both cannabis and methylamphetamine.  As to the latter, his Honour said that the four pounds which was intercepted in August 2011 might have cost approximately $250,000 had the transaction being completed.  His Honour said that although there were “more dealings involving cannabis than methylamphetamine”, the evidence clearly demonstrated that the appellant was prepared to traffic in both drugs and had the capacity to do so in substantial quantities.
40. There had been a period in 2013, during which the appellant had been on bail for these charges, when he reoffended.  He was found in possession of a number of drugs in small quantities which, his counsel acknowledged, was a possession having “a commercial element”.  He pleaded guilty to the 2013 offences.  His Honour concluded that he should impose a sentence for the offence of trafficking in 2011 “uninfluenced by the circumstances of the offending whilst on bail in 2013”.  He said that the relevance of the reoffending in 2013 was to reinforce his view as to the appellant’s prospects of rehabilitation and lack of remorse.
41. For the appellant, it is argued that the trafficking was essentially in cannabis only because the only “quantifiable” transaction involving methylamphetamine was not completed and that this was at the end of the trafficking period.  It is argued that trafficking in cannabis would warrant a sentence of seven years’ imprisonment.  In that respect there was cited R v Brown,^[5] where a sentence of seven years’ imprisonment for trafficking in cannabis was not disturbed by this court.  The period of trafficking there was some 14 months but the prisoner had pleaded guilty.
42. The submissions for the appellant accept that the methylamphetamine transactions warranted some “significant additional punishment”, but that the sentence was excessive for being increased to a term of 11 years with the necessary consequence of a declaration of a serious violent offence.  It was submitted that an appropriate sentence would have been nine years, without such a declaration, but with a short cumulative sentence for the 2013 offences.
43. For the respondent it is conceded that no case could be found where a sentence approaching 11 years’ imprisonment was imposed for cannabis trafficking alone.  Although the scale of this trafficking was large, it could not be said that the appellant’s trafficking in cannabis was for any reason in a distinct category from other cases.
44. But as the argument for the appellant concedes, the trial judge had to impose a sentence that recognised the trafficking in both drugs.  Although it is the case that a very large acquisition of methylamphetamine was intercepted, the appellant had begun to extend his enterprise into large scale dealing in that drug.
45. The appellant’s argument concedes that a head sentence of the order of nine years would have been appropriate and with some cumulative sentence for the 2013 offences.  Understandably the argument suggests an outcome which would avoid the necessary consequence of a declaration of a serious violent offence.  The impact of that declaration must be considered in assessing whether this sentence is excessive.
46. In my conclusion this was a heavy sentence but was not so heavy as to indicate that there must have been some error in the exercise of the sentencing discretion.  The trafficking was sophisticated, high volume and motivated only by profit.  There were few mitigating circumstances.  The application for leave to appeal should be refused.

Orders

47. I would order as follows:

1. Dismiss the appeals against conviction.

2. Refuse the application for leave to appeal against sentence.

48. HENRY J:  I have read the reasons of McMurdo JA.  I agree with those reasons and the orders proposed.