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R v Morris[2021] QCA 221

SUPREME COURT OF QUEENSLAND

CITATION:

R v Morris [2021] QCA 221

PARTIES:

R
v
MORRIS, Lewis David George
(appellant)

FILE NO/S:

CA No 297 of 2020
SC No 364 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 10 December 2020 (Williams J)

DELIVERED ON:

15 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

14 September 2021

JUDGES:

Sofronoff P and Mullins and Bond JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – VERDICT AGAINST WEIGHT OF EVIDENCE – WHEN NEW TRIAL GRANTED – VERDICT UNREASONABLE – GENERALLY – where the appellant was convicted after a jury trial of one count of unlawfully trafficking in the dangerous drug, cocaine – where the appellant appeals against his conviction on the sole ground that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence – where the evidence before the jury came from a series of formal admissions and a single police witness – where the case was wholly circumstantial – where the Crown was required to prove beyond reasonable doubt that the appellant was the user of certain mobile numbers from which a series of drug-related communications were found – whether the jury would have apprehended a reasonable doubt that the appellant was the user of those mobile numbers and was carrying on the business of trafficking

R v Dalton (2020) 3 QR 273; [2020] QCA 13, cited

R v Oliver [2020] QCA 76, cited

R v Richards [2017] QCA 299, cited

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited

COUNSEL:

A J Kimmins for the appellant

P J McCarthy QC for the respondent

SOLICITORS:

Phillips Crawford Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons and order proposed by Bond JA.
  2. [2]
    MULLINS JA:  I agree with Bond JA.
  3. [3]
    BOND JA:  The appellant was convicted after a jury trial of one count of unlawfully trafficking in the dangerous drug, cocaine, between 2 March 2018 and 16 July 2018.  He was sentenced to a period of imprisonment of 3 years and 6 months, wholly suspended for a period of 5 years.
  4. [4]
    He appeals against his conviction on the sole ground that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence.  The principles of law governing the disposition of such an appeal are not in doubt: see the summary in R v Dalton (2020) 3 QR 273 at 305-307 [173] to [181].
  5. [5]
    The evidence before the jury came from a series of formal admissions recorded in exhibit 2, which was supplemented in very minor respects by the evidence obtained from a single police witness.  The appellant did not give or call evidence.
  6. [6]
    The essence of the Crown case was as follows:
    1. (a)
      The mobile phone of a Mr Cooper was seized by police during execution of a search warrant.
    2. (b)
      Analysis of the contents of Mr Cooper’s phone revealed –
      1. Mr Cooper used the WhatsApp messaging application.
      2. Over the period of 3 March 2018 to 19 March 2018, Mr Cooper exchanged WhatsApp messages with a mobile telephone number which may be referred to as “the 163 number”.
      3. Over the period of 25 March 2018 to 15 July 2018, Mr Cooper exchanged WhatsApp messages with a mobile telephone number which may be referred to as “the Rover number”.
    3. (c)
      The appellant was the person who had sent the WhatsApp messages which Mr Cooper’s phone recorded as having been sent to his mobile phone from the 163 number and the Rover number.
    4. (d)
      The appellant was the person who had received the WhatsApp messages which Mr Cooper’s phone recorded as having been sent by his mobile phone to the 163 number and the Rover number.
    5. (e)
      It may be inferred from the content of those WhatsApp messages, screenshots of which were set out in Annexure A to exhibit 2, that the appellant had been engaged in unlawfully trafficking in the dangerous drug, cocaine, between 2 March 2018 and 16 July 2018.
  7. [7]
    It was accepted both at trial and before this Court that the case against the appellant was a wholly circumstantial one, necessarily requiring the jury to conclude that the appellant’s guilt was not only a rational inference but also that it was the only rational inference that could be drawn from the circumstances which had been proved by the Crown: see Shepherd v The Queen (1990) 170 CLR 573.
  8. [8]
    Further, it was accepted both at trial and before this Court that proof beyond reasonable doubt of the conclusions that –
    1. (a)
      the appellant was the user of the 163 number at the time the extracted WhatsApp messages were sent and received; and
    2. (b)
      the appellant was the user of the Rover number at the time the extracted WhatsApp messages were sent and received,

was required because those conclusions of fact must be regarded as indispensable intermediate steps in the reasoning process towards an inference of guilt, in the sense explained in Shepherd v The Queen.

  1. [9]
    The appellant’s case on appeal was that the Court should conclude that the jury should have apprehended a reasonable doubt as to whether the Crown had established:
    1. (a)
      that the appellant was the user of both the 163 number and the Rover number; or
    2. (b)
      that the user of those numbers was carrying on the business of trafficking, as opposed to merely engaging in supplies of unlawful drugs or in preparatory acts.
  2. [10]
    For reasons which follow, I reject both arguments.  It was open to the jury to be satisfied beyond reasonable doubt as to each of the impugned conclusions, and, accordingly, of the guilt of the appellant.  The appeal should be dismissed.
  3. [11]
    It suffices to address the sufficiency and quality of the evidence, and of the arguments advanced to this Court, by reference to each of the impugned conclusions.  Although the evidence will be discussed separately in relation to each of the mobile phone numbers in issue, it is important to appreciate that the Crown case involved the proposition that it could be inferred from an examination of the content of the messages found on Mr Cooper’s phone that the user of both the 163 number and the Rover number was the same person and the messages should be perceived essentially as a series of drug-related communications between the appellant and Mr Cooper.
  4. [12]
    For that reason, it is convenient to consider the content of those messages first.

The conclusion that the person communicating with Mr Cooper was carrying on the business of trafficking in cocaine between 2 March 2018 and 16 July 2018

  1. [13]
    Some introductory observations should be made.
  2. [14]
    First, the police witness gave evidence that:

“… cocaine comes in bricks.  So you can buy, like, kilo bricks where they come from overseas where they’ve manufactured.  The higher quality is in a brick form whereas when you buy it in, like, one gram baggies, it’s cut up and in sort of like a powder form.  That’s what people then consume around the place.  When you’re supplying cocaine it comes in like a – usually in about an ounce brick, which is high quality, then when a person then on sells it they cut it down and mix it with a certain substance like creatine, generally, and that appears as the same consistency as the cocaine powder.  It just reduces the quality and then you can obviously make a higher profit.”

  1. [15]
    Second, the police witness also gave evidence that the “rough” going rate for half an ounce of cocaine (which is about 14 g) in 2018 would have been about $3,500.  Price depended upon on the extent to which the cocaine was cut and its quality.  The profit component of the $3,500 price would depend upon what deal the seller had made with the seller’s own dealer.
  2. [16]
    Third, the word “cocaine” does not appear in the WhatsApp messages.  Instead, references are made to “rock”, “rocky” and “bags” and there were also multiple usages of an emoji depicting a nose.  Further, messages described the product with which they dealt as “wicked”, “the real McCoy” and “clean and sexy”.  The Crown invited the jury to understand those terms, the nose emoji and those descriptors as references to the unlawful drug cocaine.
  3. [17]
    Fourth, the formal admissions established these further relevant matters:
    1. (a)
      Evidence found on Mr Cooper’s phone included that –
      1. Mr Cooper used the WhatsApp application.
      2. Over the period of 3 March 2018 to 19 March 2018, Mr Cooper had contact via WhatsApp messages with the 163 number.
      3. Over the period of 25 March 2018 to 15 July 2018, Mr Cooper had contact via WhatsApp message with the Rover number, which Mr Cooper saved in his contacts as “Rover”.
      4. In a WhatsApp group called “GC/Brisbane Party” there were chat messages from a user named “Rover” over the period of 3 May to 6 May 2018.
    2. (b)
      On 15 April 2019, police executed a search warrant at a residential unit in Brisbane where the defendant and his partner were residing.  Police found a mobile phone on the appellant’s person and he provided them with the access code and number relating to the phone.  The number was the 163 number.  Documents downloaded from that phone included:
      1. on the WhatsApp application, the group “GC/Brisbane Party” was one of the listed contact groups on a screenshot dated 14 June 2018;
      2. the contact “GC Tattoo” with Mr Cooper’s mobile number was saved into the phone’s contacts.
    3. (c)
      Subscriber checks provided by Telstra recorded that the 163 number was held in the name of a person with the same first and last name as the appellant for the period 1 January 2018 to 30 April 2018.
    4. (d)
      Subscriber checks provided by Optus recorded that the Rover number was held in the name of the mother of the appellant’s partner for the period 15 March 2018 to 19 June 2019.
  4. [18]
    Fifth, the appellant was born in the United Kingdom.  Further, it was formally admitted that for the period 2 March 2018 to 16 July 2018 a supercharged Landrover Range Rover motor vehicle was registered in the name of the mother of the appellant’s partner.  The WhatsApp messages downloaded from Mr Cooper’s phone have a person named “Rover” describing himself as the “Range Rover guy” and saying that he owned a “RR supercharged” and Mr Cooper calling him “Pom with the range”.  The Crown invited the jury to conclude that these were references to the appellant.
  5. [19]
    The table below sets out the relevant aspects of the WhatsApp communication which occurred between the user of the 163 number (User 163) and Mr Cooper and the user of the Rover number (Rover) and Mr Cooper together with some posts made by Rover to the GC/Brisbane Party chat group.

Item

Date

User

Content

1

03.03.18

163

At 12:32pm User 163 messaged Cooper: “individuals or as a whole.”

Cooper confirmed “Whole” to which User 163 asked what price Cooper wanted.

Cooper replied “3500”.  Cooper asked User 163 to confirm it was “rock” and asked how good it was.

User 163 confirmed it was good quality “rocky” which did not have “clen or nova” with it and that he could supply it at that price.

Arrangements were made for User 163 to collect it and bring it over to Cooper.

2

11.03.18

163

At 12:16am Cooper messaged User 163: “That was pretty good shit man even after I cut it some loved it some were ok, does it get better I mean legit?  For another half ounce”.

User 163 replied: “When for my man.  Consistently the same if not better.  Never drop in quality”.

Cooper responded: “I still got 8 bags I gotta flick so after that.”

User 163 responded: “Not a worry bro.  Glad you are happy”.

Cooper messaged, “I just need the bomb so when I cut it it’s still legit I’m think I’m gonna cut it with speed next to get me hooked lol”, to which User 163 replied: “It only gets better but you end up paying more.  Which makes you more than the difference in qual”.

Cooper said, “Yer true”, and User 163 responded: “You let me know what you want to do and I will sort you”.

Cooper asked User 163, “Got any contacts that want grams or do you sell in small quantities too” and User 163 replied: “Not atm bro.  It’s always on the groups”.

Cooper then asked, “Is it better to sell half’s and full ounces.  Just more outlay hey”, to which User 163 responded: “Depends bro.  All based on quantity”.

3

15.03.18

163

At 12:54pm User 163 messaged Cooper stating, “Wassup man” and when asked by Cooper “How u doing”, responded “Good man.  Heading away for the weekend” and asked Cooper: “Need to reload?”  Cooper replied: “Not 100% sure right now”.

User 163 replied: “Ok mate (strong arm emoji) just have a think let me know what you comfortable with”.

4

19.03.18

163

At 8:47am User 163 messaged Cooper asking how he was going, and Cooper replied: “Sweet.  I got a half and it’s probs not as good”.

User 163 then messaged, “Ah mate I have a hectic one right now.  Like it’s wicked”, and Cooper replied: “I gotta get through this one first”.

User 163 asked who Cooper got that off, and Cooper said he couldn’t say who it was from.

User 163 asked: “Thought you said mine was good bro?”

Cooper replied: “It was better than this stuff but a mate vouched on it.  It was good I want better”.

User 163 replied: “Anyway all g.  Fair enough.  I can get better.  But mate you won’t get better from someone else for that price.  That’s SYDNEY prices”.

Cooper messaged, “By the time this is gone it will be different by then”, and User 163 asked, “What will be different c”, to which Cooper replied: “Diff batch”.

User 163 then messaged: “Nah I have a fucking shit load of this”.

Cooper replied, “Ok well I have a few to get rid of then I’ll use you again” to which User 163 said: “Sweet as”.

Cooper then asked if User 163 had wickr and User 163 gave the name “Leballer123”.

5

25.03.18

163

At 8:38am Cooper messaged User 163: “Hey bro have a chat on wickr”.

6

25.03.18

Rover

At 1:17pm Rover messaged Cooper stating: “Yo.  Don’t know why you didn’t get the one I keep offering haha”.

Cooper asked, “What one sorry”, to which Rover replied with a “nose” emoji and Cooper replied: “I’m still chasing”.

Rover then said, “I’ve got another number” and asked Cooper if he could wait a few days, and Cooper agreed he could.  Rover said he had just landed in Bali, back Thursday, and: “Got an even better one than the first one I gave you.  It’s fucking sexy asf.  Will save your rep. Believe me worth the wait.”

Rover messaged further: “I just got a new number.  You remember me don’t ya”.

Cooper said: “Yer man well I’m ready to buy again I’ll wait then we can meet at mine”.

Rover said, “Range Rover guy” to which Cooper replied: “Yer Pom with the range I just forget names”.

Rover said: “Good enough for me haha Pom with the rangey”.

Then Cooper said: “I’ll save number as rover you save mine as merc”.

Rover said: “Yeah bro sweet as I get back Thursday”.  Cooper said: “Sweet holla when your back”.

Rover then messaged, “Done deal.  Yeah got the sexiest one”, and Cooper replied: “I do like that other stuff just needs to be a bit better, but I like ya man so we good”.

Rover said: “It’s better now don’t worry about that, new guys.  It’s good cause no one wants anything between now and Thursday anyway.  Worth the wait”.

Cooper replied: “I’ll take your word hopefully it’s in more rock form” to which Rover replied: “Only oil pearly rock ... It’s clean and sexy.  It will give you a boner”.

At 1.49pm Cooper asked if it was “Still 3500” to which Rover replied: “If you stay loyal to me yeah bro”.

Cooper stated: “Yeh if you do the same and it’s legit I really do need to get my cred back lol”, and Rover replied: “I’ll make it good for you don’t worry bout that.  Stay consistent.  I’ll do my part.”

Arrangements were made for Rover to “come see” Cooper on Thursday night, and Rover said: “I’ll have you sorted out brother no a problem” and “I don’t own a RR supercharged for nothing lol”.

Cooper then said, “Look at my car and I’m in debt lol”, to which Rover replied: “Haha we can change that.”

7

26.03.18

Rover

At 11:36pm Cooper messaged Rover, “Hey bro how much for an ounce the good good stuff,” to which Rover replied: “7 bro”.  Cooper replied “sweet bro”, after which Rover confirmed that it was “Better than the one you had ...”.

8

27.03.18

Rover

At 12:00am Cooper messaged Rover asking: “best price?”.  Rover replied: “Well man.  If the price drops the quality drops ya know.  Same with anyone around.  I can promise the quality for that price”.

Cooper replied: “Yep I get it I want good qual.  Sweet cya Thursday I'll see what she wants to do about an oz.”

Rover asked him who “she” was, and Cooper said: “Jess an escort/stripper.  I mean she might wanna go half’s with me and get an oz”.

Cooper said he knew Jess “from this page” and from school and then said: “let’s just stick with the half for now”.  Rover replied: “Sure thing”.

Cooper asked Rover, “How’s Bali going off” and Rover replied: “Bali is good as always bro”.

9

28.03.18

Rover

From 10:00pm Rover and Cooper discussed arrangements for meeting up late Thursday night or Friday morning, after Rover returned from overseas on Thursday night.

10

29.03.18

Rover

On 29 March 2018 at 2:09pm Rover messaged “can’t get back today” due to flight issues, and Cooper asked whether they could make it early the next morning (Friday).

At 8:51pm Rover said: “My mate had had to fly in tonight to deal with things for me so he will sort it all for you tomorrow morning as per plan.”

Rover said the mate was from “Fiji” and that Cooper had met him, and Cooper said it was ok: “all good man I’m putting a lot of trust in ya”.

Rover replied: “Don’t worry about me bro I know what to do (strong arm emoji).  Sure he will be coming from Brisbane…”

Rover then asked Cooper if he could meet the mate somewhere.  Cooper wanted to have him come to the house “so I know it's good … I want 10 mins to feel an effect like last time I'm not just doing a hand over”.

At 9:00pm Rover suggested that Cooper pick up the mate from Pimpama and take him to the house and agreed that allowing Cooper time to feel an effect is the “standard process”.

11

30.03.18

Rover

Between 7:28am and 9:06am, Cooper and Rover exchanged messages including Cooper’s address for Rover’s mate to attend as previously arranged, and Cooper confirmed he had arrived at 9:06am.

At 11:03am Cooper messaged Rover saying, “Shit it’s mixed already but yer sweet man” and Rover responded: “Told you 3500 everyone is Australia will get mixed.  But mine just isn’t shit is all.  For 4500/5000 you end up with the real McCoy”.

At 1:10pm Cooper messaged Rover stating: “I don’t think this half is as good as the first bro”.  Rover asked, “Ah shit really?”, and Cooper replied: “Yer man it’s no good sorry to say I wanted to say no to Fiji but felt bad no bad blood but”.  Cooper asked: “Surely not bro?  Wtf right.  I am back soon ill fix it don’t know how that happened.  So fucking hard to get things done whilst being away”.

Cooper replied: “I know bro I said I’ll stay loyal for good stuff but it’s not honest come have some when you come back and see”.  Rover said: “I know that it will still be good just not as good as my last one.  I'll make it up to ya brother.”

12

06.04.18

Rover

At 12:04pm Rover messaged Cooper to ask how he was and at 3:13pm said: “just sorted out a new batch brother.  The group stuff [is] going good?”.  Cooper replied that he was not able to sell “it” on “this group”, and Rover agreed that the “groups fucked” and asked: “Is there other ones now”.

13

04.05.18

Rover

At 3:06pm Cooper messaged Rover: “Bro I got that stuff off you that I was grilled about, ide think you wud have my back”.  Rover replied, “Firstly they grilled you that time you got it off someone else…”, and told Cooper not to speak to “these girls like that bro you will fuck yourself and get all the guys blocked.  Be smart.  I always made sure you were happy. . . Don't know why you said that on the group for”.

Cooper said: “I don’t get off you anymore cause your papui guy brought me puss but I didn’t complain or start drama over it”.  Rover replied: “I can’t imagine he would of done that bro but yeah in never knew that”.

Cooper said: “You said stay loyal I did but your side didn’t so much but it’s all good”.

Rover replied, “I will chat with him, wouldn’t of happened it I was there”, to which Cooper responded: “Nothing can be done now”.

14

05.05.18

Rover

At 4:44pm, Rover posted a message on the “GC/Brisbane Party” chat group: “Bags with the best reputation available Gc (emoji depicting a nose)”.

15

06.05.18

Rover

At 12:38pm Rover posted a message on the “GC/Brisbane Party” chat group: “Bags with the best reputation available Gc (emoji depicting a nose)”.

At 12:39pm Cooper asked Rover whether he lived in Brisbane.  When Rover confirmed he lived in Chevron, Cooper asked if he wanted to meet up and “compare bags”.

At 12:42pm Rover told Cooper, “Mate you’ll be shocked.  What I have is next level.  Why’s that bro”, to which Cooper replied, “Nah just mean for a catch up.  Might be the same stuff.”  Rover replied: “Not a single chance it's the same bro…It’s not from here…Sydney”.

Cooper then said, “None is from here.  From the rebs.  At least we have good stuff now hey”, and Rover replied: “Lol I don’t deal with bikies Bruz”.

16

09.05.18

Rover

At 1:39pm Rover messaged Cooper saying “Wassup bro” and Cooper replied but then deleted his message.  Rover asked Cooper why he was “writing to [him] like that”, and Cooper replied: “This is encrypted”.  Rover said: “Regardless, anyone can show evidence.  Why are you writing so blatantly”.  Cooper replied: “What’s your wickr then”.  Rover asked for Cooper’s wickr name which Cooper then provided.

17

11.05.18

Rover

At 7:17pm Rover messaged Cooper, “My guys about if ya need him brother” to which Cooper confirmed he was “good for now”.

18

09.06.18

Rover

At 9:00am Rover messaged Cooper asking if things had been “quite” (quiet).

Cooper said he had been added to a new page and that he was “Just cruising along”.  Rover asked which page it was and said: “Nice man has been ages.  I’ve been away”.  Cooper identified the page as “Eurphoria I think”.  Rover asked Cooper: “Ah sick can ya add me.  It’s looks like things have been quite asf.  Got a wicked one atm if ya want some”.  Cooper replied, “So quite” and Rover again asked: “Can you get me on euphoria.  Whose the admin”.

Cooper sent him the details of the administrator of the page.  Rover thanked Cooper and asked: “Did ya need anything?  Got a wicked one”.

Cooper said, “I can get good stuff too”, to which Rover replied: “Yeah but just saying mine is 90s from Syd ... The best there is”.  Cooper asked how much for a “quarter back”, to which Rover asked how much Cooper was paying for it at the moment.  Cooper replied: “2 at the most and it can be pllayed with and still be good as”.  Rover confirmed: “OK.  I can do that for ya I suppose”.

At 9.14am Rover asked Cooper “did ya want one”.  Cooper asked Rover, “Are you on the Gc”, to which Rover said: “I am away but got someone looking after things for me.  I am in Ukraine.  Yeah can have it to you later”.

Cooper said: “Nah I’ll only deal with you you know what’s happened last time”.  Rover replied: “Na I will send a waitress.  Everything is there and on my head.  Promise it won’t be like last time I sacked that Cunt.  Was fucking me over … She can be 100% trusted I assure you of that”.

19

28.06.18

Rover

At 3:34pm Rover messaged Cooper saying, “Hay bro just got to NZ” and Cooper replied: “All goods”.

20

15.07.18

Rover

At 11:54am Rover messaged Cooper asking what was happening.  Cooper said he was broke.  Rover replied, “(nose emoji) not going well?”.  Cooper said he had not had any lately, to which Rover replied: “Ah.  Need some?”  Cooper said yes and Rover replied: “Good job I’m around (beer emoji)”.  Cooper said he had no coin.  Rover said: “That’s no good then”.

  1. [20]
    Assuming, for the moment, that User 163 and Rover were the same person (which is a question I will address under the next heading of these reasons), the WhatsApp messages evidenced a compelling case that that person was carrying on the business of trafficking in cocaine.
  2. [21]
    First, it was open to the jury to accept the Crown’s invitation to understand:
    1. (a)
      the references to “rock”, “rocky” and “bags”;
    2. (b)
      the usages of an emoji depicting a nose; and
    3. (c)
      the descriptors “wicked”, “the real McCoy” and “clean and sexy”,

as references to cocaine.  There was no controversy either at trial or before this court concerning that issue.

  1. [22]
    Second, there was evidence of at least two actual supplies of cocaine to Mr Cooper: see items 1, 10 and 11.
  2. [23]
    Third, there was evidence of offers to supply both larger and smaller amounts of cocaine to Mr Cooper: see items 2, 7 and 8.
  3. [24]
    Fourth, the messages suggested that the person had an existing and ongoing trade:
    1. (a)
      User 163 represented capacity to trade in “individuals” or “whole” (see item 1) and that he would “sort” Mr Cooper if he just let him know what he wanted (see item 2);
    2. (b)
      User 163 revealed that his product was “consistently the same if not better, never drop in quality”: see item 2.
    3. (c)
      Rover discussed pricing relative to quality: see items 8, 11 and 18.
    4. (d)
      Rover offered Mr Cooper discounts on the product provided he remained a regular.  For example, discounts were offered on the condition that Mr Cooper would “stay loyal” and “stay consistent”: see item 6.
    5. (e)
      Rover revealed his use of other people to “deal with things” including sorting out Mr Cooper (see item 10) and that he found it hard to get things done whilst being away (see items 11 and 13).
    6. (f)
      There was evidence of restocking: see items 4, 6, 12 and 18.
    7. (g)
      Rover advertised on chat groups, which necessarily involved an audience wider than Mr Cooper, including by suggesting that his product had the “best reputation”: see items 14 and 15.
  4. [25]
    Fifth, the messages evidenced that Rover was conscious of the importance of using means of communication which minimised the risk of detection: see items 13 and 16.
  5. [26]
    Counsel for the appellant argued, correctly, that a critical element of the offence of unlawful trafficking which has to be proved beyond reasonable doubt is that the offender is involved in carrying on the business of trafficking, which in turn, usually requires a degree of repetition and continuity and an intention to profit: see R v Richards [2017] QCA 299 at [32] to [36].  He then argued that whilst the evidence clearly suggested two actual supplies and that some other offers and discussions had taken place, it did not demonstrate the indicia of carrying on a business to such a degree that would support a finding that this intermediate fact had been established beyond reasonable doubt.  He suggested that the following features should have raised a reasonable doubt in the mind of the jury:
    1. (a)
      the contact was sporadic;
    2. (b)
      only two actual supplies seem borne out on the evidence;
    3. (c)
      there was no evidence of commercial markup;
    4. (d)
      there was no evidence of unsourced income; and
    5. (e)
      there was no evidence of offers, or supplies, being made to any other person.
  6. [27]
    There is no substance to that argument.  First, although the commercial markup was not proven, the prices on offer were consistent with the police officer’s evidence of pricing in the relevant time period.  And it is apparent from Rover’s response to Mr Cooper in item 20 that his motive was obtaining the payment which he sought.  Second, there was in fact evidence of advertising product to persons other than Mr Cooper.  Third, there was evidence justifying the conclusion that User 163 and Rover had an existing and ongoing trade.  Finally, as senior counsel for the Crown submitted on appeal, the question here was what it was legitimate to infer from the facts which the Crown could prove, and in my view the inferences to be drawn from the messages exchanged amply justified the inference for which the Crown contended.

The conclusion that User 163 and Rover were the same person, namely the appellant

The 163 number

  1. [28]
    The following points are the salient aspects of the evidence which demonstrated that the appellant had been User 163 during the period alleged.
  2. [29]
    First, the 163 number was subscribed in the name of a person with the same first and last name as the appellant for the period 1 January 2018 to 30 April 2018.
  3. [30]
    Second, execution of a search warrant found that the appellant was in possession and control of a mobile phone for which the appellant could provide the access code and the number of which was the 163 number.
  4. [31]
    Third, documents downloaded from that same phone showed that Mr Cooper’s mobile number was saved into its contacts as “GC Tattoo”.
  5. [32]
    Fourth, documents downloaded from the same phone showed that on WhatsApp, the group “GC/Brisbane Party” was one of the listed contact groups on a screenshot dated 14 June 2018.
  6. [33]
    Fifth, the WhatsApp messages exchanged between the 163 number and Mr Cooper had the content summarised in the table above.  Notably, the messages were exchanged between 3 March 2018 and 25 March 2018 and the exchange stopped after Mr Cooper asked User 163 (using the term “bro”, suggesting Mr Cooper knew that User 163 was male) to have a chat on wickr and Rover told Mr Cooper that he had a new number.

The Rover number

  1. [34]
    The following points are the salient aspects of the evidence which demonstrated that the appellant was also Rover during the period alleged.
  2. [35]
    First, the Rover number was subscribed in the name of the mother of the appellant’s partner for the period 15 March 2018 to 19 June 2019.
  3. [36]
    Second, the mother of the appellant’s partner also had a supercharged Landrover Range Rover motor vehicle registered in her name.
  4. [37]
    Third, the appellant was born in the United Kingdom and in messages passing between Mr Cooper and Rover on 25 March 2018:
    1. (a)
      Rover said he had a new number and was “Range Rover guy”;
    2. (b)
      Mr Cooper called Rover “Pom with the range” and Rover confirmed that he was “Pom with the rangey”; and
    3. (c)
      Rover said, “I don’t own a RR supercharged for nothing”.
  5. [38]
    Fourth, the WhatsApp messages exchanged between the Rover number and Mr Cooper had the content summarised in the table above.  Notable aspects of that exchange for present purposes were:
    1. (a)
      The way in which the User 163 messages stopped and the Rover messages started, to which reference has already been made.
    2. (b)
      The terminology was similar in both sets of messages, including:
      1. on 19 March 2018, User 163 described his product as “wicked” and referred to “Sydney prices”;
      2. on 9 June 2018, Rover described his product as “wicked” and from Sydney;
      3. on 3 March 2018, User 163 confirmed he could supply at a price of “3500” and on 25 March 2018, Mr Cooper asked Rover if it was “still 3500”, which Rover confirmed.
    3. (c)
      It had been formally admitted that records retrieved from the Australian Government Department of Home Affairs showed the appellant travelled to the United Kingdom from Brisbane on 25 March 2018 and arrived at Sydney from the United Kingdom on 6 July 2018, and messages exchanged with Mr Cooper on 25 March 2018, 28 March 2018, 30 March 2018 and 28 June 2018, suggests that Rover was away during that period.
    4. (d)
      There were messages on Mr Cooper’s phone from Rover to the WhatsApp group called “GC/Brisbane Party” from 3 May to 6 May 2018, which was the same contact group found on the 163 number as noted above.
    5. (e)
      Gendered language was used in the messages, suggesting that Rover was male.

Discussion

  1. [39]
    Counsel for the appellant noted, correctly, in relation to the point made at [38](c) above, that the WhatsApp messages do not refer to the appellant as being in the United Kingdom, but rather suggested that he was, variously, in Bali, Ukraine and New Zealand.  He suggested, correctly, that there was no evidence placed before the jury that the appellant had left the United Kingdom to go to those places before returning to Australia.  The Crown’s response, which I accept, was that the truth of the appellant’s statements about his location did not have to be accepted – what was significant was the fact that the messages confirmed his absence and the need to involve others to deliver drugs, and the consistency between the absence so demonstrated and the Government records of his travel.
  2. [40]
    The appellant also argued that the jury should have had a reasonable doubt as to whether the evidence excluded the hypothesis that Rover was his partner’s mother (or even his partner), especially given that the partner’s mother, the partner and Mr Cooper were not called by the Crown.  Whilst it was not demonstrated that a Jones v Dunkel direction was called for in the circumstances of this case (cf R v Oliver [2020] QCA 76 at [27] per Fraser JA), at the request of the appellant, the trial judge gave such a direction.  Understandably, the appellant made no complaint about the direction in this Court.  In my view the hypothesis that Rover was anyone other than the appellant was sufficiently excluded by the evidence, not least by the gendered language used in the messages and the evidence which suggested that User 163 and Rover were the same person.
  3. [41]
    Having regard to all the evidence, the inference that the appellant was the user of the 163 number and also the user of the Rover number was a compelling one.

Conclusion

  1. [42]
    I find that it was open to the jury to be satisfied beyond reasonable doubt as to the matters which were in controversy at trial, and, accordingly, of the guilt of the appellant.
  2. [43]
    The appeal should be dismissed.
Close

Editorial Notes

  • Published Case Name:

    R v Morris

  • Shortened Case Name:

    R v Morris

  • MNC:

    [2021] QCA 221

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Mullins JA, Bond JA

  • Date:

    15 Oct 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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