Andrews v Henderson[2003] QDC 481

APPELLATE JURISDICTION

JUDGE WHITE

and

CAIRNS

..DATE 30/10/2003

..REASONS

HIS HONOUR: The respondent was charged in the Magistrates Court at Cairns with the following offence: that on the 20th day of April 2002 at Cairns in the Magistrates Court district of Cairns in the State of Queensland he possessed property, namely $598,325, that may reasonably be suspected of being tainted property. On the 13th of November 2002 the complaint was dismissed. The appellant, who was the complainant in the Court below, appealed against that decision. The order dismissing the complaint was made consequent upon a ruling by the learned presiding Magistrate that the only evidence which the appellant had to prove that the respondent had possession of the money alleged was inadmissible.

I commenced the hearing of this appeal on the 12th of February 2003. On that date the respondent was legally represented. For reasons which I published on the 30th of May 2003 I made an interim ruling that the evidence of the respondent's possession of the money was admissible. However, that ruling did not finally dispose of the appeal and I made no orders as a consequence thereof. As a result of that ruling it became necessary for me to continue the hearing of the appeal. I left it to the parties to see if they could agree upon a program for the further hearing of the appeal. Eventually I set the matter down for further hearing to commence Monday, 27 October 2003.

On Monday, 20 October 2003 the respondent applied for the further hearing of the appeal to be adjourned because he did not have legal representation and wished to do so. I refused the application on the basis that I was not satisfied that the respondent had made reasonable attempts to obtain legal representation. Since these reasons will substantially dispose of the appeal, it is appropriate that I include my reasons for making such a finding in so refusing the respondent's application for an adjournment. It is therefore necessary to refer to the history of the matter.

After publishing my interim reasons on the 30th of May 2003 nothing happened until, on the 25th of July 2003, the appeal was mentioned before me at the request of the appellant, who wished to have a date set for the further hearing. That mention was adjourned to the 30th of July 2003. On that date I ordered that the further hearing of the appeal be set down for Wednesday, the 10th of September 2003. At all times up to the 30th of July, in the Magistrates Court and on the appeal, the respondent was represented by Mr McCreanor of counsel and/or Mr Rose of Cameron Price, solicitors of Cairns.

The matter was mentioned before me again on the 29th of August 2003 at the request of Mr A Kimmins of counsel, acting on behalf of the respondent. Mr Kimmins told me that the respondent had very recently sought to engage Ryan & Bosscher, solicitors in Brisbane, and himself (also from Brisbane) to act for the respondent in the further hearing of the appeal. He asked if the hearing of the appeal could be further adjourned from the 10th of September 2003 to enable the respondent to finalise the retainer of Ryan & Bosscher and himself and to enable him to properly prepare for the further hearing of the appeal. On the 29th of August 2003 I ordered that the appeal be set down for further hearing on the 27th of October 2003 and listed the matter for mention on the 12th of September 2003.

On the 12th of September 2003 the respondent appeared in person without representation. It was apparent he had been unable to finalise the retainer of Ryan & Bosscher and Mr Kimmins. The transcript shows all that took place but, in particular, I advised the respondent that if he wanted the hearing of the appeal adjourned from the 27th of October 2003, if he was unable to obtain legal representation by that date, he would need to demonstrate that he had made reasonable efforts to obtain legal representation. I indicated that I expected that that would involve making a formal application for legal aid. I further advised him that I would expect any application for a further adjournment to be supported by an affidavit. I ordered that the matter be mentioned again on the 20th of October 2003.

On the 20th of October 2003 when the matter came on for mention, the respondent appeared by telephone. He was in the office of a Victorian solicitor, Mr Sirianni. Again the transcript will show all that took place. But in particular, the respondent asked for a further adjournment of the hearing of this appeal because he had been unable to obtain legal representation. His application was not supported by any affidavit giving particulars of his efforts to obtain legal representation. He had, however, told me he had not made any application for legal aid. He had also gone to see Mr Sirianni the week before the 20th of October.

The respondent's difficulty was not that legal representatives were unwilling to act for him but his ability to pay for legal representation. However, he has failed to properly demonstrate his difficulty; he has failed to provide any information about his income, assets and liabilities. If he is a complete pauper, one would have thought he might at least possibly be eligible for Legal Aid. One would have thought if he was genuine, he would have tried to obtain legal aid.

The respondent was aware of the need to obtain legal representation for the further hearing of the appeal from shortly after the 30th of May 2003. On the 29th of August 2003 he was granted an adjournment from the 10th of September to the 27th of October. There is no evidence that he did anything meaningful to address his inability to pay for his legal representation until he went to see Mr Sirianni the week before the 20th of October. For the above reasons, I considered that the respondent had not made reasonable efforts to obtain legal representation and refused his application for a further adjournment.

I turn now to the offence charged.

The offence arises under what was at the material time the provisions of section 92 of the Crimes (Confiscation) Act 1989. Subsection (1), so far as is relevant, provides as follows:

It provides for a maximum penalty of 100 penalty units or two years' imprisonment. I do not propose to set out vast detail of the evidence but I will summarise it.

The appellant and other police officers, on the 20th of April 2002, went to Unit 241 at the Reef Palm Motel at North Cairns. They were conducting inquiries into a matter which has no connection with the matter before the Court. However, upon going to the door of that unit they were admitted by a young female occupant and, upon entry, noticed what appeared to be cannabis sativa and some other paraphernalia associated with the smoking of cannabis sativa. As a result of that, the police officers conducted a thorough search of the unit.

In what appeared to be a luggage type of bag in the unit police found two plastic bags containing a white powder, which at that time they believed was amphetamine but upon subsequent analysis was found to be substantially consisting of cocaine. In particular, one bag contained 26.629 grams of white powder; upon analysis the percentage of cocaine in the powder was 72.2. The other bag contained 27.489 grams of white powder and, upon analysis, it contained 72.3 percent of cocaine. This is what is termed as a trafficable quantity under the Drugs Misuse Act.

I also heard evidence from an experienced undercover officer from the New South Wales Police Service who had extensive experience in the drug field. I accept his evidence. In particular, although he was substantially experienced in Sydney and New South Wales, he informed me that the various police forces in Australia liaised with each other and provided information to each other, which was kept in databases, concerning various aspects of the illicit drug trade and drug prices.

On the basis of his evidence, firstly he told me that there was no production of cocaine in Australia. From that I draw the inference, and I am satisfied, that the cocaine found by the appellant and his colleagues in Unit 241 was purchased by the person in whose possession it then was. So far as the identity of that person is concerned, the bag in which the cocaine was found contained material suggesting that the bag was the property of a person named Prem Chilan Welch and I am satisfied that the cocaine was in the possession of Welch.

Mr Prosser also explained that in order to make a profit out of dealing in illicit drugs, it was necessary to either dilute the drug so as to increase the saleable quantity of powder and/or to reduce the quantity of drug being sold at any time. He told me, and I accept, that the concentration of cocaine in the powder found in Welch's bag was very high and that in his experience, before such powder was sold to the ultimate consumer, that is the drug user, the cocaine content would be further diluted by the addition of some other agent such as, for instance, glucose, baking powder, et cetera. Therefore, as well as drawing the inference that the cocaine in Welch's possession had been purchased, I also draw the inference that that cocaine was intended to be sold.

Whilst the appellant and his colleagues were in the unit and searching it, another police officer, Detective Clark, was keeping the car park of the motel under observation. She observed a white Toyota sedan pull into the car park; she observed three men get out of it. She observed that the three men took bags of what was subsequently discovered to be groceries from the car and a carton of beer. They walked together to Unit 241. She identified, and I accept, the respondent to this appeal as the driver of that motor vehicle.

The other two men were the person to whom I have referred, Prem Chilan Welch, and a person called Wayne Cornwell. Welch and Cornwell arrived at the door of Unit 241 slightly ahead of the respondent. The door was opened by police who introduced themselves. The respondent, who I am satisfied heard the police introduce themselves, turned and started to walk away. However, Detective Clark came up behind him and asked him to enter the unit, which he did. The three men identified themselves.

During the course of the search of the unit the police found other quantities of material which appeared to be cannabis sativa and drug paraphernalia, but that is of no particular relevance to the matter before the Court. The drug which the appellant submits is of significance is the cocaine, to which I have earlier referred.

Of significance, Mr Prosser gave evidence, which I accept, that each of the bags of cocaine contained approximately an ounce. His view of the market value of each of the bags, relying upon the analyst's description of each of them, was that, in the Sydney market at that time, the price would be between four and a half thousand and five and a half thousand dollars. Elsewhere, he told me that the further one gets from the capital cities, the higher the prices become.

Whilst in the unit the respondent was asked if he had any money upon him. The respondent agreed that he did and produced what was described as a bumbag which contained a bundle of $100 and $50 notes, which totalled $5,350. The respondent also had in his possession loose notes totalling $375. Although the appellant was not able to recall whether that was in his pockets or the bumbag, he was definite that the $5,350 was in the bumbag.

Whilst in the unit Detective Clark asked the respondent how he had arrived at the unit. The respondent said he had walked. That was, I find, a deliberate lie. I accept Detective Clark's evidence that she observed the appellant arrive driving the white Toyota sedan. I shall return to discuss this lie a little later. Eventually the police searched the Toyota sedan. I accept that the vehicle was unlocked and I accept that they were, up until the time of the search, unable to locate the key to the car. I accept that key was later found in the possession of the respondent.

In the boot of the car police found an overnight bag. Within that bag was a backpack type of bag in which a large quantity of Australian currency was found. I am satisfied on the evidence that that amount of currency totalled $592,600. Therefore the total found in the car, in the respondent's bumbag and on his person was $598,325. At various times the respondent was asked to explain about this money. I do not to propose to set out in detail all the conversations which took place concerning this issue. From time to time he, in answer to questions, asserted that the money was lawfully in his possession, suggesting that it was lawfully obtained, but when pressed for detail he declined to go into any detail.

In particular, the respondent made a suggestion that in fact the amount of money in the car was of the order of $620,000. That suggests a shortfall of approximately $28,000. This allegation was investigated by Inspector Straatemeier and Inspector Straatemeier recorded a lengthy conversation he had with the respondent about the issue. Once again when pressed to explain the source of the money, the respondent declined to go into detail. It is not clear if the respondent was suggesting at the relevant time that the shortfall he alleged had been taken by the police who found the money. Before me today he has expressly disavowed any such suggestion. I can understand that such a suggestion, implied or otherwise, would be of considerable concern to the officers involved and to their superior officers.

During the course of the conduct of this hearing, the respondent made no suggestion at all to any of the officers involved that they had somehow kept for themselves some portion of the money which they found. The respondent was, of course, not obliged to give evidence in this hearing, but the fact remains he has not done so. And the only evidence suggesting that the amount of money in the car was greater than that to which the police officers have sworn was the respondent's own out of Court statements. Even that was somewhat equivocal.

At no stage did he purport to have ever counted all of the money. He said he had counted some of it. It may be that the respondent genuinely believed that there was something of the order of $620,000 in the car. It may be that his suggestion that there was such an amount in the car was a deliberately false allegation in order to cloud and confuse the police investigation into his possession of an extraordinarily large amount of Australian currency. However, on the evidence put before me in this case I am satisfied that in the car, when searched by police, there was an amount of $592,600 which the appellant and other police officers concerned have properly accounted for. And on the evidence put before me in this case, I am satisfied that there is no basis for any finding or suspicion that any of the officers involved kept any of the money in the car for themselves.

In any event, I have made those findings because I consider it appropriate to do so on the evidence put before me, the question of whether the amount of money in the car was $592,600 or $620,000 is hardly of a critical feature. Even if it were the case there was $620,000 in the car, it simply demonstrates that there was even more money than the evidence shows which was in the possession of the respondent, the source of which and the purpose of which remains unexplained.

So far as statements made by the respondent to police officers concerning what might perhaps be described as the legitimacy of the money, in my view they were self serving out of Court statements devoid of particularity. When asked to go into particulars the respondent declined to do so. He was not obliged to give evidence before this Court, but the fact is that on the evidence before me, I am satisfied that there is no reliable evidence to support a view that the money was lawfully obtained, lawfully in the possession of the respondent, intended for a lawful purpose.

This, of course, is not an end to the matter. The prosecution has brought this charge and the prosecution must prove it beyond reasonable doubt. I will return to that matter shortly.

There are other aspects of the respondent's conduct about which I need to make some findings of fact. As I have said, during the course of the investigation various police officers, in particular the appellant and Inspector Straatemeier, had conversations with the respondent. There is really no doubt at all that the respondent had possession of all of the money alleged in the charge. That is so unarguable it is not even necessary to set out the evidence to prove it. The issue in this case is whether it may reasonably be suspected of being tainted property.

Mr Murray submits that I can draw an adverse inference against the respondent by reason of his selective answering of questions posed to him by, in particular, the appellant and Inspector Straatemeier when Inspector Straatemeier was making inquiries about the suggestion that there was indeed a greater amount of money in the car than police had reported. I do not propose to set out the conversations in detail, but the effect of them was that the respondent claimed rightful and lawful possession of the money. He insisted that there was nothing unlawful about the money.

But each time the appellant or Inspector Straatemeier then went on to ask questions about exactly where the money had come from, whose it was, what it was to be used for, et cetera, aside from a vague suggestion to Inspector Straatemeier that it was to be used for a property purchase, the usual response by the respondent was that he could not help with the investigations or he did not want to enlarge on the matter.

Relying on the judgment of the High Court of Australia in Woon v. The Queen [ 109] CLR 529, Mr Murray submits that I can draw an adverse inference against the accused by reason of the fact that he was prepared to answer some questions but, when pressed about the details concerning the money, he declined to do so. The submission essentially is that I can draw an adverse inference from the way in which the respondent declined to give the police information, particularly following upon attempts to assert that the money was properly in his possession and lawfully obtained, to be used for a lawful purpose, suggests a consciousness of guilt in that the respondent had guilty knowledge that the money was in fact tainted in some way.

The concept is difficult. The law carefully protects a person's right against self incrimination. In each conversation, at the commencement, the respondent was warned that he need not answer any question. Whilst I have no doubt, on the authority of the judgments of the High Court in Woon's case there can be circumstances in which a person does not answer a question or the way in which a person evades answering a question that an adverse inference may be drawn against him, I am not prepared to do so in this case. However, as I have indicated, any self-serving or exculpatory statements made by the respondent to police officers, although in evidence and capable of being acted upon, in my view should be rejected and I give them no weight.

Another matter concerning the conduct of the respondent is his attempted departure from the door of the unit when it became apparent that police officers were present. Technically, under the learning concerning Rules of Evidence this would be described as evidence of flight and, in some circumstances, evidence of flight can be acted upon as a consciousness of guilt, that is a consciousness of guilt of the offence charged.

The offence charged in this case concerns the money found in the possession of the respondent and, more particularly, its alleged quality as tainted property. In this case there was marijuana involved. Indeed, in the bag in the boot of the respondent's car police officers found some cannabis sativa. I am prepared to draw the inference that by turning and walking away, the respondent wanted to avoid further contact with police. But evidence of flight may only be used as evidence of a consciousness of guilt, if the only reasonable inference to be drawn from the flight is a consciousness of guilt of the offence charged. In my view the situation was sufficiently clouded in this case that I would not be prepared to draw such an inference, although it was obvious that the respondent did not want to have any further contact with the police.

Similar considerations must apply to the lie which the respondent told Detective Clark when she asked how he and his companions arrived at the unit and he responded that they had walked. There is no doubt that it was a lie and in my view there is no doubt that it was a deliberate lie. There is no doubt that, in my view, it was told with a view to avoid police giving attention to the car in which he had arrived.

The use of lies as evidence of guilt of an offence charged as distinct from going to credit or credibility of the person who has told the lie often produces difficulties. The leading High Court case on the subject from my recollection is The Queen v. Edwards of which I am unable to give the full citation at this stage. In my view, in order for a lie to be used as evidence of guilt of the offence charged as distinct from simply going to the credit or credibility of the person who has told the lie, four things need to be established:

As I have said, in this case there is no doubt that it was a lie and I am satisfied that it was a deliberate lie. I am also satisfied that it was material to the offence charged. A particular element of this offence is that the respondent had possession of the money found in the car. The money in the car forms the vast bulk of the money alleged in the charge and, therefore, a lie to basically suggest that he had nothing to do with that car is material to the offence charged.

The difficulty I have is with the proposition that I should be satisfied that the lie was told out of a consciousness of guilt of the offence charged. That difficulty arises because also found in the car in the respondent's bag was some cannabis sativa. According to the High Court, juries must be cautioned to consider any other possible explanation for the lie being told and, obviously, a Judge sitting as the tribunal of fact must do the same. Whilst one may conjecture that if the money was tainted property and the respondent was undoubtedly aware of it, then given the magnitude of the sum involved, he would be far more concerned to keep the presence of that money from the police and far less concerned about a relatively minor quantity of marijuana.

Unfortunately, that puts the cart before the horse and I am therefore not satisfied that I can draw an inference from the respondent's lie that it was told out of a consciousness of guilt of this particular offence charged. Obviously, however, it is a lie to which I have had regard in rejecting the respondent's self-serving explanations as to the legitimacy of the money.

It is not necessary for the prosecution to allege a particular source of the property in respect of the charge laid pursuant to section 92 of the Crimes Confiscation Act, nor is it necessary for the prosecution to prove that the property was obtained, or used or intended to be used in respect of any particular offence or even form of offence. Nevertheless, tainted property is defined especially in our law and some attention must be given to it.

In section 4, the definition section of the Crimes Confiscation Act, the reference to tainted property simply notes, “See section 13”. So far as is relevant section 13 provides:

Other matters mentioned in section 13 and in particular, section 1, in my view, have no relevance to this proceeding.

What then is a serious offence? Section 4, the provision that deals with serious offence, means:

Once again there is no need to refer to any other parts of the definition of serious offence.

A serious drug offence means an offence against the Drugs Misuse Act 1986 Part 2 “for which a person is liable on conviction to imprisonment for 20 years or more.” An examination of the Drugs Misuse Act suggests that, pursuant to that Act, there are quite a number of offences which are properly described as indictable offences but which do not carry a maximum penalty of imprisonment for 20 years or more. A difficulty of statutory construction arises.

The definition of “serious offence” singles out a serious drug offence mentioned; and then the definition of “serious drug offence” specifically defines such an offence as being one in respect of which a person “is liable on conviction to imprisonment for 20 years or more”. It seems to me unlikely, therefore, that the Legislature intended by the definition (b) of serious offence, namely another indictable offence”, to include indictable offences under the Drugs Misuse Act 1986 other than those for which a person was liable on conviction to imprisonment for 20 years or more. If that were so there would be no need to single out a serious drug offence and there would be no need to define a serious drug offence, the whole field would be covered by simply defining serious offence as “any indictable offence whether dealt with on indictment or summarily.”

I accept that this appears to be anomalous, as Mr Murray submits. It means that an offence under the Drugs Misuse Act, although not carrying a maximum penalty of 20 years' imprisonment, could be quite serious and far more serious than some indictable offences under the Queensland Criminal Code, or other legislation for that matter, but not be a serious offence for the purposes of the definition of tainted property. Nevertheless, in this case it seems to me to be largely irrelevant because the prosecution case, that is the case for the appellant, is directed towards demonstrating that the suspicion, that the money in this case has the quality of being tainted, is by reason of its association with cocaine.

Before concluding I should also mention this. The respondent did not give evidence; the respondent was not obliged to give evidence. The respondent was not obliged to prove that the money found in his possession was not tainted property. He was not obliged to give any explanation as to how he came by it or what he intended to use it for and no adverse inference can be drawn against him by reason of his failure to give evidence. I have already indicated that, in my view, no adverse inference can be drawn against him by his failure to a give more detailed and convincing explanation to police officers. But having said that, the fact remains that the evidence put forward during the prosecution case is uncontradicted and unexplained by any sworn evidence from the respondent.

The respondent had a very large sum of money - by anyone's standards - in his possession. There is evidence that he had bank accounts. Therefore any proposition, although there is no evidence to suggest it, that he was one of those eccentric people who mistrusts banks as to the safe storage of money may be confidently rejected. He had a large sum of money in his bag in his car; he had a much smaller sum but a quite significant sum, approximately $5,300, in his bumbag. The denominations and the packaging of that money was similar to that found in the bag in the car.

According to the evidence of Mr Prosser, whose evidence I accept, the market value of one of the bags of cocaine found in Welch's bag approximated that of the amount of money which the respondent was taking into the unit where that cocaine was. Obviously by arriving together, Welch and the respondent were acquainted. However, there is no suggestion that they were particular friends or had been associating with each other in Cairns or elsewhere prior to their arrival together at the unit. Obviously there is no direct evidence that the respondent had any knowledge of the presence of the cocaine in the unit and its possession by Welch. However, it must be remembered that in order for a person to be convicted of the offence charged, it is not necessary for the tribunal of fact to be satisfied beyond reasonable doubt that the property was in fact tainted; it is only necessary for the tribunal of fact to be satisfied beyond reasonable doubt that it may reasonably be suspected that the property is tainted.

In light of the presence of the cocaine in the unit and in light of the coincidental correlation between the market value of one bag of cocaine and the amount of cash which the respondent had in his bumbag, I am satisfied beyond reasonable doubt that it is reasonable to suspect that that money in the bumbag was intended to be used by a person, namely the respondent, in connection with the commission of a serious offence, namely a serious drug offence, namely the supply of cocaine in a trafficable quantity which, on my reading of the Drugs Misuse Act, would be an offence pursuant to subsection 6 (1) of the Drugs Misuse Act and would attract a maximum penalty of 25 years' imprisonment.

What of the balance of the money? Although the $5,000 odd was being carried in the respondent's bumbag at the time it was found, from his conversations with Inspector Straatemeier I draw the conclusion that it came from and was originally part of the money which was being carried in the bag in the boot of the car. In the absence of any evidence to the contrary, in my view it is reasonable to suspect that all of the money was intended to be used for the same purpose.

I am therefore satisfied beyond reasonable doubt that, save for the $375 in loose notes found in the respondent's possession, it is reasonable to suspect that $597,950 of Australian currency found in the possession of the respondent may be reasonably suspected of being tainted property.

I therefore find the respondent guilty of the offence charged.

...

HIS HONOUR: I adjourn further proceedings in respect of the appeal to 9.45 Thursday, the 13th of November.

I direct that the respondent John William Henderson surrender himself into custody. I allow the respondent John William Henderson bail on his own undertaking, conditional upon his appearance at the adjourned hearing and on condition that he report either in person or by telephone to the Officer-in-Charge of Cairns Police Station each Monday, Wednesday and Friday between the hours of (Queensland time) 8 a.m. to 4 p.m.