R v Johnston[2014] QDCPR 3

DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr Johnston is charged with trafficking in cannabis between 29 July 2012 and 18 October 2012 at Rockhampton and elsewhere; possession of cannabis exceeding 500 grams on 30 July 2012 and two counts of supplying the drug.

2. [2]
   On the fourth day of the trial, Detective Senior Sergeant Moon, the officer in charge of the Rockhampton Criminal Investigation Branch, was called to give evidence in an expert way on the meaning of drug terminology, the values of drugs, and also as to distribution networks involved with drugs. All of that evidence is clearly admissible.

3. [3]
   Courts on other occasions have considered its admissibility: see R v Marinovich (1990) 46 A Crim R 282; Anderson v R (1992) 60 SASR 90; RvMorrison (2002) 136 A Crim R 222; R v Blackwell (1996) 87 A Crim R 289; RvFazio (1997) 69 SASR 54; and Marchesano v R (2000) 116 A Crim R 237. Now, as I say, that evidence is admissible. It has not been objected to. Now, at p82 of the transcript yesterday the witness was asked to listen to particular phone calls contained in Exhibit 40 between MrDobbs and Mr Johnston and was asked to comment on what the word “fish” might mean. At that stage, the jury withdrew and Officer Moon was asked on voir dire that which the crown proposed to place before the jury.

4. [4]
   At p83.6 he said, “It’s consistent with or could have been terminology used by persons involved in drug transactions.” He then based that opinion, he said, on the totality of the conversations he had listened to. He then referred to a number of conversations and in particular at page 84 referred to the fact that the defendant’s wife had “moved a couple”, there was the smell of cannabis during a police interception, the fact that Dobbs was closing up “shop” for the day and Johnston agreed with that.

5. [5]
   His evidence was that if legitimate fish was being referred to this would make very little sense and this is why he formed the view it was consistent with or could have been drug related terminology. He then referred to a discussion concerning $750 and $1200 and gave evidence that these amounts would coincide with ounces of cannabis. As to another amount of $2500, “You’re talking about somewhere in the vicinity of six or seven ounces of hydroponically grown cannabis. So the amounts of money talked about in his view made very little sense if you combine it, if it was a legitimate conversation about fish.” And he further explained putting the totality together, it was consistent with drug related terminology.

6. [6]
   Now, the defence has conceded that the officer is allowed to give evidence that the reference to fish could be a reference to drugs but has objected to the basis of that conclusion except to the extent the officer is entitled to say that he relied on reaching that conclusion by reference to the totality of the conversations.

7. [7]
   The Crown has relied upon the case of Chen v R [2011] NSWCCA 145 in arguing its case. I note that Chen and other NSW cases to which I will refer shortly consider the Evidence Act (Cth) 1995 which has modified the common law rule particularly by reason of s80 which provides that evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue or a matter of common knowledge.

8. [8]
   In Keller v R [2006] NSWCCA 204, the appeal was concerned with an officer of the Australian Federal Police giving interpretative evidence as to telephone intercept material. Inter alia he said, “In my opinion [the person on the intercepted call] is talking about drugs.” At [23] it was noted:

“Although the issue presented on the admissibility question on the voir dire proceedings appears to have been whether the witness could give evidence that the language employed in the intercepted conversations was consistent with being language referable to a drug transaction, that is not the way in which the evidence was given before the jury. Mr Odgers acknowledged that if the witness had limited himself to expressions of opinion as to the consistency of the language used being referable to a drug dealing, the appellant would have no complaint. I consider Mr Odgers was correct in making that concession.”

9. [9]
   So it was held that it was impermissible for a witness to positively state that drugs were being referred to. In my opinion, the passages in the voir dire to which I have referred aside from the passage relating to consistency infringe that rule because in reality Officer Moon is expressing the opinion relative to the closing up shop conversation, the moving conversation and the money conversation that Dobbs and Johnstone were talking about drugs.

10. [10]
    I also note that at [28] in Keller that the court noted that s79 of the Commonwealth Evidence Act had to be read in conjunction with s80. With reference to R v GK (2001) 125 A Crim R 315 it was noted:

“In New South Wales opinion evidence is not inadmissible only because it was about a fact in issue or an ultimate issue. However, judges should exercise particular scrutiny when experts move closer to the ultimate issue less they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions.”

11. [11]
    It was later held at [42] that evidence from the Federal Police officer that the conversations were about drugs should ultimately have been excluded from consideration.

12. [12]
    A similar approach was taken in both Nguyen v R [2007] NSWCCA 249 and Chen.

13. [13]
    MsHedge sought to argue that this approach in its entirety should be adopted here by reference to R v Kashani-Malaki [2007] QSC 163, a decision of Douglas J. I note that the same point was not raised in that case. I also note that the s80 point was not considered there.

14. [14]
    Returning then to the Queensland position, the common law applies. Generally speaking, evidence as to the ultimate issue should not be given. In this regard I note that a key plank in the Crown case here is Exhibit40. Exhibit 40 contains telephone intercepts between the accused and MrDobbs. It is accepted that the jury will need to be directed ultimately that before they can rely on exhibit 40 they would need to be satisfied beyond reasonable doubt that the conversations were about drugs. This is an indispensible link towards proof of guilt (Shepherd v R (1990) 170 CLR 573). Indeed in my opinion without a conclusion that the TI contain drug conversations relating to supply there would be no case to answer on trafficking.

15. [15]
    So to my mind expressing a positive view that the conversations were about drugs would be evidence which would infringe the ultimate issue rule. The ultimate issue rule still applies in Queensland: see, for example, R v Tonkin & Montgomery [1975] Qd R 1.

16. [16]
    In R v LM [2004] QCA 192 expert evidence issues were discussed and it was noted for example, at [68] concerning the evidence led:

“… A jury was likely to place great weight on the existence of a term to describe the behaviour which the prosecution alleged the appellant exhibited, instead of concentrating on whether the prosecution had established beyond reasonable doubt that the appellant had committed acts causing symptoms, or reported or caused false symptoms, intending to harm the children through subsequent unnecessary medical procedures. The evidence given by Dr Reddan had minimal probative value but it had the potential to be extremely prejudicial. It should have been excluded.”

17. [17]
    Then with respect to the other expert evidence at [71]:

“For the reasons I have given in discussing Dr Reddan’s evidence, the diagnosis of Drs Pincus, Withers and O'Loughlin that the appellant intentionally caused her children to receive unnecessary treatment through her own acts and the false reporting of symptoms as factitious disorder (Munchausen’s Syndrome) by proxy is not a diagnosis of a recognised medical condition, disorder or syndrome. It is simply placing her within the medical term used for the category of people exhibiting such behaviour. In that sense, their opinions were not expert evidence because they related to matters able to be decided on the evidence by ordinary jurors. The essential issue as to whether the appellant reported or fabricated false symptoms or did acts to intentionally cause unnecessary medical procedures to injure her children was a matter for the jury's determination. The evidence of Drs Pincus, Withers and O'Loughlin that the appellant was exhibiting the behaviour of factitious disorder (Munchausen’s Syndrome) by proxy should have been excluded. Those doctors could, of course, give their very significant evidence of the history of their treatment of the children, the statements by the appellant in the course of that treatment, that no medical reason could be found for the symptoms suffered by the children, that the tests on the stools suggested outside interference, that they suspected the symptoms were being caused by the intervention of a third person, that some symptoms were consistent with the unnecessary administration of laxatives, that they subsequently arranged for the video surveillance, and that once D was removed from the care of his mother he thrived and became a normal healthy boy without the need any special medical attention. It was a question for the jury to determine whether this evidence, when combined with the video taped and other evidence, persuaded them of the appellant's guilt on any or all of the charges beyond reasonable doubt.

[72] Even though the case against the appellant was very strong, I cannot safely conclude that this wrongly admitted evidence, which was likely to have impressed the jury coming as it did from such highly qualified, confident medical experts, did not deprive the appellant of the chance of an acquittal. …”

18. [18]
    In this case, it is my determination that it is permissible for Officer Moon to say that the relevant conversations are consistent with talk about drugs or could have been about drugs. For that purpose, the Prosecutor may play the relevant conversations.

19. [19]
    Turning though to the basis upon which he reached his opinion, in my view, with respect to the evidence given on voir dire, all that the police officer is doing was interpreting the tapes as a jury would. There is nothing in the nature of expert evidence in relying on, one, the wife moving money and, two, someone being intercepted and closing up shop. Similarly, the conclusion that the $750 relates to ounces of cannabis and the two and a-half to six to seven ounces of “hydro”, in effect, reaches the conclusion that this was a drug transaction. In my opinion, that breaches the Keller principle. I exclude the evidence of his interpretation of the specific calls.

20. [20]
    I would permit the officer to opine that the basis of his conclusion that the conversations are consistent with talk about drugs or could be about drugs was because of his consideration of the telephone intercept material.