Baker v The Queen
[2020] ACTCA 55
•25 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Baker v The Queen | |
Citation: | [2020] ACTCA 55 | |
Hearing Date: | 3 November 2020 | |
DecisionDate: | 25 November 2020 | |
Reasons Date: | 25 November 2020 | |
Before: | Mossop, Loukas-Karlsson and Abraham JJ | |
Decision: | Appeal dismissed | |
Catchwords: | APPEAL – Conviction – whether trial judge erred in admitting the “four hits” evidence – whether the trial judge erred by not discharging the jury following the Crown’s opening – whether the trial judge erred by failing to give a Jones v Dunkel direction with respect to an anticipated Crown witness – whether the dates on the indictment were an essential feature of the offence – whether the verdict was unsafe – no error established – the verdict was open to the jury on the evidence – appeal dismissed. | |
Legislation Cited: | Evidence Act 2011 (ACT) s 137 | |
Cases Cited: | Ayles v The Queen [2008] HCA 6; 232 CLR 410 Doney v The Queen (1990) 171 CLR 207 Winning v The Queen [2003] WASCA 245 | |
Parties: | Brendan Leigh Baker (Appellant) The Queen (Respondent) | |
Representation: | Counsel B Morrisroe (Appellant) R Ranken (Respondent) | |
| Solicitors Boxall Legal (Appellant) Commonwealth Director of Public Prosecutions (Respondent) | ||
File Number: | ACTCA 28 of 2019 | |
Decision under appeal: | Court: Before: Date of Decision: Case Title: Citation: | Supreme Court of the ACT Burns J 18 June 2019 R v Baker (No 2) [2019] ACTSC 181 |
THE COURT:
The appellant was charged on indictment with eleven offences relating to the importation and trafficking of a variety of illegal drugs and two offences concerning dealings in money that was the proceeds of crime.
The offences were an attempt to import a commercial quantity of a border controlled drug (count 1); importation of a commercial quantity of a border controlled drug (count 2); traffic in a commercial quantity of a controlled drug being cannabis (count 3); five counts of trafficking in a controlled drug other than cannabis, involving MDMA, methylamphetamine, cocaine and methylone (counts 4, 5, 6, 7, 8 and 12); trafficking in cannabis (count 9); two counts of dealing with the proceeds of crime (counts 10 and 11). Counts 1 and 2 are Commonwealth offences.
In addition, a summary offence of possessing MDMA and a summary offence of cultivating three or more cannabis plants were transferred to the Supreme Court.
The jury returned verdicts of guilty in relation to all counts on the indictment except count 2 (on which they were unable to reach a verdict), being the offence of importing a commercial quantity of a border controlled drug.
On 6 September 2019, Burns ACJ imposed a total effective sentence of 13 years and 8 months with a non-parole period of 7 years to date from 21 April 2018. The appellant will be eligible for release to parole from 20 April 2025.
The appellant appeals against his conviction alleging five grounds raising the following issues: first, was the evidence given by the Crown witness Paul McCauley in respect to the “four hits” erroneously admitted and, if so, should the jury have been discharged after the Crown referred to the evidence in opening (grounds 1 and 2); second, did the trial judge err by failing to give a Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) direction in respect of the failure of the Crown to call Bradley Klemke, an anticipated Crown witness (ground 3); third, were the dates an essential feature of counts 6, 7, 8 and 9 and if so, did the trial judge err in his direction as to that; and four, were the verdicts unsafe having regard to the Crown’s reliance on Mr McCauley, a witness who gave evidence under immunity.
For the reasons below, the appeal is dismissed.
Factual Overview
The Crown alleged that between about May 2016 and July 2017 the appellant was in the business of trafficking drugs, and was a middle to high level dealer based on the nature and quantities of the drugs he supplied.
The Crown case was largely dependent upon the evidence of Mr McCauley, who had cooperated with police in relation to their investigation in exchange for certain blackmail charges he was facing being withdrawn and upon an undertaking that he would not be charged in relation to any drug related crimes arising from his dealings with the appellant and others. He had also received an undertaking from the Commonwealth Director of Public Prosecutions that his evidence would not be used against him for any criminal offence, save for any offence in relation to giving false evidence.
In addition to his evidence the Crown relied on circumstantial evidence from a number of sources which, although not sufficient by itself to found convictions, the Crown contended supported the evidence of Mr McCauley.
As at mid-2016, Mr McCauley was carrying on business as a drug dealer in the ACT, trafficking in cannabis, ice or methamphetamine, cocaine and MDMA. Mr McCauley had others who worked for him in distributing the drugs to the ultimate users.
Some time prior to 2016, the appellant contacted Mr McCauley on Facebook and asked whether he wanted any MDMA. Mr McCauley did not respond. The appellant also asked whether Mr McCauley wanted some cannabis and again he did not respond.
The appellant subsequently met with Mr McCauley in a carpark and offered to supply him with cannabis at a lower price than his usual source. The appellant also offered to supply Mr McCauley cannabis on credit. Mr McCauley agreed to go into business with the appellant and told him that he wanted to order 10 pounds of cannabis. When the appellant and Mr McCauley met a few days later the appellant supplied him with 40 pounds of cannabis. At that time Mr McCauley expressed some uncertainty as to his capacity to move such a large amount, but the appellant urged him to take the whole amount. Mr McCauley did take the 40 pounds of cannabis and through his contacts was able to sell it within about a week. This offence was the subject of count 3 on the indictment.
After Mr McCauley had been receiving cannabis from the appellant for some time, the appellant began to supply him with MDMA for Mr McCauley to sell. Count 4 was one such occasion when Mr McCauley met with a third party in a carpark at the back of Dominos in Dickson. This had been pre-arranged with the appellant, who was unable to attend in person. Through the intermediary, the appellant supplied Mr McCauley with 5 ounces of MDMA. Mr McCauley stated that he would pay the appellant $1,000 for an ounce of MDMA, with the value of the drugs supplied on that occasion being $5,000.
Between October 2016 and December 2016, the appellant suggested to Mr McCauley that they could source methylone from a source in China. The appellant said he could obtain the methylone from this source for between $1,300 and $1,800 a kilogram and that he had friends in Queensland who would pay $17,000 a kilogram for it. With the assistance of Mr McCauley, the appellant ordered 2 kilograms of methylone by computer using a false name. The appellant paid for the drug using bitcoin which he obtained through a contact in Sydney. This was count 1, an attempt to import 2 kilograms of the border controlled drug methylone. The commercial quantity of methylone is 0.75 kilograms.
The arrangement was that the methylone would be sent by mail to the address of an associate in Downer in the ACT. The associate was instructed that when the package arrived, he should collect it and drive towards the Dickson Post Office. If the police stopped him, he was to state that he was returning the package to the post office because it had been sent to the wrong address. The methylone apparently never arrived and the appellant later disposed of the laptop used in the transaction.
Count 5 related to a transaction when the appellant provided Mr McCauley about 1 kilogram of MDMA in a child’s pink Barbie lunch box for $37,000 or $38,000.
Count 6 related to a transaction when the appellant supplied 5 ounces of MDMA to Brad Klemke, an associate of Mr McCauley. Mr Klemke then gave the drug to one of Mr McCauley’s regular purchasers, Corey Conomos. This was said to have occurred about a week or a few days before the police raided the home of Mr Conomos on 4 January 2017.
Count 7 related to a transaction when the appellant supplied approximately 10 ounces of methylamphetamine to Mr Klemke in Mr McCauley’s presence either later the same day as the supply that was the subject of count 6 or the following day. This was also said to have been supplied to Mr Conomos.
Count 8 related to a transaction that occurred at or about the same time as count 7 when the appellant supplied 5 to 10 ounces of cocaine. These drugs were also said to have been supplied to Mr Conomos.
Count 9 related to a transaction that occurred at the same time as that referred to in count 8 when the appellant supplied approximately 15 pounds of cannabis to Mr Conomos.
It was the Crown case that the drugs the subject of counts 6, 7, 8 and 9 were seized by police during a search of Mr Conomos’ residence on 4 January 2017.
On 2 February 2017, police executed a search warrant at the appellant’s residence and located inter alia $22,200 in cash, secured with rubber bands, hidden behind the bottom drawer of a wardrobe. It was the Crown case that this money was the proceeds of the appellant’s drug dealing and it was the subject of count 10 on the indictment. Police also found handwritten notes listing names, figures and the telephone number of a person to whom Mr McCauley used to supply drugs that he sourced from the appellant. The police also located a capsule containing a small amount of MDMA, which was the basis of the summary offence of possession of a prohibited substance.
On 22 March 2017, police executed a further search warrant at the appellant’s residence, during which they located inter alia $22,900 in cash in an envelope inside a tissue box and an instruction manual for a money counting machine. A DNA profile consistent with the appellant was found on the rubber bands and the envelope containing the cash. This money was obtained from the sale of drugs and was the subject of count 11 on the indictment. The police also located a notebook containing handwritten notes of names which investigation revealed were drug vendors using the DarkNet, or the dark web marketplace AlphaBay.
Mr McCauley had accumulated a very substantial debt for drugs which the appellant had supplied to him on credit. This was largely because those to whom the drugs were distributed did not pay Mr McCauley. This was in part because of the actions of police who had discovered and confiscated large sums of money from those with whom Mr McCauley dealt. The appellant began to pressure Mr McCauley to repay this debt, which amounted to somewhere between $230,000 and $250,000. This culminated in the appellant driving Mr McCauley to a carpark for a meeting with seven or eight other people who were higher up in the distribution chain than the appellant, or were the employees of such people, and who had placed pressure on the appellant to recover the debt. One of those present told Mr McCauley that the money had to be paid and then punched him. The appellant intervened and helped Mr McCauley back to the car and drove away.
At a meeting a few days later, the appellant told Mr McCauley that the debt was worth “four hits”, which was a reference to four murders. It was not suggested that the appellant had the intention of carrying out any threat to kill Mr McCauley or anyone else. Rather, the statement demonstrated the extent of the pressure and the intimidation directed towards Mr McCauley to encourage him to repay the drug debt.
In July 2017, the appellant met with Mr McCauley and supplied a substance which was either MDMA or methylone. The appellant told Mr McCauley that he could supply him that substance at $1,000 an ounce and that Mr McCauley could repay the drug debt by distributing that substance. This was the subject of count 12 on the indictment.
That evening the police executed a search warrant at Mr McCauley’s home, and Mr McCauley destroyed that sample of drugs and his Blackberry which he had used to communicate with the appellant. Sometime later Mr McCauley agreed to assist the authorities, which included, at the direction of police, meeting with the appellant on a number of occasions and providing to them copies of his communications with the appellant. A number of these meetings were recorded by the police, by video and audio. In October 2017 the police also obtained a telephone interception warrant to intercept calls on the appellant’s telephone.
On 2 March 2018 police executed another search warrant at the appellant’s home. During the search the appellant unlocked a shed in his backyard revealing five cannabis plants growing in the shed. This is the subject of the summary offence of cultivating three or more cannabis plants.
As explained in more detail when considering ground 5, it was also the Crown case that during the relevant period the appellant possessed and was spending large amounts of money which could not be accounted for by the appellant’s lawful income.
As noted above, the Crown also relied on circumstantial evidence in proof of its case. This evidence is also referred to below when considering the ground alleging the verdicts are unsafe.
The appellant did not give or call any evidence.
The appellant contended, inter alia, that the Crown case was primarily based upon whether or not the jury accepted the evidence of Mr McCauley, in circumstances where Mr McCauley was a convicted drug importer and trafficker with his own network of drug suppliers and distributors long before he became friends with the appellant. The appellant contended the jury would not accept Mr McCauley’s evidence because of this and because he was a person who was in prison for some months before he started talking to police. The appellant asserted that Mr McCauley had orchestrated a fairly far-fetched story and had tailored his evidence in order to gain the benefit of indemnification from prosecution. The appellant also criticised the content of Mr McCauley’s evidence as a basis for submitting it not be accepted.
Consideration
Ground 1: The learned trial judge erred by failing to discharge the jury after the Crown opened its case (after referring to an allegation of a debt being worth “four hits”)
Ground 2: The learned trial judge erred by allowing to be admitted into evidence the evidence in relation to “the debt being worth four hits”
Ground 1 only arises if the evidence ought not to have been admitted. It is therefore appropriate first to address ground 2. It is not suggested that if the evidence was properly admitted, that the trial miscarried as a result.
The evidence was as follows:
Was there another meeting to discuss the debt shortly after that? --- Yes, I think the next day or the day after that. A few days later.
And what happened? How did that meeting come to pass? --- I think Brendan came to my place. I’m not sure if Brad was there that time, but he pretty much told me the money needs to be paid; the money’s worth four hits or three hits and it needs to be paid.
And where did that meeting take place? --- That was at my mum’s place, that one.
How did you feel after Mr Baker said that? --- Threatened and scared.
And in relation to the debt, who did you find – or who did you believe was responsible for the debt you owed Mr Baker? --- Brad.
Why was that? --- Because he was in charge when everything went down.
Following that evidence the Court adjourned for its usual morning break. On resuming the primary judge advised the parties that he had received a note from the jury which read “Could Mr McCauley clarify what he meant by ‘a hit’ in relation to the money owed equating to four hits?”. Following discussion with counsel, who both indicated their agreement, a direction was given to the jury in the following terms:
Now, firstly, Mr McCauley can only say what was said to him. So he can’t clarify anything that was said to him by another person. He can only say what was said to him. Secondly, the only basis upon which this material, that is the allegation that the accused said ‘that the money owed equated to four hits’ is put before you is on the basis that it was an attempt at intimidation by the accused directed towards Mr McCauley. So it is not suggested that whatever it may mean that there was any plan or any intention to carry out any threat, but it is simply put on the basis that it was an attempt at intimidation.
The appellant contended that the probative value of the evidence did not outweigh the prejudicial effect, being the implication that the debt was referrable to a particular amount of potential murders. The appellant submitted that this prejudice could not be overcome by directions as to the interpretation of the words used by the witness. It was submitted that the evidence implied a high degree of threatened violence and, in context, access to a violent network of people.
The Crown relied on the evidence in a limited way, as evidence of pressure exerted upon Mr McCauley, the urgency with which debts needed to be repaid, and that thereafter Mr McCauley took the debt very seriously and provided an explanation of why Mr McCauley had attempted to blackmail Mr Klemke. The Crown expressly disavowed any suggestion that there was going to be a hit or a murder. It was evidence led as being relevant to the state of mind of Mr McCauley at a particular time, and therefore relevant to his conduct thereafter.
The evidence was admitted by the trial judge: R v Baker (No 2) [2019] ACTSC 181, and appropriate directions were given at the time the evidence was given and in summing up to the jury. No complaint is made in relation to those directions.
As can be seen, the relevance of the evidence is not challenged. Although not referred to in the ground, the argument relates to the application of s 137 of the Evidence Act 2011 (ACT). The appellant advanced that the approach on the appeal to an alleged s 137 error was that in R v Ford [2009] NSWCCA 306; 201 A Crim R 451 , citing Warren v Combes (1979) 142 CLR 531. The appellant did not advance any argument in support of that position but ultimately submitted that they would succeed whether that test or the test in House v The King (1936) 55 CLR 499 was applied.
The respondent accepted that there have been different views expressed in the authorities as to the correct approach on appellate review, but submitted that in the circumstances of this case the appellant was required to establish a House v The King error. That said, the respondent submitted whichever of the approaches was adopted the result would be the same as the appellant could not establish the error on either approach.
In the circumstances of this appeal it is unnecessary to address this issue as the appellant has not established any error on either basis. Nor is it appropriate to address the issue where the parties did not make any detailed submission on the topic.
The prejudicial effect referred to in s 137 is the danger that a jury might make improper use of the evidence. “Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted": Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 (Papakosmas) at [91] per McHugh J. There is nothing which would suggest that the evidence, if admitted, would: be misused by the jury in some way; be given more weight than it deserved; divert the jury from its task; be evaluated by the jury through the application of some illegitimate form of reasoning; or be used in a way which is irrational or illogical: Papakosmas at [98]; Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470 at [140]; Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51]; R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at [116].
The appellant did not clearly articulate the purported prejudice or why it was contended that directions to the jury were insufficient. This was also in a context where the only evidence of the statement came from Mr McCauley, and therefore whether the statement was made rested on whether the jury accepted his evidence. The appellant did not articulate any prejudice that could then be seen to arise.
The jury was given appropriate directions as to the use of this evidence and there is no basis to suppose that the jury would have done anything other than follow those directions: see for example, Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [31]; Glennon v The Queen (1992) 173 CLR 592 at 615.
The appellant did not allege that if the evidence was properly admitted, that its admission nonetheless caused the trial to miscarry as a result.
As ground 2 has not been established, the submission as to discharge of the jury in ground 1 does not arise.
Ground 3: The learned trial judge erred by not giving a Jones v Dunkel direction in respect of the failure of the Crown to call a material witness, Bradley Klemke
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case.
In Dyers v The Queen [2002] HCA 45; 210 CLR 285 (Dyers) at [17], Gaudron and Hayne JJ observed that as a general rule a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called to give evidence persons other than those which they did. The judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not help the prosecution, although a direction not to speculate should be given. Any exceptions to that will be rare and only arise where it is shown that the prosecution’s failure to call the person in question is in breach of the prosecutor’s duty. While those comments have been said to be dicta, the principles referred to in Dyers have been applied as representing the correct approach: see for example, R v Heinze [2005] VSCA 124;153 A Crim R 380 at [77]; Winning v The Queen [2003] WASCA 245 at [5]-[7]. Indeed, the approach has since been applied by the High Court in Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 at [26] per Gleeson CJ, Gummow, Kirby and Kiefel JJ.
It will ordinarily be assumed that the Crown is calling witnesses in accordance with its prosecutorial obligations unless there is a reason not to do so. It is therefore not appropriate to invite the jury to draw an adverse inference to the Crown if it fails to call a witness. It is only where a judge is satisfied that there is no good reason not to call the witness that such a direction may be given.
Importantly, the principle is premised on the basis of the unexplained failure to call a witness. The evidence in this case was that the Crown was to call the witness, and arrangements were made with him for that purpose but that he had failed to attend. The appellant appropriately acknowledged before this Court and the Court below that the failure to call the witness was not due to any fault on the part of the prosecution. There is no suggestion that the Crown’s conduct was in breach of its prosecutorial duty. In that context, contrary to the appellant’s contention, it was not necessary for the Crown to adduce further evidence as to the manner in which contact had been attempted or whether police or the Crown had given any consideration to the application for a warrant for Mr Klemke to attend court. It was also not necessary for the Crown to call evidence that all appropriate avenues had been exhausted.
The appellant contended that the Crown could have taken further steps to secure the witness’s attendance and therefore the Crown had not provided adequate reasons for the failure to call him. The appellant’s submission misconceives Jones v Dunkel.
There was no unexplained failure in this case. In that context the application for a direction, and the alleged error by the trial judge for failing to give such a direction is entirely misplaced. It was not appropriate for the trial judge to direct the jury that an inference adverse to the case for the prosecution could be drawn because of its failure to call Mr Klemke.
The direction given, that the jury were not to speculate about what evidence Mr Klemke could have given if he had given evidence and that it was the jury’s obligation to decide whether the accused was guilty or not guilty of the charges against him based on the evidence before the jury, and only on that evidence, were entirely appropriate: Dyers at [17].
This ground is not established.
Ground 4: The learned trial judge erred by directing the jury that the dates were “not essential”
It is well established that the dates in particulars of a charge are not to be regarded as an element of the offence or even as a material matter unless it is an essential part of the offence: R v Dossi (1918) 13 Cr App R 158 at 159-160; The Queen v Pfitzner (1976) 15 SASR 171 at 185; R v Liddy [2002] SASC 19; 81 SASR 22 at [256]; Ayles v The Queen [2008] HCA 6; 232 CLR 410 at [76]. Whether the date alleged in the indictment is essential to the charge must depend on the circumstances: The Queen v Pfitzner (1976) 15 SASR 171 at 185.
The dates charged in counts 6, 7, 8 and 9 were a range of dates, to which no complaint was made.
The trial judge directed the jury, inter alia, that:
Each of the charges on the indictment alleges offences that occurred either on a particular date or between nominated dates. These dates are not essential elements of the charges. If, for example, you were to find that the accused did the things alleged by the Crown with respect to a particular charge, but you were not satisfied that he did them on the date or between the dates specified in the charge, you may nevertheless find him guilty of the charge.
That direction applied to all counts and was not limited to counts 6, 7, 8 and 9.
Although the appellant raised the direction with the trial judge, the exchange reflects that he did not object to the direction at trial, nor was any redirection or further direction sought. The appellant accepted that the trial judge was correct that the dates were not essential elements of the offences.
This is in a context where, the trial judge in directing for each of counts 6, 7, 8 and 9, repeatedly reminded the jury that it was the appellant’s case that he was attending a music festival in Melbourne between 26 or 27 December 2016 and 2 January 2017. On the evidence, even if accepted, there was opportunity for the conduct to have occurred during the pleaded date range.
Counts 6, 7, 8 and 9 were each alleged to have been committed “between 30 November 2016 and 5 January 2017”, and, as described above, alleged that the appellant supplied quantities of various drugs to Mr McCauley and Mr Klemke on about the same date within that period. As to the timing of these events Mr McCauley gave evidence by reference to an occasion when he and Mr Klemke had gone to Mr Conomos’ house and saw police at the address, which he said was in “early January”. It was accepted that that related to the search which occurred on 4 January 2017. By reference to that date Mr McCauley estimated the supplies occurred “[a] week, few days” before. When Mr Conomos gave evidence by reference to that date he said “I think I got it a few days before. I’ll say max of half a week before I got, yes, raided”. He also agreed in cross-examination that he had received the drugs “sometime between Christmas and New Year of 2016”. Ms Giri gave evidence that she and the appellant drove to the festival in her car, leaving Canberra on either Boxing Day or 27 December 2016 and returning to Canberra on 2 January 2017.
The appellant accepted during the appeal that leave to appeal was required as the point had not been raised below. However, the appellant could not articulate, in the circumstances of this case, the basis on which it was now contended that the dates were essential, in relation to these counts. Moreover, the appellant accepted that even if the music festival evidence was accepted, there was still an opportunity within the dates charged, for the offences to have been committed. In the context of this matter the dates on the indictment were not material elements of the charges. No error has been established in the directions given by the trial judge.
Leave to appeal to argue this ground is refused. That said, even if leave were granted, the ground would be dismissed.
Ground 5: The verdicts were unsafe and unsatisfactory, having regard to the Crown’s reliance on the evidence of Paul McCauley, whose evidence ought to have been found as unreliable
The test for determining this ground of appeal is well established. The question is whether an independent examination of the evidence establishes that it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt: M v The Queen (1994) 181 CLR 487 at 492-493, 494-495; The Queen v Baden-Clay [2016] HCA 35;258 CLR 308 at [65]-[66]. In conducting that examination regard must be had for the advantage the jury had in seeing and hearing the witnesses. Finding that a verdict is unreasonable requires that the appellate court be satisfied that the jury must, as opposed to might, have entertained a reasonable doubt as to the accused’s guilt: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]; Pell v The Queen [2020] HCA 12; 94 ALJR 394 at [37]-[39].
This is a case where the issue involved the credibility of the witnesses, in particular, Mr McCauley, although on the Crown case this was supported by circumstantial evidence. Much, although not all that evidence, was the subject of agreed facts.
To have convicted the appellant the jury must have, considering the whole of the evidence, accepted the credibility and reliability of Mr McCauley in respect to those counts. That was in a context where the jury were properly directed, and in particular, a direction was given warning the jury about the need to carefully examine the evidence of Mr McCauley, to which no complaint is made.
The appellant identified in written submissions sixteen factors which he said were reasons that cast doubt on the jury’s ability to be satisfied of the reliability of Mr McCauley’s evidence. The appellant chose not to advance any oral argument in support of this ground, and therefore did not provide assistance as to the purported significance of the various points raised. That said, it is plain from the independent examination of the evidence that the factors considered singularly and together do not give rise to the conclusion that the verdicts were not open to the jury.
Three of those factors related to the circumstances in which Mr McCauley gave evidence, being an accomplice with prior convictions.
A number of the factors were no more than general assertions, unreferenced or not particularised in the written submission and unelaborated upon in oral submissions (for example, “[h]is evidence was vague and general in nature”).
A number of the factors are not borne out on a proper reading of the evidence. For example, the factor identified as “Mr McCauley’s evidence that he ‘wouldn’t call it a benefit’ when being asked about whether he was obtaining a benefit from giving evidence in that he was given immunity in relation to his other criminal enterprises”. The answer from which that quote was taken was in fact “wouldn’t call it a benefit, but somewhat yes”. The evidence thereafter provided more context to that answer where, inter alia, Mr McCauley accepted that he had a “pretty good deal”. A further such example, is the appellant’s assertion that Mr McCauley “could not give evidence about how his alleged supply relationship with the appellant commenced”. The single transcript reference provided by the appellant for that proposition does not bear that out. Read in context Mr McCauley did give evidence of how the relationship commenced.
Some factors relied on by the appellant broadly asserted, without any elucidation, an inconsistency between Mr McCauley’s evidence and other evidence. When the evidence is properly considered, no such inconsistencies necessarily exist. For example, the assertion as to “[t]he inconsistency of his evidence that he needed the appellant to show him about (sic) to import drugs noting his own criminal history for that offence”. As was observed during the hearing there was no evidence in the trial as to the nature of Mr McCauley’s prior conviction. This is in a context where it can be accepted that there are many different means by which an importation can be effected. Mr McCauley’s evidence as to the importation with the appellant made it clear that this particular type of importation and the drug to be imported, were matters he was not familiar with. Rather, his evidence was that it was the appellant who had the necessary contacts to source and on sell the drugs once obtained. As explained below, there is some circumstantial evidence supportive of this.
Some of the factors advanced by the appellant allege that there was no corroboration as to certain aspects of Mr McCauley’s evidence. There is no requirement for there to be corroboration. That said, there was circumstantial evidence which, taken together, showed or tended to show that the evidence of Mr McCauley that the appellant committed the crime is true. It confirms, supports or strengthens his evidence in the sense that it renders his evidence more probable: see for example Doney v The Queen (1990) 171 CLR 207 at 211.
The appellant’s submission did not refer to any of the circumstantial evidence relied on by the Crown to support the evidence of Mr McCauley.
The appellant accepted during the hearing that the circumstantial evidence identified by the Crown “could be a level of corroboration” but that there are hypotheses consistent with innocence in relation to pieces of the evidence. This approach was illustrated by the appellant’s submission in relation to the notebook which contained handwritten notes of names of drug suppliers on the DarkNet or the dark web. The appellant’s submission was that looking at this item of evidence alone there are other explanations for it. However, “neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal”: The Queenv Hillier [2007] HCA 13; 228 CLR 618 at [48]. The circumstantial evidence said to support Mr McCauley’s evidence is to be assessed in the context of all of the evidence admitted in the trial. The approach adopted on appeal in this matter in relation to aspects of the evidence admitted in the trial was inconsistent with authority.
Although the circumstantial evidence was not enough by itself to found a conviction, it was capable of supporting Mr McCauley’s evidence.
As noted above, the appellant’s house was searched on 22 March 2017 during which the police found a notebook which contained handwritten notes with names, for example “Benzochems”, “GodsGameUK” and “The Mailman”, which the evidence established were the names DarkNet drug vendors. It will be recalled that Mr McCauley’s evidence in relation to the importation included that the appellant knew how to source the drugs and that the payment was made using bitcoin. Evidence was led identifying the names as sellers of drugs on the DarkNet, and of how such transactions occur and the use of cryptocurrencies such as bitcoin. During the same search $22,900 cash in bundles of $100, $50 and $20 notes, secured by a rubber band in an envelope inside a tissue box, was located. The appellant’s DNA was on the rubber band and envelope. The DNA of Kyle Butkovic, a person who Mr McCauley said he and the appellant dealt with, was also on the envelope. Mr McCauley gave evidence that initially Mr Butkovic paid him directly for the drugs, but later he paid the appellant.
This was in a context where an earlier search, conducted on 2 February 2017 also located hidden behind the bottom drawer of a wardrobe $22,200 in cash, with the bundles of notes being secured by rubber bands. There was also handwritten notes listing names next to amounts. There was a Telstra pre-paid receipt with a handwritten telephone number, which was Mr Butkovic’s telephone number. A small amount of MDMA was located, which was the subject of the summary charge.
The bundle of cash located by the police in each of those searches, the $22,200 and $22,900, were the basis of counts 10 and 11 respectively.
There was also a search of his premises on 2 March 2018, which revealed five cannabis plants, hydroponic lights, fertiliser, a Samsung phone with encryption software, and various financial documents.
As referred to above, the police searched the home of Mr Conomos on 4 January 2017. It will be recalled that Mr McCauley gave evidence that he was provided certain amounts of particular types of drugs which he said he supplied to Mr Conomos (which is the subjects of counts 6, 7, 8 and 9). The four kinds of drugs seized from Mr Conomos’ residence during that search were of the same kind and in no greater quantities than those Mr McCauley said were supplied by the appellant to him and Mr Klemke, and then supplied on to Mr Conomos.
In addition to the evidence located during the searches there was other evidence capable of supporting Mr McCauley.
For example, there was the evidence from Mr McCauley’s mother with whom he was living during the relevant time. Mrs McCauley gave evidence that she had seen her son bring home items of luggage with marijuana in them. She said she had seen a pound bag of marijuana inside a Cryovac bag inside one of the pieces of luggage. She had seen on more than one occasion, the appellant attend her home and pull out a large suitcase from the back of a new Mercedes or BMW and hand the suitcase to Mr McCauley. Mr McCauley’s evidence was that the cannabis was given to him by the appellant in suitcases.
There were also conversations recorded by listening devices or telephone intercepts in which the appellant, Mr McCauley and others discussed matters relating to their drug dealings.
For example, a conversation at 6.11pm on 27 July 2017 between Mr McCauley and the appellant arranging to meet at Ainslie shops and a conversation shortly thereafter at 7.05pm, between Mr McCauley and an unidentified male in which Mr McCauley refers to having “M”s. The evidence was that “M” is a reference to MDMA. This was in the context where Mr McCauley gave evidence that he met the appellant at those shops that day and the appellant supplied to him some MDMA or methylone in a bag. Shortly thereafter Mr McCauley was arrested at his home. At that time Mr McCauley gave his Blackberry and drugs to his mother to get rid of. Although, as the appellant correctly points out, Mrs McCauley said she did not have the phone, she did give evidence that she buried the drugs she was given by her son.
There was also a conversation on 8 December 2017, between Mr McCauley and the appellant where there was discussion of debts and money owing, and reference to drugs including to “M” and a discussion about various aspects of drug dealing. It appears that McCauley gave the appellant $900 in part repayment of the debt owed to him. This meeting was in person and was observed by the police.
There was a conversation on 22 February 2018 between Mr McCauley and the appellant, at which time Mr McCauley was assisting the police, during the course of which the appellant described how Mr McCauley could source drugs over the internet and the use of bitcoin to purchase whatever is being bought. The appellant expressed his concern that Mr McCauley was going to end up back in gaol and he, the appellant, was not going to get paid. There is conversation that relates to the appellant’s debt to him. The appellant said to Mr McCauley “once - your thing’s wiped as well…”…“You get that thirty for me, like that’s it. Bro, do you know how fucking good that is for you?” The appellant told Mr McCauley not to do any searching or buying on the internet until he sorted “out my thing first”. We note also that the reference to $30,000 is also made by the appellant in a text message to Mr McCauley. This meeting was in person, and was observed by the police.
There was also evidence from friends and associates which included the possession and use of cash. There was evidence from a friend that he used two phones, one of which did not have a camera. Another friend gave evidence that in about April 2017 he admitted that he had previously dealt various drugs and that the police had raided his house and that she had seen the appellant had, but did not use, cannabis at his house.
There was evidence capable of being regarded as unexplained wealth when considered against the low income suggested in the Australian Taxation Office’s records for the appellant and his employment records, including: (1) the $22,200 cash located behind the drawer of a wardrobe during the search of the appellant’s residence 2 February 2017; (2) the $22,900 cash located during the search of the appellant’s residence on 22 March 2017; (3) the appellant’s ownership of multiple motor vehicles including: a 2000 BMW Z3 convertible; a 2002 Subaru Forester station wagon, a 2014 Mercedes CLA445 sedan; a 2006 BMW 320i sedan; and a 2003 Volkswagen Golf sedan; (4) the appellant’s purchase in 2017 of a café for $80,000; (5) the appellant’s payment of a deposit of $20,450 on a block of land in Taylor, ACT; (6) the appellant’s purchase of a business in about December 2017 called “Grand Concepts” which supplied kitchen and bathroom supplies; (7) cash deposits into his Commonwealth Bank account totalling $88,604.83 between 20 January 2014 and 13 February 2017.
It is not suggested that all the purchases were in cash, and it may be accepted that in relation to at least one of the cars a loan was obtained. However, that does not detract from the use to be made of the evidence, as any loan must have been able to be serviced by the appellant. During the period in which these purchases were made and the over $40,000 in cash located, the appellant declared very limited income by comparison to the Australian Taxation Office. For example, in 2015 the appellant received $4,972 in Newstart allowance; in 2016 the total income declared was $11,928 (including $2,762 in Newstart allowance); in 2017 (between 1 July 2016 and 31 January 2017) a salary of $33,948 was declared.
This is also in a context where despite the fact that the police seized $22,200 in cash in February 2017, within six weeks the appellant had $22,900 in cash in his premises.
We have considered the appellant’s arguments both in this Court and below as to the interpretation of the circumstantial evidence, but as noted above, it was premised on considering aspects of that evidence in isolation. For example, accepting, as the appellant submitted, that there is no handwriting evidence in respect to the handwritten note containing references to the DarkNet located on 22 March 2017 in the appellant’s residence and that it may have been found in the lounge room of the premises, that piece of evidence is not to be considered in isolation. When considered with the other evidence, for example that of Mr McCauley and the circumstantial evidence referred to above, together the evidence is capable of supporting Mr McCauley’s evidence. Similarly, we have taken into account the appellant’s reliance during the hearing on a text message exchange between Mr McCauley and Mr Klemke, which was exhibit AF in the trial, which the appellant contended was inconsistent with Mr McCauley owing money to the appellant. Again, that is not a matter to be interpreted or considered in isolation. Considered in its context, there is not necessarily any relationship between representations made by Mr McCauley to the appellant on the one hand and Mr McCauley and Mr Klemke on the other.
It also may be accepted that Mr McCauley may not have been precise about matters like dates and times of particular transactions, although as the respondent submitted this is in the context of giving evidence about a course of drug dealing between himself and the appellant over a reasonably lengthy period of time. That said, he was able to estimate ranges of time in which events occurred by reference to particular events, such as the police raids. As noted above, although the appellant submitted that Mr McCauley’s evidence was vague and general, nothing was identified in support of that proposition.
The respondent referred to the passage from MFA v The Queen [2002] HCA 53, 213 CLR 606 where McHugh, Gummow, and Kirby JJ observed at [96]:
There are, it is true, some aspects of the evidence that are less than wholly satisfactory but that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law as they were in this case, are usually well able to evaluate conflicts and imperfections of evidence…
Bearing in mind the need to scrutinize Mr McCauley’s evidence and the reasons for that being, inter alia, that he was an accomplice who had received an immunity, an assessment of the evidence reflects that it was open to the jury to be satisfied about the guilt of the appellant in relation to the counts on which he was convicted. It cannot be said that the jury must have entertained a doubt. Rather, in addition to his evidence, there was evidence which was capable of supporting his account that the nature of the relationship between himself and the appellant, was as he described, being one of drug dealing. There was evidence which supported his version of events, in that it rendered it more probable. It was open for the jury, who had the benefit of observing the witnesses in the trial give evidence, to be satisfied of the appellant’s guilt.
This ground has not been established.
Conclusion
Leave to appeal on ground 4 is refused. The grounds of appeal have not been established. Accordingly, the appeal against the appellant’s convictions is dismissed.
| I certify that the preceding ninety-seven [97] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Loukas-Karlsson and Justice Abraham. Associate: Date: 25 November 2020 |
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