R v Bennett No. Sccrm-99-86, Sccrm-99-110 Judgment No. S357

[1999] SASC 357

R v BENNETT
[1999] SASC 357

Court of Criminal Appeal: Millhouse, Duggan and Lander JJ

1 Millhouse J.  By verdict of a jury, the appellant has been convicted of possessing heroin for sale.
2 On 5 June 1998, on the Port Road at Hindmarsh, he was the front seat passenger in a red Nissan Pulsar motor car driven by Ricardo Pisera.  It was a vehicle which had been hired by a woman of the same address as Pisera.
3 Two police officers were driving down the Port Road from Adelaide when their attention was drawn to a car parked near a telephone box near the Entertainment Centre.  Then a BMW drew up behind the first car.  The officers went to a hotel to keep watch and to see what would happen.  The red Nissan came along and stopped behind the BMW.  Two men approached the passenger side of the Nissan.  The officers ran out of the hotel towards it.  One, Detective Minchinberg, went to the driver's side, the other, Constable Featherby, to the passenger's.   Minchinberg saw the passenger, the appellant, stuffing plastic and white powder into his mouth and swallowing it all.  One of the men outside the car also swallowed something but he ran away.  Featherby saw plastic in the appellant's mouth.
4 The appellant was taken out of the car and searched.  He had $100 in his pockets and there was another $890 in his lap.  He was arrested and taken to the Queen Elizabeth Hospital.  Two days later he excreted five alfoil packets either containing heroin or the derivatives of heroin when it is broken down.
5 In the car was a mobile telephone, traced to the driver, Pisera, through his mother.  After the arrest the police took several incoming calls on the phone from people asking for "Len" or "Lennie" and that he should meet them at various places.  The police found at the appellant's flat $3,500.  They also found another mobile phone and a pager, neither of which was working and scales which measured accurately only weights of a gram or more.
6 There was no question but that the appellant had been in possession of heroin.  The point at trial was, before he was arrested was he the buyer or the seller?
7 So much money was one piece of circumstantial evidence but the Crown went further and, over the protests of the defence was permitted by the Learned Trial Judge to adduce evidence of three other incidents in the preceding couple of weeks.  That the Learned Trial Judge allowed in this evidence is the main cause for complaint on appeal.
8 On 22 May 1998 an off-duty police officer, Jacobs, went for a swim at the Aquatic Centre at North Adelaide.  Afterwards, in O'Connell Street, his attention was drawn to people near a telephone box.  He was suspicious so he stayed to watch what would happen.  A brown Ford stopped near the people.  The Ford then turned west into Childers Street and Jacobs lost sight of it.  Jacobs himself drove to Gover Street and turned north into Fenchurch St at its southern end (the northern end forms a junction with Childers St).  He saw a brown Ford outside the rear of 163 O'Connell St.  Strictly it may have been another brown Ford but as Miss Trish Kelly for the respondent remarked, it defies belief that it was.  Jacobs took the number.  It was registered in the name of the appellant.
9 Jacobs saw a man, now known to be John Clarke, come out of the back of 163 O'Connell Street.  He appeared to hand to the driver of the Ford a parcel which in evidence Jacobs described as being of "novel size".  I suppose this means it was the size of an average book.
10 Nothing more happened on 22 May but on 26 May Jacobs and other police officers were keeping watch on 163 O'Connell Street.  They were rewarded by seeing the brown Ford pull up again at the rear of the premises in Fenchurch St.  Again Clarke came out and spoke to the driver but that was all the police saw.
11 The brown Ford drove away and a police officer, Wood, stopped it in Jeffcott St.  The appellant was driving.  He was searched.  He had $1,200 in his wallet, $60 in his shirt pocket and another $995 was found in the car.  The police also found two plastic bags, one of which contained traces of heroin.
12 An hour and a half after the appellant had left 163 O'Connell St the police searched those premises.  The place was a liquor industry training school.  A number of people were there, including John Clarke's mother.  She was in possession of a wallet, obviously from its contents belonging to her son.  Amongst those contents were $350 and a taste of heroin (worth approximately $50.)
13 On 4 June 1998 the police were watching and following a red Nissan Pulsar motor car.  There was a passenger besides the driver.  The two men were male, dark haired, each in his late twenties.  The accused was not identified as either man and the descriptions given of these men did not fit very well with how the appellant looked the next day.  One police officer, Foulis, described the passenger as having a mole on his cheek.
14 The Nissan drove about, stopping at several places.  The police saw it at twelve different locations at which people would approach the passenger side of the Nissan, put a hand through the window momentarily and leave. Mr Adam Richards for the appellant argued that from these observations one cannot tell what was going on and one cannot immediately assume the people were engaged in a drug deal.  The exact nature of the activity was never discovered.  However, when pressed to provide an alternative explanation, Mr Richards suggested that maybe each was merely shaking hands with the passenger in the Nissan, an old friend.  As I remarked, if this had happened once or even twice, maybe - but 12 times!  No!  I don't think anyone would accept this submission of Mr Richards' as a reasonable possibility.
15 No one was stopped or spoken to on 4 June, but it was the same red Nissan Pulsar as the one in which the appellant was a passenger the next day.
16 Was the evidence of the incidents on 22 May, 26 May and 4 June relevant?   Was it probative in the sense of shewing propensity?   If so, did its probative effect outweigh the prejudice to the appellant?
17 Admittedly the appellant was not identified on 22 May and 4 June.  The relevance of these incidents becomes obvious when combined with other evidence.  In relation to 22 May, it was his car involved and he was positively identified as its driver on 26 May.  The car seen on 4 June - pretty obviously being used in the course of drug deals - is the car in which the appellant was a passenger on 5 June - the day when he was seen swallowing the plastic bags containing heroin.
18 Finally, before I come to the law, I mention that the appellant did not give evidence nor did anyone else on his behalf.  What had gone on remained unexplained.  The Crown was left to prove the case if it could.
19 The learned Chief Justice, Bollen J concurring, considered the same point amply in R v Hill (Judgment No. S5975.1, delivered Christmas Eve 1996). He went to the joint judgment of Mason CJ, Deane and Dawson JJ in Pfennig v The Queen [1995] 182 CLR 46, and cited the passage @ 482-483:-
"Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such.  But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.  Here 'rational' must be taken to mean 'reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case.  Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect."
20 This is the test to be applied here.   Is there a rational view of the evidence consistent with the appellant's innocence?   I can think of none.  The explanation offered by Mr Richards for the activities on 4 June was, with respect to him, quite bizarre, really ridiculous - driving round, quickly shaking hands with old friends!  As for what was taking place on 22 and 26 May, Mr Richards had no explanation.  Maybe because there is no explanation consistent with the appellant's innocence.  What happened on 26 May is pretty damning.  The appellant was in possession of a lot of money after having had contact with Clarke.  The brown Ford was stopped and searched revealing two plastic bags, one containing traces of heroin.  Clarke's premises were searched, and his wallet found with a taste of heroin.  His mother had the wallet, probably a ruse to escape detection.  It's hard to find an explanation which points away from some type of drug deal.  The incident on 22 May gains it colour from the incident on 26 May.  Jacobs on 22 May saw the brown Ford, driven by the appellant, stop outside Clarke's premises.  Clarke handed the driver a parcel.  By itself there could be an innocent explanation but hardly in the light of what happened on the 26th.
21 The appellant was an admitted user of heroin but denies he was a seller. The combined evidence suggests that he was. The evidence of the activities, other than on 5 June, is all one way - lots of loose cash on his person, in his car and at his flat and moving about from place to place making contact with other people.  He could not, rationally, have been buying from them all!
22 For these reasons the probative force of the evidence outweighs its prejudicial effect.  It was properly admitted.  That disposes of the main point of the appeal against conviction.
23 Mr Richards argued a further point.  It concerns the mole (or moles, as I shall explain) on the appellant's cheek.  I have already mentioned that one police officer gave evidence of it.  Apart from that evidence, unfortunately, no other reference was made to the matter until the addresses of counsel.  The Crown Prosecutor said:-
"... but what Foulis told you was the man in the passenger seat, among other things, had a mole on his cheek and you can probably see, from where you are, the accused has, on his cheek, at least one such mole."
24 When he was addressing Mr Richards said:-
"     My friend says that it was a male that was present, and that Detective Foulis noticed that the male had a mole on one cheek and that you may be able to see it from there.  I have to address it because we don't actually have any evidence on that point at all, but you're not blind, and I'm willing to bet some of you might have some difficulty seeing any mole on a cheek of this accused. Now, some of you, with keen eyesight may see three moles on the cheeks of the accused, others may be able to see nothing at all."
25 Mr Richards now complains that the Crown Prosecutor should not have said what he did because it was "evidence from the Bar table".  The members of the jury may not have been able to see any mole.  Mr Richards' point is weakened, rather, by his own acknowledgment in his address that some jurors "with keen eyesight" may have seen three moles.
26 It was unfortunate that there was no evidence of the mole (or moles), apart from Foulis' but not, I think, fatal for the Crown. The mole, or moles, were there to be seen by jurors if they could.  Reference was made to them by defence counsel so the jury would have taken that the appellant did have a mole.  It had become common ground at the Bar table.  In any case Judges ask jurors "to watch as well as to listen" to an accused and witnesses.  Appearance and demeanour are important.  I cannot see any difference with physical characteristics. The point fails.
27 I suggest the appeal against conviction be dismissed.
28 There is also an appeal against the penalty of five years and six months imprisonment with a non parole period of two years and eight months.  As well, the Learned Judge ordered the confiscation of $6,745, cash seized, and other things connected with drug use.
29 Mr Richards argued that in the light of penalties imposed in other similar cases, this penalty was "manifestly excessive": that his client should have been sentenced as if this were a one off thing.  I cannot accept that.  The 5 June incident was part of a course of conduct. As I have said, there is no other explanation for the activities in evidence.
30 The Learned Sentencing Judge quite rightly said:-
"     The evidence clearly gave rise to the inference that you were in the business of trafficking in drugs, you were a street trader.  Your method was that your regular customers would call you on a mobile telephone, which you had either in your car or, on the day in question, in a rented red Pulsar motor car.  The arrangements would be made for you to meet your customers in a particular place and at a particular time.  Either you or, in the circumstances of the present case, your driver, Pisera, would stop the car.  The customer would come to the front passenger window.  The transaction would take place and you or your driver would then drive off to the next location."
31 Miss Kelly referred to R v Mangelsdorf [1995] 66 SASR 60 and submitted that the head sentence was within range. I accept that it is.
32 The same goes for the non parole period.  The appellant has quite a record beginning in 1988.  A number of the convictions is for drug offences.  He was far from being a first offender and there is not much in his record to encourage hope of reformation: not a good candidate for parole.  If anything the non parole period is a bit low.
33 I suggest that the appeals both against conviction and sentence be dismissed.
34 DUGGAN J. I agree with Millhouse J that there was sufficient probative value in the evidence of the other incidents relied upon by the prosecution to transcend any prejudicial effect which those events might have possessed. The events on these other occasions, when considered in their totality, raised the objective improbability that they and the incident which led to the charge were related to some activity other than the selling of drugs by the appellant. (Pfennig v The Queen (1995) 182 CLR 461 at 484). In my view no reason has been made out to justify the setting aside of the verdict of the jury.
35 I also agree that the appeal against sentence should be dismissed.  The learned judge sentenced the appellant on the basis that he was a street trader.  It is true that his Honour referred to the conduct as forming part of a series of criminal offences of the same character.  However I do not think that he fell into the error of punishing the appellant for offences other than that for which the appellant was convicted.  It was open to the court to categorise the offence as street trading and not an isolated transaction.  The evidence of the appellant's conduct on the other occasion was relevant for this purpose.
36 Considered in this light the sentence is not manifestly excessive.
37 LANDER J.        I agree that both the appeal against conviction and the appeal against sentence should be dismissed for the reasons given by Millhouse and Duggan JJ.

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