R v Bera

[2001] NSWCCA 205

Reported Decision: (2001) 119 A Crim R 552

New South Wales

Court of Criminal Appeal

CITATION:	R v Bera [2001] NSWCCA 205
FILE NUMBER(S):	CCA 60307/00
HEARING DATE(S):	4 May 2001
JUDGMENT DATE:	24 May 2001
PARTIES :	Regina v Frank Bera
JUDGMENT OF:	Stein JA at 1; Foster AJA at 55; McClellan J at 56

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 98/12/0092
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

COUNSEL :	P Bodor QC (Appellant) M Grogan (Crown)
SOLICITORS:	Gregory J Goold (Appellant) S E O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW - supply of not less than the large commercial quantity of methylamphetamine - s 25 Drug Misuse and Trafficking Act 1985 - joint possession for supply - requirement of knowledge - inference of knowledge as to quantity from circumstances - D
LEGISLATION CITED:	Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Criminal Appeal Act 1912
CASES CITED:	Fleming v The Queen (1998) 197 CLR 250 R v Winner (1995) 79 A Crim R 528 M v The Queen (1994) 181 CLR 487 R v Schubert [2000] NSWSC 1127 (Unreported, 5 December 2000, Greg James J)
DECISION:	Leave to appeal granted; Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL
60307/00

STEIN JA

FOSTER AJA
McCLELLAN J

Thursday, 24 May 2001

Regina v Frank BERA

JUDGMENT

1    STEIN JA:

Introduction

2 This appeal is confined to a single ground of appeal, that of an unreasonable verdict. However, counsel for the appellant, in his submissions, developed a sub-set of the ground contending that the learned trial judge failed to comply with the requirements of s 17 of the Criminal Procedure Act 1986 in that he failed to include in his judgment the principles of law applied and the findings of fact relied on.

3    As Fleming v The Queen (1998) 197 CLR 250 makes plain, such an omission is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act 1912.

4 The appellant, Frank Bera, was indicted before Woods DCJ on two counts under s 25(2) of the Drug Misuse and Trafficking Act 1985 (the Act). He pleaded guilty to knowingly taking part in the supply of not less than the commercial quantity of methylamphetamine between 20 May 1997 and 20 September 1997. That is, a quantity in excess of 250g but less than 1kg.

5    He was also charged with the supply on 19 September 1997 of not less than the large commercial quantity of methylamphetamine. That is, over 1kg. He pleaded not guilty to this charge and the trial proceeded before his Honour without a jury.

6    On 3 March 2000 his Honour found the appellant guilty. On 2 May 2000 his Honour imposed a fixed term of imprisonment of 3 years from 27 November 1999 with respect to the first count, to which the appellant had pleaded guilty. With respect to the second count, his Honour imposed a total sentence of 7 years imprisonment, comprising a minimum term of 4 years to date from 27 November 1999.

7    The brief facts are that as part of a police investigation into drug operations, electronic surveillance of the home of David Parker at 22 Vaisey Close, Kariong, was carried out. This included a listening device and telephone intercept. A number of tapes, recorded between 27 May 1997 and 19 September 1997, were admitted into evidence. They revealed a relationship between the appellant and Parker concerned with the supply of drugs. A listening device tape recorded on the telephone of Les Kalache revealed a relationship for the supply of drugs between Parker, Kalache and the appellant.

8    On the 14 September 1997, five days before the arrest of the appellant and Parker, a listening device recorded the appellant and Parker discussing amounts of amphetamine and preparing it into packages. I will return to the transcript of this tape later.

Summary of Facts

9    Some time before 6.14 am on 19 September 1997 the appellant arrived at Parker’s house at Kariong in his own motor vehicle. At 6.50 am the appellant drove Parker’s car out of the home with Parker travelling as a passenger. Acting on police instructions a highway patrol vehicle pulled the car over at Wahroonga and gave the appellant driver a random breath test. Parker was seated in the front passenger seat. At 7.50 am investigating police arrived and the car was searched. In the rear passenger floor of the car a black and brown sports bag was located wrapped in a blue spray jacket. Inside the bag were plastic bags containing a powder substance found to be methylamphetamine having a combined weight of approximately 1.885kg. A number of the bags were wrapped in a white paper towel with pictures of ducks along the edge. The paper towel was wrapped in some pages of the Daily Telegraph dated 18 September 1997.

10    Both the appellant and Parker denied knowledge of the bags and both declined to participate in an ERISP.

11    There were no finger prints found on any of the items. A search warrant was executed at Parker’s house later in the day. Paper towels with a border of ducks was found, as well as a Daily Telegraph of 18 September 1997, which was missing two pages.

The judgment of the Primary Judge

12    His Honour commenced his decision by directing himself on the standard of proof and that the case was one where the Crown alleged joint possession for supply with Parker under the extended definition of supply in the Act. Also in his introduction, his Honour alluded to the requirement of knowledge, including knowledge of the quantity of the drug involved. His Honour noted that the quantity of the methylamphetamine in the motor vehicle was 1.99kg, which exceeded the definition of large commercial quantity in the Act, which is 1kg. In fact, the quantity was 1.885kg (not 1.99kg) but I do not think that anything turns on the faulty arithmetic.

13    The trial judge also noted that it was the Crown case that the knowledge of the accused was a matter of inference from the circumstances surrounding the commission of the alleged offence. He continued:

I am therefore obliged to direct myself in terms of the requirement of proof of circumstances. The relevant test is that the Crown must demonstrate that there is no other reasonable hypothesis than that for which it contends which is available, and in this case the Crown contends that the knowledge is knowledge which in shorthand may be referred to as “wilful blindness”.
The High Court has indicated that where that term is used, care must be taken to ensure that the tribunal of fact is aware that the question remains at all times one of actual knowledge and it is never the case that if (sic) something less than knowledge may be treated as satisfying a requirement of actual knowledge.

14    His Honour then recited the facts of the case, repeating that the case was one where the prosecution alleged joint possession on the part of the appellant and Parker. In this regard, his Honour instructed himself that proof of possession required proof of knowledge that the drugs were in the car; proof of knowledge of the quantity of drugs and proof of knowledge of a purpose to supply.

15    The trial judge then referred in some detail to the listening device tape of 14 September 1997, five days before the arrest. In particular, he discussed the references therein to quantities of drugs, ‘elbows’ and ‘fourteen pounds’. He then made reference to the oral evidence of the appellant in which Mr Bera admitted that he participated in the cutting up or breaking up of drugs into smaller amounts on 14 September 1997 and that this involved a fairly large quantity. The appellant also accepted that 14 pounds was the amount of drugs being prepared on that date.

16    Woods DCJ observed that the appellant denied that he knew what was going to happen on 19 September 1997. With regard to the defence case, his Honour accepted that there had been a falling out between the appellant and Parker on 17 September 1997 over the appellant gambling away $8,000 of Parker’s money. His Honour accepted that this placed a considerable strain on the longstanding friendship and resulted in the appellant’s effective demotion to the role of Parker’s driver.

17    The trial judge noted that when the appellant arrived at Parker’s house early in the morning of 19 September, he went inside but did not discuss drugs and that the appellant did not carry the bag of drugs to the car. His Honour also recorded that the appellant was not the source of the drugs.

18    His Honour referred to the appellant’s evidence that no mention was made by Parker of the bag, which the appellant said he did not notice, and no mention was made by Parker as to what was to happen that day.

19    Reference was also made to exhibit 5, being a tape of a conversation between Parker and Brett on 17 September 1997, where it was said that the appellant was a ‘goat’, referring to Bera’s gambling away of Parker’s $8,000.

20    His Honour referred to the submission of the accused’s counsel (Mr Rowe) that it was a reasonable hypothesis that his client may not have known of the drugs in the car since he was demoted by Parker to the role of driver and that he may have thought that the trip was for some innocent purpose.

21    Of this submission his Honour said:

However, taking into account the whole of the evidence of the relationship between Parker and Bera, I am driven to the conclusion that this is merely fanciful. Before 19 September, Bera well knew that Parker was a major drug dealer. …

22    He continued:

Bera used to drop money off for Parker, the drug dealer … Mr Bera denies dropping drugs off from Parker to Kalache … but in the light of the whole of the evidence, I do not accept this denial.
His explanation of the relationship between Parker and Kalache … was unconvincing and I reject it. Only five days before the arrest, Parker was involved in a discussion with Bera about cutting the drugs to create quantities made up in pounds weight. …
The conversation included reference to fourteen pounds and Bera’s answer that he had no idea what fourteen pounds referred to is unconvincing and I reject it. The hiccough in the relationship between Bera and Parker which arose through Bera gambling away $8,000 of money, (which I infer to be the proceeds of drug sales, although, that is not a necessary foundation of my judgment) did not alter Bera’s knowledge of Parker activities.

23    Woods DCJ concluded:

… not only that Bera knew on the nineteenth that the car trip would somehow be related to drugs: I have no doubt that he well knew, (a) that Parker was going to and did use the trip as a mans of conveying a very large quantity of methylamphetamine; (b) that the quantity involved was well in excess of a large commercial quantity; and (c) that the purpose of the exercise was unlawful supply of the drug.
The alternative hypothesis advanced by Mr Rowe and carefully and diligently argued by him on behalf of his client, I do not find reasonably credible so as to raise any doubt in my mind.

24    Accordingly, it was concluded that the appellant knew the drugs were in the car and that the quantity exceeded 1kg. Furthermore, he and Parker were found to have had joint possession for the purposes of supply within s 3 of the Act. The appellant was accordingly found guilty.

The appeal

25    In order to understood the case before the District Court it is necessary to comprehend the content of the surveillance evidence and the appellant’s evidence, including his responses to questions about the content of the tapes.

26    The surveillance evidence covers a period of almost 4 months, from 27 May 1997 to 17 September 1997, two days before the arrest. It includes conversations between, inter alia, the appellant and Parker, the appellant and Kalache, and Parker and Kalache and others. The subject matter of the conversations is often drugs, and on occasions, quite large amounts of drugs.

27    For example, the conversation between the appellant and Parker on 21 August 1997, less than a month before the arrest, contains references to 8 pound, to 5 pounds and 4 pound. In his evidence the appellant conceded that this was a conversation about the preparation for drug dealing and his involvement with Parker in dividing up quantities of drugs.

28    His Honour highlighted the importance of exhibit Y, being the tape of the 14 September 1997. As his Honour observed, this was only five days before the arrest. I will set forth some extracts from this transcript. FB is the appellant Frank Bera and DP is David Parker.

FB Make up another four.
DP What, are you gonna take it home and leave it at home? I know what you do, is you roll it up in a pair of socks and your mother won’t find it.
[Pause]
FB I don’t wanna leave it in the car (ind)
[Pause - Background noise]
FB (ind) this one.
DP Eight hundred. There’s eight hundred…..there’s hundred and twenty-five, I suppose (..ind..) one up. I’ll just fuckin’, I’ll make, I’ll just turn all those into fuckin’ elbows.
FB Hundred and twenty-five? How much is that, one hundred and twelve?
DP Yeah.
FB Make another one (..ind..) rest (..ind..)
DP Yeah I know, I’m just wondering about where we are going to put it.
FB What you are going to do.
DP I’ll must make it all up for (ind), I don’t give a fuck (..ind..) fourteen pound.

…

DP Where the fuck is he? See if I got to….I’ll just give Les um… Four-fifty. Which is five ninth’s, and I’ll make up the other one.
FB You’re not going to make ‘em up?
…
DP You know the (ind) way of doing five deals, I was thinking it might be better off just to do fuckin’ ten. You know what I mean? Better for me anyway.
FB Yeah.
DP If you give him made up. Seventy-five. I get ten and I have made one seventy-five so that’s eleven… So I can get Chris one and him ten. Do you know what I mean? All up. …

29    An ‘elbow’ is the colloquial drug term to describe one pounds weight. A pound is about 454g, thus 450g is about one pound or one elbow. One kilogram is a little in excess of two pounds (which is 908g). To be more precise 1kg equals 2.205 pounds. Fourteen pounds would be about 6kgs.

30    The appellant was cross-examined about the tape of the 14 September 1997. He agreed that he and Parker were preparing ‘speed’ into packages. Further, he recalled being at Parker’s home on the occasion when drugs were being broken up into small amounts. While the appellant denied knowing the quantity, he accepted that the reference to ‘elbows’ suggested a fairly large quantity. He was somewhat less forthcoming on the reference to 14 pounds.

31    Some of the other surveillance evidence may be briefly mentioned. The tape of 27 May 1997 clearly shows the appellant’s knowledge of and participation in drug supply by Kalache and Arthur Launt. The tape of 23 June 1997 also reveals the appellant’s participation in drugs with Kalache. See also, the tape of 27 June 1997.

32    The conversation between the appellant and Parker of 8 August 1997 (Ex K) is illuminating. Parker tells the appellant that his dog dug up ‘one and half elbows’ which had been buried in his garden. Parker told him that the dog had chewed a hole in every bag. However, Parker made it clear to the appellant that it was not ‘all gone’ - ‘only one and a half’. In his oral evidence the appellant agreed that it was amphetamines which were buried by Parker. At this point in his cross-examination the appellant was a little more candid (than earlier) and agreed that by 8 August 1997 he realised that Parker was heavily involved in drugs and most probably was a major trafficker.

33    The tapes of 10, 13 and 18 August 1997 also reveal the appellant’s involvement in drugs with Parker.

34    One of the tapes of 21 August 1997 (Ex ‘V’) also demonstrates the appellant and Parker discussing large quantities of drugs. Parker mentions ‘eight pound’ and ‘290 and 370’, later 2500 and 250, while the appellant refers to ‘that’s four pound’. Parker then says - ‘that’s four pound and five pound’. Earlier Parker refers to ‘make it to ten pounds worth’. This conversation looks remarkably like the two of them cutting up quantities of drugs. In cross-examination the appellant agreed that what was happening was the preparation for drug dealing and conceded that he was involved in the splitting up.

35    During my discussion of some of the surveillance evidence I have referred to parts of the oral evidence, particularly the cross-examination, of the appellant. However, the whole of his evidence bears reading. The Court of Criminal Appeal has none of the advantages of a trial court. We only have the black and white of the typed transcript. Quite clearly his Honour did not believe the appellant on crucial issues. The appellant’s credit was, of course, critical to his defence.

36    When the appellant’s evidence is examined, it is plain that he commenced by seeking to minimise his knowledge of drug dealings, particularly those of Parker. He started off by admitting that he knew Parker sold drugs but didn’t know that he (Parker) was heavily involved. While the appellant was prepared to admit that drug preparation happened in his presence, and that he was even involved in it, he was chary about any real knowledge of the quantities of drugs involved.

37    When pressed about his knowledge of Parker’s involvement in large quantities of drugs (amphetamines) he said that he didn’t know exactly ‘but I presumed’. Later, he was pressed further and conceded that he realised that Parker was heavily involved in drug trafficking.

38    When cross-examined about the 14 September 1997 the appellant accepted that he was prepared to assist Parker in dividing up and preparing the ‘speed’ into packages. However, he was careful to say that he had no idea of the quantity. When asked about the reference to ‘fourteen pounds’, he said that he had no idea what that was about.

39    His Honour quoted this part of the evidence in his judgment and clearly rejected the appellant’s denials. Was he entitled to do so?

40    The appellant’s evidence, as well as the surveillance tapes over a considerable period, make it plain beyond argument that he was deeply and intimately involved with Parker (and others) in the supply of amphetamines, often involving large quantities. He grew up with Parker and had been his very close friend for around 20 years. They spoke to each other almost daily. He collected moneys for Parker from drugs and gambling. His ‘errands’ for Parker sometimes involved delivering drugs. On occasions the appellant dropped money off to Kalache from Parker. He used drugs Parker gave him.

41    The appellant was eventually forced to concede that he knew that Parker was heavily involved in illegal drugs and most probably a major trafficker.

42    Woods DCJ, who had the benefit of assessing the demeanour of the appellant in the witness box, was entitled to reject the appellant’s crucial denials of knowledge of 19 September 1997. This is particularly so bearing in mind the context of the whole relationship between him and Parker revealed by the surveillance evidence and in the appellant’s own evidence.

43    It seems to me that his Honour was entitled to reject Bera’s evidence that Parker told him ‘just to drive around’ and that he had no idea what the purpose of the trip was, nor knowledge of the bag of drugs in the vehicle. The evidence was such that it was open to his Honour to conclude that the appellant’s answers were not credible. One significant piece of evidence was the appellant’s answer to the question: ‘Did it occur to you that the purpose of going to Sydney was possibly to do with a drug deal? His answer was equivocal - ‘Might have done but?

44    It further appears to me that when one examines the long time relationship between the appellant and Parker and, in particular, what Parker says to the appellant about their friendship when he ‘demotes’ him to his driver, it was open to his Honour to describe this as a ‘hiccup’ in the relationship but one which did not alter the appellant’s knowledge of Parker’s activities.

45    In my opinion, it was open to his Honour to conclude beyond reasonable doubt that the appellant knew that the car trip on 19 September 1997 would be related to drugs and that Parker was going to use the trip to convey a very large quantity of methylamphetamine. His Honour was entitled to find that the purpose of the exercise was the unlawful supply of the drug. No other reasonable hypothesis was available.

46    His Honour also found that the appellant knew that the quantity of the drug in the vehicle was well in excess of a large commercial quantity, that is, more than 1kg. As we know it was in fact 1.885kg. However, counsel for the appellant, Mr Bodor QC, submits that it was a leap of logic for his Honour to so find. There was no direct evidence and the remaining evidence was such that no inference could be drawn as to the quantity. Accordingly, he submits that the verdict was unreasonable and not supported by the evidence.

47    However, his Honour was entitled to reject the appellant’s evidence about his lack of knowledge of the quantity of drugs in the car on 19 September 1997. According to his Honour, the appellant was simply, not credible in his denials. Bearing in mind the very large quantities of amphetamine that the appellant was involved in preparing for supply only 5 days before, and also on earlier occasions, and the whole of the relationship with Parker over an extended period, his Honour was entitled to infer that the appellant knew that more than 1kg was present in the car on the date in question. In my opinion, the inference was properly open from the proven facts and does not involve any impermissible ‘quantum leap’. The inference drawn was justifiable and followed logically on the earlier findings regarding the evidence and the appellant’s credibility.

48    In my opinion, on a review of the whole of the evidence, it was open to the trial judge to find as he did. See R v Winner (1995) 79 A Crim R 528 at 541 (Kirby ACJ) applying M v The Queen (1994) 181 CLR 487.

49    I mentioned at the outset that the appellant also contended that the verdict was unreasonable on the basis of a failure of his Honour to comply with the requirements articulated by the High Court in Fleming. At para [28] the Court said that while s 33(2) of the Criminal Procedure Act (now s 17(2)) did not include the expression “reasons for judgment” the provision should not be satisfied ‘merely by a bare statement of the principles of law that the judge has applied and the findings of fact’ made. ‘Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached’.

50    In Winner, Kirby ACJ opined that it would not seem necessary for the judge to expressly refer to rudimentary and uncontested principles. However, the judge’s reasons must be adequate and appropriate to sustain the orders. He continued

But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind or errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal. [at 531]

51    In R v Schubert [2000] NSWSC 1127, Unreported, 5 December 2000, Greg James J had occasion to refer to the requirement of a judge (in a judge alone trial) to disclose his process of reasoning for what had been accepted or rejected. He concluded:

But it is not necessary, in my view, nor desirable, that reasons should be given beyond that, where the tribunal has, as I have here, come to the view that the accused should be acquitted of the offences charged. [at 7]

52 In my opinion, his Honour did not breach s 17(2), as explained in Fleming. He sufficiently referred to the principles of law to be applied and the findings of fact upon which he relied. A fair reading of the decision, understood in light of the evidence before his Honour and his view of it, does not reveal that he failed to expose his reasoning process. In my view he did and the manner in which he linked it with the evidence and inferences rationally available to be drawn justified the verdict reached.

53 That his Honour’s reasons could have been fuller or more detailed is no valid criticism provided that there is a sufficient exposure of the reasoning process by which the judge reached an available conclusion. I can discern no breach of s 17(2).

54    Accordingly, it is my view that while leave to appeal should be granted, the appeal should be dismissed.

55    FOSTER AJA: I agree with Stein JA.

56    McCLELLAN J: I agree with Stein JA.

oOo