R v Bradshaw

[1996] QCA 419

IN THE COURT OF APPEAL	[1996] QCA 419
SUPREME COURT OF QUEENSLAND	C.A. No. 394 of 1996
Brisbane
Before	Fitzgerald P. Pincus J.A. Derrington J.

[R. v. Bradshaw]

T H E Q U E E N

v.

TERRENCE HUGH BRADSHAW Appellant

FITZGERALD P.
PINCUS J.A.

DERRINGTON J.

Judgment delivered 5/11/1996

JUDGMENT OF THE COURT

Appeal against conviction dismissed; application for leave to appeal against sentence refused.

CATCHWORDS: CONVICTION - possession of a dangerous drug - drug concealed in a stuffed toy bear - bear sent to appellant’s infant daughter - appellant denied knowledge of the drug and told untruths to police - whether the trial judge had erroneously rejected evidence which the appellant wished to call at trial concerning threats made to falsely incriminate him.

s. 668E(1A) Criminal Code (Qld.)

s. 57(C) Drugs Misuse Act 1986

SENTENCE - considerable personal difficulties suffered by
appellant.

Counsel:	Appellant represented himself. Mr P Ridgway for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the respondent
Date(s) of Hearing:	31 October 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 05/11/1996

The appellant has appealed against his conviction in the Trial Division on 15 August 1996 of one offence of possession on 28 September 1995 of the dangerous drug methylamphetamine in a quantity in excess of that stated in the Third Schedule to the Drugs Misuse Act 1986. He has also applied for leave to appeal against his sentence, but it is convenient to leave that to one side for the moment.

In addition to minor offences over the previous two or three decades, the appellant was imprisoned for drug offences involving cannabis and amphetamine in 1992. On that occasion, he was sentenced by Ambrose J. to imprisonment for six months and placed on probation for three years. Subsequently, on 1 April 1993, he was convicted of trafficking and supply offences and sentenced by White J. to imprisonment for 18 months, wholly suspended for an operational period of three years. During that period, as a result of information received by police, mail to the appellant’s address was monitored and, in the course of that activity, a parcel received by Australia Post addressed to the appellant’s infant daughter, Ester, was opened by police in September 1995. The parcel contained a stuffed toy bear from which a quantity of white powder wrapped in absorbent paper was removed. On testing, the powder was identified as methylamphetamine, and the weight of that drug was ascertained to be 3.3 grams. The powder was re-wrapped and replaced inside the toy which was restored, repacked and delivered to the appellant’s address. The appellant signed for the parcel and it was handed to him at 4.37 p.m. on 28 September 1995. Police executed a search warrant within a few minutes of delivery and found the toy underneath a chest of drawers in the appellant’s bedroom. There were other toys in the bedroom, although not under the chest of drawers, and the toy bear had not been “opened or tampered with” after delivery to the appellant. The packaging in which it had been delivered was found in a rubbish bin in the kitchen.

When interviewed by police, the appellant falsely stated that the packaging in the bin had contained a pink dress and that he thought that the toy bear had been received the previous Christmas and had been present in the home, which he owned, for some time. Further, although the sender’s name on the package which he received was unknown to him, that did not cause him any concern because his family were all professionals who were prone to delegate tasks. A tape of the search and interview appears to record him saying that the arrival of the packaging in which the bear was delivered was the latest delivery for his daughter and had taken place a few days earlier.

In his evidence at the trial, the appellant stated that when he said that he thought that the package which he had just received in the post contained a pink dress he was angry and confused as a result of the chaos caused by the police search and had completely forgotten about the bear arriving only a few minutes earlier by postal delivery. He also gave evidence that parcels for his daughter from family members in southern States were common and, on this occasion, he had opened the parcel, given the bear to his daughter, and after finding no accompanying note, thrown the wrapping paper in the bin. His confusion about what was in the parcel received by postal delivery shortly before the police search was the product of his being depressed and sedated.

The appellant, who represented himself before this Court, denied his guilt. Further, he complained that the trial judge had erroneously rejected evidence which he wished called at his trial. The appellant’s wife had died shortly before the date when the police searched the appellant’s home and, prior to her death, had been very ill in hospital for some months. According to the appellant, his wife’s parents wished to obtain custody of Ester in the event of the death of their daughter. Counsel appearing for the appellant at his trial told the trial judge that, in addition to the appellant, it was proposed to call a witness, Mrs Jennifer Eather, to give an account of statements made to her by the appellant’s wife’s mother, who:

“... had said during his wife’s terminal illness that she was very keen to get custody of Ester from him in the event that his wife died. [The appellant’s mother-in- law] said to [Mrs Eather] that she wanted to stop Terry from having the child, that she was prepared to do anything to stop him from having custody, she was out to get him in any way she could ... and she acknowledged that the child was so well fed and looked after that they couldn’t say he wasn’t looking after her properly, that ... she had spoken to her husband who was then a Police Prosecutor in New South Wales about it and that there was nothing they could do legally to get Terry, Mr Bradshaw, out of the way, they had to prove that he was not a fit father and they couldn’t. [The appellant’s mother- in-law] said, ‘There’s no way I’m going to let him have her.’ These are statements that are made to Ms Eather in about May ...”.

Although his counsel told the trial judge “that’s essentially the evidence I would be seeking to lead”, the appellant told this Court that Mrs Eather would have spoken of a more express threat by his mother-in-law to falsely incriminate him, and that he would also have called his solicitor as a witness to say that he had been informed by the appellant of the threat by his mother-in-law and advised him that there was nothing he could do. That was not the case put to the trial judge, who was told that the evidence sought to be called was as had been described and that, taken in the context that police had acted on the basis of information supplied to them, it went “to support an alternative scenario in that it shows that [the appellant’s mother in law] has, at least in the past, had a motive, to use the colloquial term, to set him up. That’s really the closest I can argue that it goes to an issue in this case.”

His Honour rejected the evidence on two bases, of which it is necessary to refer only to the first, namely, “that there is no link within the evidence to the conduct at the heart of the charge here. It is no more than a threat, but not a threat in terms referable to this particular conduct.” In our opinion, that ruling by his Honour was correct. The appellant complained that the trial judge also wrongly relied upon the possible unavailability of his mother-in-law to give evidence in response to what was to be said by Mrs Eather, but that is irrelevant if, as we have said, the ruling was correct.

There were a number of other grounds in the appellant’s notice of appeal which was prepared by his then solicitors, but he did not seek to address them each individually. However, he provided us with notes which he had handwritten onto the copy he had received of the prosecution’s written outline of submissions. These consisted of complaints that police had tampered with evidence, that there were “Toddlers in home”, etc. I do not think it necessary to set out every detail. I can find nothing in what was said by the appellant in oral submissions or in what is written on the copy of the prosecution’s outline of submissions which provides the slightest basis for a successful appeal against conviction.

Further, if it were necessary to do so, this is a case to which sub-s. 668E(1A) of the Criminal Code would appropriately be applied. Under sub-s. 57(c) of the Drugs Misuse Act, it was for the appellant to show that he neither knew nor had reason to suspect that the drug was in or on his premises. It is inconceivable that with or without the proposed evidence from Mrs Eather and the appellant’s solicitor, any rational jury could have found that he had discharged the evidentiary onus under sub-s. 57(c) of the Drugs Misuse Act.

The trial judge sentenced him to imprisonment for one year in respect of the subject offence and, in addition, ordered him to serve the whole of the 18 month term of imprisonment which had been suspended by White J. on 1 April 1993, which was ordered to commence at the expiration of the term of imprisonment which he was currently serving, which arose out of a breach of the Bail Act. It was further ordered that the further term of imprisonment for twelve months in respect of the subject offence commence at the expiration of the 18 month terms previously referred to; in short, the appellant was ordered to complete the sentence he was currently serving and then serve a further two and a half years’ imprisonment.

There are three aspects of the application for leave to appeal against sentence to be considered. One concerns the sentence of imprisonment for twelve months in respect of the subject offence. The other concerns the order by the trial judge that the appellant serve the whole of the 18 month term of imprisonment suspended on 1 April 1993. The third concerns the order that those sentences be cumulative.

The appellant referred to his considerable personal difficulties. It is not possible to be sure which of the matters referred to have any factual basis, since it is apparent that he will lie to serve his own interests. He claimed a significant drug problem starting with a car accident, and a good work history until his wife’s illness, which had extended for a considerable period. Further, he had, he said, remained drug-free since the sentence imposed by White J. on 1 April 1993, and had not re-offended until well into the operational period of that suspended sentence. Apart from his wife’s illness and death, he had suffered a home invasion. Further, his house had been repossessed due to his inability to pay bills, and he has two children, one a teenager and the infant, Ester, who had been born prematurely following the home invasion. There seems to be a suggestion that he lost an arm, although we did not notice such a handicap when he appeared before this Court. However, we are prepared to proceed on the basis that the appellant’s circumstances were very poor at the time when he committed the offence and had worsened since the time when White J. imposed the suspended sentence.

Nonetheless, we are not convinced that the course taken by the trial judge was outside the exercise of a sound sentencing discretion. In particular, it seems to us that the cumulative sentence imposed in respect of the subject offence has been fixed to take account of the order which his Honour made that the appellant serve the whole of the previously imposed suspended sentence.

In summary, therefore, we would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.