R v Christie

[2003] QCA 413

SUPREME COURT OF QUEENSLAND

CITATION:	R v Christie [2003] QCA 413
PARTIES:	R v CHRISTIE, Donovan Kimball (appellant)
FILE NO/S:	CA No 115 of 2003 SC No 6 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING  COURT:	Supreme Court at Bundaberg
DELIVERED EX	17 September 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2003
JUDGES:	McMurdo P, Davies and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL - where appellant convicted of supplying and trafficking methylamphetamine and cannabis sativa - where strong circumstantial case in respect of trafficking - where appellant raises a number of criticisms in relation to the evidence - whether verdict cannot be supported having regard to the evidence
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE- POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY - where, in police interview appellant said his sole source of income was the sole parent's pension - where bank records disclosed a large amount of undisclosed income - where police officers did not follow precise wording of required warning - whether admission of total income in police interview was illegally or improperly obtained
COUNSEL:	Appellant appeared on his own behalf R G Martin for respondent
SOLICITORS:	Appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: After a trial lasting five days the appellant was convicted of trafficking in methylamphetamine and cannabis

10

sativa. He was also convicted on two counts of supplying
those drugs, one of possession of cannabis sativa and one of
possession of a set of digital scales, a quantity of clipseal
plastic bags and a ceramic bowl and pestle used in connection

with the commission of the crime of supplying those drugs. He

20

appeals against those convictions.

The evidence against the appellant was in seven main categories. The first was direct evidence from two of his former customers, Gould and Gilchrist. The second was

30

surveillance evidence of a large number of meetings between
the appellant on the one hand and a number of unidentified
people on the other. The third was the police evidence of the
apprehension of Gilchrist in possession of methylamphetamine

immediately after his meeting with the appellant on 7 December

40

2001. The fourth was police evidence of an interception of
other apparent customers of the appellant found to be in
possession of methylamphetamine shortly after a meeting with
the appellant in November 2001. The fifth was police evidence

that an apparent customer of the appellant's had apparently

50

disposed of a sharps kit in a bin shortly after his meeting
with the appellant on 16 November 2001. The sixth was
evidence of drugs and other material found in the appellant's
residence. And the seventh was evidence of unexplained income
acquired by the appellant.

2   60

The appellant did not give or call evidence at the trial.
Accordingly, the Crown case, which as I will explain was a
strong circumstantial case in respect of trafficking, remained
uncontradicted. The appellant took part in several police

interviews but these are relevant only to a ground of his	10
appeal and to support the evidence of a forensic accountant as to unexplained income of the appellant.
The appellant was represented by counsel at his trial but
appears on his own behalf in this appeal. His sole ground of	20
appeal is stated to be that the verdict cannot be supported
having regard to the whole of the evidence. However, in his
notice of appeal he invites us to look at his outline of
argument and it is convenient therefore to take what are, in
effect, his grounds of appeal from the substance of his	30
outline of argument. It is also convenient to explain, in
more detail, the substance of the case against the appellant
by reference to those grounds of appeal as amplified in his
outline of argument and in his oral submissions before us this
morning. I turn first then to the evidence of Gould and	40
Gilchrist and the appellant's criticism of that evidence.
Gould
Gould was a young woman of 21 years of age. She said that she	50
met the appellant when she was 14 years of age and for the
following five or six years purchased amphetamine and cannabis

from him two or three times a week. Most purchases were of cannabis. Routinely they would make contact by her phoning him. They would arrange to meet at a neutral location and at 3 60

the meeting she would exchange money for the drug. Gould said
that she then gave up drugs for a time and went south. She
then made contact with the appellant again early in 2001 and

thereafter bought amphetamine from him approximately two or	10
three times a week. Generally, she would pay $100 for seven points. Their method of contact was as I have already indicated.
At the trial an attempt was made to discredit Gould by	20
producing what was said to be a statement signed by her
claiming that her statement to police was untrue and that she
had been coerced into making it. When this document was put
to her she said it was not hers; that neither the writing nor
the signature was hers. She also identified an error in the	30
document namely, that the police officer who took her
statement was not Detective Strohfeldt but Detective Elliott.
The jury plainly accepted her evidence and a reading of it, in
my opinion, gives no cause to doubt the correctness of their
conclusion. Indeed, there was evidence that Gilchrist had	40
been approached by the appellant's mother with a view to
having him sign a written statement similar to that put to
Gould in her cross-examination. The similarity between the
two statements is marked by the fact that Detective
Strohfeldt's name is misspelt in the same way in each.	50

The appellant's criticism of Ms Gould's evidence on appeal has even less merit than the criticism of it mounted at the trial. There is no substance in a ground based on alleged 4 60

falsification of evidence by Ms Gould.

Gilchrist

10

Gilchrist's evidence at trial, unlike that of Gould, was vague
in a number of respects and in some others inconsistent with
that of police officers. The appellant referred to one of
those inconsistencies during the course of his oral

submissions this morning. However, the jury were plainly	20
entitled to accept the substance of his evidence supported as
it was by his apprehension in possession of drugs shortly
after a meeting with the appellant. The handwritten statement
which he had signed tended rather to support his evidence and
point to the appellants' guilt; in other words, the	30
circumstances in which it was signed seemed rather to be a clumsy attempt by the appellant or his mother to threaten or dissuade him from telling the truth.
There is no substance to the appellant's criticism in this	40
Court of the jury's acceptance of Gilchrist's evidence.
The surveillance evidence and the appellant's criticism of it
None of the surveillance evidence positively established that,	50
at any of the meetings surveiled, the appellant handed over

drugs. The point of the evidence was that what was observed on each of the occasions of surveillance was something which was not readily innocently explicable. Each of the meetings was plainly pre-arranged (one person plainly waiting for the other beforehand) brief and in a neutral location. After two 5 60

of them the party other than the appellant was apprehended in
possession of drugs. One of those, involving Gilchrist, I

have already mentioned; the other was the occasion in November	10
2001. On a third such occasion, also in November 2001, a sharps kit was recovered from a bin into which the person other than the appellant had been seen to dispose of
something.
20
The appellant asserts in this Court, in his written outline,
that these meetings could have been explicable by reference to his "nu-skin" business which he said he had commenced but from which he had derived no income. However, as Mr Martin for the respondent argues in his outline, the nature of the meetings,	30
as observed, were inconsistent with any meeting designed to
enlist customers or to hand over products particularly as the
appellant says he had derived no money from this business.
The appellant also says that there may have been other
explanations for these meetings but no credible one has been	40
advanced. When taken together with the other evidence this was, in my opinion, plainly evidence supporting the existence of a trafficking business.
50

6   60

The evidence of drugs and other material found in the appellant's residence and the appellant's criticism of this evidence

In a caravan in a caravan park police found, relevantly, a	10
container with a number of clipseal plastic bags, a set of digital scales, a mortar and pestle, a further quantity of clipseal bags, one of them with methylamphetamine residue in
it, and some cannabis. The appellant's criticism of this
evidence is not a contention that those items were not found	20
in the caravan or that they were not circumstantial evidence of the carrying on of the business of trafficking in methylamphetamine. Rather, it was that there was no evidence connecting him with that caravan.
30
It is true that there was no evidence that he was the owner or
renter of the caravan. However, in the caravan police also
found documents relating to Sarah Taliani, the appellant's
de facto partner, and documents relating to the appellant; in
particular, tilt train travel vouchers, a newspaper clipping	40
and a photograph relating to his younger daughter. There was evidence also putting him in close proximity to that caravan.
It may be inferred that, if the appellant was a drug dealer,
he would be unlikely to have premises, in which incriminating	50
evidence was found, owned or leased in his own name. The evidence, in any event, showed a history of premises occupied by him rented in Taliani's name. There is no substance of his criticism of this evidence.

7   60

The evidence of unexplained income and the appellant's criticism of this

In the course of a police interview the appellant said that he

had no income beyond the sole parent's pension of $600 a	10
fortnight. The appellant's bank records and other documents
relating to his finances were discovered and examined by a
forensic accountant. When the appellant's legitimate income
from the period 1 January 2001 to 9 December 2001 was
subtracted from his actual income for that period there was an	20
unexplained income of over $30,000. The appellant made two criticisms in this Court of that evidence.
In the first place he submitted that his admission of his
total income from legitimate sources was illegally or	30
improperly obtained, the investigating officer not having
administered a caution in the terms stated in the Police
Powers and Responsibilities Code. An objection to the
evidence on this basis had been made at the trial but rejected
by the trial judge.	40
There were several police interviews. The first was on 7
December 2001, the second on 10 December 2001 and the third
was on 12 December 2001. The first and third but not the
second of those were before the jury. The second was before	50
the judge in assisting him to make his determination on the
admissibility of the admissions against interest. The
objection seems to be that in each of the interviews of 7 and
12 December 2001 though the police officer warned him in

8   60

substance of the matters referred to in s 34 of the Police
Powers and Responsibilities Code he did not follow the precise wording. There is no substance in this objection as the trial judge held. Section 34 of the Police Powers and

Responsibilities Code requires only substantial compliance	10
with the terms of the warning and there was such substantial compliance.
The other basis of the appellant's complaint is to the
evidence of the forensic accountant. He suggests some other	20
basis of explanation for the money in his accounts. However,
a reading of the accountant's evidence gives no cause to doubt
its relevance and probity as circumstantial evidence showing
income for which there was no rational explanation other than
from the appellant's business of trafficking.	30
The appellant's other grounds
There are a number of other grounds advanced by the appellant
in writing and orally. None of them is of any substance. It	40
is sufficient to deal with the major ones summarily.
(a) The arraignment
The appellant and his co-accused Taliani were arraigned	50

together. The appellant pleaded not guilty and Taliani pleaded guilty. The appellant objects that this took place before the jury panel. However, there was no application for them to be arraigned separately or in the absence of the jury panel. There is no reason to think that this prejudiced his trial.	9	60
(b) Publicity
10

There was apparently a press report of the appellant's arrest
in the local Bundaberg News Mail headed "Traffickers Caught at
School". This, the appellant submitted, prejudiced his fair
trial because it indicated that he was guilty and implied that

he was selling drugs to school children.	20
The trial took place one year and three months after the
appellant's arrest. There was no reason to think that, after that length of time, the jury would recall specifically, even if they had read it, the headline or article in December 2001.	30
Moreover, his Honour gave a warning about ignoring information acquired outside the courtroom and there is no reason to think that the jury ignored that warning.
(c) References to the appellant's prison record	40
It is true that in the police statement by Gould there are
references to the appellant having got out gaol only shortly
before the commencement of the trafficking offence. This
statement was tendered by the appellants counsel, its tender	50

being relevant to the handwritten statement which the defence hoped to but failed to persuade the jury, was Gould's statement. In so tendering it the appellant's counsel no doubt thought that the risk that references to the appellant having been in gaol might prejudice the jury against him was outweighed by the prospect of discrediting Gould. This was a legitimate tactical decision about which the appellant has no cause to complain.	10	60
10

He also asserts that reference to his having been in prison was implied in the fact that the forensic accountant took a period commencing only in January 2001, the time when in fact

the appellant was released from prison. However, there is no

reason to think that this evidence prejudiced the jury in this	20
way, with or without the evidence in Gould's statement. There may be any one of a number of explanations why no calculations were made for a period before then.
Some other points were made by the appellant but they do not	30
merit specific attention so lacking are they in substance. It follows that all grounds of appeal must fail and the appeal should be dismissed.
THE PRESIDENT: I agree.	40
JERRARD JA: I agree.
THE PRESIDENT: The order is the appeal against conviction is
dismissed.	50

-----

11   60