R v Clifford

[1992] QCA 25

IN THE COURT OF APPEAL [1992] QCA 025

SUPREME COURT OF QUEENSLAND

Before the Court of Appeal

Mr. Justice Fitzgerald
Mr. Justice Davies

Mr. Justice Thomas

C.A. No. 248 of 1991

T H E Q U E E N

- v -

EDMUND MILLER CLIFFORD

Appellant

JUDGMENT OF THE COURT

Delivered the 13th day of March, 1992.

MINUTE OF ORDER

Appeal against conviction dismissed. Leave to appeal against sentence refused.

CATCHWORDS

Counsel: A. Rafter for appellant

G. Rice for Crown

Solicitors:	Messrs. R.P. McCormick & Co. for appellant
Director of Public Prosecutions for Crown

Hearing date: 2 March, 1992

Delivered the 13th day of March, 1992.

The appellant was convicted by a jury in the District Court
of possession of a prohibited import under s. 233B(1)(ca) of the

Customs Act 1901 as amended. The relevant substance was about

13 grams of cannabis resin. The appeal is brought on the

grounds that the jury's verdict was unreasonable, insupportable

having regard to the evidence, and unsafe and unsatisfactory.

As these grounds raise questions as to the adequacy and

quality of the evidence (Morris v. The Queen (1987) 163 C.L.R.

454, 463, 473, Chidiac v. The Queen (1991) 65 A.L.J.R. 207,

211), it is necessary to canvass the evidence.

The appellant who migrated from England to Australia in

November 1989, was at the material time (March 1991) living at

22 Meadow Court, Noosa. This was a house property in a

relatively isolated area.

On 11th February, 1991, a newspaper addressed to "Mr. C.

Dunhim, 22 Meadow Court, Noosa Valley, Queensland 4562" was

intercepted as the State Mail Centre and found to contain

cannabis resin secreted within. The package was a rolled newspaper ("The Sunday Times"), the middle part of which was sleeved in a brown paper wrapper on which the address, stamps and other data appeared.

The cannabis resin was wrapped in clear plastic, and it may

be inferred that it had been inserted between pages of the

newspaper before it was rolled and wrapped. The total of the resin including the plastic wrapping was about 16 grams. Upon its interception by the police a sample of 1.31 grams was

removed for analysis. The plastic wrapping which weighed about 1.68 grams was replaced with fresh cling wrap, and the balance

of the cannabis resin (13.01 grams) was then replaced within the newspaper which was refolded and rewrapped. This process was described as reconstructing the parcel. The reconstructed item

was kept in safe custody until it was taken in a police car to the appellant's street so that a delivery could be made and the

appellant's response observed. Constable Ian Edwards, of the Physical Evidence Unit attached to the Australian Federal

Police, gave evidence of the reconstruction which was supported

by photographs taken at various stages of the exercise. On his

evidence the newspaper was refolded around the cannabis resin, and then rewrapped in the brown paper folder somewhat more tightly than the original wrapping.

The police parked their vehicle between 150 and 200 metres

from the appellant's house. The newspaper was then personally

delivered by Constable Saffery who pretended to be a neighbour

to whom the parcel had been delivered in error. After an

initial conversation between Saffery and the appellant's wife,

the appellant said that he had been expecting a "Sunday Times"

from England and that it must have been for "Humphrey". That

was a reference to his brother for whom the appellant received, according to his evidence, "a lot of mail". He then took possession of the newspaper.

A few minutes later three policemen (Saffery, Holder and

Hewitt) knocked on the door. After an interval (estimated by

Holder to be a few seconds, but by Saffery to be one or two

minutes) the appellant's wife came to the door and the police introduced themselves and produced a search warrant. They went to the kitchen where they found the defendant. The parcel had

been opened and the newspaper was on the table "rolled out

flat". The appellant expressed surprise when informed of the

police belief that there were drugs in the newspaper.

A very thorough search of the premises was then conducted

but no cannabis resin was able to be found. No policewoman was

present and no search was made of the appellant's wife. The

appellant told police that he was the only one to have touched the newspaper between its delivery and the entry of the house by

police. He denied that there was anything inside the newspaper

when he opened it and gave evidence to that effect.

The only substantial issue at the appellant's trial was whether there was reasonable doubt that the cannabis resin was inside the newspaper when delivery of it was effected to the

appellant. If it was present when he received it but had been disposed of in the ensuing few minutes, his alleged ignorance of

its existence could not be maintained, and it was open to the

jury to rely on his false denial of any relevant knowledge as

evidence of his guilt.

The point raised during trial and upon this appeal is that the jury should have entertained a reasonable doubt on the question whether the drug was still in the newspaper at the time

when it was handed to the appellant. It was submitted that the drug may have dropped from the newspaper between the time when

it was handed to Saffery and the time when Saffery gave it to

the appellant despite the failure to locate the package in a

subsequent search. The drug had been in a sealed exhibit bag up to the time when it was handed to Saffery and it was not seriously suggested that the evidence failed to establish satisfactorily that the cannabis was in the newspaper when it was given to Saffery in the police car. The suggestion was that it may have dropped from the newspaper during his walk of 150 to

200 metres. It was submitted that there was some support for

this possibility in the evidence of Constable Hewitt, but upon

examination there is nothing more than a reasonable concession of Constable Hewitt that the thought of this happening did later cross his mind. The concession however went no further than this.

In essence, the submission for the appellant is that

because the drug could not be found despite the efforts made, a

reasonable jury must have entertained a reasonable doubt whether it was received by the appellant. However rational explanations

exist concerning how the cannabis might have been moved and hidden by the appellant consistently with the police being

unable to relocate it only a very short time later.

Having regard to the evidence of continuity of the reconstructed exhibit with the delivery of it to the appellant, and particularly the evidence of Constable Ian Edwards (supported by the photographic evidence of the tight rewrapping

of the newspaper) there is adequate evidence upon which the jury could be satisfied beyond reasonable doubt that the parcel containing the cannabis resin was received by the appellant. It is not necessary that the Crown case be able to establish

precisely what happened to the cannabis after the parcel came

into his possession.

The appeal was not based upon any alleged errors on the part of the trial judge in summing up to the jury. However it may be mentioned that counsel adverted to the summing up in an attempt to support the submission that the verdict was unsafe. In particular it was submitted that the directions on the nature

of "possession" failed to specify the need for knowledge on the part of the appellant. Examination of the summing up however

reveals that His Honour's directions in this respect were quite adequate. It was also submitted that His Honour unduly bolstered the effect of the police evidence by commenting that

there would not appear to be any reason to doubt the truth of

their evidence. However upon further submissions from defence

counsel, His Honour redirected, emphasising that it was a matter for the jury to determine whether or not the police were telling the truth in the evidence they had given. The submissions in

relation to the summing up do not fortify the "unsafe and
unsatisfactory" ground.

There is no ground for concluding that the jury's verdict was unreasonable or insupportable, or that the conviction was unsafe or unsatisfactory. The appeal should be dismissed.

There remains an application for leave to appeal against sentence. The appellant was fined $500.00 in default 14 days' imprisonment. He was a 36 year old quantity surveyor and had no

previous convictions. It was submitted that the recording of a

conviction rendered the sentence manifestly excessive and that the appellant should have been discharged without proceeding to

a conviction.

Whilst that option is available under s. 19B(1) of the

Crimes Act it does not follow that the court erred in not opting

to exercise it in the present matter. Under s. 19B(1) a court

may discharge the offender without proceeding to conviction if -

"The court ... is of the opinion, having regard to:

(i)the character, antecedents, age, health or mental

condition of the person;

(ii)the extent (if any) to which the offence is of a

trivial nature; or

(iii)the extent (if any) to which the offence was committed

under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;"

It was not submitted that the offence was of a trivial nature or

that it was committed under extenuating circumstances. The

burden of the submission was that having regard to the

appellant's character and antecedents it was "inexpedient" to inflict any punishment other than a nominal punishment. Why the

court should be of that opinion is difficult to understand. The speculative submission that he might go back to England at some stage in his life, and that if he did so there might be some difficulty in "what's involved in obtaining passports" is hardly

persuasive. The circumstances show the obtaining of a not

insignificant quantity of a prohibited export followed by a

quick outfoxing of the police by the secretion of it. It is

impossible to say that the learned District Court judge erred in

failing to discharge this particular offender without proceeding

to conviction. The penalty was not manifestly excessive.

The appeal against conviction was dismissed and leave to

appeal against sentence refused.