R v Daly

[1992] QCA 50

IN THE COURT OF APPEAL [1992] QCA 050

SUPREME COURT OF QUEENSLAND No. 266 of 1991

THE QUEEN

v.

DANIEL JOSEPH DALY

(Appellant)

JUDGMENT OF THE COURT

The appellant was convicted in the Supreme Court on 23 September 1991 of one count of producing a dangerous drug (cannabis sativa) and one of possession of implements used in connection with the production of a dangerous drug. He was sentenced to concurrent terms of 4 years imprisonment in respect of each offence. He appeals to this Court against those convictions and seeks leave to appeal against those sentences.

The appeal against convictions is on the ground that they were so unsafe and unsatisfactory as to constitute a miscarriage of justice and should therefore be quashed. It was common ground

between the parties that the question of guilt on the second

offence followed from the first.

The case against the appellant was entirely circumstantial. The relevant facts proved were as follows.

On 29 November 1990 the appellant entered into a contract to purchase a parcel of land of approximately 100 hectares which may be conveniently described as Lot 11 Halliford Road, Cumberilla via Dalby. On the same day the appellant's brother and his sister-in-law signed contracts to purchase Lots 10 and 12 respectively, those lots adjoining the appellant's lot on either side. The appellant made the only inspection and conducted the negotiations in respect of the purchase of all three lots and told a neighbour at Cumberilla that he had purchased three blocks. Some time in December 1990 after 10 December the appellant took a caravan from Redcliffe to Lot 11 and on another occasion he took a "trailer load of stuff" there.

The evidence does not disclose what was on the trailer, though
it apparently included things that were quite expensive. The

appellant was also observed by a neighbour, either on or in the vicinity of Lot 11 twice between then and 2 March. No attempt was made to fix the first occasion in time. The second was said to be just after Christmas.

The appellant was probably in Dalby on 11 December 1990, 29 January 1991, and 1 and 2 February 1991 because on each of those dates the Metway Bank's auto teller in Dalby was operated on the

account held by him and his wife. Also, on 22 January 1991 he was sufficiently identified as a person leaving a generator for repair at a workshop in Dalby, and on 11 February 1991 that generator was collected from the repairer by a person who may have been the appellant and who was driving a 4-wheel drive

vehicle of the kind and colour owned by the appellant, a kind which a neighbour said was unusual in the area. In addition, a receipt issued by the repairer was located in the appellant's premises.

There was evidence sufficient to identify the appellant as a person who booked a room at the Dalby Motor Inn for three adults on 28 January 1991. There was evidence that one of the occupants of the room booked by the appellant was an "Indian- type of person" an inference which the observer apparently drew from his "dark skin", his "fuzzy hair" and his accent. One of

the two men arrested and charged by the police on 2 March 1991 in relation to the cultivation of the cannabis referred to below

was "of Indian appearance" dark coloured skin and very long wavy hair". He also had a black beard. This man and his companion

obviously had the care of the plantation, and there was abundant evidence of their guilt of cultivating the cannabis on the appellant's property.

On 2 March 1991 a large cannabis plantation was observed by police on property satisfactorily identified as Lot 11. There appeared to be a large number of plants, a very complex irrigation system and a camp set up with a large amount of food.

The camp consisted of a tent inside which there were a number of mattresses, sleeping bags, blankets, pillows and some food. Outside were cooking equipment and a gas refrigerator. Nearby there were a number of polystyrene boxes in which there were a number of parcels of peat moss wrapped in hessian, described as jiffies. The polystyrene boxes were of the same kind as a

number of polystyrene boxes found in a cupboard in the appellant's caravan which was still situated on the same lot. Some of them in each place had a sticker affixed with the name Tandrosse & Sons on them. A sleeping bag found at the camp site was said to match a sleeping bag cover found in the appellant's caravan. Both were produced to the jury so that they could make their own comparison; similarly, with mattresses found both at the camp site and in the caravan.

Finally, a vehicle of the colour, size and shape of the appellant's was seen in the vicinity of the plantation on 2 March 1991 and tyre marks near the camp site matched the tread pattern of the rear wheels of the appellant's 4-wheel drive vehicle.

There was some evidence that on 2 March 1991 the oldest of the marijuana plants were about 4-6 weeks old, indicating that they were probably planted at a time consistent with the proven presence of the appellant in Dalby, when he was shown to be in contact with the two men, including the Indian gentleman.

The appellant's place of residence was at Maroochydore on the near north coast, a considerable distance from Dalby.

There was no doubt that the appellant had purchased the land on which the cannabis crop was discovered and there was undisputed evidence that he had visited that land twice in December 1990 or early January 1991. It was also indisputable that he had been in Dalby in late January 1991. No explanation was given of why

he made this visit or the motel booking as the appellant did not

make any admissions to the police or give evidence at his trial. It is true that there was no direct evidence linking the appellant with the planting of the cannabis crop on his land and no evidence that the plantation or the camp site would have been visible from the caravan. Nevertheless there are a number of circumstances, none telling in itself, but which taken together would have enabled a reasonable jury to infer that the appellant was involved in the cultivation of the marijuana. They were entitled to infer that the polystyrene boxes, the mattresses and sleeping bag at the camp site were the appellant's. They were entitled to infer that the appellant's vehicle was at the camp site on 2 March 1991. They were entitled to infer that the appellant was, at the end of January 1991, in Dalby in association with two men, one of whom was engaged in the cultivation of the cannabis. And they were entitled to infer, in the absence of any other explanation for his being in Dalby, that the appellant was on Lot 11 for a considerable period or on a considerable number of occasions in December 1990, January 1991 and early February 1991. If they were entitled to draw these inferences then it was also reasonable to infer, in our view, that the appellant was involved in the cultivation of the marijuana on his property.

No complaint was made in this appeal about His Honour's directions. The complaint was only that, on that evidence, the

convictions were so unsafe and unsatisfactory as to constitute a miscarriage of justice. We do not think that that ground has been made out. The factors referred to in the preceding

paragraph negate a conclusion that a reasonable jury must have entertained sufficient doubt to have entitled the appellant to an acquittal. On the contrary, a reasonable jury could well have concluded, as this jury must have, that the appellant was engaged in the cultivation of the marijuana crop on his land.

The appellant seeks leave to appeal against sentence on the sole ground that there was a disparity between the sentence imposed upon him (four years) and that imposed upon each of his co- offenders (three years with a recommendation for parole after 12 months, and two years with a recommendation for parole after six months). We accept that there is a disparity and that that can be justified only if His Honour was justified in concluding that the applicant was the principal offender, the other two playing merely secondary roles. This was the basis upon which their sentences were imposed. Each of the other offenders pleaded guilty and the sentencing judge accepted in each case that the appellant was the principal offender and that they were mere employees.

On this question we are unable to agree. Two of us, Davies and Pincus JJ.A., would refuse the application for the following reasons.

There was no direct evidence before His Honour in this case as to the relationship between the appellant and his co-offenders.

However, there was evidence from which it could be inferred that the appellant was the principal offender. The plantation was on his property. He had purchased it, together with the properties on either side (one in the name of his sister and one in the name of his brother-in-law) only a short time before; so that the planning of the venture must have commenced before or at or shortly after the time of purchase. Some of his personal property, the polystyrene boxes and the bedding, was used in the unlawful venture. There was no evidence of who had purchased the other equipment but the appellant had taken a "trailer load of stuff" to the property and there was no evidence that his co- offenders had supplied anything to the venture. And he was in the vicinity of the plantation frequently during the period in which the land would have been prepared for cultivation and during cultivation. All of this suggests, as His Honour

thought, that the appellant was the instigator and the person who would most benefit financially from the undetected success of the marijuana crop.

Thomas J. would allow the application for the following reasons:
It is one thing to infer that the appellant was party to

the cultivation, but another to infer that he was the principal offender. It cannot safely be inferred that the appellant was generally an absentee whilst the other men did the physical work. He may well have contributed labour along with the others, and merely have been absent on the day when the police made their

raid. Even if he were generally an absentee, it does not follow that his role was greater than that of the other two men. He may have permitted them the use of his land in exchange for a minor benefit.

There is no evidence concerning the respective shares of the profits that the three persons had agreed upon, or responsibility for harvesting or distribution of the crop. One may entertain a suspicion that the owner of the land on which it is grown was the instigator of the scheme and in effect the senior partner. But the known circumstances are equally consistent with an

owner consenting to permit others to use his land in exchange for some benefit which might be small or large.

The best guess may well be that the applicant was the
instigator, that he gave the directions and that he

would take the major share. But these in my view are still guesses rather than proper inferences, and there is no basis for "a definite conclusion positively

drawn" (cf. Jones v. Dunkel (1958-1959) 101 C.L.R. 298, 305) that the appellant was the instigator or that he was more seriously involved than the co- offenders.

If the finding that the appellant was the principal offender and that the co-offenders' roles were only secondary is not sustainable, there is an obvious disparity in the sentences that have been imposed. In these circumstances I would have ordered a reduction in the appellant's sentence. It is unnecessary to set

out further details on this aspect as the majority
view is that the sentence should stand.

The appeal is dismissed. The application for leave to appeal against sentence is refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND No. 266 of 1991

THE QUEEN

v.

DANIEL JOSEPH DALY

(Appellant)

Before the Court of Appeal

Mr Justice Davies Mr Justice Pincus Mr Justice Thomas

JUDGMENT OF THE COURT

Delivered the 1st day of April 1992

CATCHWORDS:

Counsel:T.F. Carmody for the Appellant

J. Costanzo for Respondent

Solicitors:Legal Aid Office (Qld.) for the Appellant

Director of Prosecutions for the Respondent

Hearing date(s):4 March 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND No. 266 of 1991

THE QUEEN

v.

DANIEL JOSEPH DALY

(Appellant)

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DAVIES JA PINCUS JA THOMAS J

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Reasons of the Court delivered the 1st day of April 1992; all concurring as to dismissal of appeal. Mr Justice Davies and Mr Justice Pincus concurring as to refusal of application for leave to appeal against sentence, with Mr Justice Thomas dissenting on that issue.

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"APPEAL DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED."

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