R v Dominguez

[1993] QCA 450

IN THE COURT OF APPEAL [1993] QCA 450

SUPREME COURT OF QUEENSLAND

CA No. 336 of 1993

Brisbane

[Re: Dominguez]

T H E Q U E E N

v.

RONALD JOSEPH DOMINGUEZ

(Appellant)

The President
Mr Justice McPherson

Mr Justice Mackenzie

Judgment delivered 8/11/93

JUDGMENT OF THE COURT

APPEAL DISMISSED

CATCHWORDS:  CRIMINAL LAW - Conviction - Possession of heroin - Circumstantial case - Whether unsafe.

Counsel: Applicant in Person

Mr J Callaghan for the Respondent

Solicitors:	Director of Prosecutions for the Respondent
Hearing Date:	2 November 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No. 336 of 1993

Brisbane
Before The President

McPherson JA

Mackenzie J

[Re: Dominguez]

T H E Q U E E N
v.
RONALD JOSEPH DOMINGUEZ

(Appellant)

JUDGMENT OF THE COURT

Judgment delivered 08/11/1993

This is an appeal against conviction for an offence of possession of heroin of a quantity exceeding 2 grams. The essential facts of the matter are that a parcel, addressed to Linda Campbell, containing a hollowed-out book with the heroin inside, was detected and taken by a police officer disguised as a courier to the flat which the appellant shared with his de facto wife. Linda Campbell had occupied the flat previously but had moved out before the appellant moved in. The appellant answered the door and told the police officer that Linda Campbell was not home but that she had asked him to receive the parcel. After the parcel was signed for by the appellant, the police officer revealed his identity and other police arrived.

A New South Wales address had been recorded on the parcel as the sender's address. There was evidence that a phone number recorded in a diary found at the appellant's premises was connected at that address and there was evidence that telephone calls had been made from the appellant's flat to that number. There was also evidence that items associated with heroin use in the form of syringes, snap lock plastic bags and glucodin were in the flat. The appellant's defacto wife was a user. The Crown relied on the circumstantial evidence to establish that the appellant had the requisite knowledge that the package contained heroin.

The appellant gave evidence that on the day before the receipt of the parcel his de facto wife had told him that Linda Campbell had called at the flat while he was out and had inquired about a parcel she was expecting. An arrangement was made that when it arrived it would be collected by the occupants of the flat on her behalf. His evidence was to the effect that he was implementing that arrangement when he took delivery of it. He gave evidence that he did not know what was in the parcel.
Miss Campbell gave evidence for the Crown. She said that she had arranged with the landlord to redirect mail to her and although she had been back to the block of flats once to visit friends, she had not visited the flat that she had previously occupied.

Four grounds were argued by the appellant who appeared before us in person but had been represented by counsel at the trial. The first ground argued was that there had been adverse pre-trial publicity some months before the trial in the form of a newspaper item concerning a previous occasion upon which he was convicted of a similar offence. This was not raised at the trial and, in particular, no application for a change of venue or adjournment was made by the appellant's counsel. There is no reason to suppose that the appellant has been deprived of a fair trial in this respect.

The second ground argued was that the learned trial Judge had unfairly repeated a submission by the Crown Prosecutor that the issue of continuity of the handling of the exhibit (which the Crown had been required to prove strictly) was a red herring. Immediately after saying that, the learned trial Judge told the jury that it was a matter for them to assess in all the circumstances of the case. The appellant also submitted that the learned trial Judge should not have referred to another Crown submission to the effect that the jury should reject a submission by the appellant's counsel that the accused did not present "as a washed out type of druggie or junkie". As we understand it, a submission to that effect had been put, no doubt to suggest to the jury that the appellant presented as a man who was unlikely to be involved with drugs. The learned trial Judge went on to say that while the appearance or not of a washed out druggie or junkie was not directly relevant to the case it was a factor to take into account in accessing the appellant's overall credibility. He further said that the appellant had presented well.

The learned trial Judge was not in error in referring to these matters. He was performing his function of reminding the jury of submissions that had been made by counsel and exercising his right to comment within proper bounds. No redirection was sought in respect of either matter. This ground is not made out. The next ground argued was that the evidence was insufficient to prove guilt beyond a reasonable doubt. The argument was that the Crown relied on an essentially circumstantial case whereas the appellant had given evidence that he did not know what was in the package. It was open to the jury to find on the evidence that the appellant knew of the contents of the package and he conceded that the inference was open. However he submitted that the inference should not have been drawn because he had given evidence to the contrary. The jury's task was to decide on the whole of the evidence whether it was prepared to draw the necessary inference of knowledge beyond reasonable doubt. After being properly directed the jury was prepared to draw the necessary inference which was properly open on the evidence. The verdict was not unsafe. No basis for interference with the jury's verdict has been established in respect of this ground.

The final ground argued was that because the trial had come on more quickly than the appellant had expected, he had been unable to contact a potential witness who was expected to give evidence that Linda Campbell had visited the flat on several occasions to collect mail. When Miss Campbell gave evidence, she was not cross-examined to contradict her evidence that she had not visited the flat. No application was made for an adjournment of the trial because of the unavailability of the witness. There is no substance in this ground.

As none of the grounds can be made out the appeal is

dismissed.