R v Douglas

[1994] QCA 267

IN THE COURT OF APPEAL [1994] QCA 267

SUPREME COURT OF QUEENSLAND

C.A. No. 110 of 1994

Brisbane
[R. v. Douglas]

BETWEEN

T H E Q U E E N
v.
DAVID ROBIN DOUGLAS

(Appellant)

Fitzgerald P.
McPherson J.A.

Demack J.

Judgment delivered 19/07/94

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED. THE APPLICATION FOR LEAVE
TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDSCRIMINAL LAW - DRUGS - Business of trafficking - Admissibility of evidence of gun in appellant's possession - Whether evidence of threats to kill or cripple "sales representative" admissible - Relevance to showing "system of business" of appellant.

CRIMINAL LAW - JURIES - Prosecution witness talked to juror - Whether sufficient to discharge jury under s.621 Criminal Code.
CRIMINAL LAW - SENTENCE - Whether 5 years for trafficking excessive - Prior criminal history - Evidence of sales at Aboriginal reserve - Evidence of sales to minors.

Counsel: T. Carmody for the appellant

P. Rutledge for the respondent

Solicitors:	Legal Aid Office for the appellant
Director of Prosecutions for the respondent
Hearing Date: 17 June 1994 judge not to discharge the jury, it would be necessary for the appellant to show not merely that the decision was wrong but also that it occasioned a miscarriage of justice. There is no basis for arriving at either conclusion. In disposing of the application as he did, his Honour applied the correct test : see R. v. Jackson & Le Gros (C.A. 330 & 331 of 1993); and he was plainly correct in holding that objectively no doubt could be fairly entertained about the impartiality of the juror in question or the jury as a whole arising out of what the witness Gardner had said to her.	REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Nineteenth day of July 1994

This is an appeal by David Robin Douglas against his
conviction at a trial in the Circuit Court at Cairns of one
count of carrying on a business of trafficking in cannabis
sativa during 1991 and 1992, and three counts of supplying that
drug on specific dates within that period. The appellant also
seeks leave to appeal against the sentence of imprisonment for 5
years imposed for the trafficking offence.
The notice of appeal in the record contains some eight
grounds of appeal against conviction, of which all but two were
abandoned before the hearing. Of those two, ground 2 can be
quickly disposed of. It complains of the failure of the trial
judge to discharge the jury on the application of defence
counsel on the fifth day of the trial. At that stage the
prosecution case had closed and addresses were about to begin.
Evidently it had only shortly before been discovered that
earlier a prosecution witness named Gardner, who testified at
the trial, had spoken to a woman who became a juror, having done
so once before the trial began and once after it.
Stated in this way, it might be thought that some gross
infraction of s.621 of the Criminal Code prohibiting
communication with jurors had occurred. In fact what happened
was that, before the jury was chosen at the trial, Gardner
noticed a woman among the waiting panel whom he recognised as
having worked at a holiday resort where, some two years before,
he himself had been employed for about a week and a half. He
did not recall her name on seeing her at court, but he said
"Hello; how are you going?", and exchanged some other
pleasantries, which had nothing to do with the appellant's case
at all. It was only after that that the woman was empanelled on
the jury for the trial of the appellant.
The other occasion on which something was said was after
the appellant had been placed in the charge of the jury. As
Gardner was leaving to go to town to have lunch that day, he saw
the woman juror again, and said to her words to the effect
"We're not allowed to talk any more".
Once the content of these conversations - if that is what
they can be called - is known, it is not at all surprising that
the trial judge should have rejected an application to discharge
the jury under s.621. Having been informed of what had passed
between Gardner and the juror, his Honour said that no fair-
minded observer could entertain any doubt about the impartiality
of the juror, or of the jury as a whole; and that there was no
basis for suspicion that the jury would decide the case
otherwise than by reference to the evidence.

Ground 2 thus affords no basis for upsetting the

Ground 5 complains of the admission, over objection at the
trial, of the evidence of a witness named William James Clark to
the effect that he saw the appellant with a firearm in his
possession. It was submitted that the prejudicial impact of
this evidence on the jury outweighed any probative value it
might have had.
In his testimony at the trial Clark claimed that he was
someone whom the appellant had recruited to sell marijuana on a
profit-sharing basis. When first introduced to him at Yarrabah
in 1991, Clark said the appellant opened his brief case and he
saw in it some bank notes, cannabis sticks, and a sawn off .22
rifle. It was specifically only this evidence that was the
subject of ground 5, although on appeal the appellant's
criticism was directed primarily at some further testimony from
the same witness. Clark said that some time later the appellant
gave him eight bags of marijuana to sell; however, when the
police came after him, Clark panicked and threw them away. He
was then in a quandary when the appellant explained what would
happen if Clark did not pay him for the marijuana. The
appellant said he would bash Clark's leg with a baseball bat,
and that he would shoot him. With that encouragement, Clark
gave the appellant some money and what is described in evidence
as "$100 fishing".

conviction. admitted. It did not serve simply to prejudice the appellant but rather to substantiate the case for the Crown in a relevant respect. The appellant was charged with carrying on the business of trafficking in cannabis. It was therefore legitimate for the prosecution to prove how the business was conducted, including the means employed by the appellant to control or coerce those functioning as his sales representatives in the field, of whom Clark was one. Threats to kill or cripple them, using the gun seen in the brief case as a means of effectuating such threats, are fairly capable of being viewed as part of the system of business adopted by the appellant. It is not the kind of behaviour one would expect from someone who sold drugs only casually or intermittently and in an unplanned or unsystematic way. The evidence objected to was rightly admitted as tending to prove that what the appellant was doing possessed the hallmarks of a well organised illegal enterprise which it was evidently worth taking strong measures to protect.

In our view there is no substance in this or the other

As regards sentence, it was submitted that imprisonment for
five years for the trafficking offence was excessive. We think
this is not borne out by a review of comparable sentences for
the offence. In addition, the other three offences of supplying
cannabis of which the appellant was also convicted here each
attracted sentences of imprisonment for 18 months that were
ordered to be served concurrently with the five year sentence.
Quite apart from that, there were other factors justifying
a heavier sentence in this instance. The applicant is 29 years
of age and has a not insubstantial criminal history, most of it
in Victoria. Since 1985 he has sustained three separate
convictions for handling stolen goods; as well as one conviction
for burglary, one for theft, and one for unlawful possession of
a motor vehicle. His record also refers to possession of a drug
of dependence and of a restricted substance. More recently in
Queensland he was convicted in February 1992 of possession of a
dangerous drug and in March 1992 of assault occasioning bodily
harm. There had been an earlier conviction in 1985 for
assaulting police and being armed with an offensive weapon.
Previous periods of imprisonment seem to have done little to
deter him from re-offending.

ground of appeal. adopting a serious view of those offences by his findings, which were not challenged on appeal, that the appellant made sales at Yarrabah, and that he sold not only to adults but to minors including high school children. The learned judge concluded that the appellant was selling as much of the drug as he could, and that, although his takings in the course of the business were not precisely identifiable, they amounted to "thousands of dollars".

In view of these matters it is not possible to regard a

sentence of five years imprisonment as inappropriate. application for leave to appeal against sentence should be refused.