R v Dumenil

[2024] QCA 118

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dumenil [2024] QCA 118

PARTIES:

R
v
DUMENIL, Mark Anthony
(appellant)

FILE NO/S:

CA No 208 of 2022
SC No 798 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 26 August 2022 (Jackson J)

DELIVERED ON:

Date of Orders: 15 May 2024
Date of Publication of Reasons: 21 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2024

JUDGES:

Mullins P and Boddice JA and Callaghan J

ORDERS:

Date of Orders: 15 May 2024

1.   Appeal allowed.

2.   Conviction on Count 2 set aside.

3.   New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of one count of attempting to possess a commercial quality of unlawfully imported border controlled drugs – where the appellant had a co-accused – where there was evidence admissible against the co-accused but not the appellant – where there had been an application to exclude that evidence – where that application had been rejected on the basis a jury direction would be required – where jury direction not given – whether this amounted to a failure to observe the requirements of the criminal process in a fundamental respect

Criminal Code (Qld), s 668E(1A)

HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

J Lodziak for the appellant
C M O’Connor and J J Underwood for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Commonwealth) for the respondent

1. THE COURT:  The appellant and his co-accused, K, were charged with one count of importing a commercial quantity of border controlled drugs (cocaine – count 1) and one count of attempting to possess a commercial quantity of unlawfully imported border controlled drugs (cocaine – count 2).

2. K pleaded not guilty to count 1, but guilty to count 2.  The appellant pleaded not guilty to both counts.  A jury was unable to reach a verdict (against either accused) on count 1, but the appellant was convicted on count 2 (attempting to possess) and appeals against that conviction.

3. On 15 May 2024 the Court, for the reasons that follow, allowed the appellant’s appeal, set aside the conviction on count 2, and ordered a new trial.

4. There is one ground of appeal, which avers a miscarriage of justice occurred because the learned trial Judge failed to direct the jury that the contents of a police interview with K were not admissible against the appellant and that a miscarriage of justice occurred as a result.

5. The respondent accepted that the failure to direct the jury as to the inadmissibility of the police interview constitutes a miscarriage of justice, but submitted that it did not rise to the level of a substantial miscarriage of justice. The respondent therefore submitted the court should exercise its power under s 668E(1A) of the Criminal Code to dismiss the appeal.

   The case against the appellant

   Admissions

6. The following facts were admitted at trial:[1]

   [1]Appeal Record Book, Volume 3, page 888.

   (a)The appellant was a director of a company that recycled rubber into granules.[2]  That company leased a warehouse in Wacol.[3]

   (b)The company organised for a container of rubber granules to be shipped from Cartagena, Colombia to Brisbane, Australia.[4]  The authorities, after noticing anomalies in an X-ray scan of the container housing the rubber granules, located 99 blocks of white substance concealed in the roof beams.[5]  That white substance was cocaine, which was surreptitiously substituted by the authorities with an inert substance.[6]

   (c)The container was delivered to the Wacol warehouse on 17 January 2018.[7]  The following afternoon, the appellant and K removed the rubber granules from the shipping container.[8]

   (d)At 5.04 am on 19 January 2018, the day after the rubber granules had been removed from the container, the appellant and K returned to the warehouse.[9]  K brought a grey suitcase into the warehouse with him.[10]

   (e)At 5.21 am, K retrieved a diagram describing the location of where the cocaine had been stored in the shipping container.[11]  K then used an angle grinder to cut into the roof of the warehouse.  The blocks of inert substance were extracted from the roof beams of the container by K.

   (f)K and the appellant then went to Bunnings together at 6.48 am, where K bought various items designed to repair the damage to the container caused by the angle grinder.[12]  K and the appellant then returned to the warehouse at 7.38 am.[13]  Repairs were made to the container.[14]

   (g)The substituted inert substance was placed into a grey suitcase, which K then placed into his car at 8.48 am.[15]  The appellant and K then embraced, shook hands, and parted ways.[16]

   (h)The appellant was arrested at 9.05 am, after he exited the premises.[17]  The police found the planning diagram in the appellant’s car.[18]

   (i)K proceeded to deliver the suitcase to some other persons, before being arrested at 10.00 am.[19]

   [2]Appeal Record Book, Volume 3, page 888.

   [3]Appeal Record Book, Volume 3, page 890.

   [4]Appeal Record Book, Volume 3, page 892.

   [5]Appeal Record Book, Volume 3, page 893.

   [6]Appeal Record Book, Volume 3, page 893.

   [7]Appeal Record Book, Volume 3, page 894.

   [8]Appeal Record Book, Volume 3, page 897.

   [9]Appeal Record Book, Volume 3, page 899.

   [10]Appeal Record Book, Volume 3, page 899.

   [11]Appeal Record Book, Volume 3, page 900.

   [12]Appeal Record Book, Volume 3, page 900.

   [13]Appeal Record Book, Volume 3, page 900.

   [14]Appeal Record Book, Volume 3, page 900.

   [15]Appeal Record Book, Volume 3, page 900.

   [16]Appeal Record Book, Volume 3, page 900.

   [17]Appeal Record Book, Volume 3, page 901.

   [18]This was not admitted but was uncontroversial: Appeal Record Book, Volume 1, page 136, line 36.

   [19]Appeal Record Book, Volume 3, page 902.

   Other evidence

7. Camera footage revealed that no other person was in the vicinity of the warehouse between 5.04 am and 6.48 am.  Further, the appellant was observed exiting the warehouse at 6.04 am, carrying sleeves of plastic, similar in appearance to that which the cocaine and substituted drug were stored in.[20]  The appellant was observed exiting and re-entering the warehouse again at 6.28 am.  The appellant exited the warehouse again at 6.43 am, wearing gloves on each hand.

   [20]Appeal Record Book, Volume 2, page 358.

8. The Crown also relied on two listening device recordings.  These captured a conversation between K and another individual.  The defence did not accept that it was the appellant in that recording.  The jury was asked by the Crown to make a voice identification of the person speaking in that recording, and was invited to compare that voice with a recording of the appellant’s voice.[21]  It was submitted that “[i]f you find that Mr Dumenil is the voice on those recordings, then there’s really no room for any doubt whatsoever Mr Dumenil is guilty,”[22] although it was maintained that the evidence established guilt beyond reasonable doubt in any event.

   [21]Which was accepted to be his.

   [22]Appeal Record Book, Volume 1, page 42, lines 9-10.

9. The prosecution also asked the jury to have regard to a conversation between the appellant and K, recorded on the 18 January 2018, in which the appellant said they needed to get a proper blade for the grinder, among other things.[23]  In that recording, K referred to somebody by their first name, which was also the first name of the appellant.[24]  The Crown also submitted to the jury that the voice identification could be supported by the inference that it was unlikely anyone else was in the warehouse.[25]

   [23]Appeal Record Book, Volume 1, page 137, lines 5-7.

   [24]Appeal Record Book, Volume 1, page 46, lines 28-29.

   [25]Appeal Record Book, Volume 1, page 46, lines 18-20.

10. The prosecution submitted that the recordings showed that the person to whom K was speaking was involved in the cutting open of the shipping container, and was aware of the plan to sell the extracted material.[26]  In the recordings, the person to whom K was speaking said, inter alia, “[w]e’re going to need a bigger suitcase”, “[w]e’re going to get fucking good money out of this”.[27]

    [26]Appeal Record Book, Volume 1, page 46, lines 5-25.

    [27]Appeal Record Book, Volume 1, page 137, lines 15-30.

    Police interviews

11. On the day of arrest, K participated in an interview with police.  He agreed that he met the appellant at the Wacol warehouse the day before they unpacked the rubber granules, met for dinner and had a few drinks.  He told police they were meeting on the 19 January 2018 to load tyres into an empty container for export.[28]  He accepted that he went to Bunnings, purchased a broom, a spray-can of white paint, and some timber.  He told police that the container they were planning to load with tyres had not arrived; that he had driven straight back to his hotel after finishing up at the warehouse; that he and the appellant were the only ones at the warehouse; and that he could not explain the loud power tool noises.  He told police about some of the people he had spoken to, including the appellant, his father-in-law, his wife, a business associate, and his brother-in-law.  He told police some of the locations he had visited, and refused to provide comment on some of those locations.  The interview was then concluded.

    [28]Appeal Record Book, Volume 4, page 1441.

12. Both the appellant and K were interviewed by police some days later, on 23 January 2018.  The appellant maintained that the importation of rubber granules had been for a purely commercial purpose, that he had no knowledge there were drugs in the container, and that he had no knowledge about the removal of the blocks until after his arrest.

13. K initially told police that he agreed to take possession of the cocaine under threat of violence, and that he did not tell the appellant about this.  He went on to say that the appellant had not been involved with the removal of the drugs, that the appellant had asked him at one stage what he was doing, but was told to not ask questions, whereupon the appellant took no further notice.

14. K then spoke to his solicitor.  Upon return to the interview, K told police that the appellant had seen him putting blocks into the suitcase, and then been told of the threats to K.  K told police that the appellant knew about the importation, understood the blocks were drugs and helped him pack the suitcase.

    Separate trial application

15. The appellant applied for a separate trial from K.  It was submitted (without contradiction) that K’s statements to the police were inadmissible against the appellant.  Their effect, however, was unmistakable.  No direction, so it was submitted, could address this unfairness.

16. Dalton J (as her Honour then was) rejected the application, holding that:

    “I do not accept that a direction to the jury to exclude statements made by [K] in his record-of-interview concerning [the appellant] would be difficult or impossible for the jury to apply…. the jury will need instruction only on relatively short and discrete parts of [K]’s record-of-interview and it would not be impossible for them to separately assess the remaining body of evidence against [the appellant] independently of those parts which they are directed to exclude.”[29] (italics and underlining added)

    [29]Appeal Record Book, Volume 2, page 207.

    Usage of police interviews

17. When K’s police interviews were played to the jury, there was no explanation given by the trial judge at that stage that those interviews were admissible only in the trial against K.

18. At trial, it was submitted by the Crown that K’s initial denial of the appellant’s involvement was a lie, and after speaking with his lawyer, he decided to tell the truth about the appellant.[30]  The Crown did also tell the jury that “[this was] evidence only against K, not against [the appellant]”.

    [30]Appeal Record Book, Volume 1, page 63, lines 19-28.

19. Counsel for the appellant said:

    “You’ve been told a couple of times now – and it’s correct – that nothing [K] says in his interview is admissible in the case against [the appellant]. Indeed, it’s not admissible in the case for [the appellant] either.

    If [K] had not been on trial here, you would not have been able to hear that. It’s not admissible. Now, there’s very good reasons for that rule but you’ll be given a direction that you can’t use it against [the appellant]. That’s — it’s artificial to say you can’t use it because you have heard it. There’s nothing really in there except one comment about him packing the suitcase that I have a problem with. But that is not evidence that [the appellant] did that thing. That is not evidence that [the appellant] packed, repacked or assisted with repacking these blocks into the bag. There is no evidence of that. There’s good reasons for the rule. [K]’s not a witness in this case. I can’t cross-examine him. There are all sorts of reasons why it’s very unfair to use such a statement. But I am just impressing upon you that it’s not evidence in this trial. There is no evidence that [the appellant] did anything physical at all in respect of this packing of the suitcase, in respect of – he doesn’t wheel it out of the warehouse, you see who does that. There’s no evidence of him doing anything at all.”[31]

    [31]Appeal Record Book, Volume 1, page 102, lines 20-37.

20. It may also be noted that the learned trial judge:

    (a)told the jury that there were “two trials” in one, even though “we’re all sitting here in the one room”;[32]

    (b)told the jury that they “mustn’t consider [K]’s guilty plea as any evidence against [the appellant];[33]

    (c)provided the jury with documents titled “question trail” which identified the issues for each defendant, separately;[34]

    (d)identified, with some precision, the evidence relied on by the prosecution to establish each element of the offence, separately for each of the defendants.[35]

    [32]Appeal Record Book, Volume 1, page 146, lines 15-16.

    [33]Appeal Record Book, Volume 1, page 146, lines 14-15.

    [34]Appeal Record Book, Volume 4, pages 1559-1564.

    [35]Appeal Record Book, Volume 1, page 135, line 43, to page 148, line 15.

21. He did not, however, direct the jury that the contents of K’s interview were not admissible against the appellant.

22. The error is characterised properly as a “failure to observe the requirements of the criminal process in a fundamental respect” such that the conviction cannot stand.[36]

    [36]HCF v The Queen [2023] HCA 35 at [2].

23. The background to the error is also relevant to the application of the proviso.  The appellant had contested the proposition that he could get a fair trial before a jury who had heard this evidence.  He was, in effect, told by a judge of this court that he could.  That ruling was made squarely on the basis that there would be directions which restricted its use.  Even though both the prosecutor and the appellant’s counsel addressed the jury correctly that K’s interview was not admissible in the case against the appellant, those submissions were not given the imprimatur of a direction by the trial judge to that effect in the summing up.  In these particular circumstances the omission to give the direction amounted to a failure to observe a condition that was a “serious breach of the presuppositions”[37] that underpin a satisfactory criminal trial.

    [37]Weiss v The Queen (2005) 224 CLR 300 at [46].