R v Gilbey

[2002] QCA 182

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gilbey [2002] QCA 182

PARTIES:

R
v
GILBEY, Colin Les
(appellant)

FILE NO/S:

CA No 277 of 2001
SC No 349 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

31 May 2002

DELIVERED AT:

Townsville

HEARING DATE:

27 May 2002

JUDGES:

McMurdo P, Williams JA, Jones J
Judgment of the Court

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – PROCEDURE – PROOF AND EVIDENCE

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – WHEN NEW TRIAL REFUSED – VERDICT NOT UNREASONABLE - where appellant convicted of possession of methylamphetamine with a circumstance of aggravation –where appellant contends the evidence of continuity was insufficient to prove the substance police officers saw him discard as containing 14.64 grams of pure methylamphetamine – where no positive evidence of break in continuity - whether reasonable jury properly directed could have convicted the appellant

APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – ADMISSION OF EVIDENCE

EVIDENCE – HEARSAY – RELEVANT PRINCIPALS - where police officer was referred to analyst’s certificate during his testimony – where appellant contends that evidence was inadmissible – where evidence related only to police officer’s evidence on continuity – where evidence was admissible

APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – JUDGE’S SUMMING UP – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS - where trial judge gave directions to the jury as to the onus and standard of proof on the continuity evidence – where no application for redirection sought – where judge’s directions were sufficient

COUNSEL:

H Walters for the appellant (pro bono)
Ms L J Clare for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT: The appellant was charged with one count of possession of a dangerous drug, methylamphetamine, with the circumstance of aggravation that the quantity exceeded 2 grams.  He was also jointly charged with Melinda Jane Donovan with one count of unlawful possession of a dangerous drug, methylamphetamine, and one count of possession of a dangerous drug, cannabis sativa.  They both pleaded not guilty.  At the close of the prosecution case, the Crown accepted Donovan’s plea of guilty to possession of cannabis sativa in full satisfaction of the indictment against her.  The appellant was convicted only of the major count, possession of methylamphetamine with a circumstance of aggravation.  He appeals against that conviction.

1. The appellant’s primary contention is that the evidence of continuity was insufficient to prove that the substance police officers saw him discard in the motel room on 25 July 2000 was the same substance which was analysed at the John Tonge Centre, Brisbane, on 20 September 2000 as containing 14.64 grams of pure methylamphetamine.  He contends that no reasonable jury, properly directed, could have convicted him.

1. At the hearing of the appeal, the appellant was given leave to amend his notice of appeal by adding further grounds, namely that the learned trial judge erred in law or fact in allowing police officer Webb to give secondary evidence of matters referred to in the analyst’s certificate; the learned trial judge erred in directing the jury that they could use Webb’s hearsay evidence when he referred to the analyst’s certificate to prove the connection between the drug analysed and the substance discarded by the appellant; and the learned trial judge erred in failing to direct the jury that the onus of proving continuity lay with the Crown and the standard of proof was beyond reasonable doubt.

1. In order to deal with those contentions, it is necessary to carefully review portions of the evidence.  On 25 July 2000, police raided a Townsville motel room where a number of people, including the appellant, were present.  Police officer Webb saw the appellant holding a rolled up clipseal plastic bag, drop it onto a set of scales and run for the door.  Police officer Bocking sprayed both a pit bull-type dog and the appellant with capsicum spray and the appellant was detained.  Police officer Webb weighed the rolled up clipseal bag and its contents, a yellowish/cream crystalline substance.  He placed the package on scales and the weight recorded was 42.5 grams.[1]  Police officer Webb placed the rolled up plastic bag containing the substance into a clipseal bag which he numbered “1”.[2]

   [1]Appeal book 41, line 32.

   [2]Appeal book 46.

1. Other substances, later analysed as drugs, were also found in the motel room and the appellant was charged with possession of those drugs as an occupier of the room with reliance on s 57(c) Drugs Misuse Act 1986 (Qld). As we have noted, the appellant was acquitted in respect of those charges.

1. At the Townsville Police Station, police officer Webb handed the plastic bag numbered “1” to police officer Mobbs.  Police officer Mobbs wrote up seven items on a Queensland Police Service Property Report numbered A516678[3] which recorded that the reporting officer was Webb, the lodging officer was Mobb and was signed by property officer Egerton as an accurate description of the property.  The fourth item in Property Report A516678 is “one CSB[4] containing white crystals – bag #1”.  Mobbs also completed a Queensland Police Service Property Tag numbered A516678.[5]  He recorded receiving the items at Townsville at 23.00 hrs on 25 July 2000.  He marked and wrote up other seized items as exhibit A516684.[6]   Mobbs handed all the items he received to property officer Egerton.  Because Egerton was overseas at the time of trial, defence counsel admitted the continuity of the exhibits as far as Egerton was involved.[7]

   [3]Ex 21B; Appeal book 142.

   [4]Clipseal bag.

   [5]Ex 6A; Appeal book 144.

   [6]Appeal book 144.

   [7]Appeal book 198.

1. On 26 July 2000, police officer Marlowe retrieved a heat sealed plastic bag marked A516678 and other items from the night safe where the exhibits are placed outside standard hours when the Property Office is closed.  She entered them in the exhibits register and secured them in the property room.[8]  She recorded that A516678 included a clipseal bag marked “1”[9]containing white crystals.  She did not open any heat sealed plastic bag.  It seems that the previous night, property officer Egerton placed the items listed in the Property Report numbered A516678 with the Property Tag A516678 in this heat sealed plastic bag and placed that bag in the night safe.

   [8]Appeal book 167.

   [9]Appeal book 168, line 22.

1. On 27 July 2000 police officer Webb retrieved items including the bag A516678 from the Property Office through property officer Marlowe. Because suspected drug items were to be analysed by different analysts, it became necessary to separate some of the items in bag exhibit A516678.

1. Police officer Webb then performed a “drug transfer” on 27 July 2000 to allow for fingerprinting of the plastic bags containing the suspected drugs.  He removed the powder from the rolled up plastic bag inside the plastic bag numbered “1” in A516678 and placed the bag originally holding the powder into another clipseal bag for dispatch for fingerprinting.  He placed the powder into another container and replaced it into the original exhibit bag numbered “1” which he closed, heat sealed, signed and dated.  Police officer Webb placed the items, including property tag A516678 and the bag numbered “1” with its original contents in a new container, into a plastic bag which he heat sealed, signed, marked with his registered number and dated.[10]  This process was photographed.[11]  He placed some other items also the subject of a “drug transfer” in a heat sealed plastic bag numbered A516680.[12]  He then placed the heat sealed plastic bags into the drop safe in the night exhibit room[13] as the property office was not open. 

   [10]Appeal book 71-72.

   [11]See exhibits 6C, 6D, 6E and 6F; Appeal book 58-60.

   [12]Appeal book 73.

   [13]Appeal book 71.

1. Property officer Marlowe received these items, including the heat sealed bag marked A516678 containing the powder in the plastic bag marked “1”, from the night safe on 28 July 2000.[14]  On 3 August 2000 she placed that heat sealed plastic bag, the heat sealed plastic bag A516680 and the heat sealed plastic bag A516684 into one large plastic bag which she heat sealed[15] and which she identified as exhibit 16 at the trial.  She gave that large heat sealed plastic bag to Inspector Butterworth.

   [14]Appeal book 170.

   [15]Appeal book 173.

1. Inspector Butterworth, who is now retired, followed the practice when collecting exhibits of checking the items against the numbers in the exhibit book in the Townsville Police Property Office and, if appropriate, signing the property register indicating he had received those items for transportation to Brisbane.  The exhibits were in heat sealed bags which he did not open.[16]  The items would remain under his control without opportunity for interference until delivery to the John Tonge Centre in Brisbane.  After attending to police business en route, he delivered the items he collected from property office Marlowe on 3 August 2000 to the John Tonge Centre where they were received by Ms Cusack on 7 August 2000. 

   [16]Appeal book 157-158.

1. Ms Cusack gave evidence that her practice was not to open any heat sealed bags received at the John Tonge Centre until they were to be analysed.  She recorded in the Centre’s receipt book that she received a heat sealed plastic bag numbered A516680 from Inspector Butterworth on 7 August 2000.  Although she has no independent recall of the receipt, her entry in the receipt book was only a general description because the contents of a heat sealed plastic bag cannot always accurately be seen without opening the bag.  The established system is that the analyst who opens the heat sealed plastic bag to analyse its contents then fully records all the items contained in the bag.  She placed the number OOFD211 on the unopened plastic bag she received.  The number on exhibit 16 at the trial (the plastic bag containing the cream substance in the bag numbered “1”) is in fact marked OOFDO211. 

1. The bag numbered OOFD211 (or OOFDO211) was secured at the John Tonge Centre until 20 September 2000 when analyst Crawford took possession of it and opened it for analysis.  It contained three further heat sealed bags, one numbered A516678, another numbered A516680 and a third numbered A516684.  Ms Crawford records that A516678 contained, amongst other items, a clipseal plastic bag labelled “1” which contained one plastic specimen jar holding a quantity of yellow substance.  Ms Crawford found the yellow substance weighed 37.539 grams with a calculated weight of 14.64 grams of methylamphetamine.[17]

   [17]Appeal book 186, 342.

1. The appellant contends that because Ms Cusack only receipted item A516680, the prosecution did not establish a continuous system of handling the substance which police officer Webb saw the appellant drop at the motel room.  He also relies on the differences in the weights recorded by police officer Webb and the analyst and the variation in the description of the colours of the substance.

1. The continuity evidence was not presented as clearly as it might have been but there was no positive evidence suggesting any break in continuity.  The appellant did not contest any break in continuity caused by police officer Egerton’s absence.  The weight of the plastic bag and contents recorded by police officer Webb at the motel room was consistent with the weight of the drug alone recorded by the analyst, once allowance is made for the weight of the plastic bag, variations between scales and lost traces of the drug during its transfer to another container.  It is not significant that the colour of the drug was variously described as white, cream or yellow.  The evidence of the complex journey of the contents of the rolled up plastic bag which police officer Webb saw the appellant drop and of which he took possession on 25 July 2000 was sufficient to allow the jury to reach the conclusion that it was the same material analysed by Ms Crawford as containing 14.64 grams of pure methylamphetamine on 20 September 2000.   

1. Continuity was a major issue in the trial and his Honour correctly highlighted this in his summing up to the jury, putting the relevant prosecution and defence submissions.  Although Ms Cusack said she marked the heat sealed package she received from Inspector Butterworth OOFD211 and exhibit 16 is in fact marked OOFDO211, she was not questioned about this inconsistency, which was almost certainly a slip of the tongue on her part.  Ms Cusack described that heat sealed bag in the John Tonge Centre’s receipt book as A516680.  The heat sealed plastic bag retrieved by analyst Crawford contained the three separate sealed bags numbered A516678, A516680 and A516684 and the bag numbered A516678 included the clipseal bag numbered “1” containing a yellow substance.  The only rational inference from all the evidence we have outlined was that this was the substance which police officer Webb saw the appellant drop at the motel.  The evidence of continuity was sufficient to allow a reasonable and properly instructed jury to convict the appellant.

1. The case demonstrates the need for police officers and analysts to accurately and simply record all dealings with exhibits and for prosecutors to present their cases in a logical sequence so that in these rare instances where continuity evidence is in issue, it can be easily comprehended. 

1. The appellant contends that the evidence of police officer Webb when questioned about the analyst’s certificate was inadmissible.  Though objection was taken by defence counsel at the beginning of this line of questioning, the objection was on the basis that it was incumbent upon the prosecution to establish continuity, even if the analyst’s certificate was tendered.  That was accepted by the prosecutor and the learned trial judge.  In due course the analyst’s certificate was tendered and the analyst gave the oral testimony to which we have referred.  Mr Webb did not give secondary or hearsay evidence about the analyst’s certificate; he was referred to the certificate only to focus his testimony about his involvement in the journey of the large number of items from the motel room to the analyst.  He was entitled to look at the certificate and indicate which items he had labelled and to relate his dealings with those items.  The evidence of police officer Webb was admissible and the learned primary judge did not err either in admitting it or in later reading portions of this evidence to the jury in the summing up.  This contention is without substance.

1. Finally, the appellant contends that the learned trial judge erred in his directions to the jury as to the onus and standard of proof on the continuity evidence.  The learned primary judge gave the standard directions as to the onus and standard of proof.  He additionally said:

“What the prosecution has to satisfy you of … beyond a reasonable doubt are the following:
(A)  That the accused had possession of the item which is alleged to have been shown to be methylamphetamine.  …
(B)  That in fact what was in that plastic was methylamphetamine.
So let me put it in the reverse.  That what was in the plastic was methylamphetamine, that the accused had possession of that plastic.  And those things have to be proved beyond reasonable doubt … .”

1. This sufficiently instructed the jury that they must be satisfied that the substance dropped by the appellant in the motel room was in fact methylamphetamine before they could convict.  It is self-evident that they could only be so satisfied if the evidence of continuity was established beyond reasonable doubt.  The judge was not required to specifically refer to the onus and standard of proof in respect of the continuity issue.  No such re-direction was sought at trial.  His Honour’s directions on the onus and standard of proof were sufficient and it is conceded that his Honour accurately and sufficiently put the defence case to the jury.  This contention is also without substance.

1. It follows that the appeal must be dismissed.