R v Harper

Case [2015] QCA 273

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harper [2015] QCA 273

PARTIES:

R
v
HARPER, Christopher John
(appellant)

FILE NO/S:

CA No 44 of 2014
SC No 6 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 21 February 2014 (Conviction); Unreported, 27 February 2014 (Sentence)

DELIVERED ON:

15 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2015

JUDGES:

Morrison JA, Mullins and Burns JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   It is ordered that these reasons for judgment may disclose publicly information that relates to the examination of witnesses before the Australian Crime Commission in 2004 and 2005 in connection with Mr Harper to the extent disclosed in these reasons.

2.   Exhibit CT1 (Australian Crime Commission transcripts comprising pages 2 to 213) to the affidavit of Christin Tom filed on 13 March 2015 in this appeal must be detached from the affidavit and placed in an envelope, and the envelope sealed and marked “Not to be opened except by the Order of the Court or Judge”.

3.   Appeal against conviction dismissed.

4.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where appellant was examined by the Australian Crime Commission (ACC) at two hearings prior to being charged – where police officers who were investigating the appellant for drug trafficking were present at the ACC hearings – where as a result of information given by the appellant at the first hearing, a search warrant was executed at the home of the appellant’s mother – where glassware and chemicals were found at the home and tendered as evidence at the trial – where the appellant gave further evidence at the ACC hearings about his use of hypophosphorous acid than was on end user declarations made in order to purchase the chemical – whether the evidence used against the appellant at the trial as a result of answers given by him at the ACC hearings resulted in a loss of forensic advantage in the trial and made the trial unfair

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where evidence had been given by a witness at the criminal trial of another person about visiting a property at Millmerran where methylamphetamine was being produced – where the appellant was imprisoned with this other person who disclosed the details of the witness’ evidence – whether the prosecution had a duty to disclose this evidence from an unrelated police investigation – whether there was a miscarriage of justice from the prosecution’s failure to disclose the witness’ statement to the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED –…

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Details
AGLC
R v Harper [2015] QCA 273
Case
[2015] QCA 273
Decision Date

CaseChat Overview and Summary

In the matter of R v Harper, the appellant was convicted in the Supreme Court of Queensland of trafficking in methylamphetamine and acquitted of charges of producing methylamphetamine. The case involved various legal issues including the admissibility of evidence obtained during hearings before the Australian Crime Commission (ACC), the duty of the prosecution to disclose evidence from unrelated investigations, the adequacy of jury directions, and the appropriateness of the sentence imposed. The court examined whether the admission of certain evidence led to an unfair trial, whether there was a miscarriage of justice due to non-disclosure of evidence, whether the jury directions were sufficient, and if the sentence was excessive.

The court found that the evidence obtained during the ACC hearings was properly admitted and did not render the trial unfair. It concluded that the prosecution did not have a duty to disclose the evidence from the unrelated investigation, and that there was no miscarriage of justice. The court also determined that the jury directions were adequate and that the sentence, while significant, was not manifestly excessive given the scale of the trafficking operation.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused. The court ordered that certain documents related to the ACC examination be sealed and not disclosed to the public without further order of the court.

Orders

Orders of the court

1. It is ordered that these reasons for judgment may disclose publicly information that relates to the examination of witnesses before the Australian Crime Commission in 2004 and 2005 in connection with Mr Harper to the extent disclosed in these reasons.

2. Exhibit CT1 (Australian Crime Commission transcripts comprising pages 2 to 213) to the affidavit of Christin Tom filed on 13 March 2015 in this appeal must be detached from the affidavit and placed in an envelope, and the envelope sealed and marked “Not to be opened except by the Order of the Court or Judge”.

3. Appeal against conviction dismissed.

4. Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Each of counts 4 to 15 involved the possession of a chemical for use in connection with the commission of the crime of producing a dangerous drug and those counts ranged in dates between 21 February 2001 and 9 December 2002 on the basis that Mr Harper procured Mr Williams to procure the chemicals for him and that Mr Williams was in possession of the chemicals at the request of Mr Harper.Summary of the evidence at trial Mrs Illing operated a business out of Toowoomba manufacturing chocolate honeycomb and used Mr Harper’s business Contrail Express Carriers between April 1999 and the end of 2000 for transport services. Mrs Illing was in debt to Mr Harper’s business when around August 2000 he told her that “he knew a way to make some money and I said how’s that and he said there’s this cleaning chemical that you can get and he can sell it to the right people”. He raised the same issue with her on another couple of occasions and she relented. Mr Harper then arrived at the factory with a filled in purchase order form which she signed (including the declaration as to use) and faxed it to Consolidated Chemicals (exhibit 105). Some days later Mr Harper told Mrs Illing that the shipment was delayed, she paid Mr Harper the money she owed him, and then she telephoned Consolidated Chemicals and cancelled the order. In cross-examination, she denied that it was Mr Williams who organised for her to purchase the hypophosphorous acid from Consolidated Chemicals. She admitted that the declaration as to use which she signed was false, she cooperated with the police, and she was not charged with any offence. Mr Williams was operating Queensland Tanker Services selling fuel in 1999/2000 when he met Mr Harper who purchased solvent from him. In about 2000 Mr Williams did some casual truck driving for Mr Harper. Mr Williams leased a property at Bligh Street, Millmerran (the Millmerran property) and started up a venture in 2002 called “Millmerran Oil” to recycle coal tar oil or waste oil into usable products such as oil and diesel. Mr Harper put some money into the venture, paid bills and helped with the project. Between 2000 and 2001 Mr Harper asked Mr Williams if he would buy hypophosphorous acid for him. Mr Harper told him he wanted to wash out the “fridge” vans. Mr Williams got onto Consolidated Chemical Company and they were able to supply hypophosphorous acid and Mr Williams had to give them an end user declaration. Mr Harper paid cash to Mr Williams for the purchase of the hypophosphorous acid who paid that to Consolidated Chemical Company. Mr Williams took delivery of the acid and then delivered it to Mr Harper’s business in Toowoomba. Mr Williams identified the end user declarations and delivery dockets relating to purchases of hypophosphorous acid, crude iodine and benzaldehyde from Consolidated Chemical Company, all of which were signed by him, and for which purchases Mr Harper provided the funds (exhibits 2 to 18). The first end user declaration signed by Mr Williams (exhibit 2) on behalf of Queensland Tankers for hypophosphorous acid showed the proposed use as “For cleaning out road-tankers from chemical to spring water, milk, fat etc, diesel, petro, etc”. The next end user declaration which Mr Williams signed as manager on behalf of Millmerran Oil for hypophosphorous acid (exhibit 3) showed the proposed use as “To be used to clean pipes lines of Petroleum Wax buildup after continued pumping of Hydrocarbon liquid”. A similar proposed use is shown in the end user declarations (exhibits 6, 14 and 17) which were all made on behalf of Millmerran Oil.

Decision

Reasons for decision

Mr Harper also cannot succeed on ground 5.Conclusion on the appeal against conviction Mr Harper has failed on all grounds of appeal against the conviction. The appeal must be dismissed.Findings of fact on the sentence In order to deal with the first ground relied on for the application to leave against sentence of errors in the findings of fact made by the trial judge concerning Mr Harper’s role in the offending, it is necessary to refer to the findings of fact that were made by the trial judge. The trial judge inferred from the jury’s verdicts of not guilty on counts 2 to 15 that the jury rejected Mr Williams’ evidence or at least had a reasonable doubt about the reliability of his evidence. That meant that the jury had rejected as a basis for action Mr Williams’ evidence that he was acting at Mr Harper’s behest in the extensive production and trafficking operation. The trial judge impliedly accepted that Mr Williams’ productions and trafficking of methylamphetamine were extensive. The trial judge noted in relation to counts 16 to 18 the following. The total amount of hypophosphorous acid of which Mr Harper was in possession was 240 kgs. The acquisition of the chemical “involved lies to defeat the purpose of the legislation which tries to allow legitimate use of the chemical and not illegitimate use”. The amount of precursor chemical would theoretically be able to produce 535 kgs of methylamphetamine. By reference to evidence at the trial about the amount of methylamphetamine found in fluid in glassware after a cook to make methylamphetamine where a quantity of methylamphetamine was unable to be extracted from the fluid, the amount of methylamphetamine that could in practical terms have been produced from the 240 kgs of hypophosphorous acid should not be as large as the theoretical quantity. That had to be counterbalanced with the fact that there was evidence the drug would be cut around four times before it was sold at street level. The evidence relied on to constitute the trafficking (beyond the facts caught up by counts 16 to 18) was mainly that of Mr McClymont and also identified by the trial judge as:(a)the evidence of Mr Poulton that after the February 2003 police search of the Millmerran property, Mr Harper organised for the chemicals and equipment stored there to be collected and taken back to his premises, and Mr Harper told others that the equipment and chemicals were to be used in the production of dangerous drugs;(b)the evidence of Mr Poulton and Mr Bennett that Mr Harper set about selling one drum of hypophosphorous acid from the collection removed from the Millmerran property, and the sale of that on the side of the road where Mr Harper acknowledged that he hoped to make $37,000 from the sale, but received only an amount of $4,000;(c)the evidence of Mr Hollis that he assisted in moving drug related equipment and chemicals from the Millmerran property to Mr Harper’s Wellcamp home and that Mr Harper was there when that happened;(d)Mr Harper paid for the precursor chemical that was the subject of count 15.

Ratio Decidendi

Legal Principle Established

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