R v King

[1998] QCA 108

IN THE COURT OF APPEAL	[1998] QCA 108
SUPREME COURT OF QUEENSLAND

C.A. No. 66 of 1998

Brisbane

[R. v. King]

THE QUEEN

v.

KENNETH BRUCE KING

Appellant

Davies J.A.
McPherson J.A.

Derrington J.

Judgment delivered 26 May 1998

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:	CRIMINAL - Conviction - Trafficking in heroin - Supplying heroin - Admissibility of evidence - Whether police acted improperly or unlawfully in knowingly permitting distribution of heroin - Trial judge’s direction with respect to failure of accused to give evidence - Whether trial judge wrongly excluded evidence from conversations between a witness and police officer as hearsay - Whether trial judge wrongly directed jury with respect to favourable inferences that could be drawn from witness’s claims of privilege against self- incrimination.
Ridgeway v. The Queen (1995) 184 C.L.R. 19. Weissensteiner v. The Queen (1993) 178 C.L.R. 217.
Counsel:	Mr R.F. Greenwood Q.C., with him Ms E.S. Wilson, for the appellant Mr D. Meredith for the respondent.
Solicitors:	Nicol Robinson & Kidd for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	12 May 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 26 May 1998

After a trial in the Supreme Court, the appellant was found guilty of one count of trafficking in heroin and a further seven counts of supplying that drug. The notice of appeal contains only one ground, but by leave a further five were added on appeal.

To understand them, it is necessary to refer to the facts. In 1995, an alert employee of the Commonwealth Bank at Yeppoon noticed that a local customer named O’Grady was making regular deposits into an account in the name of the appellant Kenneth Bruce King that totalled $60,000 from 39 occasions. She was later able to identify O’Grady as the depositor into that account. On being advised, police arranged to monitor mail addressed to O’Grady. Articles addressed to him at Yeppoon on 1, 2, 3 March 1995 were photographed, and, on 7, 8 and 10 March 1995, police armed with warrants inspected and sampled white powder inside toys in the postal packages. It was found to contain heroin. On 17 March 1995 police watched O’Grady collect a similar parcel. He was arrested, charged with possession of heroin, and later convicted.

Ground 1 challenges the admission of the police evidence on this subject. The substance of the ground is that the police had acted improperly or unlawfully in knowingly permitting heroin to be distributed in Yeppoon on each of the seven occasions mentioned, and that the evidence ought to have been excluded. In support, reliance was placed on the decision in Ridgeway v. The Queen (1995) 184 C.L.R. 19; but it would require a considerable extension of that decision to apply it to the circumstances in the present case. In Ridgeway the police assisted in importing heroin into Australia, and it was only by means of special arrangements to pass it through customs that the illegal importation was able to be effected in that instance. Here the police did no more than to observe or, as it is said, to “monitor”, what was already taking place without any active assistance, encouragement or participation on their part. They did nothing to help the parcels of heroin reach their destination but simply refrained from doing anything to prevent their onward transmission. Their action or inaction was neither illegal nor improper. Neither Ridgeway, nor, if it is still authoritative, R. v. Davidson & Moyle, ex p. A.-G. [1996] 2 Qd.R. 505, bears on their conduct in this instance.

There is no substance in the appellant’s submissions that when, after intercepting the postal packages containing heroin, the police restored them to the mail expecting that the addressee O’Grady would sell the heroin to consumers, they actively participated in the offence themselves, and the balance of the evidence relating to it was therefore “contaminated”. Such conduct is not of a kind that attracts condemnation. It did not amount to instigation of the offence, nor did it do anything to advance it except to restore what had been interrupted so that the offenders would not be warned. It was necessary for the purpose of further investigation of the matter and the collection of evidence. The actions in question amounted to no more than a failure to prevent some offences of this kind from taking place during an operation designed to put a stop to the illegal trade altogether. As such, it is not at all analogous to the example suggested by counsel for the appellant of permitting a murder to take place in the course of investigating and apprehending a serial killer.

It is convenient to defer for later consideration the specific content of Ground 2, which, together with Grounds 3, 4, 5 and 6, were the grounds added by leave in this Court. It is, however, convenient to mention at this stage that it concerned the part played in these events by the appellant’s girlfriend Andrea Matarazzo, who at that time in March 1995 shared a residence with him on the Gold Coast. On 9 March 1995 she was observed posting an envelope which, on interception and inspection, was found to be addressed to O’Grady in Yeppoon and to contain heroin. The activity was repeated on 17 March 1995, with the same result. On both dates she was seen accompanying the appellant on the day in question.

Andrea Matarazzo was charged and pleaded guilty to three of the charges of supplying heroin to O’Grady for which she was sentenced to a term of imprisonment. At the trial of the appellant it was proved in March 1995 that she operated various accounts maintained in the name of the appellant, and at all times to have had access to and the means of doing so. The inference which the jury at the appellant’s trial were invited by the defence to draw was that it was she alone rather than the appellant who had been trafficking in heroin (count 1) and had carried out the acts of supplying the drug charged against him in the seven counts 2 to 8. If the prosecution case against the appellant was well founded, the explanation was that the appellant himself had deliberately adopted a low profile and used Andrea to carry out the transactions charged in those counts. On that footing, he would himself be criminally responsible under one or more of the provisions of s.7 of the Criminal Code, which, stated in general terms, deem a person to be an offender if he actively participates in doing an act or acts that constitute an offence or offences committed by another or that assists that other to do so. Passive inaction even with knowledge that offences were being committed would not suffice to make him criminally responsible for her actions.

Various circumstances were proved at the trial sufficient to justify drawing an inference of guilt against the appellant. First, there was the fact that at the time the parties were living together in the same premises. The appellant could scarcely have avoided knowing of her status as a heroin user. Traces of heroin were found on scales discovered in the kitchen of their home. Then there was the evidence already mentioned of their being in each other’s company on the two days when the packages were posted by Andrea on the Gold Coast to O’Grady in Yeppoon. On one of those days he was seen driving her around apparently for that purpose. In addition, a search of the premises disclosed documentary material which was traced to telephone accounts in the name of the appellant that recorded over 180 telephone calls to and conversations with a Miss Doody, who was O’Grady’s girlfriend. What served to implicate the appellant even more directly was a TAB account opened in the appellant’s name at the Gold Coast on 23 December 1994. It was proved that O’Grady made regular deposits to the credit of this account, and that withdrawals were made at various Gold Coast agencies. The withdrawal vouchers, of which there were some 34 in all, were in the appellant’s name and were proved by expert handwriting evidence to have been signed by the appellant himself. The appellant’s fingerprints were identified on nine of the vouchers. The amounts withdrawn were in total considerably more than the amounts attributable to winnings by betting through the TAB. On any view of the evidence, O’Grady was paying substantial sums to the credit of the account, which were being drawn out by the appellant himself. At the trial no explanation was offered of the reason for these payments to the appellant.

When all these circumstances are brought together, it is difficult to conceive of any rational explanation for the conduct of the appellant and O’Grady other than that the latter was paying by depositing money in bank and TAB accounts in the name of the appellant for the heroin supplied to him which was being dispatched by Andrea Matarazzo. If any such explanation existed, the appellant did not condescend to provide it. At the trial he elected not to testify himself, but instead called Andrea Matarazzo to give evidence in the defence case. She in turn was represented by a solicitor, who announced at the outset that his function in appearing was to protect her against making incriminating statements. In this he and his client Andrea were actively encouraged by counsel for the appellant who, despite the unavailing efforts of the trial judge, proceeded to elicit selected information from her as his own witness by a series of grossly leading questions. As he observed at one stage, in circumstances like that it is sometimes difficult to avoid doing so.

The jury cannot fail to have been impressed by this spectacle of co-operation between the appellant’s legal representatives and the solicitor appearing for the witness Andrea Matarazzo, even if the fact was that the underlying purpose of the former was to sheet home to her sole responsibility for the drug dealing. Of course, it might all be explained by the loyalty or fidelity that might be expected to prevail between persons sharing an affectionate relationship, except that, as counsel was careful to extract from the witness, the couple had already separated and she was no longer living with him but, since her release from prison, had been residing with her parents. The only other obvious explanation was that the two of them had jointly engaged in the drug transactions and, within limits, she was still prepared to assist him.

The jury were left to draw from the evidence appropriate inferences about the true state of the relationship between the appellant, O’Grady, Miss Doody and Andrea, and the part, if any, which each of them played in those transactions. The absence of any explanation from the appellant himself may fairly have led them to conclude that the attempt to pin exclusive responsibility on Andrea was a transparent contrivance. Acting on the decision in Weissensteiner v. The Queen (1993) 178 C.L.R. 217, her Honour accepted that the case was one in which only the appellant was in a position to give evidence of facts which, to quote from the judgment in that case (178 C.L.R. 217, 228), were “peculiarly within [his] knowledge”. That was true generally of the circumstances disclosed in the evidence but especially of the transactions carried out on the TAB account, in which the appellant himself was shown to have been personally active both as the drawer and recipient of the money withdrawn. Without affirmative evidence to the contrary from him, the jury were entitled to infer that those deposits and withdrawals were simply one aspect of an extensive scheme of buying, selling and paying for drugs to which the appellant himself was a party. It is in that context that her Honour’s use in summing up of the expression “satisfactory explanation of the prosecution case” falls to be understood. She had, immediately before she said that, explicitly warned the jury that no adverse inference was to be drawn from the appellant’s exercise of the right to remain silent. There may possibly have been an innocent explanation of what he was doing; but, if there was, it was not identified. That being so, it became relevant “to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence” (Weissensteiner (1993) 178 C.L.R. 217, 229). Specifically, what the learned judge told the jury in the present case was that the absence of a satisfactory explanation of the prosecution case made the inference of guilt from the evidence “less unsafe” than it might otherwise possibly appear to be. There can be no legitimate complaint about a direction in those terms.

What has been said so far serves to dispose of Grounds 4 and 6 in the appeal. It also helps to dispose of Ground 5. It is that it was only in redirection that the trial judge had “introduced the issue of the appellant acting as a party”, and that her Honour did so “without adequate explanation”. It is not at all easy to understand precisely what is meant by this. As was acknowledged by the defence submissions on appeal, the only real issue at trial was whether the appellant was himself an active participant in the drug transactions, or whether they were carried out by Andrea Matarazzo alone and entirely on her own account. The redirection complained of was designed to ensure that the jury appreciated that it was not enough for the Crown to prove only that the appellant was a passive, if comprehending, observer of what she was engaged in doing. The direction in question was specifically sought by counsel for the appellant, and he was evidently content with the terms in which it was given. No more detailed instruction on the law was required, nor was it requested at the trial. In the circumstances, it is not now open to the appellant to complain of it on appeal, and, indeed, the matter was not actively pursued in the appellant’s submissions to this Court.

Ground 5 therefore also fails. It does, however, help to introduce the remaining two matters of complaint on appeal. Ground 3 was that the learned trial judge wrongly prevented counsel for the appellant from leading evidence of conversations between Andrea Matarazzo and an undercover police officer. The basis of the ruling was that the conversations were inadmissible hearsay. On appeal it was submitted that the evidence was available and relevant as original evidence to show that Andrea was a “sophisticated operator”, who might quite readily have undertaken these activities on her own without the assistance or participation of the appellant.

There are several answers to this proposition. The first is that it was not the basis on which evidence was tendered at the trial. It was only on appeal that an attempt was made to sustain the tender on that footing. The second was that, even if she was sophisticated in the craft of surreptitiously dealing in drugs, it did not follow that the appellant as a matter of logic or common sense was not himself a participant in the drug transactions charged against him. The third is that the contents of her conversation with the undercover agent were tape recorded and (so we were informed on appeal) both counsel at the trial were armed with copies of a transcript of the conversation. If, as was contended, the conversation was admissible as original evidence of the “sophistication” of Andrea in drug dealing, then the best evidence of its details was primarily the tape recording itself or, secondarily, the transcript, and not the witness’s imperfect recollection of those details. No attempt was made to tender either the original tape or the transcript. No question was ever directed to the witness on the subject of the extent of her experience or “sophistication” in drug dealing. If such a question had been put to and answered by the witness, it would not have been permissible either to contradict or support her answer by reference to the tape recorded conversation or the transcript of it. At best, the tape recording or the transcript might have been admissible in re- examination to bolster Andrea’s credit if she had been cross-examined about the conversation by counsel for the Crown. Apart from that, it simply served to illustrate the extent to which defence counsel was disposed to treat her as a witness liable to cross- examination rather than one whom he himself had called in the defence case. In the way in which the matter was presented at the trial, oral evidence of the prior conversation was at most a matter going to the credit of the appellant’s own witness, which as such could not be led in chief. Her Honour was therefore plainly correct in excluding the evidence at the stage and in the manner in which it was presented.

The final question on appeal was that raised in Ground 2, which was that the trial judge had erred in failing to direct the jury about the favourable inferences that might be drawn from the witness Andrea Matarazzo’s claims of privilege from incrimination in the course of giving her evidence. Her Honour’s direction was as follows:

“Now, I emphasise here that you should take great care when considering the evidence of Angela Matarazzo. She was asked a great many questions in respect of which she claimed privilege from answering on the ground that her answers might tend to expose her to criminal penalty. The mere fact that she claimed that privilege is not evidence of anything at all. It is not evidence that she has something to hide. It is not a circumstance which should lead you otherwise to doubt her credibility in respect of the answers that she did give to other questions. So where Miss Matarazzo successfully claimed privilege from answering the questions, those questions remain unanswered and the questions standing alone cannot be used for any evidentiary purpose. The evidentiary effect is as if the questions were never asked. It is not permissible to speculate as to the reason why she claimed privilege. There may be many reasons for that.”

In some circumstances a direction to the effect of that in the last few sentences quoted might not suffice. A claim to privilege against incrimination is sometimes capable of supporting a relevant affirmative inference one way or another about the reason why the privilege was claimed. In the present case, however, the most that could be gathered from Andrea’s refusal to answer on that ground was that she had herself been a participant in the drug dealings or the transactions carried out in connection with them. So much was already obvious to the jury from the fact, which was established at the trial, that she had been convicted and sentenced in respect of two counts of supplying drugs. What her refusals to answer did not, and could not, demonstrate, or be used as a basis for inferring, was that the appellant himself had not been associated with her in carrying out those or other dealings in drugs. The Crown case at trial was that he had engaged in trafficking in and supplying drugs with her assistance. If, as her claim of privilege might have suggested, she was involved in that activity jointly with him, it was incapable of sustaining an inference that she had been acting alone in those matters. Her refusal to answer questions on that subject was therefore equally consistent with either inference, and so was not susceptible of an interpretation tending to show that the appellant himself was not a participant in or not guilty of the offences charged.

In the end the only question at the trial was whether the proper inference from all the proved circumstances was whether the appellant had taken an active part in supplying O’Grady with drugs on the seven occasions specified in counts 2 to 9; and, if so, whether what he had done amounted to carrying on the business of unlawfully trafficking in drugs charged in count 1. Drawing from circumstances proved at the trial the inference that the appellant had done so was something that was essentially within the province of the jury; and, on the evidence before them at the trial, it was reasonably open to the jury to be satisfied beyond reasonable doubt that that was what had taken place. The verdicts arrived at cannot be set aside as unsafe or unsatisfactory.

It follows that the appeal must be dismissed.