R v Lachter

[1994] QCA 263

IN THE COURT OF APPEAL [1994] QCA 263

SUPREME COURT OF QUEENSLAND

C.A. No. 144 of 1994

Brisbane

[R. v. Lachter]

BETWEEN

T H E Q U E E N
v.
GEOFFREY LACHTER

(Appellant)

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered 15/07/94

Reasons for judgment by the Court

APPEAL DISMISSED.

CATCHWORDSCRIMINAL LAW - DRUGS - Supply of drugs to prison inmate - Drugs found in moisturising cream delivered by appellant - Whether appellant knew drugs secreted in container.

EVIDENCE - ADMISSIBILITY - Implied admission - Whether appellant's silence to statement by warden admissible.

Counsel:	A. Rafter for the appellant
M. Byrne Q.C. for the Crown
Solicitors:	Legal Aid Office for the appellant
Director of Prosecutions for the Crown
Hearing Date: 24 July 1994 containing the cardboard box and the jar with the drugs inside it. The question for the jury was whether he knew there were drugs in the jar in the bag. The appellant said he did not know.	REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Fifteenth day of July 1994

This is an appeal by Graham Lachter against his conviction
on a single count of supplying a dangerous drug to one Rachel
Prior, who was then within a correctional institution. The form
of the supply alleged against him was an act done preparatory to
supplying Rachel Prior at the Brisbane Correctional Centre. It
was an attempt by him to smuggle the drugs to her in prison by
concealing them in a receptacle, which however was searched by
correctional officers when the appellant brought it to the
Centre.
The facts relevant to the appeal are that the appellant
arrived at the entrance to Brisbane Correctional Centre at about
4.00 p.m. on 13 January 1993. He came there as a passenger in a
car driven by another person. According to Mr P.J. Brennan, who
was the officer on duty at the boom gate that day, the appellant
got out of the car and told Brennan that he had something he
wished to give to "my missus", or words to that effect. After
some delay the appellant was admitted and went on to the Women's
Centre, where a Mrs Kirkman was on duty. She inspected the
contents of the shopping bag the appellant wished to deliver to
Prior. The bag contained a cardboard box with a cellophane
wrapper. The wrapper was sealed but the seal appeared to have
been broken and the cellophane creased as if it had been opened;
inside the box was a jar of moisturising cream. Examination of
its contents disclosed two packages containing quantities of
cannabis and heroin. They are the drugs which are the subject
of the charge in this case.

He gave evidence at the trial that on the day in question he to Kirkman was a matter for the jury to determine. They accepted the testimony of the prosecution witnesses. In the circumstances it is not within our province as an appellate court to say that the jury must have gone wrong in reaching that conclusion. Not having seen or heard the witnesses, there is no proper basis on which we could now form a different impression.

had travelled from the Gold Coast to Brisbane with a man named
Darryl Foster, who drove the car. On the way to Brisbane,
Foster had, the appellant said, stopped twice. Once was at a
building in Surfers Paradise and the other at a private house.
On both occasions, according to the appellant, Foster left the
car, went alone into the building or house, and then returned.
Presumably the purport of this evidence was that Foster might
have collected or secreted the drugs on those occasions.
The appellant said that, on arrival at the Brisbane
Correctional Centre, it was Foster who got out of the car and
spoke to the officer at the boom gate who, according to the
evidence, was Officer Brennan. The appellant said he then
agreed with Foster that he, the appellant, would hand the bag
over while Foster remained in the car. It may be relevant to
add that the appellant claimed to have met Foster only about a
week before 13 January 1993. The car in which they were
travelling had been hired in the name of Foster. However, it
emerged at the trial that the Darryl Foster was a false name
used by a man named Mark Gandhi, with whom Rachel Prior had been
living at the caravan park before she was imprisoned. The
appellant had at about midday on 13 January gone to the caravan
park and collected some of Rachel's belongings for her before
travelling from the coast to the Correctional Centre in
Brisbane. He also settled a debt owing by Rachel and Mark
Gandhi to the caravan park proprietor.
The implication which it appears the jury were being asked
to find in the appellant's evidence was that Mark Gandhi, alias
Foster, had contrived to have the bag handed over by the
appellant without telling him there were drugs in it. The
verdict of guilty shows the jury did not believe the appellant's
evidence, but on the contrary were satisfied that he knew about
the contents of the bag and jar when he delivered them at the
prison.
That probably suffices to dispose of the appeal; but, if
more is needed, the Crown relied on the following matters as
justifying the inference that the appellant knew all along about
the contents of the bag and the jar. First, there was evidence
that a telephone call was received by Mrs Kirkman at the
Brisbane Correctional Centre at about midday on 13 January 1993
from a man who said he was Geoffrey Lachter, the now appellant,
who arranged with her that he would bring something for Ruth
Prior at about 4.00 p.m., which was a time nominated by Mrs
Kirkman when she would be on duty at the Centre. Secondly,
there was Brennan's evidence that it was the appellant, and not
the driver of the vehicle, who alighted and spoke to him at the
boom gate. According to Brennan, the appellant on that occasion
said "They know I am coming. Ring down and confirm it". That
tended to confirm the Crown's allegation that it was the
appellant himself who had made the arrangement with Mrs Kirkman
to bring the property to Rachel at 4.00 p.m.
The third matter on which the Crown relied was Mrs
Kirkman's evidence that the appellant's conversation with her
opened with her saying to the appellant "Hi, I spoke to you on
the phone". She also testified that the appellant said
"Everything should be alright. I just bought the make-up. The
docket's still in the bag. Nothing is in glass and it's all
been approved". She was cross-examined to suggest that the
appellant had used the word "brought" not "bought". However, she
remained adamant that the word used had been "bought", saying
that that was why the docket was mentioned, which she looked at,
and which was tendered at the trial. For the Crown, the
importance of her evidence was that, if the appellant's
statement that he had only just bought the make-up was accepted,
then he was scarcely in a position to claim he knew nothing
about the jar of moisturising cream, or to say that it had not
passed into his possession until the driver of the vehicle gave
him the shopping bag at the boom gate.

The verdict is thus not capable of being regarded as unsafe or

unsatisfactory as is claimed in ground 2 of the notice of
appeal.
The only other ground relied on to support the appeal before us was that the trial judge had, over objection, admitted the evidence of Mrs Kirkman that when she first saw the appellant she said to him "Hi, I spoke to you on the phone". It was submitted that it would not in the circumstances have been reasonable to expect a response from the appellant, and consequently that the fact that the appellant failed to contradict Mrs Kirkman's statement could not be considered as an admission that he had previously spoken to her on the telephone. The statement Mrs Kirkman claimed she had made to the appellant was, however, simply part of a more extensive narrative, and in that character it was admissible in evidence for what it was worth. Moreover, in giving re-directions to the jury the learned trial Judge explained that it was a matter for them to determine whether or not the statement was made by Mrs Kirkman, and whether by his silence the appellant could be taken as impliedly admitting that it was he who had made the telephone call to her. His Honour went on:

"If you were satisfied of that beyond reasonable doubt, well then you could proceed with your further deliberations on the basis that he made the phone call. If you thought, and you may well come to the conclusion, that in this particular context silence isn't enough, well then you would not proceed in your deliberations on the basis that it was this accused who made the phone call to Kirkman between 11.30 and 12. They are questions of fact. They are for you."

A direction like that, cautioning the jury as a first step to be satisfied beyond reasonable doubt that the appellant's failure to respond was an admission, was if anything more favourable to the appellant than he was strictly entitled to expect. In giving the direction his Honour plainly left it to the jury to decide the use, if any, to which the evidence might be put, and warned them of the degree of care they should exercise before deciding to treat it as evidence of an admission on his part. There is no reason for supposing that the jury disregarded the clear warning given to them in determining, as they did, to convict the appellant.

It follows that this ground of appeal also fails. None of the other grounds in the notice of appeal was pursued before us.

The appeal must therefore be dismissed.