R v Mark Abrahamson No. SCCRM 94/453 Judgement No. S4880 Number of Pages 6 Criminal Law and Procedure

[1994] SASC 4880

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MOHR(2) AND OLSSON(3) JJ

CWDS
Criminal law and procedure - evidence - hearsay rule - charge of possession of heroin for sale - admissibility of evidence of intercepted telephone enquiry.

Criminal law and procedure - particular offences - possession of heroin for sale - verdict of guilty upheld on appeal as not unsafe.

HRNG ADELAIDE, 9 December 1994 #DATE 9:12:1994

Counsel for the Appellant:     Mrs M E Shaw

Solicitors for the Appellant:    Caldicott and Co

Counsel for the Respondent:     Mr J J Doyle QC with Dr N A Manetta

Solicitors for the Respondent: Director of Public Prosecutions (SA)

ORDER
Appeal dismissed

JUDGE1 KING CJ This is an appeal against a conviction following a trial by a judge sitting without a jury in the Supreme Court, of the crime of possession of heroin for sale.

2. The circumstances are that, on 6 April 1994, a man by the name of Cowling was seated in his car in a car park at the beach end of the Anzac Highway at Glenelg. He was an inquiry agent, but he was not engaged on any inquiry relating to the accused in this case. He, quite by chance, while he was sitting there, saw the accused in a Commodore motor car parked in the car park. He noticed that the accused spoke on a mobile phone in the motor car. Shortly afterwards, according to Cowling, another car pulled up alongside the accused's car. The driver placed his hand into the appellant's car and the appellant then placed his hand into the other car. Following that, the other car departed. Shortly afterwards a second car drew up and a similar procedure occurred. Following that a third car drew up and a similar procedure occurred.

3. The appellant's car then left the car park. It returned about 10 or 15 minutes later. A Kingswood motor car then appeared and drew up alongside the appellant's car. The driver of the Kingswood car, according to Cowling, passed over what Cowling saw to be a roll of bank notes to the appellant. The appellant handed to the driver of the Kingswood a package, which appeared to be an alfoil package. At that point Cowling telephoned the police.

4. The appellant's Commodore left the car park. It was subsequently located stationary in another car park not very far away, opposite the Lennie's Tavern near Glenelg. The police found in the appellant's car a canister in the console and also found a canister in the appellant's clothing. The canisters contained, in all, 21 packets of heroin.

5. The appellant had in his possession the sum of $300 in $50 notes in a wallet. There was evidence that $50 is the price of a 'taste' of heroin.

6. While the police were with the appellant at his car the mobile telephone in the car rang and a police officer answered the phone. The police officer, Constable Stopp, gave evidence that the following conversation took place with the person making the call on the telephone. The witness gave the following evidence:
    "I answered 'Hello'. A male voice said 'It is Tony here.
    Can I see you somewhere to get some stuff?' I said 'Yeah, I
    am at the Glenelg car park at the end of the Anzac Highway?'
    He said 'I will see you in about 10 minutes. How will I know
    you?' I said 'I am in a brown Holden Commodore sedan'."

7. When the police spoke to the appellant he claimed to have bought the heroin in the car for $500.

8. The appellant gave evidence that both he and his girlfriend were heroin users. He went to the car park in his girlfriend's car by arrangement, in order to purchase heroin for his use and for hers in the following week. He said that the mobile phone in the car was a borrowed phone. The appellant said that he purchased the heroin from the driver of the Kingswood motor car. He denied knowledge of the other cars of which Cowling spoke. He said that he had no knowledge of who the caller on the mobile phone might have been.

9. The learned judge accepted the evidence of Cowling. He disbelieved the evidence of the appellant, and he reached the conclusion on all of the evidence that the appellant's possession of the heroin was for the purpose of sale. He accordingly convicted him. Mrs Shaw, who appeared for the appellant before us, has taken two points. The first point relates to the admissibility of the evidence of the telephone call.

10. She has argued that that evidence was not relevant to the charge against the appellant and has argued, moreover, that it is hearsay; and she further argued that even if admissible, its prejudicial effect far outweighed its probative force and that it should have been excluded in the exercise of the judge's discretion.

11. In the case of R v Firman (1989) 52 SASR 391, this court held that evidence of the making of enquiries for drugs, or offers to purchase drugs, by telephone was admissible in proof of a charge of possession of the drug for sale. The court held in that case that the making of the enquiry was relevant as tending to prove the existence of a business or activity of selling the drug, and moreover that its use non-testimonially in proof of the making of the enquiry or enquiries did not infringe the hearsay rule. Since that time the House of Lords in R v Kearley (1992) 2 AC 228 has taken a different view. A further development since the decision in Firman's case is that two judges of the High Court in Pollitt v The Queen (1991-1992) 174 CLR 558 have referred to Firman's case with approval, or at least without disapproval. I refer to the judgment of Justice Brennan at pp.575 to 577, and the judgment of Justice Toohey at p.611.

12. A decision of the House of Lords must always be accorded respect, and there are circumstances in which a subsequent decision of the House of Lords inconsistent with a decision of this court might cause this court to reconsider its decision on question of law. The decision in Firman's case, however, was arrived at in the full knowledge that the view taken in the English courts on this point differed from the view which this court took in Firman.

13. In Firman this court expressly declined to follow the decision of the English Court of Appeal in R v Harry (1988) 86 Cr App R 105. In those circumstances the fact that the House of Lords has affirmed the view which is taken in England as to this type of evidence, particularly in the light of the expressions used by Justices Brennan and Toohey in Pollitt's case, is not a sufficient reason for this court to reconsider its decision in Firman. I am convinced that the decision in Firman expresses the correct principle, and in my view this court should adhere to that principle.

14. Mrs Shaw argued that even accepting the decision in Firman's case, nevertheless it did not justify the admission into evidence of the single phone call in the present case. Firman was a case in which a number of phone calls were intercepted. So far as the hearsay rule is concerned, I do not consider that the number of phone calls in question can affect admissibility. The basis for the decision in Firman that the hearsay rule did not apply to this evidence was that what was sought to be proved was not the truth of any statement either express or implied on the part of the caller, but rather the fact that an enquiry or offer relating to the sale of drugs was made. The court expressly indicated that the content of the phone call could not be used testimonially as proof of any assertion express or implied which it might contain. In those circumstances, it seems to me that the issue as to whether the evidence as to the phone call is hearsay or not must be decided in precisely the same way irrespective of whether it relates to one phone call or more than one phone call.

15. Mrs Shaw argued that whereas the receipt of a number of phone calls might be relevant to the question of whether a business or activity of selling a drug was occurring, the receipt of one phone call could not have that effect. I think that this might depend upon the factual context in which the evidence is offered. Certainly in almost every situation the weight of the evidence of several phone calls would be greater than the evidence of one phone call. The possibility of a single phone call being explained by innocent circumstances or features would be much greater than that possibility in relation to a number of phone calls, but it must be remembered that the question is one of admissibility and not of weight. If the making of the single phone call has a tendency to establish the fact to be proved and therefore the tendency to establish the ultimate fact in issue, then that single phone call is relevant and admissible, even though its weight might be less than would be the case of a number of phone calls.

16. As I have said, whether that tendency exists might depend upon the factual context in which the event is alleged to have occurred. In the present case there was evidence of the interchanges between the appellant and the drivers of the other cars, there was evidence of the appellant's possession of a quantity of packaged heroin in his car and there was evidence of his possession of a sum of money. There was also evidence of his use of the mobile phone in the carpark at about the time of the interchanges between himself and the drivers of the other cars.

17. In those circumstances, it seems to me that the existence at about that same time of an enquiry by somebody which might be interpreted as relating to the sale of drugs has a tendency to establish that the appellant was engaged in the activity of selling drugs, and of course that fact, if established, has a tendency in turn to establish that the purpose of the possession of the drugs was sale. It seems to me, therefore, that the fact that the evidence in question related to a single telephone call rather than to a number of telephone calls does not render that inadmissible. Its admissibility is founded upon its tendency in the circumstances of the case to prove the engaging by the appellant in the activity of selling heroin at the relevant time.

18. Mrs Shaw also contested that the evidence was inadmissible because the phone call was not sufficiently linked to the appellant and because its content was at least ambiguous and did not point clearly to any transaction with respect to heroin. The call was made to a mobile telephone which was in a motor car driven by the appellant and which was the property of his girlfriend, and on a mobile phone which he had used at about the time of the interchange between himself and other drivers. In those circumstances, I think that it is sufficiently linked to the appellant. As to the content of the phone call, it could reasonably be interpreted as an enquiry with respect to the purchase of drugs. The expression used is "stuff". That is, of course, an ambiguous expression, but in the context of the case and the circumstances in which the phone call was made, it is open to the interpretation that it is a reference to a prohibited drug and to heroin. The appellant used the same word to the police when referring to heroin. Of course, the question of the proper interpretation of the phone call and the weight to be attached to it was a matter for the judge as the tribunal of fact. It is sufficient for the purpose of admissibility that it is capable of bearing an interpretation which has probative force.

19. I think that the content of the telephone call had significant probative force in the factual context of this case and that there is no reason why the judge should exclude it. The principle that a judge should exclude evidence, the prejudicial effect of which outweighs its probative force, can have very little part to play in a trial by judge alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force. The learned judge in this case was quite able to discard any prejudicial effect of evidence of this kind and to focus on such probative weight as he considered that it properly bore. In my opinion, therefore, the evidence was properly admitted.

20. The other point urged upon us by Mrs Shaw was the verdict was unsafe and unsatisfactory. She subjected the witness Cowling's evidence to close analysis and criticism. This, of course, was also done before the trial judge. The trial judge was conscious of certain difficulties with respect to Cowling's evidence, including some discrepancies between the version given in court and the versions given out of court, and also some conflict between his evidence on some points and the evidence of the police officers.

21. His conclusion is expressed towards the end of his reasons for judgment as follows:
    "I am afraid I found the evidence of the defendant
    unconvincing. I accept beyond reasonable doubt in substance
    the evidence of Cowling, despite the strictures offered
    against his evidence. I do not think he can have been so
    far wrong as to have imagined that three cars - perhaps I
    should say two out of the three - had approached. There
    was much to be urged against Cowling's evidence. I have
    considered his evidence with the greatest of care overnight
    and during the address. I paid attention to him and to his
    demeanour.

I paid attention to the evidence of the accused and his
    demeanour. I am afraid I find the defendant untruthful.
    I find Cowling reliable and truthful and, as I say, when one
    adds to that the finding of the heroin to the value which it
    had, the use of the word "stuff" by the accused and the
    telephone conversation admitted in its limited
    circumstances, I think Cowling's evidence to be supportive
    and compelling."

22. Mrs Shaw's submissions amounted to an argument that this court should overturn the learned judge's assessment of the credibility of Cowling, that is to say, his truthfulness and reliability. An appellate court, although it has the duty of making an independent assessment of the evidence, must always be cautious about interfering with the assessment by the trial judge of the credibility of a witness.

23. Generally speaking, this court would only depart from the trial judge's view as to the credibility of a witness if that witness's evidence was in conflict with incontrovertible facts or was glaringly improbable. The criticisms made of Cowling's evidence are not by any means to be ignored. But the learned judge had the advantage of hearing those criticisms. He had the advantage, which this court does not, of seeing both Cowling and the appellant in the witness box.

24. In my view, there are no proper grounds upon which this court should depart from the learned judge's assessment of the credibility of Cowling on the one hand and of the appellant on the other.

25. If Cowling's evidence is accepted - as it was accepted by the trial judge - then it seems to me that that evidence, taken together with the possession by the appellant of the substance, his possession of the money and the evidence of the phone call, establish a case on which the learned judge was quite justified in reaching a finding beyond reasonable doubt of the guilt of the appellant.

26. In my opinion, therefore, the appeal should be dismissed.

JUDGE2 MOHR J I agree.

JUDGE3 OLSSON J I also agree.