R v Onea

[1994] QCA 264

IN THE COURT OF APPEAL [1994] QCA 264

SUPREME COURT OF QUEENSLAND

C.A. No. 74 of 1994

Brisbane
[R. v. Onea]

BETWEEN:

T H E Q U E E N
v.

CONSTANTIN FRANCISC ONEA Appellant

Fitzgerald P.
Davies JA.

Demack J.

Judgment delivered 15/07/94

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL REFUSED.

CATCHWORDS:CRIMINAL LAW - drugs - heroin trafficking - large scale trafficking in extremely high grade heroin - detailed police evidence though some inconsistencies - whether it was open to a reasonable jury to accept critical parts of the evidence despite rejecting or doubting other parts

CRIMINAL LAW - sentencing - drugs - heroin trafficking - large scale trafficking in extremely high grade heroin - sentenced to 20 years imprisonment with recommendation after 10 years - co-accused pleaded guilty and recommended for parole after 5 years - whether disparity between sentences unconscionable
Counsel:Mr. R. V. Hanson Q.C., with him Mr M. Griffin for the

appellant

Mr. P. Rutledge for the respondent
Solicitors:Gabriel, Ruddy and Garrett as town agents for John

Anile for the appellant

Director of Prosecutions for the respondent
Hearing Date:23/06/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15/07/94

The appellant has appealed against his conviction in the Trial Division on 11 February 1994 on one count of trafficking in heroin, one count of possession of a motor vehicle in the course of commission of an offence against the Drugs Misuse Act, 1986, and five counts of possession of heroin. He was sentenced to imprisonment for 20 years for trafficking in heroin, and lesser terms of imprisonment for the other offences, and has also applied for leave to appeal against sentence. The appellant's co-accused, his defacto wife, was also convicted on the principal charge of trafficking in heroin, but on her plea of guilty. The appellant's trial extended over a considerable period, from 17 January to 11 February 1994. There was an exceptionally strong case against him if the police evidence was believed. His principal contention was that the police evidence was fabricated, and he gave evidence denying any knowledge of, or involvement in, the offences, which must have been disbelieved by the jury.

The major charge against the appellant was that of trafficking in heroin. That charge was based on the activities involved in the five offences of possession, and one other matter which could have been, but was not, made the subject of a similar charge. This omission was one of a number of matters which the appellant described as "strange" or "curious", and which the Court was invited to consider as sinister and leading to a conclusion that the appellant's convictions were unsafe and unsatisfactory.
The appellant and his co-accused lived at 422 Oxley Drive, Runaway Bay on the Gold Coast, and the appellant was at least a part-owner of the Blue Danube Restaurant, Scarborough St., Southport, where his co-accused worked. The activities the subject of the charges occurred between June and September 1992.

It is convenient to consider first the five offences of possession of heroin, counts 3 to 7 on the indictment, and to do so principally by reference to the appellant's summary of events.

Count 3 - 25 June 1992

far made concerning the prosecution case must be taken with evidence given against him in connection with another incident, on 16 August 1992, which "tainted" the entire case against him and made his convictions unsafe and unsatisfactory.

At about 6.38p.m., the appellant drove to Pelican Cove
Apartments, a block of units not far from his home. His co-
accused emerged from an underground car park and went to the
appellant's vehicle. The co-accused then went to a light in a
garden bed, appeared to collect something from the base of the
light and returned to the appellant's vehicle and appeared to
converse with him. She then returned to the garden light and
scratched in the soil near its base. The appellant and his co-
accused then left in the appellant's vehicle. About half an
hour later, a police officer who had witnessed those events,
Detective Sergeant Hanlon, retrieved a black film canister
containing four alfoil packets from the base of the garden
light. The packets were found to contain material which, on
later analysis, was between 12.4% and 14% heroin.
The appellant's criticism of the prosecution case in
relation to count 3 is that there was a conflict as to time
between what was said by Hanlon (on a video recording of him
recovering the heroin from the base of the garden light)
concerning when he observed the activities of the appellant and
his co-accused at the Pelican Cove Apartments and the testimony
of other police officers as to when they followed the appellant
and his co-accused to the Blue Danube Restaurant. The
difference was less than half an hour. The evidence which Hanlon
gave in chief at the appellant's trial was consistent with the
evidence of other police officers. When challenged in cross-
examination, he said that he had made a mistake in the video
recording.
Count 4 - 7 and 9 July 1992
On 7 July 1992, the appellant's motor vehicle was seen at
about 5.45 p.m. in a parking area near a park at Anglers
Esplanade, not far from the appellant's home. The appellant
alighted from the motor vehicle, walked into the park and was
observed near a "cactus-like bush" by another police officer,
Quaedvlieg. Soon after, the appellant drove off. Later,
Quaedvlieg located a bottle wrapped in tape at the bottom of the
"cactus-like bush". On analysis later that night, the contents
of the bottle were found to be 72 to 75% heroin. The bottle,
including the substance containing the heroin, was then returned
to the place where the bottle had been found, which was kept
under constant surveillance. On 9 July, 1992, the appellant and
his co-accused returned to the park and walked to the "cactus-
like bush" where the appellant was seen to crouch down by
another police officer, Murphy. Both the appellant and his co-
accused returned to the appellant's motor vehicle and left. A
search by police revealed that the bottle containing the heroin
had been removed. Later that day, the appellant and his co-
accused both went to a water meter near the front alignment of
their house property at Oxley Drive, Runaway Bay, and were seen
to "scratch around". At about 5.40 p.m., the appellant's
brother, Ioan Onea, who has also been convicted of heroin
trafficking, arrived at the appellant's home with another
person, went into the house, emerged, went to the area near the
water meter, and then departed.
The appellant's complaint is that a log kept by a radio
officer of Quaedvlieg's comments as he watched the appellant in
the park on 7 July 1992 did not refer to the "cactus-like bush".
Count 5 - 24 July 1992
At about 4.38 p.m., the appellant and his co-accused drove
in his vehicle to the park at Anglers Esplanade, walked into the
park and stopped near the "cactus-like bush". The appellant's
co-accused stood by while he bent down, dug at the base of the
bush and appeared to reach into a hole in the ground. Both then
left and, about half an hour later, police searched the area
where the appellant had been seen digging and recovered a
package wrapped in tape. The contents, on analysis, contained
heroin of 72.4% purity. The package, marked with invisible
writing, was returned to the place where the appellant had
concealed it. On the following day, two other persons, Rotaru
and McDonald, were seen to dig in the spot where the package was
located. Police subsequently went to the premises to which
Rotaru and McDonald had gone and seized the wrapping with the
invisible writing on it and other materials consistent with the
possession of heroin, including white powder which was
subsequently analysed and found to contain heroin.
The appellant's complaint concerns video recordings taken
on 24 July outside the appellant's home and of his concealing
the heroin in the park at Anglers Esplanade. The former is much
darker than the latter, in segments of each taken at the same
time. A police expert was called who explained the difference by
reference to the different circumstances and locations in which
each video recording was made.
Count 6 - 15 August 1992
At about 1.34 p.m. the appellant and his co-accused came
out of their home at Oxley Drive, Runaway Bay. The appellant
went first to a point near the water meter towards the front
alignment of the house property, bent over and returned to his
vehicle. The appellant and his co-accused then drove to Pine
Ridge Environmental Park where the appellant was seen to place
two glass jars at the base of a log. They then drove home. The
log was kept under surveillance by Hanlon, who found the jars at
about 4.20 p.m.. A later analysis of their contents revealed
heroin of from 58% to 72% purity.
The appellant's complaint is that the clothing of the
appellant and the co-accused at the time they left their home to
drive to the park, as recorded on video, was different from
Hanlon's description of their clothing at the park, in that the
colours did not correspond.
Count 7 - 7 September 1992
Police monitored the activities of the appellant and his
co-accused until 7 September 1992, when they conducted a search
of their home. A small foil containing a quantity of heroin was
found inside a garden light within a walled courtyard at the
front of the house. Traces of heroin were also found in a broken
coffee grinder in the kitchen.
Counts 1 and 2
The appellant's conduct in connection with counts 3 to 7
was also relied on to prove counts 1 and 2, trafficking and
possession of a motor vehicle in the course of commission of an
offence against the Drugs Misuse Act.
Other evidence connected known drug offenders, Ioan Onea,
Aftanese Rotaru and Richard Beckman to the appellant, often
close in time to events connecting the appellant to heroin.
Beckman was at the appellant's house on 24 June 1992, at the
Blue Danube Restaurant on 26 June and again on 27 June, and at
the appellant's house on 29 June. Rotaru was at the restaurant
and the appellant's house on 7 July and again at the house on 8
July, as was Beckman. Ioan Onea was at the appellant's house
twice on 9 July, on one of which visits he left after going to
the vicinity of the water meter. On 9 July, Ioan Onea was at
the restaurant, as was Beckman, who was also there on 12 July.
On 22 July, Ioan Onea was again at the appellant's home. On 24
July, Ioan Onea and his wife were observed, and Mrs Onea was
seen digging, in an area near Saltwater Creek. A film canister
containing heroin was later found at the spot. Later that day,
(i) the appellant was seen going to an area of bushland near his
home and shortly afterwards to the water meter, (ii) he and his
co-accused met Beckman beside the road about a kilometre from
the house, and (iii) Ioan Onea was seen at the house and later
at the water meter. Beckman was again seen at the appellant's
house on 27 July and 1 August and Ioan Onea was again at the
restaurant on 5 August and 21 August.
16 August 1992

After the appellant and his co-accused returned home on 15 August, 1992, he was seen to walk from his garage to a vehicle which had arrived, converse with the occupant, walk over to near the water meter, bend over and then return to the vehicle. That night, at 12.12 a.m., Quaedvlieg found two "golf-ball" size packages of a powder rock substance inside the water meter. The following day, at 2.22 p.m., Hanlon removed the two packages from the water meter. On subsequent analysis, they were found to contain approximately 58.5% heroin.

Later that day, Ioan Onea and his wife went to the home of the appellant and his co-accused. Ioan Onea went to the water meter, departed, made a telephone call, returned, went again to the water meter, left again and made another telephone call. The prosecution evidence included a video recording of these events. Later that day, the appellant and his co-accused returned and searched the water meter box. This was also recorded on

video-tape. Shortly afterwards, the appellant's co-accused telephoned Ioan Onea, and police made a recording of their conversation, which took place in the Romanian language. Evidence of what was said was given at the appellant's trial by an interpreter. According to the interpreter's evidence, the appellant's co-accused said:
"Hello .... Alina? Hey. Give me your father ... You didn't find it man? How did it disappear man? ... Devil take me. ... yesterday I looked there and put them there when I told you ... And I looked again yesterday. Dear oh dear. And the dead. What am I going to do? There I put them ... Dear oh dear. ... What am I going to do man. Do you realise what I got myself in? If I would have know I wouldn't put them there devil take me. But I put them when I rang you yesterday. ... I put them there thinking that you are coming. ... Dear Mother of God. .. I have no words anymore. ... There was no one to take them because I was the only one who knew they don't know about it ... He doesn't know about them. ... No I put them there myself and yesterday when I saw that you didn't come and you said we will talk I went and looked and they were still there. ... Hello. ... What the hell is that? ... Hello. I can hear something on the line. ... Hello ..... Hello ... Eh? I think those chaps here are trying to ring. I don't know. No mine because I have guests ... Woe me. Woe me. The dead. ... No way I can ask about. Anyway bye."

Three police officers, Quaedvlieg, Hanlon and Papoutsakis gave evidence of events surrounding the finding and removal of the heroin on 16 August 1992, and a number of points were made by the appellant concerning inconsistencies in their evidence, particularly with respect to the recovery of the heroin from the water meter box by Hanlon, which was both photographed and video recorded.

According to Quaedvlieg, what he saw just after midnight on the night of 15 August were "two clear plastic bags each containing white powder and rock-type substance". He made no mention of newspaper. Hanlon, on the other hand, said that he "retrieved two packages, each the size of golf balls, and each wrapped in newspaper and in turn wrapped in clear plastic."

Papoutsakis gave evidence that he saw Hanlon "retrieve the heroin on 16.8.92." He said that Hanlon had no shoes on. He also produced photographs taken of Hanlon at the time. Hanlon's evidence was that he had shoes on but had some difficulty with them as he moved. Some of the photographs show Hanlon in slip- on, moccasin-style shoes and some show him barefoot.
The video recording is of very poor quality and capable of misinterpretation. One difficulty is that it does not extend to Hanlon's arrival at the water meter, but stops short. It shows him stoop at one point, which could perhaps indicate him fixing or removing a shoe. Overall, it tends to indicate that he had shoes on when he removed the heroin from the water meter.
There is no satisfactory explanation which allows the reconciliation of Hanlon's and Papoutsakis' testimony, the video recording and the photographs, and different descriptions of the packages were given by Hanlon and Quaedvlieg.
Unsafe and unsatisfactory

evidence of the interpreter who translated what was said by the appellant's co-accused to Ioan Onea on 16 August 1992. It was accepted that the appellant's co-accused's conversation was generally admissible against the appellant, but submitted that one piece of evidence given by the interpreter was inadmissible.

A number of the appellant's criticisms of the prosecution
case lack substance, but some, especially those made with
respect to the photographs and video recording of 16 August and
perhaps the video recording in relation to count 3, raise doubts
as to aspects of the police testimony and even the possibility
that the video recording of the finding of the heroin on 7 July
and the video recording and photographs of the finding of the
heroin on 16 August were of re-enactments rather than actual
events. However, a reasonable jury, acting reasonably, was not
thereby required to reject or have a reasonable doubt as to the
credibility of all of the police testimony. On the contrary,
whether or not it rejected or had doubts as to some parts of
such evidence, it was open to a reasonable jury, acting
reasonably, to accept critical parts and to be satisfied beyond
reasonable doubt that all of the essential elements of the
offences of which the appellant was convicted had been
established.
Admissibility

For that reason, it was argued that the trial had miscarried; or, alternatively, that the inadmissibility of that evidence taken in combination with the points made concerning the police evidence meant that the convictions were unsafe and unsatisfactory.

Twice in the course of her statements on the telephone, the appellant's co-accused used a Romanian word or words which translated literally as "the dead". The interpreter testified that she had been an analyst-interpreter at the New South Wales Crime Commission for 7 years, and in that time had been involved in about 28 major investigations involving persons speaking the Romanian language. About 98% of those investigations had related to heroin offences by such persons. In about 12 instances, the Romanian word or words for "the dead" had been used in a context which suggested that heroin was being referred to. On other occasions, different expressions were used. The word "heroin" was almost never used. Information which she was given by police officers with whom she worked on the investigations confirmed the use of the Romanian words for "the dead" for heroin. In her view, that was the meaning of those words when spoken by the appellant's co-accused on the telephone on 16 August 1992.

The appellant relied on the decision of the Court of Criminal Appeal in R. v. Gardner (1980) QdR. 531. In that case, it was held that the evidence of a police officer concerning the market price of cannabis had been wrongly admitted. The police officer had gained the knowledge on which his evidence was based from others: "He had been told by informers, and by other members of the squad, what was the amount being paid for drugs from time to time ... " (p.533G). The evidence was rejected as "... based completely on hearsay ...". (p.535 B-C). The significance of the hearsay nature of the evidence was founded entirely on the premise that the market price of cannabis was not a subject for opinion evidence from a suitable expert but a matter for "evidence of what was in fact being paid for cannabis, at the relevant time, of the quality with which this case was concerned" (p.534 G). By implication, such evidence could only be given by a party to transactions involving the sale and purchase of cannabis.

The evidence objected to in this matter is different from that excluded in Gardner on two bases. In the first place, the witness's evidence was not based only on what she had been told but also on her own experience. Secondly, she was suitably qualified as an expert to give her opinion, which could properly be related both to her own experience and information which she had gathered from other sources.

Gardner was not followed by two members of the Western Australian Court of Criminal Appeal in Marinovich, Romeo and Ricciardello (1990) 46 A.Crim.R. 282. That case involved a charge of conspiracy to jointly possess heroin with intent to sell or supply contrary to the Misuse of Drugs Act, 1981 (W.A.).
The prosecution case rested primarily on tape recordings of

conversations between the accused. The word "heroin" was not
mentioned on the tapes, but there was a reference to "pink rock"
and evidence from an analytical chemist and police officers that
heroin of a particular kind was known as "pink rock". This
evidence was held admissible.
At p.299, Malcolm C.J. and Kennedy J. in their joint
judgment referred to the evidence of an analytical chemist "that
'pink rock' was a term associated with "Penang Pink", a heroin
thought to originate from Penang." They continued:
"In our opinion this evidence was clearly admissible. Evidence

of the meaning of an ordinary word in the English language is not admissible, but evidence of the meaning of a technical or trade term or the meaning of a special word used in a particular sense or by a particular group of people or in a particular context is in our opinion admissible: cf D. Byrne and JD Heydon, Cross on Evidence (3rd Aust ed. 1986), p.109, para 2.18. There is a question whether such matters fall within the category of judicial notice or facts to be proved in the normal way, whether by experts or otherwise, cf Cross, pp.908-909, par 17.161. Facts notorious to people in a particular locality or a particular profession or trade may be judicially noticed after the judge has been appropriately informed: Malone v. Smith (1945) 63 WN (NSW) 54: Blatchford v. Dempsey [1956] SASR 285; Grasso v. Love [1980] VR 163; Re Rosher (1884) 26 ChD 801; Brilliant Gold Mining Co v. Craven (1898) 9 QLJ 144. Where a word is part of a technical glossary the normal practice is for the parties to call expert evidence to explain it: eg Commissioner of Taxation (Cth) v. ICI Aust Ltd. (1972) 127 CLR 529 at 544; Yager [1977] WAR 17 at 19-20 per Burt J. (as he then was). In that case it was also pointed out that where the sense in which a particular word used in a private document (as distinct from statute) was controlled by extraneous circumstances, evidence may be given of those circumstances or otherwise of the sense in which the word was used."

At pages 300 and 301, their Honours discussed the evidence of a number of police officers with respect to a variety of topics concerning drug-related activities, including the meaning of "pink rock". The evidence was based in part on personal experience and in part on information received from other police officers, other police forces, overseas agencies and informants.

At p.301, it was said:

"In our opinion the evidence of police officers based on their accumulated experience combining personal observation with information received concerning characteristics, prices, packaging, terminology and availability of heroin by comparison with other illicit drugs was relevant and admissible. Such evidence is in the nature of expert evidence although it may also involve factual evidence of personal experience and observation. Expert evidence about such matters necessarily involves some hearsay evidence. It would be quite artificial and place an unnecessary restraint on prosecution and police work to limit such evidence to those who had been involved in undercover work in the illicit drug market. With respect, for those reasons we are not prepared to follow Gardner. In the end it must be a matter of weight, but I do not consider that the mere fact that the experience relied upon includes both personal observations and experience, as well as information received through intelligence reports or from informants, means that an attempt has to be made to isolate the two areas of knowledge so as to establish the admissibility of evidence based on the one source and exclude evidence based on the other."

A number of the points which arose in Marinovich do not arise in this case and need not be considered. However, Marinovich is direct authority for a conclusion that the interpreter's evidence with respect to the use of the Romanian words for "the dead" for heroin was admissible, and on that point at least should be followed. See also the decision of the South Australian Court of Criminal Appeal in Anderson (1992) A. Crim. R. 312, 322 ff., in which Marinovich was preferred to Gardner. In this case, the interpreter's personal experience entitled her to give the evidence which she did, and further she was suitably qualified by her experience to give an expert opinion based not only on that experience but also on information which she had gained from others in the course of her work.

The prosecution submitted that, in any event, the appeal should be dismissed pursuant to the proviso to subsection 668E of the Criminal Code; i.e., on the footing that "no substantial miscarriage of justice has actually occurred". However, there is a potential difficulty with this submission. The appellant directly challenged the credibility of the police witnesses, and gave evidence denying the offences. While extremely improbable, it is not totally impossible that, in considering credibility, the jury was influenced by what the interpreter's evidence presented as admissions by the appellant's co-accused to reject the appellant's testimony and to accept the police officers. That being so, it might not be able to be concluded that, but for the contested portion of the interpreter's evidence, the jury would inevitably have convicted, notwithstanding that, subject to issues of credibility, the prosecution case was so strong as to be overwhelming.
It is unnecessary to pursue this. For the reasons given, the appeal against the appellant's convictions should be dismissed.

The application for leave to appeal against sentence was primarily directed to the sentence of imprisonment for 20 years on the trafficking count. It was submitted that there was no comparable sentence for heroin trafficking except the sentence imposed at the same time on the appellant's co-accused, who was treated more leniently in that it was recommended that she be considered eligible for parole after serving five years. The further submission was made that the absence of any recommendation for the appellant's early parole resulted in an unfair disparity between his sentence and that imposed upon his co-accused.

The appellant's co-accused also applied for leave to appeal against the sentence imposed on her, but that application has today been refused: (R. v. Puscas, C.A. No. 81 of 1994). For the reasons there given, the appellant's head sentence should not be reduced.

The recommendation that the appellant's co-accused be considered for release on parole after 5 years distinguishes her sentence from his. The appellant's co-accused received what might be considered very lenient treatment. Her timely plea of guilty earned her a recommendation that effectively cut the minimum term of imprisonment which she is required to serve in half.
The appellant, on the other hand, did nothing to justify any leniency. On the contrary, as the trial judge said in his sentencing remarks:
"You, Onea, in giving evidence at your trial, I thought exposed yourself as a brazen and bare-faced liar prepared to say anything to avoid retribution and punishment for your illegal trading in heroin. The jury obviously rejected your evidence that you knew nothing about drugs and drug trading and had no involvement with drugs at all. You, Onea, have shown yourself to me to be completely devoid of remorse. Remorse for your illegal activities with drugs is completely absent. This lack of remorse continued after the jury announced its verdicts. You have shown not the slightest concern about the effects that your sale and distribution of your heroin may have caused. Your heroin no doubt reached end users, the street buyers, the persons who craved for the drug, whose lives were being ruled by that craving.
...

... In your case, Puscas, you have indicated a timely plea of guilty. On 15 October 1993 you first indicated you intended to plead guilty and on 17 January 1994 the Crown accepted your plea of guilty to the charge of trafficking, in effect, in satisfaction of all the charges against you on the indictment.

In your case, Onea, there was no such conduct; only a hard-nosed resistance right to the death and beyond to the charge brought against you involving drugs."

Taking these matters into consideration, there is no sufficient disparity between the sentences imposed on the appellant and his co-accused to justify this Court's intervention.

The application for leave to appeal against sentence is accordingly refused. As earlier indicated, the appeal against conviction is dismissed.