R v Watt

[2000] NSWCCA 37

CITATION:	R v Watt [2000] NSWCCA 37
FILE NUMBER(S):	CCA 60059/99
HEARING DATE(S):	Tuesday 15 February 2000
JUDGMENT DATE:	22 March 2000
PARTIES :	Raymond Gordon Watt (appellant) Regina (respondent)
JUDGMENT OF:	Grove J at 1; Hidden J at 2; Greg James J at 31

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/0196
LOWER COURT JUDICIAL OFFICER :	Woods QC DCJ

COUNSEL :	P G Hogan (appellant) C K Maxwell QC (Crown)
SOLICITORS:	John Dweller & Associates (appellant) Director of Public Prosecutions (respondent)
CATCHWORDS:	CRIMINAL LAW - Evidence - admissibility of statements by co-offender to undercover police officer - whether verdict unreasonable
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Macraild (CCA unreported 3 November 1997) Tripodi v The Queen (1961) 104 CLR 1 Ahern v The Queen (1988) 165 CLR 87
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted, but appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60059/99

GROVE J
HIDDEN J
GREG JAMES J

Friday 26 May 2000

REGINA v RAYMOND GORDON WATT

JUDGMENT

1 GROVE J : I agree with the orders proposed by Hidden J., however I am unpersuaded that the content of the tape recording of the conversation between the undercover police officer and Bowman was inadmissible and I would adopt the approach to utilization of s87(1)(c) of the Evidence Act 1995 specified in the reasons of Greg James J.

IN THE COURT OF

CRIMINAL APPEAL

60059 of 1999

GROVE J
HIDDEN J
GREG JAMES J

Friday 26 May 2000

Regina v Raymond Gordon Watt

Judgment

2     HIDDEN J: The appellant, Raymond Gordon Watt, was tried before Woods DCJ, sitting without a jury, upon a charge of knowingly taking part in the supply of a commercial quantity of methyl-amphetamine. His Honour found him guilty and sentenced him to imprisonment for four years, comprising a minimum term of two and a half years and an additional term of one and a half years. He appeals against his conviction and seeks leave to appeal against sentence.

The Crown case

3     On four occasions between 22 January and 5 March 1996, one David Bowman supplied amphetamine to a man who was in fact an undercover police officer. On each occasion, the transaction took place at the car park of a hotel near Ourimbah. It was the Crown case that Bowman was acting on behalf of the appellant, who provided the drug and received the proceeds of the sales.

4     To link the appellant to Bowman’s activities, the Crown relied upon surveillance evidence and evidence of conversations between Bowman and the undercover officer which, it was said, demonstrated the appellant’s involvement. The undercover officer gave evidence of a number of telephone conversations with Bowman, in some of which there was reference to someone called “Ray”. That person was said to be the appellant, whose first name is Raymond. One could infer from those conversations that “Ray” was the source of the drugs which Bowman supplied to the undercover officer. Conversations between that officer and Bowman when they met at the hotel car park were recorded by a listening device. There was reference to “Ray” in their conversation on the last occasion, 5 March 1996, and the tape recording of that conversation was in evidence.

5     Evidence of all these conversations was admitted at the trial over objection. However, it appears from his Honour’s reasons for his verdict that, for the purpose of identifying the appellant as the person on whose behalf Bowman was acting, his Honour had regard only to the recorded conversation of 5 March. As he put it, he felt “more satisfied in looking to the objective material which is the tape-recorded material in contrast to what is not recorded”. His Honour then set out what he saw as the relevant part of that conversation. In the passage quoted, “Michael Johnson” is the assumed name of the undercover officer:

DAVID BOWMAN: Yes that’s the thing.
MICHAEL JOHNSON: Mate, seen Ray this morning?
DAVID BOWMAN: Yeah.
MICHAEL JOHNSON: He has not got the shits with me has he?
DAVID BOWMAN: Oh Well….
(then there is something indecipherable)
MICHAEL JOHNSON: Oh that’s the, that’s the man I just fucking, same as before, the only thing me missus was crook that is why I couldn’t fucking do it, you know, why I was going. I could not afford to sort of run away and leave her. That’s why.
DAVID BOWMAN: If you want more.
MICHAEL JOHNSON:Yep
DAVID BOWMAN: He could do another 8 on Thursday….
(then there is something which is difficult to hear)
MICHAEL JOHNSON: Thursday?
DAVID BOWMAN: Yeah.

The tape reveals further references to the possibility of “eight” being supplied on the following Thursday.

6     The undercover officer gave evidence but David Bowman did not. There was other evidence implicating the appellant, to which I shall turn later. The appellant himself did not give evidence. However, there was in evidence a recorded interview with police, in which he acknowledged his friendship with David Bowman but denied any knowledge of the supply of drugs to the undercover officer.

Admissibility of Bowman conversations

7 In this Court, counsel for the appellant maintained the argument he had presented at the trial that evidence of the conversations between Bowman and the undercover officer, in so far as they purported to identify the appellant as being involved, were inadmissible. His Honour allowed the evidence by virtue of s87(1)(c) of the Evidence Act, which provides:

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:
……
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

8     In R v Macraild (CCA, unreported, 3 November 1997), this Court held that s87(1)(c) reproduces the common law relating to the admissibility against an accused of the declarations of other parties to a common purpose or of co-conspirators: Tripodi v The Queen (1961) 104 CLR 1, Ahern v The Queen (1988) 165 CLR 87 at 94-5. Before the statements of Bowman the subject of this ground could be admitted, there had to be “reasonable evidence of the preconcert” between the appellant and him: Tripodi at 7. His Honour found that there was and that finding was not challenged before us.

9     However, it was also necessary for the statements to have been made in furtherance of the alleged common purpose. In my view, there were several statements of Bowman in his telephone conversations with the undercover officer which might have fallen into that category. However, as I have said, his Honour ultimately had regard only to the tape recorded conversation of 5 March. On that occasion it was the undercover officer who introduced the appellant into the conversation, and the only statements of Bowman relating the appellant to the supply of drugs were the references to the possibility of arranging “another eight” on the following Thursday.

10     True it is that those statements tend to identify the appellant as involved with Bowman in the supply of drugs. Nevertheless, the charge against the appellant was of his knowingly taking part in the supply of methyl- amphetamine between 21 January and 6 March 1996 (5 March being the day of the last meeting between Bowman and the undercover officer, and the day of the appellant’s arrest). Statements about the possible supply by the appellant of drugs on a day well outside that period could not be characterised as being in furtherance of the common purpose embraced by the offence charged.

11     It may well have been unduly favourable to the appellant for his Honour to confine himself to the conversation of 5 March. Nevertheless, what Bowman had to say about the appellant on that occasion was not admissible against him. Accordingly, this ground of appeal is made out but the question remains whether any substantial miscarriage of justice has occurred. It is necessary, then, to examine the other grounds of appeal and the other evidence in the case.

Admissibility of scales

12     On 5 March 1996 police searched the appellant’s premises and found, among other things, a set of scales, some glucodin and a number of re-sealable plastic bags. His Honour admitted this evidence on the basis that those items are commonly part of the paraphernalia of a drug dealer: Sultana (1992) 74 ACrim R 27. On appeal, it was contended that the finding of the scales was inadmissible as the evidence could not justify the conclusion that they were in the appellant’s possession.

13     The appellant conducted a take-away food business at Killarney Vale and lived in a flat above the shop. The scales were found in a small leather carry bag, which was itself contained in a black back-pack on top of a wardrobe in his bedroom. Evidence was also admitted of the finding of certain documents in the wardrobe tending to establish that it was used by him.

14     A witness was called in the defence case who had worked in the appellant’s shop for about a month prior to his arrest. According to this witness, David Bowman had unrestricted access to the appellant’s flat and on three or four occasions had gone up there to shower and change his clothes. It seems that he had asked the appellant if he could leave some clothes there because he was having marital problems. On one occasion the witness saw Mr Bowman arrive with what was described as a “black haversack”, and leave without it.

15     It was this evidence which gave rise to the submission that the back-pack in which the scales were found could not adequately be linked to the appellant. An analogy was sought to be drawn with the decision of this Court in Filippetti (1978) 13 ACrim R 335. That, however, was a very different case. The appellant in that case shared a house with five other people, and the cannabis the subject of the charge was found concealed in a chair in a loungeroom to which all of them had access. In the present case, the scales were found in a room which was clearly the appellant’s private domain. Notwithstanding the evidence in the defence case to which I have referred, it was open to his Honour to conclude that the back-pack and its contents were in the appellant’s possession and the evidence was properly admitted.

Unreasonable verdict

16     Finally, it was submitted that his Honour’s verdict was unsupported by the evidence: Fleming v The Queen (1998) 158 ALR 379. In considering this ground, I have put to one side the evidence of the tape recorded conversation of 5 March 1996. However, there was a circumstantial case of the appellant’s involvement from surveillance evidence and the evidence of the police officers who arrested him on that day.

17     The third occasion on which Bowman supplied drugs to the undercover police officer was on 27 February 1996. The undercover officer paid him a substantial amount in cash. Bowman was under surveillance, and he was observed to drive to a location in Killarney Vale near the appellant’s shop. The appellant was seen to approach the car, carrying a white plastic bag and constantly looking around. He got into the car and emerged about ten minutes later, carrying a black clutch bag.

18     On 5 March 1996 Bowman was seen to leave the appellant’s shop and get into his car, which was parked in much the same spot where it had been seen on 27 February. He drove to Ourimbah for what was to be his last meeting with the undercover officer, and on that occasion the officer gave him a large amount of cash in a brown paper bag. He was then observed to drive back to Killarney Vale, park near the appellant’s shop and enter that shop from the rear, carrying the brown paper bag.

19     At this point there appears to be a conflict in the police evidence. According to two officers who arrested Bowman and the appellant, they went to the rear door and were able to see the two men in the back of the shop. The brown paper bag containing the money was on a bench. Bowman was talking to the appellant and appeared to be indicating the bag to him, and the appellant was looking at it. The officers entered the shop and one of them shouted, “Police, get on the ground, on the ground.” Other police were in the front of the shop at the time of the arrest. According to them, the appellant walked from the front of the shop to the rear and, almost immediately, they heard the words shouted by their colleague.

20     His Honour referred to this evidence in the reasons for his verdict but, it would seem, did not find it necessary to resolve it. It was not in contest that the bag containing the money was in the back of the shop, although in his interview with the police the appellant denied knowledge of it. Whether or not the appellant and Bowman were discussing the money immediately before their arrest, his Honour saw the presence of such a large sum in the shop as significant of itself. As his Honour put it:

…if there was not an arrangement such as the prosecution urges, why in the name of heaven would Mr Bowman bring back a brown paper bag full of $9,000 and put it on the shelf in the back of the shop? That, it seems to me, is the clinching aspect of this entire case, which is not to say other facts are not important.

21     His Honour’s verdict appears to have been based primarily upon this evidence of police observations of Bowman and the appellant, together with the evidence of the search of the appellant’s premises. I can detect no error in his Honour’s analysis of that evidence or of his assessment of its significance. In my view, it was more than adequate to support a finding of guilt.

22     For the same reason, I do not consider that the conviction should be set aside because of his Honour’s use of the tape recorded conversation of 5 March, even though I have found it to be in error. That evidence did not loom large in his Honour’s reasons and, in all the circumstances, I am satisfied that no substantial miscarriage of justice has occurred. I would dismiss the appeal against conviction.

Sentence

23     As I have said, his Honour sentenced the appellant to four years imprisonment, comprising a minimum term of two and a half years and an additional term of one and a half years. The offence carries a maximum sentence of twenty years. Bowman was sentenced, after a plea of guilty, to imprisonment for two years and eight months, comprising a minimum term of two years and an additional term of eight months.

24     His Honour considered the appellant’s involvement to be greater than that of Bowman, although not significantly so. That finding was challenged in this Court but it is one which was clearly open. Certainly, the total sentence passed upon the applicant is considerably higher than Bowman’s, although the difference in their minimum terms is not so marked. On the other hand, we have no information about Bowman’s background and antecedents and, on the limited evidence before us, it does not appear to me that we could intervene on the basis of unjustified disparity.

25     The total weight of the drugs supplied was about 400gm, the commercial quantity for methyl-amphetamine being 250gm. His Honour noted that the purity of the drug was low, suggesting that this was not a particularly sophisticated criminal enterprise. The appellant is forty-eight years old. His criminal record includes convictions in 1992 on three counts of supplying a prohibited drug, for which he was sentenced to imprisonment, but is otherwise insignificant.

26     He has three children, although he and his partner have been separated for several years. There was evidence that he is devoted to his children and that he has maintained a good relationship with their mother. He had a good employment record, despite a disturbed childhood and a long history of drug abuse. It was that background which led his Honour to find special circumstances, so as to fix a longer than usual additional term.

27     It was argued that the appellant was entitled to leniency because of the measure of entrapment involved in the case: R v Taouk (1993) 65 ACrim R 387, per Badgery-Parker J at 393-404. This was not a matter to which his Honour referred at all in his remarks on sentence. It is true that the offences were facilitated by the conduct of the police, although at all times the appellant was at arm’s length from them. It appears that it was Bowman, rather than the appellant, who was the initial target of their investigation.

28     That said, the evidence establishes that the appellant, for profit, provided drugs to Bowman for the purpose of their being supplied to another. There is nothing to suggest any reluctance on his part to do so. Equally, while the offence was relatively unsophisticated, there is no basis for the conclusion that it would not have been committed but for the overtures of the police. This case is a far cry from cases such as R v N (1999) 106 ACrim R 493, in which Spigelman CJ (at 504) affirmed the sentencing principles expounded by Badgery-Parker J in Taouk. To borrow the words of Badgery-Parker J (Taouk at 404), it cannot be said of the appellant that “in all the circumstances of the case the involvement of the police in the commission of the crime was such as to diminish his culpability”.

29     It was not argued that the sentence was, in any event, manifestly excessive. I would grant leave to appeal against sentence but would dismiss that appeal also.

30     Accordingly, I propose that the appeal against conviction be dismissed. As to sentence, I propose that leave to appeal be granted but the appeal be dismissed.

IN THE COURT OF
CRIMINAL APPEAL

No. 60059 of 1999

CORAM: GROVE, J.

HIDDEN, J.
GREG JAMES, J.

Friday 26 May 2000

REGINA v. RAYMOND GORDON WATT

JUDGMENT

31     GREG JAMES, J: I agree with the orders proposed by Hidden, J. Except with respect to his view that the conversation of 5 March was not admissible, I agree with his reasons for those orders.

32     In my view, for that conversation to be admissible against this appellant as an admission by him as made by the speaker with his authority, the trial judge merely had to be satisfied that it was made in furtherance of a (not the) common purpose (s.87(1)(c)), and that there was reasonable evidence of pre-concert between them for that purpose (as there was).

33     In this case, the common purpose charged was that in furtherance of which the statement was made because it included the supply on the charged dates and on others (see Regina v. Macraild (CCA, unreported 3 November 1997 at 7, per Dunford, J.).

34     For my part, I would regard the conversation as admissible and do not see that it should have been excluded as second-hand hearsay or in discretion.

**********