Taylor v Voskresensky

[1998] QCA 424

IN THE COURT OF APPEAL	[1998] QCA 424
SUPREME COURT OF QUEENSLAND
C.A. No. 282 of 1998
Brisbane [Voskresensky v. Taylor]

DARREN GEOFFREY TAYLOR

v.

BORIS VOSKRESENSKY

(Applicant)

de Jersey CJ
McMurdo P

Thomas JA

Judgment delivered 18 December 1998.

Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL REFUSED.

CATCHWORDS:	APPEAL - S118 of District Court Act 1967 - application for leave to appeal against conviction for producing cannabis sativa and possessing cannabis sativa - alleged misdescription in search warrant.
Counsel:	The applicant appeared on his own behalf. Mr M.C. Chowdhury for the respondent.
Solicitors:	The applicant appeared on his own behalf. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	1 December 1998.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 18 December 1998

1. The applicant Mr Voskresensky, who appeared in person, was convicted on 3 February 1998 in the Magistrates Court at Dalby of producing cannabis sativa and possessing cannabis sativa. He was fined $1,000.00.

2. He appealed against his convictions to the District Court under s222 of the Justices Act. That appeal was heard and determined on 17 August 1998, resulting in the dismissal of the appeal.

3. The applicant now seeks to bring a further appeal. He has filed two documents, the first of which purports to be a further appeal against the decision in the Magistrates Court. Such an appeal is not open[1]. The second document however sufficiently invokes this court's jurisdiction to decide whether leave should be granted to bring an appeal under s118(3) of the District Court Act 1967.

   [1]R v Lewis (CA No 204 of 1998, 28 August 1998, para 3); Leavers v Purcell

4. The court permitted considerable latitude to the applicant in making submissions on the present application for leave. His written submission contained 84 reference points to the record, each the basis of a perceived grievance, and he orally extrapolated upon a considerable number of these. Some of these will be mentioned in due course, but it is first necessary to give a short statement of the basis of the convictions.

5. The evidence shows that on 19 November 1997 the police executed a search warrant on the applicant's property, lot 13 on the Warra-Kogan Road. They found cannabis hanging in a cupboard in a shed, and also contained in a number of jars in the shed. The shed was about 15 metres from the applicant's dwelling-house. The applicant's fingerprints were in due course identified as being present on these jars. The police also found a number of cannabis plants growing on the property including some in a pot some distance from the applicant's house, and a PVC pipe running from a tank to the area of the plants. Conversations with the applicant were tape recorded and admitted into evidence.

6. The only ground of appeal in the notice that has been filed is "I believe I have been subjected to improper police and court procedures and convicted unjustly".

7. When asked by the court for the ground upon which he submitted that a second appeal should be embarked upon, his response was similarly general, consisting of an assertion of innocence and a claim that he had been subjected to procedures both in court and by the police which were contrary to normal procedures.

8. Both before the Magistrate and the District Court and again here, one of the main points raised by the applicant is a claim that the search warrant was invalid. He claims it is invalid because his name is not spelt correctly and because the address is wrong. The premises which the warrant authorised the police to search were the "dwelling, outdoor houses, sheds, vehicles and land situated at Lot 13 Warra-Kogan Road, Warra which is occupied by Boris Kresensky ...". It is true that the first three letters of the applicant's name were omitted. However, apart from the applicant's concession that there are no other persons named "Boris" in the district, having regard to the relative uncommonness of the names the error was not of the kind which would be likely to lead to a mistake in identity. In any event, the warrant was one for the search of premises and the description of the occupant is incidental to the description of the premises. It has been held in this court[2] that identification of the premises with "reasonable particularity" is all that is required in such a warrant, and that a defect in the address will not lead to invalidity "if the error is of a technical nature only and without any police misconduct". So far as the address is concerned in the present warrant, the applicant asserted that the wrong road was named. It should he says have been called the "Kogan-Warra Road", not the "Warra-Kogan Road". It would seem that the road in question is that which runs between Warra and Kogan, and the applicant argues that from the point of view of those living closer to Warra than Kogan it is the Warra-Kogan Road, and from the point of view of those living closer to Kogan than Warra it is the Kogan-Warra Road. As the applicant says that he lives 20 kilometres down the road from Warra, the correct description of the road from his point of view is the Kogan-Warra Road. In our view the objection is trivial nonsense. Either description of the road would be correct. The applicant concedes that he lives at Lot 13 on what he calls the Kogan-Warra Road, but further objects that it is situated in the Kogan area rather than the Warra area. In this latter respect there is a conflict of evidence as to whether there is a misdescription, as Senior Constable Taylor adhered to his view that the property is in the Warra district. If this is a misdescription it would seem to be trivial, and of the kind that would not be likely to mislead. No evidence was given to suggest the error (if any) to be other than a bona fide administrative error occurring in the bona fide performance of police officer Crowther's work.

   [2]Edwards (CA No 35 of 1998, 25 August 1998).

9. There would seem to be no basis for appeal on the alleged invalidity of the

   warrant.

10. Another point which seems to be a major source of complaint on the part of the applicant concerns the fingerprint evidence. A perusal of the record however gives no real ground to doubt the validity of this very telling evidence against the applicant. One of his main points seems to be based on a slip of the tongue on the part of Sergeant Keck, the fingerprint expert who gave evidence of the comparisons between specimen prints from the applicant and the prints found on the jars. At one stage in his evidence the sergeant said "the impressions that I've marked '1' in the right in the index finger is identical with the right thumb appearing on the official fingerprint form..". The applicant rightly points out that that is an absurd statement, but he did not put such a suggestion to the witness during the hearing, or give him the opportunity of correcting what would seem to have been an obvious oversight. Points like this should not be stored away for appeal. In any event there was adequate other unexceptionable evidence of the applicant's fingerprints being found on the jars.

11. Several of the 84 written points touch the subject of fingerprinting. These include the question raised by the applicant in this court "Could the negative be that of a photograph taken of my fingerprint forms?" No such suggestion however was put to any of the witnesses. The place to raise allegations of this kind, if they are to be seriously raised, is at trial.

12. Further points raised on this subject include his rhetorical question in this Court with respect to Sergeant Keck's evidence "Is he an eye specialist? If not, how does he know?" This relates to the Sergeant's answer, "I don't think my eyesight's deteriorated at all" which was in response to the applicant's cross-examination suggesting to him that his eyesight had deteriorated since he last had his eyes checked.

13. This trivial point is unfortunately typical of the argumentative points raised by this applicant, which for the most part do not get beyond the dimension of pin pricks. We do not propose to discuss many of them. We have endeavoured to discern the points where something of substance might be raised, and will mention, for purposes of illustration, a number of other points that have been included in the applicant's argument.

14. The applicant pressed an argument to the effect that the evidence he gave below did not justify the stipendiary magistrate in finding that on the applicant's own admission he had been aware of the plants on the bench shown in photo 4, and that "he knew they were marijuana". A perusal of the record reveals that there is sufficient foundation for the finding. Inter alia he agreed in cross-examination that he knew that it was marijuana, that it was there, that he no longer smoked it and had no need for using it. He then gave an affirmative answer to the question, "You knew it was there". He later equivocated, but it is enough to indicate that the evidence gives ample support for the findings of the stipendiary magistrate.

15. Another objection was taken to the magistrate finding that the applicant used mulch in the pot plant to encourage growth. He objects that the mulch could not be scientifically analysed for comparison. The evidence was that the police observed that barley straw had been placed around plants in the garden near the applicant's dwelling and that similar barley straw was found in the trailer and also on the ground around marijuana plants found in the bushland area. Photographs 21, 22 and 26 of Exhibit 10, as explained by Senior Constable Taylor enable a photographic comparison to be made between samples taken from the above areas to be compared with samples of the straw taken from marijuana plants found growing in the bushland. Furthermore actual samples of straw were separately tendered such that the magistrate was enabled to make her own comparisons. The evidence was sufficient to be regarded as a circumstance that supports the overall circumstantial case.

16. The witness Taylor gave varying estimates of between 100 and 400 metres as the distance between the applicant's house and the place where a pot was found in the scrub. The applicant put to him that the distance was 649 paces. Some other evidence (from Sergeant Lowien) opined that the distance between the front dam and the fibre glass tank was about one and a half kilometres. However these items of evidence were not effectively linked. Even if the applicant's own estimate of distance is taken as the most reliable, there is sufficient evidence to support the magistrate's conclusion that the relevant area was one visited by the applicant and that it would be difficult for him not to be aware of the plants. The variation in the estimate of distance made by the witness Taylor which he conceded under cross- examination could be anywhere between 150 and 400 metres does not of itself appear to be a matter of any great moment.

17. Another matter of complaint was the fact that two exhibits were directed to be marked with the number "1". That is not a matter that could have led to any miscarriage of justice.

18. Another objection concerns the fact that he was not permitted to ask questions aimed at identifying the police informant. The rulings below which prevented the applicant from doing so were correct. It may be noted that the applicant's defence was absence of knowledge that marijuana was contained within his shed or the jars therein or of the other plants growing in his property. Although he had no obligation to do so he appears to have attempted to suggest that some other person or persons must have been responsible for its presence, and to have pointed towards his ex-wife as his prime suspect. He does not appear to have made any particular headway in this direction although of course he was entitled to attempt to do so with a view to referring to an hypothesis consistent with innocence. At the end of the day however the circumstantial case presented by the police remained substantially unimpaired.

19. There are many other points in the applicant's list, but we do not propose to deal with them seriatim. None of them raises a point that makes this case an appropriate one for the grant of leave to appeal, and none of them gives any reason for thinking that an appeal would be successful. An adequate circumstantial case was presented and the applicant has already exercised his right of appeal to the District Court. The learned District Court judge concluded that the findings made by the Magistrate were open to her, and there is no reason for thinking that his Honour erred in dismissing the appeal.

20. We would refuse the application for leave to appeal.

    (CA No 361 of 1997).