The Queen v Brightfield
[2014] QDC 265
•25 NOVEMBER 2014
[2014] QDC 265
DISTRICT COURT OF QUEENSLAND
CRIMINAL JURISDICTION
JUDGE R.S. JONES
Indictment No 143 of 2014
THE QUEEN
v.
PAUL VINCENT BRIGHTFIELD
TOWNSVILLE
1.29 PM, TUESDAY, 25 NOVEMBER 2014
EX TEMPORE PRE-TRIAL RULING
HIS HONOUR: Yes. Look, thank you for attending on short notice but, as I said yesterday, because of my personal circumstances going on leave at the conclusion of this circuit, it is appropriate that I deal with it now. Unfortunately, though, time did not permit me to have it reduced to writing. So you will just have to bear with me.
In this proceeding, I am concerned with an application pursuant to section 590AA of our Criminal Code made on behalf of one Paul Brightfield to exclude certain evidence of telephone calls and text messages between he and one Peter Heilbronn, also to exclude evidence of Stuart James Grainger regarding code wards alleged to have been used by Heilbronn during discussions with people he was allegedly supplying dangerous drugs to and then finally to exclude evidence regarding a sum of money seized during the execution of a search warrant at the residence of the applicant on 18 October 2011.
The orders sought by the applicant are:
(1) The evidence of the telephone calls and texts be excluded on the basis that any probative value is outweighed by the prejudicial effect.
(2) The proposed evidence of Stuart Grainger be excluded as his evidence, which relates solely to the meaning of a word used by Heilbronn in telephone call CSN186 on 2 June 2011 be excluded on the basis that it is entirely unreliable and in any event swears to the issue.
(3) That the money allegedly seized by the search warrant be excluded due to lack of integrity in the evidence.
The applicant has been charged with one count of possessing cannabis in a quantity exceeding 500 grams and one count of trafficking cannabis. He has pleaded not guilty to the traffic offence but guilty to the possession charge.
The Crown intends to call Mr Grainger, as I understand it, to give evidence to the following effect: (1) that he knew Heilbronn; (2) that Heilbronn was a known supplier of drugs; (3) Heilbronn used code words in conversations concerning drug deals, including by way of telephone communication and text messages.
The Crown also intends to lead evidence of telephone conversations between the applicant and Heilbronn and, in particular, a telephone conversation where reference to “two metres” is made by Heilbronn to Brightfield. That conversation is relevantly in these terms following some introductory discussion. Heilbronn then says:
I thought it was but the way my day’s been it feels like a Friday. But catch up tomorrow afternoon. Is that all right?
The applicant says:
Yeah, that’d be fine, mate. That’d be [indistinct]
Heilbronn then says:
No worries. Now, you’re still all good, obviously?
The applicant replies:
No. I was getting – I [indistinct] couple a mate.
Heilbronn says:
Couple in the coin.
The applicant responds:
And yeah. And some coin, mate. Yeah.
To which the – to which Heilbronn then responds:
Done, brother. So two metres and the rest? No drama.
To which the applicant then responds:
Yep.
And thereafter the conversation continues for a short time. The use of the words “two metres” is clearly non-contextual but that is the only reference to metres in all of the recorded conversations between Heilbronn and the applicant.
Thereafter, the Crown in part then will rely on the use of the word “metres” when Heilbronn was speaking to the applicant. In this context, the Crown makes the following submissions in paragraphs 49 and 71 of its written submissions:
If the jury accepts that Heilbronn regularly spoke in code to those he dealt with and that one such code word was “metres”, which meant pounds of cannabis, they may infer that the telephone conversation where the applicant and Heilbronn discussed two metres related to the supply of cannabis from Heilbronn to the applicant. Given that this a circumstantial case and this piece
of evidence forms a strand in the cable, the jury will not need to be satisfied of this evidence beyond reasonable doubt. It will be for the jury to consider all of the evidence together when determining the guilt of the applicant. The evidence which the applicant is seeking to exclude, pursuant to section 130 of the Evidence Act 1977 relied upon by the respondent in the circumstantial case against the applicant can be regarded as strands in the cable rather than an indispensible link in a chain.
In paragraph 50 of Grainger’s statement to the police, he says:
I am aware that Peter Heilbronn and his associates talk in code. I am aware that a metre refers to a pound of cannabis. I am also aware that “fast car” refers to speed and “changer” refers to cocaine and “roundies” refers to ecstasy pills.
During committal, Grainger was cross-examined in respect of this passage in his police statement in particular. At page 79 of the transcript, the following exchange occurred between counsel and Grainger. Question:
Is that the only occasion he spoke to you in code?
Answer:
I didn’t have much to do with him. Only –
Question:
And what was the code word that was used over the phone?
Answer:
It was just – it was just references to drugs.
Question:
No, what was the code word over the phone that you can recall?
Answer:
Fast car.
Question:
Fast cars?
Answer:
Yeah.
Was that the only code word that he used to you over the phone?
Answer:
Yeah.
Okay did you ever hear him use any other code words?
Answer:
Yeah.
Question:
When?
Answer:
Talking to other people.
It would therefore appear that the only code word Heilbronn used in conversations between he and Grainger that Grainger could recall was the term or phrase “fast cars” and that the other code words Grainger referred to was what he had apparently heard during discussions between Heilbronn and other people.
At pages 81 to 83 of the transcript, other alleged code words were referred to by Grainger, including “red car”, which in fact might have been what Grainger actually meant when he earlier referred to fast cars. Other terms also included “speedway tickets”, “changer”, “roundies”, “metres”, “conrete” and “green”. Grainger in his cross-examination at page 83 said that “green” was obviously a reference to marijuana. He at no stage, by reference to any of the material that I was taken to, did he say that “metres” was also a code word for marijuana.
From the material that I have referred to during argument, the following appears to be the case: (1) despite knowing Heilbronn for years, Grainger did not have much to do with him. That appears at page 79. But, notwithstanding that, still apparently spoke to him over the phone on many occasions. That also appears at page 79. (2) The only code word Heilbronn used when talking to Grainger was “fast cars” or possibly “red cars”, which was a reference to methamphetamines. That can be discerned from page 82 of the transcript.
(3) The only code word Grainger specifically referred to as being a reference to cannabis was the word “green”. That can be found at page 83 of the transcript.
(4) Grainger only heard the other terms used when he overheard conversations between Heilbronn and other person.
(5) Grainger only recalled the other terms or code words after referring to what he described as the “police brief”, which presumably included his police statements. That can be found at page 82 of the transcript.
(6) When Grainger told the police when first interviewed that he never heard Heilbronn refer to metres as a reference to cannabis, he was lying. He later told the police in his record of interview on 16 November 2011 that Heilbronn had used that word as code for cannabis.
Things were not made any clearer in the evidence given by Detective Sergeant Phelps. During his evidence, the following exchange took place. Question:
Yes, but for example the word “metres” was used interchangeably, I think, on your opinion between different types of drugs.
Answer:
Correct. And also used on one occasion to represent money – what I believe to be money.
Question:
So at least some of these words had interchangeable meanings?
Answer:
Definitely. Depending on who he was speaking to.
Question:
[indistinct] putting aside your experience about the price of drugs, what you’re really saying is that the circumstances surrounding the use of these words –
it should be “is” –
not consistent with their ordinary everyday meaning.
Answer:
Definitely.
Question:
I think, in the course of the interview with Pullen, he was question about that. About what “metres” meant.
Answer:
Correct.
And in his mind – in his experience, that referred to ounces of amphetamine.
Answer:
Correct.
I pause here to note that the reference to “he” in the evidence of Phelps is – I am tolerably satisfied of as being a reference to Heilbronn. Grainger’s evidence concerning Heilbronn’s use of the word “metres” as codes for – code for cannabis is at best extremely tenuous and, at worst, inherently unreliable. On balance, I consider that the probative value of Grainger’s evidence on this point is so slight or weak that it is outweighed by its potential prejudicial value by unfairly elevating the alleged drug link between Brightfield and Heilbronn in the telephone conversation that the Crown wants to place before the jury. Indeed, by reference to the evidence of Detective Sergeant Phelps and also, apparently, a co-offender, Pullen, in the conversation between Heilbronn and the applicant, Heilbronn could have been talking about money, amphetamines or cannabis or none of the above. In this case, it is of significance that the applicant is charged with trafficking only in cannabis.
In addition to the matters that I have already dealt with, Ms Keegan, counsel for the applicant, submits that all of the evidence of Grainger ought be excluded on the basis that he is an entirely unreliable witness and is, in fact, swearing to the issues, in particular, that the term “metres” equals a quantity of cannabis. As to the first of these matters, Ms Keegan points to the following personal circumstances of Grainger. He is a self-confessed liar. He has significant mental health issues, diagnosed with bipolar disorder. He experiences delusions of grandeur, paranoid thought, has been a heavy user of amphetamines, takes antidepressants and antipsychotic medication.
All of these matters, even if true, still do not warrant that his evidence in total be excluded. As Justice Carter said in the Queen and McLean and Funk (1990) 47 A Crim R 240:
Assessing credit is the function of any fact-finding tribunal and in a criminal trial, the performance of that function belongs to the jury and any attempt by a trial judge to usurp it is to distort the separate of functions vested in judge and jury in such a trial.
That quote, I do not think, ought be interpreted to mean that in every case, the credit of a witness is a matter for a jury to determine. However, it would be, in my view, only in exceptional cases that that was not the case and, in my view, this is not such a case. I agree with the submissions made on behalf of the Crown that it is really in this case a matter for the jury what weight, if any, they give to Grainger.
When this matter was argued before me on the 24th for the reasons that were discussed on that day, the issue of Grainger being able to give identification evidence, that is, evidence that he could identify Heilbronn’s voice on the phone was adjourned to allow Ms Keegan more time to consider what evidence Grainger would, in fact, be giving on that topic.
For the reasons given, I have reached the following conclusions in respect of Grainger: (1) there is no basis for ruling that he is unfit to give evidence in any way in the trial against the applicant, (2) however, he ought not be permitted to give evidence that, to his knowledge, Heilbronn used the term “metres” as a code for cannabis of any weight, (3) otherwise, I can see no reason for excluding the transcript of the telephone intercepts challenged by Ms Keegan. I am unable to discern why it is that they could not go before the jury, even without the evidence of Grainger that I have already referred to. The use of the word “metres” is so out of context with the balance of the telephone calls to which I have already referred that if after hearing all of the evidence in the case – it might well be open for the jury to draw the inference that it was a reference made by Heilbronn concerning a proposed drug deal between he and the applicant.
Turning then to the question of the money. An amount of in excess of $14,000 was located during the execution of a search warrant at the applicant’s residence on 18 October 2011. This evidence is challenged on two bases. The first is that the recording of the counting of the money found inside a box was not recorded and there was otherwise a lack of continuity or of control over the money once seized. The thrust of the submission at page 8 of the applicant’s written submissions are to this effect:
There is no explanation as to why the police officers did not follow the OPM in the conduct of the search warrant and seizure of the money. Given the police officers’ experience, the fact that the search warrant was planned and that they were specifically searching for high-risk property, it could not be said that the breaches were merely inadvertent.
However, the evidence concerning this is to this effect upon the execution of a search warrant, a locked box was located by a Constable Goode. The applicant’s partner advised Goode as to where he could locate the key to open the box. That key was located and given to one Senior Sergeant Mahoney, who then opened the box. Mahoney, Goode and another police officer, Webb, all then observed a large quantity of Australian currency inside the box. Mahoney then re-locked the box and handed it to Webb, but Mahoney retained possession of the key. The police officers all left the scene and after travelling some distance and it is accepted that there seems to be a degree of imprecision about time and space in this context. But, nonetheless, Webb eventually realised that he left without the box containing the money. On discovering this, the police returned to the residence. Webb sought the permission of the applicant to re-enter the premises and that permission was given. The premises was then re-entered and on re-entry, the box was relocated. The box had not been unlocked and there was no evidence to suggest that it had otherwise been tampered with. The box was then taken to the Townsville Police Station. At the police station, the box was opened and the money was then counted by Webb in the presence of Acting Detective Inspector Christopher Hicks. The counting of that money was recorded on an audio recording device.
That the money was not counted and that the counting of the money at the scene was not recorded was unfortunate. That the money was forgotten and left behind strikes me as being extraordinary. However, on balance, I consider that the evidence concerning the seizure and counting of that money is not such as to enable it to be categorised as being, in some material way, tainted evidence.
Orders:
The application to exclude the evidence of the telephone calls and text messages (Attachment “A” of the Applicant’s outline) is dismissed;
The proposed evidence of Stuart Grainger in relation to the meaning of the word ‘metres’, as it appears in telephone call CSN 186 on 2 June 2011, is excluded;
Otherwise, the reliability of Stuart Grainger is a matter for the jury;
The application to exclude the evidence of the sum of money seized during the execution of a search warrant at the residence of the applicant on 18 October 2011 is dismissed.
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