R v Watson [1999] NSWCCA 417

New South Wales Court of Criminal Appeal CITATION : R v Watson [1999] NSWCCA 417 FILE NUMBER(S) : CCA 60732/98 HEARING DATE(S) : 7 September 1999 JUDGMENT DATE : 21 December 1999

PARTIES : Regina (respondent) Peter Malcolm Watson (appellant) JUDGMENT OF : Newman J at 1; Simpson J at 63; Hidden J at 63

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 94/11/0443 LOWER COURT JUDICIAL OFFICER : Mahoney DCJ

COUNSEL : L M B Lamprati (Crown) J C Papayanni (appellant) SOLICITORS : Director of Public Prosecutions (Crown) Jeffreys & Associates (appellant) CATCHWORDS : CRIMINAL LAW - supply of amphetamines - adequacy of directions on joint enterprise - no question of principle ACTS CITED : Drug Misuse & Trafficking Act 1985 R v Tangye (1997) A Crim R 545 CASES CITED: R v Bulejcik v R (1994-5) 185 CLR 375 R v Smith [1984] 1 NSWLR 462 DECISION : Appeal allowed by majority; New trial ordered

IN THE COURT OF

CRIMINAL APPEAL

60732/98 NEWMAN J SIMPSON J HIDDEN J

TUESDAY, 21 DECEMBER 1999

REGINA v Peter Malcolm WATSON

JUDGMENT

1 NEWMAN J: This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was originally indicted on two counts before the District Court. The first count was a charge that the applicant had supplied a prohibited drug not less than a large commercial quantity, the drug being methylamphetamine. The second being framed in the alternative being an allegation that he supplied a prohibited drug not less than a commercial quantity, the drug being the same. 2 In the event the jury found him guilty of the alternative count while not guilty of the first count. 3 The learned trial judge sentenced him to a minimum term of six years and an additional term of two years. The maximum penalty for the alternative count pursuant to s 25(2)/33(3) of the Drug Misuse and Trafficking Act 1985, is imprisonment for twenty years or a fine of 3,500 penalty units or both. 4 The Crown case may be summarised as follows: 5 An undercover police operation was initiated at the beginning of 1992. During this operation an undercover police operative who was known as "Neil Davies" approached the appellant's co-accused Dick Garner in relation to a purchase of a quantity of methylamphetamine. He met Garner in February 1992. Between February and 30 April that year Davies had several conversations (both in person and over the telephone) with Garner about purchasing drugs. The police obtained warrants to tape Garner's phone line at 1101 Alamein Avenue, North Albury. The telephone conversations between Garner and the appellant, as well as conversations between Garner and Davies were recorded by a telephone intercept and six of those tapes were tendered at trial. 6 In a conversation which took place on 1 May 1992 and was recorded on tape, Davies inquired about buying some "speed" and Garner responded that he would need "12 and a half" thousand dollars for a pound and added "you want three" meaning three pounds of speed. In another conversation on 3 May 1992, which was recorded on tape, Garner referred to the purchase price for three pounds, that is $37,500. The transaction was to take place on Wednesday, 6 May 1992. 7 On 5 May 1992 the appellant was observed in the Oak Hotel in the Albury area by Sergeant Ramsey, who also noted the presence of a red Corvette in front of the hotel. He heard the appellant being addressed as "Windy". 8 Davies gave evidence that on 6 May 1992 he went to the Wagga Wagga area where he met other police and was fitted with a listening device and a recording device. He was accompanied by another undercover operative "Tony Romano". At about 3.40 pm the two officers drove to Garner's premises at 1101 Alamein Avenue, North Albury in a red Holden Commodore. Once they arrived Davies met with Garner and went inside the house. He was taken to the bedroom and given a small bag containing white powder that served as a sample. 9 A short while later, both Davies and Garner were observed leaving the house and driving off in Davies' red Holden Commodore. While in the vehicle Davies showed the $37,500 to Garner, who then telephoned someone from Davies' mobile phone and handed the phone to Davies. Davies then had a conversation with a male person whose voice he was unable to identify. That conversation was also recorded, however only the voice of the undercover operative was audible. The mini audio tape of those conversations was tendered. 10 Observations at 313 Olive Street, South Albury commenced at about 2.45 pm on 6 May 1992. Snr Const Jones noticed the appellant standing in the driveway wearing a short sleeved black T-short and blue denim jeans. At 4.12 pm Det Sgt Cook who was conducting surveillance duties, observed a beige Statesman pull up opposite the house. Garner exited the car and entered the premises. At 4.30 pm a brown Ford sedan pulled into the driveway and a male person wearing a blue flanellette checked shirt and blue jeans came out of it and entered the premises. At around 4.50 pm the appellant and an unidentified male person came out of the house and entered the Ford and drive off in a southerly direction. The car was seen by Snr Const Gray driving into the bushland south of Olive Street. 11 Around 5.45 pm the brown Ford returned to Olive Street. The appellant and the unidentified male left the car and were joined by Garner. They went to the rear of the Ford sedan and the unidentified male walked towards the house and out of view. Const Walker gave evidence that he observed the appellant handing something to Garner, but conceded in cross-examination that he did not see Garner holding it when he was crossing the street. Snr Const Jones saw Garner returning to his car, which was parked opposite the premises at 313 Olive Street carrying a package. He described the package as "approximately the size of a house brick and … light in colour". This evidence was corroborated by Snr Const Gray. 12 Before starting the car Garner appeared to be interfering with the inside of the car door. He then drove his beige Statesman in a northerly direction. The car was followed to Alamein Avenue, North Albury, at which point Sgt Cook returned to 313 Olive Street. He noticed that the premises were in darkness and that both the red Corvette and the brown Ford were gone. Cook also gave evidence that at around 6.45 pm other police officers arrived at the scene. They conducted a search of the premises. At the time there was no one at home. 13 The observations made by the police officers who were involved in the surveillance operation were recorded in a "surveillance log", which was not able to be located at the time of the trial. 14 At about 5.52 pm on that day Davies received another call on his mobile phone from a male person who told him, "Dick's coming back with it now". At about 6 pm he returned to Garner's house, walked out of the car and went down the driveway where he observed Garner ducking down next to the boot of his beige Holden Statesman. Davies was handed a large clear plastic bag containing white powder, which Garner produced from the boot of his car. 15 At that point police officers attended the scene at Alamein Avenue and arrested Garner and the two undercover operatives. A search warrant was executed. Sgt Leckey took photographs of the inside of the Statesman where some traces of the white powder could still be seen near the kick plate of the driver's side and also beside the driver's side of the driver's seat. Snr Const Thompson, the exhibits officer, took possession of a big plastic bag containing white powder and took it to the Albury police station where the white powder was weighed, recorded and labelled. 16 On 11 May 1992 the powder was analysed and found to weigh 441 grams. A fingerprint examination was also conducted, but no identifiable fingerprints were found on the plastic bags. 17 On 11 February 1993 Det Snr Const Cole and Det Snr Const MacDonald, two officers from the Victorian Drug Squad, came to Sydney and were taken to the Telephone Intercept Unit of Sydney Police by Det Sgt Ramsey. These officers were asked to listen to the cassettes and identify any of the voices and in particular the voice of the appellant. They were able to recognise the voice of the appellant on four of those tapes. The transcripts of these tapes were tendered as exhibits. 18 Both MacDonald and Cole had spoken to the appellant on several occasions prior to February 1993. In his evidence MacDonald said that the subsequent contact with the appellant "reinforced to me that may identification of his voice on those tapes was correct." During cross-examination he described the appellant's voice as "a deep guttural type voice". In the course of cross-examination Cole characterised the voice as "sort of a dull sort of deep voice". Ramsey had listened to the tapes as well, however in cross-examination he conceded that he could not identify the voice of the appellant on them, despite the fact that he had heard him speak on 5 May 1992 at the Oak Hotel. 19 In 1993 the appellant was extradicted from Victoria and brought to Sydney by Snr Const Bradley. He was then charged with the abovementioned offences. 20 In response the appellant made an unsword statement and called no other evidence. In his statement he said: "I am not guilty of this charge. On 5 May I left Melbourne to go to Sydney to a party. On the way I picked up Brian Gibbons from Olive Street. We stopped at a hotel on the way, went to Sydney. The next morning, on 6 May, we left Sydney, returned back to Albury. When we returned, we had some sleep, then had a barbecue in the afternoon. After that, I left Albury and went back to Melbourne. At no stage did I hand a parcel to anyone. I knew Garner through Brian Gibbons, I was introduced by him. My wife's family are from Albury. I work for John Bell, and everything he said was true. And I ask of you to find me not guilty. Because I am not guilty. Thank you." 21 The appellant raised seven grounds of appeal. I shall deal with them seriatim.