New South Wales Court of Criminal Appeal CITATION : R v Colley [2003] NSWCCA 323 HEARING DATE(S) : 16 October 2003 JUDGMENT DATE : 5 November 2003 JUDGMENT OF : Studdert J at 1; Barr J at 58; Whealy J at 59 DECISION : Appeal against conviction dismissed. CATCHWORDS : Criminal law - possession of drug in quantity greater than traffickable quantity - issue at trial whether drug in appellant's possession otherwise than for supply - grounds of appeal not taken at trial - whether leave to rely upon grounds should be granted. Criminal Appeal Rules, r 4 LEGISLATION CITED : Drug Misuse and Trafficking Act, s 29 Evidence Act, ss 80, 135, 136, 137 Dhanhoa v The Queen [2003] HCA 40 Edwards v The Queen (1993) 178 CLR 193 Papakosmas v The Queen (1999) 196 CLR 297 CASES CITED : R v Birks (1990) 19 NSWLR 677 R v David & Gugea (unreported, NSWCCA, 10 October 1995) R v ITA [2003] NSWCCA 174 R v Lam [2002] NSWCCA 377 PARTIES : Regina v Richard Edward Colley FILE NUMBER(S) : CCA 60213/03 COUNSEL : E. Wilkins (Crown) A. Cook (Appellant) SOLICITORS : C.K. Smith (Crown) B. Sandland (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0017 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60213/03 STUDDERT J BARR J WHEALY J Wednesday 5 November 2003 REGINA v RICHARD EDWARD COLLEY Judgment 1 STUDDERT J: Richard Edward Colley stood trial in the District Court charged with supplying a prohibited drug. The jury found him guilty of that offence and he was sentenced to a term of imprisonment of five years eight months with a non parole period of four years three months. 2 The appellant now appeals against his conviction. 3 At his trial there was no issue about the element of possession. I shall examine the evidence more closely shortly, but the evidence established that the appellant had in his possession some 57.9 grams of methylamphetamine. This, of course, was more than the traffickable quantity of methylamphetamine (set in the Drug Misuse and Trafficking Act at 3 grams), so that the appellant was deemed under s 29 of the statute to have the prohibited drug in his possession for supply unless the appellant proved that he had it in his possession otherwise than for supply. 4 In his written submissions, counsel for the appellant acknowledged that the sole issue for the jury was whether the appellant had proved on the balance of probabilities that he had the drug in his possession otherwise than for supply. It was the appellant's case that he had the drug solely for his personal use. 5 The appellant was arrested early on the morning of 20 February 2001. Police officers had premises at Bathurst under observation and observed a car leaving those premises. The police officers followed the vehicle and signalled the driver to stop. The appellant was the driver. His girlfriend was with him in the car. The appellant was observed to pull something in a clear plastic bag out of the left pocket of his jeans and to place it in the centre console of the car. A police officer searched the vehicle and in the centre console found twelve plastic resealable bags containing white powder. In addition a tin marked "Latex" was located and inside that there were a further six resealable bags containing a white powder. A box containing twelve black syringe disposable packs with used and unused needles was found on the floor of the car. 6 When the appellant was told he would be searched, the appellant was seen to adjust his right ankle area with his left foot. When searched $3500 was found in the appellant's right sock. The appellant also handed to the police officer a needle and syringe from that right sock. A further $320 in cash was located in a wallet in the appellant's jeans. 7 Later on the same day the premises occupied by the appellant and his girlfriend were searched and the results of that search were as follows: (i) a set of plastic scales was found in a box in a small room at the rear of the premises; (ii) a plastic bottle used as a bong was found in the laundry; (iii) a small brass pipe and two syringes were found in a kitchen drawer; (iv) a small amount of cannabis was found in the kitchen; (v) a box of Glucodin was found in the kitchen; (vi) a second set of scales was found in the kitchen; (vii) pieces of foil were found on top of a cupboard in the dining area; (viii) Glucodin tablets were found on a table in the lounge area; (ix) a number of needle swabs were found in the bathroom; (x) in the bedroom were found a number of syringes, a plastic bag containing white tablets, a spoon with some dried residue later identified as methadone, and a black pile of rolled up tape which contained a plastic bag with what was identified as morphine in it. 8 The content of the eighteen resealable bags was subjected to chemical analysis. All of the packs contained methylamphetamine. Four of the bags with a content weighing 15.5 grams were of such purity as to be known on the street as "ice". Twelve of the bags, with a content weighing 36.4 grams, contained powder of a purity of 22.5 percent, which was also high purity according to the chemist conducting the analysis. The content of the remaining two bags weighed 6 grams and the purity of it was not tested. 9 A detective superintendent, whose evidence prompted the first ground of appeal argued, said that the twelve bags containing the drug with a 22.5 percent purity had, on a conservative estimate, a total value of $4200. He said that a single gram of drugs at 22.5 percent purity would sell for between $90 and $120. The two resealable bags with a content of 6 grams had a total value of between $540 and $700. The superintendent described the content of the bags as "typical eight ball deals". Then, in relation to the four resealable bags with a purity of eighty-one percent, the superintendent said the 15.5 grams could be cut at least eight times, so as to create 146 grams of amphetamine. He said this gave the content of these four bags a value of "around $12,400". 10 The appellant gave evidence. He denied being a drug supplier. The appellant said that in September 2000 he accidentally had a drink that contained methylamphetamine and thereafter he became progressively addicted to this drug until by the time of his arrest he was using two grams and sometimes as much as three grams per day, injecting it into his person. 11 The appellant gave evidence of recent purchases of methylamphetamine for his own use and of acquiring the drug in stronger form than he had been used to using, so he took it home to cut it with glucose. His evidence in short was that all the drug that had been found in the car was his and that it was all purchased for his own use. He said that he had the drugs in the car, after taking them from a hiding spot in the garden, with a view to taking them with him whilst he visited Queensland. 12 The appellant offered an explanation for having money on his person. He said he had recently won a considerable amount of money on the poker machines. He had also received a lump sum of $50,000 on a workers' compensation claim in September 2000 and he withdrew money from his bank account to defeat a threatened claim by a neighbour for victim's compensation. The appellant said that claim was made after the appellant had assaulted that neighbour. 13 In summary then, the appellant's case was that the methylamphetamine found in his car was for his own use and the money in his possession was not money received from the sale of drugs. 14 I turn now to consider the various grounds of appeal. THE GROUNDS OF APPEAL Ground 1: That the trial miscarried in that damaging and inadmissible evidence was admitted both without objection and without any direction from the trial judge limiting its use 15 There were three categories of evidence to which this ground related: (a) certain of the evidence of the detective superintendent; (b) certain evidence concerning the appellant's mobile phone menu; (c) the evidence of the detection of the drugs inside the appellant's premises. 16 It is to be observed that no objection was taken by counsel appearing for the appellant at his trial to the introduction of any of the evidence to which ground 1 relates. Nor was the trial judge asked to give any direction limiting the use of the evidence to which exception is now taken. Leave is accordingly required to rely upon ground 1. 17 The operation of r 4 of the Criminal Appeal Rules was recently considered in R v ITA [2003] NSWCCA 174. In that case Ipp JA, with whose judgment Buddin J and Shaw J concurred carried out a review of earlier decisions on r 4, citing inter alia the dicta of McHugh J in Papakosmas v R (1999) 196 CLR 297 where his Honour said (at 319): "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error or law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant". 18 What was said in the above passage in Papakosmas has particular relevance here. It is for the appellant to satisfy this Court that there has been a miscarriage of justice by reason of the introduction of the evidence to which ground 1 relates. Ground 1(a) The evidence of Detective Superintendent McKay 19 The evidence of this witness was led from his statement as to his involvement in the investigation of illicit drug manufacture and supply from the year 1985 onwards, including his involvement in a large number of undercover operations. His evidence disclosed expertise in investigation of illicit drug operations, and no challenge to his expertise in the field was taken at the appellant's trial, nor, indeed, in this Court. 20 Detective Superintendent McKay addressed the chemical analysis of the content of the resealable plastic bags that had been discovered in the appellant's car, and on this matter the witness said this (T 59): "item one describes 12 resealable plastic bags containing a total of 36.4 grams of methylamphetamine with a purity of 22.5 percent. The normal street usage purity that we discover is between one percent and six percent. Single grams of a drug of this purity sell for between $90 and $120. I would describe 22.5 purity as of good quality. It is the case that the 12 bags contained similar amounts, they are typical eight ball deals. This is typical behaviour in the illicit drug world, used to purchase eight balls of purity, cut the drug, use some of it and on sell the rest. I would conservatively value the eight balls in this case at $350 each, giving them a total value of $4,200. Item two on the same certificate relates to two resealable plastic bags containing a total of six grams of methylamphetamine. These again are typical eight balls. It is the case that the two bags contained similar amounts. Dependent upon purity they would be valued between $270 and $350 each, giving them a total value of between $540 and $700. Item three relates to four plastic resealable bags containing a total of 15.5 grams of methylamphetamine with a purity of 81 percent. Methylamphetamine with a purity of this level is usually referred to as crystal methylamphetamine or ice. This drug sells for approximately $500 per gram. If it is the case that the four bags contained a similar amount they are typical eight ball deals. As they would be worth approximately $1,900 each the total value of $7,600. 15.5 grams if cut at least eight times creating 146 grams of amphetamine which could sell for $100 a gram, giving it a value of around $12,400." 21 Whilst in his written submissions, Mr Cook recorded some complaint about the introduction of the above evidence, in oral submissions Mr Cook conceded that the above evidence was admissible. In my opinion, that was an appropriate concession having regard to the ambit of the expertise of this witness. 22 In the course of cross examination of Detective Superintendent McKay questions were asked that sought to make the following points: (i) that it was cheaper to purchase drugs in larger quantities than in smaller quantities; (ii) that each time a user sought to buy drugs he exposed himself to dangers; (iii) one of those dangers was the danger of being "ripped off" by the person from whom he was buying; (iv) another danger was being apprehended by the police. 23 The witness agreed in cross examination as a matter of commonsense that the less a user exposed himself to those dangers the better it was for him. 24 Plainly the purpose of that cross examination was to elicit evidence explaining a course of conduct on the part of a mere user in buying in bulk, so as to buy more cheaply and so as to minimise the risks associated with drug transactions. 25 Following the completion of his cross examination, the witness was asked in re-examination the following questions and gave the following answers (T 65): "Q. Superintendent based on your experience and looking at the if I could say the drugs seized in this arrest, are you able to say whether you have opinion, whether it is a user situation or a supplying situation? A. I have no doubt it's a typical drug supply there's no doubt. Q. So you have no doubt it's a typical drug supply? A. There's no doubt at all." 26 It was submitted on behalf of the appellant that the evidence introduced in re-examination was inadmissible. Mr Cook submitted that the questions sought an opinion on the ultimate jury issue, and that notwithstanding s 80 of the Evidence Act, evidence of the opinion of the expert on that issue was inadmissible. It was argued that at the very least the evidence should have been excluded in the exercise of the discretion of the trial judge. Reference was made to R v David & Gugea (unreported, NSWCCA, 10 October 1995 in particular at p 9) and to R v Lam [2002] NSWCCA 377 (at paras 78-79). The Crown responded that David & Gugea did not prescribe an inflexible principle to be applied in every case; rather the approach to ss 135, 136 and 137 of the Evidence Act called for a ruling depending on the circumstances of the particular case, citing Papakosmas v The Queen (1999) 196 CLR 297, and in particular the judgment of McHugh J at para 97. 27 Had objection been taken to the first of the questions asked in re-examination, then, in my opinion, the question should have been disallowed because it seems to me there was a fundamental difficulty with it. What did it mean? Perhaps it had the meaning for which the appellant here contends, but another way in which the question could have been understood was that it called for an expression of opinion as to whether the quality and the quantity of the drugs seized were typical of possession for supply on the one hand or possession for personal use on the other. Uncertainty as to the meaning of the question warranted its rejection. 28 If what the witness was being asked to do was to express an opinion as to whether the appellant had the drugs in his possession for the purposes of supply or for the purpose of use, then it seems to me the question should not have been asked. The expertise of the witness did not qualify him to give evidence as to the purpose for which the appellant possessed the drug. 29 However, what the witness had said in his evidence in chief was admissible in my opinion, and indeed it is not now submitted to the contrary. It was within the expertise of the witness to express an opinion as to whether it was typical behaviour of a supplier to have drugs in the quantity and of the purity of the drugs discovered in the appellant's car. The evidence that such possession was typical of drug suppliers was admissible as being within the expertise of the witness. 30 Acknowledging that the questioning which elicited the responses in re-examination was not altogether clear, I do not read the answers given as amounting to any more than a repetition of what was said in the evidence in chief. What the witness was saying, as I read the answers, amounted to no more than a summary repetition of the evidence in chief set out earlier. 31 It was pointed out that the Crown treated the responses in re examination as amounting to an expression of opinion by the witness that the appellant had the drugs in his possession for supply purposes, because this was the interpretation of the evidence advanced in the final address of the Crown. However, the position remains that not only was no objection taken to the introduction of the evidence but at no stage was the trial judge asked to give the jury any direction limiting the use which the jury might make of that evidence. In these circumstances, the remarks of McHugh J in Papakosmas cited in ITA assume particular relevance. 32 An affidavit was affirmed by counsel who appeared for the appellant at the trial in which counsel explained that he did not object to the evidence to which this ground refers because "he did not direct his mind to the fact that the witness was answering an ultimate jury question and the prospect that the jury may substitute his opinion for their own." 33 The likely explanation for that is that counsel did not regard the answers in re-examination as anything more than an repetition, in summary form, of the evidence given in chief. In the atmosphere of the trial, counsel did not perceive there was a need to make any application to the trial judge, either about the evidence given or the content of the Crown's address to the jury, and I am not satisfied that any miscarriage of justice has occurred by reason of the evidence given by this witness. I conclude that I would not grant leave to the appellant to rely upon this ground of appeal. Ground 1(b) The evidence of Senior Constable Cuzner 34 Senior Constable Cuzner gave evidence at the trial (which the transcript records as being given by consent), of having inspected the appellant's property including a small Nokia mobile phone. He said (T 66-67): "After obtaining the telephone numbers from the accused's mobile menu, I then completed a lessee name and address check for each telephone number in the accused's telephone menu and forwarded them to the police information and intelligence centre. I later received a number of faxes relating to each of the name and address checks for those telephone number checks. Some of the checks revealed names and addresses well known to police for their involvement in drug culture and activity …" 35 It has been submitted that this evidence should have been excluded because its effect was to demonstrate that the appellant was an associate of criminals engaged in the drug trade generally. It was submitted that this was not permissible and what it did was to raise the spectre of his being a person of bad character in a generalised sense. The evidence was plainly inadmissible as hearsay evidence, the appellant submits. 36 Had objection been taken to the evidence in the sentence underlined above, that evidence should have been rejected, but no objection was taken to its introduction. It could not be suggested that counsel appearing at the trial was taken by surprise when Senior Constable Cuzner said what he did. There had been an earlier trial which had proceeded so far as the end of the defence case. Something thereafter occurred which necessitated the discharge the jury. A reading of the transcript of the evidence of Constable Cuzner given at the second trial discloses that Constable Cuzner gave the evidence above in response to a question expressed as follows: "With the consent of my learned friend, I would ask you to read from paragraph 3 on page 1 of that statement, please." 37 Not only did counsel take no objection to the introduction of the evidence knowing in advance what was to be said, but it is to be noted that there was no application made to the presiding judge concerning that evidence at any stage of the trial. 38 The Crown has submitted that there was no prejudice occasioned to the appellant by the admission of this material because his own case was that he had numerous dealings with local drug dealers and that he bought drugs for five months prior to his arrest. He was cross examined about the names found in his telephone menu (T 117): "Q. But by February you were familiar with the suppliers of drugs in the Bathurst area, weren't you? A. Some. Q. Because you heard Detective Constable Cuzner say that your phone had in its memory a number of entries that he was familiar with in the drug trade in Bathurst? A. I'd have to – I knew people in the drug scene because I'd buy drugs." 39 So it was that the appellant had an explanation for having the phone numbers and that explanation was entirely consistent with his case. 40 An affidavit was affirmed by Constable Cuzner who deposed to his personal knowledge of many of the names in the telephone menu "as belonging to people involved in the drug trade as either users or dealers". Constable Cuzner further deposed: "My knowledge in relation to these people was a result of my direct dealings with them as part of my duties in the New South Wales Police Anti Theft Squad." 41 Had counsel raised objection to that part of the evidence of Constable Cuzner which was inadmissible, doubtless the rejection of that evidence would have led to further questioning by the Crown enabling Constable Cuzner to give evidence in point as to his own personal knowledge. It is unlikely that this would have helped the appellant's case. 42 In my opinion, the appellant should be regarded as bound by the way his counsel conducted the trial concerning this matter: see the discussion of relevant principles in Birks (1990) 19 NSWLR 677 and in particular in the judgment of the Chief Justice at 685. 43 In the circumstances therefore I do not consider that a case has been made out for the grant of leave under r 4 to pursue this ground of appeal. Ground 1(c) The introduction of evidence concerning drugs and items found in the appellant's premises 44 This ground, expressed in the notice of grounds of appeal and addressed in written submissions, was not pursued on the hearing of the appeal. However, I propose to refer briefly to it because the explanation for the way in which the evidence complained of under this ground was introduced at the trial is an explanation of a kind that accounts for the reluctance which a judge presiding at a trial may have in intervening where seemingly inadmissible evidence has been introduced without objection. Unless counsel appears to be incompetent (and there is no suggestion of that here), it is not unreasonable for the presiding judge to conclude that the accused's counsel wants the evidence admitted in a particular way, or for a particular purpose. 45 The evidence which was introduced and to which this ground relates is the evidence referred to in para 7 of this judgment. Whilst in written submissions it was argued that the evidence was inadmissible and highly prejudicial because it showed a propensity in the appellant to use drugs and to be involved with drugs other than methylamphetamine, an affidavit sworn by the Crown Prosecutor appearing at the first trial makes it clear that it was the Crown's understanding that the defence wanted the material placed before the jury as additional evidence of the appellant's status as a heavy drug user and one who lived with another drug user. Indeed, the evidence at trial was that these other drugs were not his. The appellant's evidence was that the various drugs found were those of his girlfriend and he was not challenged about this. The Crown Prosecutor affirmed in his affidavit: "The evidence of the search of Colley's home given by Senior Constable Cuzner was as agreed between the defence and the prosecution. It included the evidence of the finding of the bong, small brass smoking pipe, the small amount of cannabis, some methadone and some morphine. This evidence was led by me at the first and second trials because it was my understanding that the defence wanted this material placed before the jury as additional evidence of Colley's status as a heavy drug user, who lived with another drug user and whose previous partner had left him because of his drug use in the home." 46 In response counsel for the appellant at the trial affirmed in his affidavit: "I have read the affidavit of Crown Prosecutor Alex Clout. The contents of that affidavit are consistent with my own memory." 47 This ground has not been argued, but in any event r 4 would have stood in its way. Ground 2: The trial miscarried as a result of the manner in which an alleged lie was dealt with by the trial judge 48 When the police officers were searching the appellant's car prior to his arrest and powder was discovered, the appellant was asked whether he knew what it was, and he responded: "I don't know what you're talking about." The appellant was not cross examined about that statement, and he did not refer to it in his evidence in chief. Neither the Crown nor counsel for the accused addressed the jury about the significance of that statement. However, before the addresses began the judge raised the matter (T 169) in the context of considering how he should sum up: "HIS HONOUR: Now, what about the question of lies? (incorrectly recorded as "liars") CROWN PROSECUTOR: Your Honour can I take that one on an advisement and we can make application to you on it tomorrow morning if I think it's appropriate?…" 49 Then, on the following morning counsel for the accused said this in the absence of the jury (T 171): "DOYLE: Your Honour yesterday afternoon your Honour mentioned about the direction regarding lies. I had discussions with the learned Crown, neither of us would like any direction at all on lies. Our position is that a direction as to lies would really be confusing to the jury in any case, so that's both our positions on that direction." 50 It is to be taken then that neither the Crown nor counsel for the accused wanted a direction in accordance with Edwards v The Queen (1993) 178 CLR 193 to be given to the jury, and plainly no such direction was given in the course of the summing up. His Honour did refer to the appellant having been asked about the white powder (SU 23): "When spoken to by the police when they first apprehended him he told them that he did not know what they were talking about when the policeman asked him what the white powder was. There was no claim made then 'look officer this is my stash of drugs purchased for my own use'. In short the Crown says he was caught red handed with a substantial quantity of valuable drugs. His claim that he had them in his possession solely for his own use is a concoction to avoid responsibility." 51 The above passage in the summing up did not prompt change in the position of counsel on lies, nor did it prompt any request for any further directions about what the trial judge had said as set out above. Once again r 4 is enlivened when considering this ground; and it is relevant to bear in mind what Ipp JA said in ITA (supra) at para 98: "The existence of r 4 and s 99 [of the Criminal Procedure Act] imposes a duty on counsel to inform the trial judge of all points that arise from the summing up that reasonably could give rise to an appeal. It will not lightly be assumed that this duty has been breached. Rather, unless there is good reason to hold the contrary, it will be inferred that decisions not to raise such matters with the trial judge are taken for sound forensic reasons. No more need be said than to repeat and emphasise the remarks of Gleeson CJ in R v Sanderson (unreported, NSWCCA 18 July 1994) that: 'It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred'." 52 I do not consider that the appellant should be given leave to rely upon this ground when no point about it was taken at the trial. In context, what the trial judge was pointing out to the jury was simply the absence of an assertion by the appellant when he first had the opportunity to make it that the powder was a drug bought for his own use. Read in context, what the judge said in the passage above quoted should be read in the sense that in what was said from the words "In short the Crown says" onwards, his Honour was summarising the Crown case which he had earlier been reviewing for the jury. 53 There was no suggestion in the evidence, or in the addresses of counsel, or in the summing up that the lie was told because of a consciousness of guilt in respect of the supply charge, and the lie appears to have been given little prominence at the trial. Counsel for the appellant did not want an Edwards direction, doubtless because it was perceived that such direction would have given an emphasis to the notion of consciousness of guilt in a manner that the evidence and the conduct of the trial had not. 54 In Dhanhoa v The Queen [2003] HCA 40 Gleeson CJ and Hayne J said this (para 34): "It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards , or of the kind referred to in Zoneff , every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case." 55 These dicta are, in my view, directly in point here. I do not perceive that there exists the possibility that the absence of an Edwards direction might have caused this trial to miscarry. 56 In my opinion, leave to rely upon ground 2 should be refused. 57 For the above reasons, I consider that this appeal against conviction should be dismissed. 58 BARR J: I agree with Studdert J. 59 WHEALY J: I agree with the reasons of Studdert J. ********** Last Modified: 11/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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