Phillips v Regina [2007] NSWCCA 211

New South Wales Court of Criminal Appeal

CITATION: Phillips v Regina [2007] NSWCCA 211

HEARING DATE(S): 13 July 2007

JUDGMENT DATE: 13 July 2007

JUDGMENT OF: Giles JA at 1; Latham J at 33; Mathews AJ at 34

EX TEMPORE JUDGMENT DATE: 13 July 2007

DECISION: (1) Extend time for filing notice of appeal and application for leave to appeal; (2) Dismiss appeal against conviction; (3) Grant leave to appeal against sentence but dismiss the appeal.

CATCHWORDS: Criminal law - supply of prohibited drug - whether accused knew drug in bag - appeal against conviction - no deficiency in directions concerning circumstantial evidence - open to jury to be satisfied of guilt beyond reasonable doubt - appeal against sentence - sentence within available range - no question of principle.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

PARTIES: William Garrett Phillips - Appellant Crown - Respondent

FILE NUMBER(S): CCA 2007/695

COUNSEL: Appellant in person M Barr - Crown

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/51/0119

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 3 November 2005 (Summing up) 15 December 2005 (Sentence)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/695 DC 05/51/0119

GILES JA LATHAM J MATHEWS AJ

Friday 13 July 2007 William Garrett PHILLIPS v REGINA Judgment 1 GILES JA: The appellant was charged with the supply of 84.61 grams of heroin, an offence under s 25 of the Drug Misuse and Trafficking Act 1985. He pleaded not guilty. On 31 November 2005 the jury returned a verdict of guilty. On 15 December 2005 the appellant was sentenced to imprisonment for 5 years commencing on 23 February 2005 with a non-parole period of 3 years 9 months. 2 On 19 January 2007 the appellant filed a notice of appeal against conviction and an application for leave to appeal against sentence. The appeal and application were well out of time, and in early April 2007 he filed an application for extensions of time. 3 There was no adequate explanation for the delay until January 2007. The explanation given in the notice of appeal was that "the forms" were lodged on 15 December 2005, time was then occupied with applications for legal aid but to no effect, and there were difficulties because the appellant was without assistance and was moved between correctional centres. It is not clear what forms were lodged, and appreciation of the difficulties of someone in the appellant's position does not explain the delay which occurred. 4 However, the appellant and the Crown have been fully heard, and in the circumstances I consider it best to bring finality by extending time. 5 By the definition in s 3 of the Drug Misuse and Trafficking Act supply includes possession for supply. For an amount not less than the traffickable quantity, by force of s 29 possession is deemed to be possession for supply unless the accused proves possession otherwise than for supply. The 84.61 grams of heroin exceeded the traffickable quantity. 6 The Crown case was that the appellant had in his possession heroin found in the false bottom of a red "Paklite" bag in the back seat of a Ford Falcon motor vehicle stopped by police on the Pacific Highway south of Ballina. The appellant was the driver, and Ms Christina Harris occupied the front passenger seat. The Paklite bag was the appellant's bag and contained some men's clothing, but in an ERISP interview an edited video tape of which was tendered in the Crown case the appellant denied any knowledge of the heroin. The ultimate issue at the trial was whether the accused knew that the heroin was in the bag. 7 The police were alerted to the motor vehicle by erratic driving. When it was stopped the police formed the view that both the appellant and Ms Harris were affected by drugs. The appellant got out of the motor vehicle and was slumped over, leaning on its roof. He was breath tested, with a negative result. What appeared to be needle track scars, including a fresh mark, was seen on his forearms. The same was seen on Ms Harris's arms. The appellant produced a wallet containing about $3500. He said he owned an internet design company. 8 One of the police officers asked Ms Harris to get out of the motor vehicle so that he could search it. He saw what appeared to be a syringe wrapper on the passenger front floor, and the appellant told him that there might be a sharps kit in the back. He found a sharps kit on the floor behind the driver's seat, containing drug paraphernalia and used syringes. He found on the front passenger seat side a small plastic bag containing a number of bloodied tissues and on the floor a hand-rolled cannabis cigarette. In the centre console of the vehicle he found a blood filled syringe. He asked who owned it, and Ms Harris said it was hers, that she mixed and injected something but then drew it back out. He also found $2300 in cash in the centre console which Ms Harris said was hers. 9 The police officer found the Paklite bag in the rear seat. It had a Virgin Blue airline tag bearing the name William Phillips. He opened the bag in the appellant's presence. It contained some men's clothes and toiletries. He asked who owned the bag, and the appellant said it was his. The officer removed the clothes and toiletries and found under cardboard creating a false bottom some plastic bags containing heroin. The appellant said to him, "That's not mine. I never saw it before in my life." 10 The appellant and Ms Harris were taken to Ballina Police Station, where they were interviewed. The appellant was taken to a hospital, where blood and urine samples were taken. When tested, morphine was detected which could have come from recent use of heroin. 11 In his interview the appellant denied any knowledge of the heroin. Some of his answers, while rather unclear, were to the effect that when he and Ms Harris packed they swapped bags so that the appellant used the Paklite bag for his clothes. In her interview Ms Harris denied any knowledge of the heroin. 12 The appellant did not give evidence at the trial. Ms Harris died prior to the trial. The appellant relied on the ERISP interview in which he denied any knowledge of the heroin, tendered in his own case an edited video tape of Ms Harris's ERISP interview and letters purportedly written by Ms Harris to which I will later refer, and called expert evidence directed to negating recent use of heroin. 13 The appellant's case was in essence that the jury could not be satisfied that he knew the heroin was in the bag, because it might have been Ms Harris's heroin put there by Ms Harris. An element of that case was that he had not recently used heroin, in aid of the proposition that Ms Harris was the current drug user and so the heroin was her heroin. 14 The appellant, who was unrepresented, relied on eleven grounds of appeal against conviction. He supported them by written and oral submissions. 15 A number of the grounds of appeal were complaints about the police investigation. It was said that the police had destroyed crucial evidence, namely the blood filled syringe and the cannabis cigarette, and had failed to test the sharps kit for DNA or to do any background checks on Ms Harris. It was said that the police failed to provide a video of the motor vehicle, which as I understand the appellant's submissions he contended would have shown that there was sufficient opportunity for Ms Harris to put the heroin in the Paklite bag. Of a similar nature was a ground to the effect that the result of the blood and urine tests was suspect and the appellant was unable to have independent testing since his portions of the samples were given to Ms Harris. All these matters are best regarded as suggestions that the Crown case was attended by such doubt that the jury's verdict was not reasonably open. 16 The Crown case included that neither fingerprints nor DNA from the appellant were found on the Paklite bag and the sharps kit. There was no suggestion in the evidence called for the Crown or through cross-examination that the syringe or the cannabis cigarette were unavailable or had been destroyed. The cross-examination appears to have been directed in part to the police "going easy" on Ms Harris and not treating her as the committed drug user which, again as I understand the appellant's submissions, he contended would have supported that the heroin was her heroin. But the appellant's counsel took that point as far as he must have considered he could have take it. Counsel could also have explored in cross-examination any question of timing and location material to an opportunity for Ms Harris to have put the heroin in the Paklite bag if his instructions had so warranted. 17 The police officer who gave the appellant's portions of the samples to Ms Harris was cross-examined with the suggestion that the appellant had not given his permission. The officer denied that this would have occurred without the appellant's permission, and produced a "Returned Property Document" signed by the appellant acknowledging that his property, including those items, had been given to Ms Harris. 18 The matters on which the appellant relied were raised to the jury's consideration to the extent to which his counsel must have considered appropriate, and none of them in my view casts doubt on the jury's verdict. In my opinion it was well open to the jury to find beyond reasonable doubt that appellant was guilty. 19 There was a ground of appeal to the effect that in letters written to the appellant Ms Harris had asserted his innocence. Extracts from letters purporting to have been written by Ms Harris were tendered in the defence case. One did say that the writer knew "that the drugs found in your bag were not yours". Thus this was raised for the jury's consideration, and what I have last said applies. 20 Under three of the grounds of appeal the appellant contended that the judge failed to give a proper circumstantial evidence direction, despite a request for it, with particular mention of such a direction in relation to the extracts of the letters purportedly from Ms Harris. It was suggested, as I understand the submissions, that the appellant was prejudiced in the eyes of the jury, because responding to a request for a direction that he did not have positively to prove alternative hypotheses, the judge said in the jury's presence, "I think they have taken that on board." This was suggested to have been an indication "that the Court had heard enough and let's all go home". 21 The judge gave full direction as to the onus of proof and that the appellant did not have to prove anything or give evidence, and an appropriate direction that the jury was asked to infer the appellant's knowledge that the heroin was in the bag from all the circumstances and had to be satisfied that it was the only reasonable inference to make and no other conclusion would be reasonable. The appellant's counsel asked his Honour to make it clear that the accused did not have positively to prove alternative hypotheses, to which the judge responded, "I think they have taken that on board." 22 In my opinion there is no deficiency in the directions in relation to circumstantial evidence, and the judge's response was appropriate. I do not see that the response could have been taken in the manner suggested by the appellant. 23 The summing up included reference to Ms Harris's ERISP interview and the extracts from the letters, and the judge told the jury that they should assess them and make such use as appeared to them to be appropriate. Counsel for the appellant had not made a point of either in his address to the jury, and the denial by Ms Harris in the ERISP interview of any knowledge of the heroin made it difficult for him to find support for Ms Harris putting the heroin in the bag without the appellant's knowledge. Had the judge spelled out for the jury why the letters did not assist the appellant, it would have been quite detrimental to the appellant. 24 In the appellant's written submissions he said also that in the course of the trial he saw a member of the jury nod and wink to one of police officers and say hello, and that the clerk representing his solicitor confirmed what he saw. There is no evidence this occurred. Had it occurred, and to the knowledge of the clerk, an application for discharge of the jury would almost certainly have been made. No application was made. This assertion should not be accepted. 25 Other matters were raised in the appellant's submissions, but do not assist his appeal. In my opinion, the appeal against conviction should be dismissed. 26 The appellant's submissions in support of the application for leave to appeal against sentence referred to the sentence imposed by Judge Black on one Ogle, a sentence of 6 years with a 3 year non-parole period, as I understand it, contrasting the 84.61 grams of heroin with the commercial quantity of heroin and quantities of cocaine in that case giving rise to two charges and suggesting that the comparison pointed to undue severity in the appellant's sentence. He also referred to Judicial Commission statistics for the offence of supplying less than a commercial quantity of heroin, submitting that his sentence fitted in the upper range of the sentences, and provided a table of sentences for the supply of heroin printed from a database of the Public Defenders Office. 27 The submissions otherwise spoke of separation of the appellant and his mother and her poor health and separation from his daughter, and the hardship to them. They described difficulties that the appellant had encountered with other inmates in correctional centres, his achievements nonetheless in courses and becoming drug free while incarcerated, and his strategies for avoiding further criminal activity. 28 The comparison with the sentencing of Ogle does not assist the appellant. Ogle had the benefit of a 25 per cent discount for a plea, no prior record of significance and contrition. The statistics do not have details of the offending and the offenders' subjective positions, and are of limited use. They do not point to the sentence imposed on the appellant being out of the range available for his offending and position. 29 Although the quantity of heroin was not large, it had a street value of about $60,000 and the judge considered that the majority of it would have reached the streets. The appellant was aged 34 when he was sentenced, and had an extensive criminal history in Queensland. He was not entitled to leniency. Personal and general deterrence were very significant, and in addition the offence was committed while the appellant was on conditional liberty as a result of sentences imposed in Queensland. In my opinion, the sentence was within the range of the judge's sentencing discretion. 30 The judge noted the separation from the appellant's mother and daughter and the hardship. The appellant can be commended for achievements and a change of direction while incarcerated, but neither that nor any difficulties with other inmates comes into consideration unless the sentencing by Black DCJ miscarried, which it did not. 31 The Crown properly drew to our attention that the judge said at the close of his remarks on sentence that he had taken into account charges of driving a motor vehicle while under the influence of heroin and possession of 1 gram of cannabis. These were related charges, for which the judge should have separately sentenced the appellant. They were trifling in comparison with his possession of the heroin, and their effect on the sentencing cannot have been of significance. Despite this error, I do not think that any lesser sentence was warranted. 32 I propose the orders: 1. Extend the time for filing the notice of appeal and application for leave to appeal. 2. Dismiss the appeal against conviction. 3. Grant leave to appeal against sentence but dismiss the appeal. 33 LATHAM J: I agree with Giles J. 34 MATHEWS AJ: I also agree. 35 GILES JA: They will therefore be the orders of the Court. **********