Brooks v Queensland Police Service [2007] QDC 352

DISTRICT COURT OF QUEENSLAND CITATION: Brooks v. Queensland Police Service [2007] QDC 352 PARTIES: Garry Kenneth Brooks (Appellant) AND Queensland Police Service (Respondent) FILE NOS: D55/07 DIVISION: Maroochydore District Court PROCEEDING: Appeal ORIGINATING COURT: Maroochydore District Court DELIVERED ON: 14 December 2007 DELIVERED AT: Maroochydore HEARING DATE: 7 December 2007 JUDGE: Judge J.M. Robertson ORDER: Appeal against conviction dismissed. Appeal against sentence dismissed. CATCHWORDS: Criminal Law- Drug offences- whether evidence sufficient to prove that appellant was occupier of the bedroom in which drugs were found- whether Magistrate acted on inadmissible evidence. Evidence of continuity of drug exhibits- where prosecution did not call property officer who retrieved and marked drugs left in property safe by arresting officer- where evidence circumstantial- whether evidence sufficient to prove beyond a reasonable doubt that the drugs seized from the premises were the drugs analysed. Sentence- whether $1700 fine was manifestly excessive for mature offender with previous convictions of a like nature. Legislation: Drugs Misuse Act 1986 (QLD) Cases Considered: Symes v Lawler [1995] 1 Qd R 226; R v Smyth [1997] 2 Qd R 223; R v Lowe (1997) 98 A Crim R 300; Domican (1992) 173 CLR 555; DPP v Spencer [1999] VSC 301; COUNSEL: Mr McInnes (for the appellant) Mr Morters (for the respondent) SOLICITORS: Legal Aid Office (for the appellant) -- 1 of 9 -- 2 [1] On 26.2.07 the appellant, Gary Kenneth Brooks was convicted of two drug offences, namely that on the 5.1.06 at Warana he unlawfully possessed cannabis sativa; and had in his possession a water pipe used in connection with the smoking of a dangerous drug. [2] He was fined $1700 in default 17 days and allowed 6 months to pay and convictions were recorded. [3] His conviction came in a considered judgment by his Honour Magistrate Parker after a trial extending over a number of days in 2006 and 2007. [4] The notice of appeal sets out a large number of grounds which is consistent with the way in which the trial was conducted at first instance with every possible legal issue being exhaustively explored and debated. [5] By the time of the filing of the certificate of readiness the issues on appeal were confined to three distinct grounds which can be summarised as 1. Proof of the continuity of exhibits 2. Proof of possession of subject drugs 3. Admissibility of confessional evidence. [6] By the time of the filing of the outline of submissions on 8.05.07 the issues had narrowed further and the admissibility point was not seriously argued. [7] Despite the length of the proceedings, only (2) witnesses were called namely Senior Constable Dowd who with other police executed a search warrant on 5.1.06 at 75 Oceanic Drive Warana and Sergeant Panoho who was one of the police present when the warrant was executed and the premises searched. [8] The appellant did not give or call evidence. [9] Senior Constable Dowd activated a field tape recorder at the start of the search and recorded a number of responses from the appellant. The tape recorder failed at some point and Magistrate Parker sensibly took the approach that only the conversations recorded on the tape would be admitted and he would not admit secondary evidence from police as to conversations after the recorder stopped recording. This approach was very fair to the appellant, and there can be no criticism of it now. [10] I will deal with each ground in turn. Proof of Possession [11] His Honour’s reasons commence with a concise summary of relevant events. ‘At approximately 6:15 p.m. on the 5th January 2006 police executed a search warrant at a residence at 75 Oceanic Drive, Warana. Located at the residence were the defendant, a woman known as Monique Vivian Sullivan and her three sons, Thomas, Samuel and Jake. Senior Constable Dowd, the warrant holder, had activated a C-90 recording device and an application was -- 2 of 9 -- 3 made by the prosecution to admit that recording into evidence. Unfortunately, the recording did not capture all of the conversations that occurred, and after a short time the tape recorder has failed. However, there were some admissions captured on the tape-recording and at the conclusion of a voir dire, I ruled that the recorded conversations up to the point where the tape recorder had stopped recording would be admitted but that no conversations past that point could be related by police witnesses. On the section of the tape which I ruled admissible, Dowd is heard to ask: “Who is the owner occupier of this residence?” The defendant is heard to reply “Me”. And Dowd is heard to say: “Are you Garry?” to which he replies that he is. The search warrant and notice to occupier were served upon the defendant and he did not object in any way to receiving those documents. All persons were detained and a warning given. Dowd asks: “Do you understand all that?” and the defendant Brooks is heard to say “Yes”. Monique is heard to say: “These are my sons. We don’t even live here, we’re just visiting”. The defendant is asked if he has the phone on and he replies: “No”. He is then asked: “Garry, anything you wish to declare in relation to drugs?” Brooks replies: “Yeah I’ve got some there for my own use”, and gestures in the general direction down the hallway to an area where a bedroom is later located. He is asked by Dowd: “So whatever’s here is all yours”, and the defendant replies, “Yes”. At a later stage in the proceedings the defendant accompanies police to a bedroom where he gestures to the upper shelf of a wardrobe where police locate drug material. This occurs after the tape recorder stopped recording. Insofar as the bong is concerned, where the defendant is aked by Dowd who it belongs to, he is heard to say: “Me for my own use” and agrees it was used to smoke cannabis.’ [12] I have listened to the tape which bears out his Honour’s summary of what was said. There was no challenge that the voice recorded as “Garry” was the appellant. [13] Mr McInnes submitted that his Honour “admitted” “unrecorded conversation” which clearly he did not. He has not relied on any confessions or admissions made which were not recorded. [14] He was entitled as he did to act on the evidence of the police officers as to observing the appellant gesture to the upper shelf of the wardrobe where the drugs were located. This completely accords with what the appellant said in the recorded conversation with Senior Constable Dowd. Despite a rambling and discursive cross-examination, Senior Constable Dowd was never seriously challenged as to his recollection of what he said occurred. Magistrate Parker was entitled to act on it. [15] In his judgment his Honour sets out in the clearest terms the evidence he relied upon. All of those findings were open on any logical and rational consideration of the evidence. [16] By reference to Symes v Lawler [1995] 1 Qd R 226 and other cases such as R v Smyth [1997] 2 Qd R 223, Mr McInnes argues that the admissible evidence was insufficient to prove the appellant’s occupation of the room where the cannabis -- 3 of 9 -- 4 was located. He submits that because “it was not established who had control of which room or part thereof and to what extent if any that was exclusive” it was not open to Magistrate Parker to conclude that the appellant was the occupier of the room in which the drugs were found. Magistrate Parker sets out his conclusions on this issue commencing at p.6 of his reasons: “I am satisfied beyond reasonable doubt that Brooks was the occupier of the house. When the persons present were asked who was the occupier, he volunteered that he was. He accepted the search warrant and notice to occupier without demur. He comported himself as the person in charge of the premises, for example, answering that he did not have the telephone hooked up. Other evidence, for example the comment of the woman Monique that she and her sons were just visiting there is evidence that in no way detracts from Brooks being the occupier and in fact supports that proposition. There is no evidence before the Court from any source that Brooks is not the occupier. Further Brooks acknowledged that any drugs on the premises would be his. Mr Nagel argues that the act, by the accused, of pointing to the location where the drugs are found is tantamount to an admission against interest and is not admissible unless it is recorded. With respect I cannot agree. The act of pointing is just that, a physical act. It is a piece of direct evidence from which certain inferences flow. It is in itself not capable of being recorded on audio. In my view I am entitled to infer from the physical act of pointing that the defendant knew the location of the material that was subsequently found there.” [17] Early in his reasons, he referred to evidence which he accepted which bears on this issue: “1. The admission by Brooks that he was the occupier of the premises. 2. The admission by Brooks that any drug material to be found on the premises was for his own use. 3. The fact that Brooks, in the company of police officers Panoho and Dowd indicated to an area in the top of a wardrobe where certain items were found.” [18] He had already referred to the acceptance by the appellant of the search warrant and notice to occupier without demur. He could also have referred to the defendant’s signature on Ex 7 as the person from whom the property was taken which included the cannabis stated to have been located in the master bedroom. Magistrate Parker was entitled to look at all the evidence, and not in a piecemeal way as Mr McInnes suggests in his written submissions. [19] There can be no criticism of his Honour’s conclusions in relation to the utensil charge. As his Honour noted, when this was located in the kitchen the appellant admitted on tape it was his and that he had used it to smoke cannabis. [20] In my opinion, his Honour was entitled to find as he did that the appellant was the occupier of the home and the bedroom in which the drugs were located, and it follows by virtue of s.129(1)(c) of the Drugs Misuse Act that unless the appellant showed that he neither knew or had reason to suspect that a drug was in the bedroom, that finding is conclusive evidence that the drug was in his possession. -- 4 of 9 -- 5 Magistrate Parker’s findings on p.6-7 of his decision were clearly open and appropriate. Mr McInnes’ submission at 7.4.1.2 of his written submission ignores the fact that Magistrate Parker relied on the appellant’s gesture in the bedroom to where the drug was found. This ground must fail. The Continuity Argument [21] This issue arose probably because the property officer at Kawana, Senior Constable Place who received the seized items, including the drugs and bong from Dowd, was not available to give evidence at the trial. The prosecution informed Magistrate Parker that he was on extended leave and that senor police had instructed that he not be called as a witness. The argument is put this way: “In the absence of evidence that Exhibit 4 was not tampered with between being lodged in the drop safe by Dowd, and being analysed, on the whole of the admissible evidence the tribunal of fact ought to have had a reasonable doubt that what was located in the cupboard was a dangerous drug. The fact that there was some problem calling the officer who could have given that evidence ought not be the defendant’s loss.” [22] Mr McInnes expanded his submission in oral argument to include a submission that in relation to Sergeant Panoho’s evidence and presumably Dowd’s evidence of identifying the drugs and items seized, his Honour should have warned himself about the dangers of accepting such evidence because of the obvious difficulty in identifying one amount of green leafy material from another. His Honour was not asked to give himself that warning. Mr McInnes has referred me to a statement of Hunt CJ at CL in R v Lowe (1997) 98 A Crim R 300 at 317; “I see no distinction in principle between visual, voice and object identification. I am satisfied that a warning as to the danger of convicting should be given where the identification relates to an inanimate object, such as the clothing worn by the offender or a weapon used by him in the commission of the crime, and where that evidence represents a significant part of the proof of the guilt of the accused. Just as with voice identification, object identification is not a distinct category of evidence.” [23] The evidence in question there was that one of the offenders was wearing black clothing. The court rejected the appellants argument that this evidence should have attracted a Domican (1992) 173 CLR 555 warning, on the basis that the evidence did not represent any significant part of the proof of the appellant’s guilt. That case was not an identification case. Sergeant Panoho’s evidence here falls into a similar category as does Dowd’s on the same issue. This is not an identification case, and the evidence is merely part of the circumstantial evidence that Magistrate Parker had before him on this issue of continuity. [24] Mr McInnes further expanded his written outline by reference to DPP v Spencer [1999] VSC 301, a judgment of Eames J (as his Honour then was), on appeal from a Magistrates decision to dismiss charges of possession of dangerous drugs on the basis that the prosecution had failed to satisfy her beyond a reasonable doubt that the drugs seized from the premises of the respondent were the same drugs analysed by the botanist. It is immediately obvious upon a full reading of that -- 5 of 9 -- 6 decision that his Honour’s decision rests on the particular facts of that case which are clearly distinguishable from the facts here. As Mr McInnes observed, the prosecution in that case had been “blind-sided” by a tricky defence manoeuvre, into not calling further relevant evidence on the continuity issue prior to the closure of its case. That is not the case here where Mr Nagel made it very clear that it was an issue. The Magistrate in the Victorian case had given very brief reasons which had not been recorded so it was necessary for Eames J to undertake his own analysis of the evidence and reach his own conclusion as to whether the Magistrate had erred. A careful analysis of his Honour’s reasons establishes that on the evidence it was open to the Magistrate to have been satisfied beyond a reasonable doubt as to continuity (see para 68), however in the absence of any reasons it was left to his Honour to make his own conclusions and he concluded that she had not been shown to be wrong in law in concluding that there was insufficient evidence of continuity. The issue was at the forefront of the hearing in this case and Magistrate Parker’s reasons are before me. [25] Because I have had a much more focussed argument on the issue, it is for me to consider whether the evidence of continuity was sufficient to satisfy Magistrate Parker beyond a reasonable doubt that the drugs seized from the residence of the appellant were the drugs analysed by the analyst. [26] The trier of fact was entitled, in this exercise, to draw inferences that are reasonably open on the evidence which he accepted. To test the argument advanced by the appellant, I will undertake my own analysis of the evidence. [27] At the scene, another officer completed a field property receipt which was Ex.7 in the proceedings. There was no challenge to Dowd’s evidence that police did seize the listed material during the search. On its face, it states that a receipt was issued on 5.1.06, and there is no challenge that it was issued to the appellant and that he signed as the “person from whom property taken” on 5.1.06. [28] Ex.7 listed property seized as ‘1. clip seal bag containing GLM approximate weight 2.5g (top of sink by const PICKARD 2. clip seal bag containing GLM approximate weight 2.9g (located in sink by const PICKARD) 3. waterpipe complete with brass cone & hose (located in microwave space in kitchen by const PICKARD) 4. Yellow smiley face handgrinder containing GLM residue (located on kitchen table by Sgt PANOHO) 5. Plastic container containing blue plastic bag containing GLM approximate weight 3.9g (located on top shelf of mater bedroom wardrobe by s const DOWD) 6. small plastic container containing clip seal containing GLM. Approximate weight 12.0g- located on top shelf of mater bedroom wardrobe by S/C DOWD 7. Large plastic container with blue lid containing white plastic bag containing large quantity of GLM. Located on top shelf of master bedroom wardrobe by S/C DOWD’ -- 6 of 9 -- 7 [29] In the exhibit envelope with the file forwarded to the court is a property report D056436. It does not appear to be marked as an exhibit. [30] It is apparent that when the prosecutor sought to tender it through Senior Constable Dowd, Mr Nagel objected on the ground that the document (on Dowd’s evidence) was completed by the property officer Place who was never called. At p24 T, his Honour marked the document as Ex.B for identification on the basis that the prosecution could tender it later if it wished. [31] His Honour did not take it into account in his reasons. He noted that the document was probably admissible as a business record pursuant to s93(1)(a) of the Evidence Act, however apart from informing his Honour that the maker of the record Officer Place was no longer in the police service and unavailable, and not to be called by direction of senior police, no attempt was made to satisfy s93(1)(b), so it follows that the document does not form part of the evidence and should not be considered by me on this issue of continuity. [32] Senior Constable Dowd told his Honour that all the items seized as listed in Ex.7 were then placed by him in a large plastic bag and placed in the drop safe at Kawana Police Station sometime on the evening of 5.1.06. He gave unchallenged evidence that the items seized as listed are the items pictured in the photographs (Ex.2). These photographs were tendered without objection and his Honour was entitled therefore to take them into account in his decision. The photographs appear to very closely resemble the items set out in Ex.7 which Dowd identified as being the items seized from 75 Oceanic Drive on 5.1.06. Included is a photograph of what I infer is Item 7 in Ex.7. There is also with this a copy of a property tag D056436 which is probably a copy of Ex.B. I agree with Mr Morters that the photograph is clear enough to indicate that listed on that property tag in Photo No 7 in Ex.2 are items which have significant similarity to the description of the items in Ex.7. Counsel submitted that I could infer that the photographs were taken after the items had been removed by Place from the safe. [33] After dropping the items in the safe, Dowd did not see them again. The next step was when he was advised that the green leafy material had been analysed. The analyst’s certificate was tendered and marked as Ex.3. Dowd identified that as relating to the material seized on the 5.1.06 by reference to “the unique property tag” which is set out in Item 1 and is “D056436”. Although the original was not in evidence, his Honour was entitled to accept this evidence by reference to Photo 7 in Ex.2 which, I repeat , was not subject to objection. The tag itself is not evidence of the facts set out therein, but the identifying number, which Dowd described as a unique property tag, is admissible as a piece of circumstantial evidence bearing upon the issue of continuity. A similar issue arose in the Victorian case. Eames J said [at 48] “the labels would be admissible if the labels were being relied on merely to establish the identity of the bags transported to the botanists so as to establish that what was in the bags was therefore, beyond a reasonable doubt, the material which was analysed by the botanist”. [34] Because the issue of continuity was alive, and because Place was not available to be called, the prosecution arranged for all the seized items to be brought to court. As I understand the practice is that normally actual drugs and items are not -- 7 of 9 -- 8 tendered and photographs are tendered in lieu. Dowd identified these items as appearing to be exactly the same as the items that were seized. All these items were tendered, again without objection, and marked as Ex.4. His Honour was entitled to compare those items, including the Property Tag No. attached to the bag, with the items pictured in Ex 2, and with the items listed in the analyst’s certificate. [35] Clearly on the prosecution case, in the absence of Place, there is an apparent gap in continuity, however his Honour was entitled to draw inferences. In cross- examination of Dowd, Mr Nagle elicited that Place was the only person who had access to the items in the safe and then appeared to object to his own question when he didn’t like the answer. Clearly, Dowd’s evidence on this point was based on what he had been told and was inadmissible. [36] There are differences in the weights of the material as between the weights set out in Ex B and Ex 7 and those set out in Ex 3. Mr Nagel in making his submissions on this point appears to have fallen into the error of assuming that Ex B was in evidence. What is obvious from Panoho’s evidence is that only some of the cannabis was weighed at the scene using portable scales which are not as accurate as the scales used by the analyst. Mr Nagel seems to have concentrated on the weights recorded in Ex B as comparison with the weights in the Analyst’s certificate. It can be inferred that probably Place weighed the items when he retrieved them from the safe, and prepared Ex B. As evidence touching on continuity, it could not be used because, as I have noted, it was never tendered. His Honour was not lead into error my Mr Nagel’s submission relating to the weight of the larger quantity of cannabis, because it is clear to me from his Honour’s reasons on this point that he was comparing the approximate weights of some of the material weighed on the portable scales at the scene with the different weights obtained by the analyst of these smaller quantities. [37] Sergeant Panoho gave evidence that the items set out in the field property receipt were the items contained in Ex 4 (the actual items and green leafy material). His Honour was entitled to infer that this was the material analysed in Ex 3. [38] Panoho gave evidence that the (7) items listed in Ex.7 accorded with the numbers listed on the bags containing items seized from the house e.g. 4 being the distinctive smiley face handgrinder depicted in Photo 3 in Ex 2. As I understand his evidence, when items are seized they are placed in clip seal bags which are numbered and these numbers are then used in filling out the field property receipt. [39] Another small piece of circumstantial evidence that bears on the prosecution’s circumstantial case is, as Mr Morters submits, the unusual smiley face grinder which (on Panoho’s evidence and Ex 7) was placed at the scene in a clip sealed bag marked “4”. This bag number containing a grinder is referred to in Ex 3 under Item 2(c). In the same, vein a plastic pipe in bag “3” is mentioned in Item 3 in Ex 3. [40] Magistrate Parker dealt with the issue of continuity at p7, line 30- p9 line 36 of his reasons. Given the exhaustive analysis of the evidence touching on this issue that I have referred to above, I can see no error in his reasoning. In my view, on all the -- 8 of 9 -- 9 admissible evidence, he was entitled to conclude that what was seized from 75 Oceanic Drive is what was analysed and reported upon in the Analyst’s certificate. [41] It follows that the appeal against conviction is dismissed. Appeal against Sentence [42] There was also an appeal against sentence on the grounds of manifest excessiveness. Mr McInnes did not mention it; however as it has not been formally abandoned, I should deal with it. [43] The appellant was born on 18.5.59 so he was a mature man. He had a number of previous convictions for breaches of the Drugs Misuse Act for which he’d received fines or community based orders. His most recent drug conviction was on 6.6.03. [44] The quantity of cannabis was not small amounting to approximately just over 230 grams. Both the prosecution and the appellant’s solicitor on sentence made submissions that were unhelpful and self indulgent. Through all this Magistrate Parker remained courteous and judicial. Once he focussed Mr Nagel on making relevant submissions on sentence, he heard details of the appellant’s personal history which Magistrate Parker took into account. He properly rejected the submission that a good behaviour bond be imposed. The penalty imposed was appropriate and certainly not manifestly excessive and there is no discernible error of principle. [45] The appeal against sentence is dismissed. -- 9 of 9 --