Butler v Walter [2004] QDC 222

21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 JUDGMENT 1 10 20 30 40 50 60 DISTRICT COURT OF QUEENSLAND CITATION: Butler –v- Walter [2004] QDC 222 PARTIES: BUTLER, Aaron Appellant Against WALTER, Michael John Respondent FILE NO: 150 / 04 PROCEEDINGS: Appeal from Magistrates Court. DELIVERED ON: 21 July 2004 DELIVERED AT: Townsville HEARING DATE: 12 July 2004 JUDGE: CF Wall QC ORDERS: Appeal allowed. CATCHWORDS: CRIMINAL LAW – APPEAL – EVIDENCE – admissibility – drugs and money found in search of resp premises – resp sentenced for possession of drugs for personal use – wh. on trial for possession of money suspected of being tainted property prosecution able to depart from basis of sentencing and allege that possession of drugs was for commercial purpose and capable of supporting tainted property charge – no prohibition Cases referred to: Andrews v Henderson, unreported [2004] QCA 45 (FAA) R v Mullins and F, unreported [2001] QCA 440 (FAA) R v K, exparte Attorney-General, unreported [2002] QCA 260 (FAA) Mraz v R (No 2) (1956) 96 CLR 62 (DIS) Rogers v R (1994) 181 CLR 251 (DIS) Legislation referred to: Crimes (Confiscation) Act 1989 ss.92(1), (2), 13 & 4 COUNSEL: Mr J. Greggery for the Appellant Mr A. Collins for the Respondent -- 1 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 SOLICITORS: Queensland Director of Public Prosecutions for the Appellant Ruddy, Tomlins & Baxter for the Respondent 2 JUDGMENT 60 -- 2 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 REVISED COPIES ISSUED State Reporting Bureau Date: 23 July, 2004 DISTRICT COURT APPELLATE JURISDICTION JUDGE C F WALL QC No 150 of 2004 AARON BUTLER Appellant and MICHAEL JOHN WALTON Respondent TOWNSVILLE ..DATE 21/07/2004 JUDGMENT 3 JUDGMENT 60 -- 3 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 HIS HONOUR: This is an appeal by the prosecution against a decision of an acting Magistrate in the Magistrates Court at Bowen on the 8th of March 2004 to exclude certain evidence following which the prosecution then offered no evidence and the charge was struck out. Such an order may properly be the subject of an appeal, see Andrews v. Henderson, unreported, [2004] QCA 45. The decision of the acting Magistrate was made before any evidence was led and was based on the following facts (taken from submissions made by the prosecution and the defence at the hearing before the acting Magistrate). On the 23rd of July 2002 "police executed a search warrant at the residence of the respondent at 78 Poole Street, Bowen. In the course of the search, a police dog trained to detect cannabis sativa indicated the presence of cannabis sativa and as a result, seven bags containing a total of $15,555.00 were found underneath a dresser in the main bedroom of the house. Those seven bags were variously marked. During a search of the kitchen, a Tupperware container was found behind some drawers along with two bags containing a total of 638 grams of cannabis sativa. One bag, containing over 600 grams of cannabis sativa, was marked in a similar fashion to a bag containing money located in the bedroom." As a consequence of the search, the respondent was charged with possession of a dangerous drug - 638 grams of cannabis sativa - and possession of property reasonably suspected of being tainted - $15,555 - contrary to section 92(1) of the Crimes (Confiscation) Act 1989. On the 27th of February 2003, the respondent pleaded guilty in the Supreme Court at Townsville to an ex officio indictment charging him with one count of possession of a dangerous drug - 638 grams of cannabis sativa. In sentencing the respondent, Cullinane J said: "It is common ground that I am to deal with you upon the basis that you had possession of 638 grams of cannabis sativa for your personal use. Give that is so, it is, I think, appropriate that I make a non custodial order, as has been submitted by your Counsel, and propose to do so." 4 JUDGMENT 60 -- 4 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 The charge of possession of tainted property, which is the subject of this appeal, came on for hearing before the acting Magistrate in Bowen on the 8th of March 2004. The respondent had previously pleaded not guilty. The following are the relevant provisions from the Crimes (Confiscation) Act 1989: "92 (1) A person must not receive, possess, dispose of, bring into Queensland, conceal or disguise property that may reasonably be suspected of being tainted property. Maximum penalty - 100 penalty units or 2 years imprisonment. (2) If a person is charged with an offence against this section, it is a defence to the charge if the person satisfies the Court that the person had no reasonable grounds for suspecting that the property mentioned in the charge was either tainted property or derived from any form of unlawful activity." 13 (1) 'Tainted property', in relation to a serious offence, means property - (a) used, or intended to be used, by a person in, or in connection with, the commission of the serious offence; or (b) derived by a person from property mentioned in paragraph (a); or (c) derived by a person from the commission of the serious offence; or (d) mentioned in section 90(2)(a), if the offence against section 90(1); or (e) mentioned in section 92(1), if the offence is against that subsection. (1A) Property mentioned in subsection (1)(a) includes property the use of which is, or the intended use of which would be, all or part of the serious offence." Section 4 contains the following definitions: "'serious drug offence' means - (a) an offence against the Drugs Misuse Act 1986, part 2 for which a person is liable on conviction to imprisonment for 20 years or more; or (b) money laundering committed in relation to property that is tainted property in relation to an offence mentioned in paragraph (a); or (c) an ancillary offence to an offence mentioned in paragraph (a) or (b). 'serious offence' means - 5 JUDGMENT 60 -- 5 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 (a) a serious drug offence; or (b) another indictable offence, whether dealt with on indictment or summarily; or (c) an offence against this Act for which an offender is liable to imprisonment; or (d) an offence against an Act or a provision specified in schedule 2; or (e) another offence prescribed by regulation." At the start of the trial and at the request of the defence, the prosecution indicated that the police relied upon the presence of the cannabis sativa in the kitchen and the markings said to be similar to markings on the bags in which money was found in the bedroom. The defence then objected to the admission of the evidence as to the finding of the cannabis sativa, submitting that the prosecution could not rely upon that possession in support of the charge of possession of tainted property because of the non- commercial basis upon which the charge of possession of a dangerous drug - being the 638 grams of cannabis sativa - had been dealt with in the Supreme Court. The acting Magistrate agreed with this objection and excluded the evidence. Without that evidence, the prosecution said it was unable to point to the commission of a "serious offence" for the purposes of section 13(1) of the Crimes (Confiscation) Act 1989. The acting Magistrate agreed. The prosecution said it could not proceed any further and the charge was struck out with costs. The acting Magistrate also ordered the return of the money plus interest. Interest was asked for by the respondent. The prosecution have appealed against these orders. The respondent conceded on the hearing of the appeal that a power to award costs does not include a power to award interest and the appeal will have to be allowed in any event, so far as that order is concerned. 6 JUDGMENT 60 -- 6 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 So far as the substantive issue is concerned, Mr Collins for the respondent contended, as he did below, that the decision of the acting Magistrate was correct. I am unable, with respect, to agree. Two decisions of the Court of Appeal are relied upon by the appellant. Neither were referred to the acting Magistrate. They are: (1) R v. Mullins and F, unreported, [2001] QCA 440 In this case, Ms Nanae Suzuki was a witness to an attack by a number of persons on C at the edge of the Brisbane River. Mullins and F were charged with attempted murder and causing grievous bodily harm with intent to cause grievous bodily harm. In a statement to police Suzuki said that Mullins, F and Jones assaulted C by repeatedly kicking him and then Mullins caused him to roll into the river. The Crown had earlier accepted a plea of guilty by Jones to causing grievous bodily harm with intent on the basis that he was not (contrary to the statement of Suzuki, in which she attributed serious violence to him) physically involved in the attack. In her evidence- in-chief at the trial Suzuki did not,(as she had in her statement) implicate Mullins, F and Jones in the assault on C. The Crown submitted that Suzuki was hostile and applied to cross-examine her on her statement. The trial Judge granted the application. Mullins was convicted of attempted murder and F of causing grievous bodily harm with intent. They appealed contending (inter alia) that there was no proper basis for the trial Judge to conclude that Suzuki was hostile. Their appeals were dismissed. In the Court of Appeal Holmes J (with whom McMurdo P and Thomas JA agreed) said: "[14] It was also suggested, although not pressed, that reliance by the Crown on Ms Suzuki's earlier statement as a basis for having her declared hostile was inconsistent with the acceptance of a plea from another member of the group, Justin Jones, to a charge of grievous bodily harm with intent on the basis that he was not physically involved in the attack. The acceptance of a plea on that basis was not consistent, it 7 JUDGMENT 60 -- 7 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 was said, with Ms Suzuki's statement, in which she had attributed serious violence to him. As to this, it seems to me that the acceptance of a plea of guilty on a particular set of facts will, in the usual course of events, reflect no more than a realistic appraisal of what verdict might be obtained on the evidence available against that accused at trial. It cannot bind the Crown, as against other accused, to the evidence relied on for the plea to the exclusion of other evidence which might also implicate the accused who has pleaded guilty. I do not, therefore, consider that the acceptance of Jones' plea has any bearing on the issue of whether the trial judge properly exercised her discretion in declaring Ms Suzuki hostile." Factually, different accused were involved in that case (Mullins and F on the one hand and Jones on the other) and the charges arose out of the same assault, whereas in the present appeal the accused is the same in both the Supreme Court plea and the charge of possession of tainted property. For reasons referred to in the next decision, the remarks of Holmes J may nevertheless have application to a fact situation such as the present. (2) R v. K, ex parte Attorney-General, unreported, [2002] QCA 260 In this case Gayle, the mother of S, a baby, was convicted of a number of offences of physically assaulting him in May and June 2000. At the trial, the Crown relied as similar fact evidence on the fact that the accused had been convicted in April 1999 following her plea of guilty of assault occasioning bodily harm to her daughter in January 1998. On the guilty plea, the Crown accepted the defence version of how the injuries were sustained, which was that the accused had shaken her baby daughter in an effort to revive her after she had choked when feeding, and so averted a risk of her death by suffocation. At the trial involving S, the Crown contended that the injuries to S were inflicted intentionally, not accidentally, and relied on the 1999 conviction in support of that contention, alleging that in fact the injuries to the accused's daughter were intentionally caused by shaking her and were not in fact accidentally caused. On 8 JUDGMENT 60 -- 8 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 appeal, the accused submitted that the Crown should not have been allowed to proceed in this manner. In rejecting that ground, McPherson JA (with whom Mackenzie and Atkinson JJ agreed) said: "[18] On this appeal, Mr Hamlyn-Harris submitted that it was not open to the Crown at the trial of Gayle for causing the injuries to S to depart from the basis for sentencing which had been agreed in sentencing Gayle for the injuries inflicted on her daughter. The Crown, he contended, was bound by its conduct at the sentence hearing in April 1999, which was that those injuries were not caused intentionally, whereas at the trial concerning S it set out to show that the injuries to Gayle's daughter were deliberate. No authority for that proposition was cited by counsel for the appellant. No question of issue estoppel arises in criminal proceedings: see Rogers v The Queen (1994) 181 CLR251; nor does any question of autrefois acquit or double jeopardy arise in this case: see R v Degnan [2001] 1 NZLR 280; and Carroll (2000) 115 A Crim R 164. Once his Honour Judge Noud accepted the plea of guilty by Gayle on 16 April 1999, it operated as a conviction or judgment of her guilt in respect of the charges to which she pleaded: Maxwell v The Queen (1996) 184 CLR 501, 508. The same cannot, however, be said of the facts on which the sentencing process took place. In any event, in adducing evidence at the S trial of the injuries inflicted on her daughter and of their likely cause, the prosecution was not seeking to set aside that conviction or to increase the penalty imposed for the offence for which Gayle was sentenced on that occasion." [19] The offence to which Gayle pleaded was occasioning bodily harm to her daughter, which is an offence into which intention does not enter as an ingredient. Complete absence of intention to cause harm is, however, capable of going some way in mitigation of the offence when it comes to imposing a sentence. The fact that the Crown was induced or disposed to accept Gayle's explanation for her daughter's injuries for the purpose of sentencing in April 1999 avoided the need for an inquiry or determination by the Court to establish the truth of the matter. It was simply an assumption which, in the absence of cogent evidence to the contrary, the Crown was prepared to accept, and on which the Court acted, on that occasion for the purpose of sentencing Gayle following her plea of guilty. It represented no obstacle to proof by the prosecution at the S trial that that assumption, as it turned out, may have been unfounded in fact or untrue. In my opinion, the similar fact evidence was both admissible and rightly admitted at the trial of Gayle." I do not think that the fact that in the present case the prosecution may in fact have had "cogent evidence to the contrary" establishing in fact trafficking is a sufficient reason to conclude that the decision in R v. K does not have equal application to the present circumstances. In fact I think it does and that it also supports the application of R v. Mullins and F to the present case. The position in the present case would thus appear to be as follows: 9 JUDGMENT 60 -- 9 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 (1) No question of issue estoppel arises; (2) The prosecution was not bound by its conduct at the Supreme Court sentence hearing in February 2003; (3) The acceptance of a plea of guilty to possession of the 638 grams of cannabis sativa on the basis that it was for personal use does not bind the prosecution to that factual scenario on the charge of possession of tainted property; (4) At sentencing in the Supreme Court in February 2003, there was no inquiry or determination by the Court to establish the truth of the claim that the possession was for personal use; (5) The assumption on which sentencing in February 2003 was based - personal use - represents no obstacle to proof by the prosecution at the respondent's trial for possession of tainted property, that that assumption may have been unfounded in fact or untrue; (6) The fact that the prosecution always had evidence to the contrary of the assumption on which it allowed sentencing to proceed in February 2003, does not, on a charge for a different offence, bind the prosecution to that assumption, nor does the fact that the prosecution "never questioned" the basis of the plea of guilty; (7) The fact that the different charges arise out of effectively the same facts situation makes no difference; (8) In the absence of any inquiry or determination by the Supreme Court as to the truth of the personal possession claim, no question of 10 JUDGMENT 60 -- 10 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 unfairness to the respondent arises by the course proposed by the prosecution. Mraz v. R (No 2) (1956) 96 CLR 62 and Rogers v. R (1994) 181 CLR 251, relied on by the respondent have no application to the present case because (a) no issue has been "distinctly raised and found" by the Supreme Court; (b) there has been no judicial determination by the Supreme Court capable of amounting to a final, binding and conclusive determination; and (c) the judicial determination which will be involved in the possession of tainted property charge will not involve the litigation afresh of matters already determined by a Court between the parties. Mr Collins for the respondent conceded that there had been no determination by the Supreme Court of whether in fact the possession of the cannabis was for personal use. For these reasons, I consider the acting Magistrate was wrong to exclude the evidence of the finding of the 638 grams of cannabis sativa. The respondent's plea of guilty is evidence of possession on his part of the cannabis. Mr Greggery for the appellant contends, correctly in my view, that there are three bases (two of which are consistent with the assumption made in the Supreme Court and one which is not) upon which the possession of the cannabis is relevant to or can be used on the tainted property charge. They are: 11 JUDGMENT 60 -- 11 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 (1) Possession of the cannabis for personal use is not a "serious drug offence" as that term is defined in the definition of "serious offence", but it does amount to "another indictable offence" within paragraph (b) of that definition. Possession of the cannabis supports an inference that the respondent purchased it and may have intended to use the money for further purchases even for personal use; (2) To support an inference that the respondent purchased more than 638 grams of cannabis, sold come and retained 638 grams for his personal use; (3) Inconsistently with the assumption made in the Supreme Court, to support an inference that the 638 grams was for sale amounting to a "serious drug offence". It follows that even if the respondent is correct in his contention that the prosecution is precluded from relying upon the third basis, there are two other bases upon which the evidence is admissible. For these reasons, the decision of the acting Magistrate to exclude the evidence and strike out the charge was wrong and should be set aside. I make the following orders: (1) That the appeal be allowed with costs to be assessed on the standard basis unless agreed; (2) That the decision of the Magistrates Court at Bowen striking out the charge of possession of property reasonably suspected of being tainted be set aside; 12 JUDGMENT 60 -- 12 of 13 -- 21072004 T2-3/DLD M/T TSVDC1/2004 (Wall DCJ) 1 10 20 30 40 50 (3) That the respondent pay the costs of the appellant of the proceedings in the Magistrates Court at Bowen on the 8th of March 2004, such costs to be assessed by the Magistrates Court; and (4) That the charge be remitted to the Magistrates Court at Bowen to be tried according to law. ----- 13 JUDGMENT 60 -- 13 of 13 --