SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Gardner Snr v DPP (Qld) [2009] QCA 29 PARTIES: MICHAEL BENNETT GARDNER Snr (applicant/appellant) v DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND) (respondent) FILE NO/S: Appeal No of 2008 SC No of 2008 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal from Bail Application Miscellaneous Application Civil Supreme Court at Brisbane DELIVERED ON: 24 February 2009 DELIVERED AT: Brisbane HEARING DATE: 18 February 2009 JUDGES: ORDERS: Holmes, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Appeal dismissed 2. Application for bail refused CATCHWORDS: CRIMINAL LAW PROCEDURE BAIL REVOCATION, VARIATION, REVIEW AND APPEAL where appellant charged with several offences including production and possession of cannabis sativa, trafficking in cannabis sativa, unlawful possession of a concealable handgun and possession of $10,000 reasonably suspected of being the proceeds of an offence where the appellant was refused bail in relation to the charges whether the primary judge erred in applying the statutory test which governs applications for bail CRIMINAL LAW PROCEDURE BAIL SECOND APPLICATION where appellant charged with several offences including production and possession of cannabis sativa, trafficking in cannabis sativa, unlawful possession of a concealable handgun and possession of $10,000 reasonably suspected of being the proceeds of an offence whether the appellant posed an unacceptable risk pursuant to s 16(1) Bail Act 1980 (Qld)

2 2 COUNSEL: SOLICITORS: Bail Act 1980 (Qld), s 16 Almotared v DPP (Qld) [2008] QCA 95, considered A Boe (sol) for the applicant/appellant P F Rutledge for the respondent Boe Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent [1] HOLMES JA: I agree, for the reasons Muir JA has given, that the exercise of discretion at first instance having miscarried, it is appropriate for this Court to deal with the application for bail. The Crown sought to establish that the appellant presented an unacceptable risk, if granted bail, of flight, interfering with witnesses, and offending further. I am unconvinced of the last two, but given the matters referred to in pars [21] to [23] of Muir JA s reasons, and notwithstanding the appellant s countervailing arguments set out at pars [14] to [15], I am satisfied that there is an unacceptable risk that the appellant would fail to appear if granted bail. I agree, therefore, with the orders Muir JA proposes. [2] MUIR JA: The appellant was refused bail by a judge of the Supreme Court for offences including production of cannabis sativa, possession of cannabis sativa, trafficking in cannabis sativa, unlawful possession of a concealable handgun and possession of $10,000 reasonably suspected of being the proceeds of an offence. He appeals against that decision and applies to this Court for bail for those and later charged offences. [3] The primary ground of appeal is that the primary judge "erred in the application of the statutory test which governs an application for bail." The ground is based on the statement by the primary judge in his reasons: " I am not satisfied that having regard to the size of the production the likely penalty and the strength of the Crown case coupled with the proceeds which are unaccounted for that the applicant is an acceptable risk of attending as required if granted bail at this time." [4] It was submitted on behalf of the appellant that this statement demonstrated that his Honour had placed on the appellant rather than the respondent the onus of showing that the appellant was an unacceptable risk in terms of section 16(1) of the Bail Act [5] It is argued on behalf of the respondent that if this Court were to conclude that the exercise of the primary judge's discretion had miscarried, bail should be refused on the grounds relied on by the respondent below. Those grounds are that there is an unacceptable risk that if released on bail, the appellant would: fail to appear and to surrender into custody; commit an offence; endanger the safety or welfare of a person or interfere with witnesses or otherwise obstruct the course of justice. [6] The subject offences relate to a cannabis plantation on the property "Kinvarra" near Inglewood. The property was purchased by the appellant's former wife, Kelly Anne Millard, for $350,000 under a contract which settled in June Ms Millard separated from the appellant in October On 30 June 2008 police officers

3 3 went to "Kinvarra" where they located cannabis growing in five plots, each in excess of 700 square metres. The area of one plot exceeded 1,400 square metres. The plants were watered by sprinkler systems fed by water pumped from dams and creeks by large industrial water pumps. The water was pumped to the plots through a network of poly piping. [7] When the police returned to the residence on the property on 1 July 2008 they were met by the appellant. The appellant's son, also called Michael Gardner, was found in the residence. Searching the residence, police officers located a loaded 9 mm semi-automatic handgun at the top of a bathroom cupboard concealed under a towel. The gun had not been seen in that location on the previous evening during an earlier search. A handgun holster was found on a single bed in which the appellant's son informed police he had slept the night. The appellant declined to be interviewed. [8] Police located in the residence personal documents of the appellant and of members of his family. These included photographs of the appellant and family members. Also located was a document in the appellant's handwriting detailing his observations of the police search the previous evening. It included a statement that the appellant had watched police call into a neighbouring property more than one kilometre away from the residence. The property would have been visible at the time only by use of a night vision device. Weapons, equipment and material found in the residence or in one of the camps near the cannabis plots included: body shackles, leg shackles, handcuffs, extendable batons, concealable pen guns, military night vision goggles, long range rifle scopes, handgun carry cases and in excess of 10,000 rounds of live ammunition. [9] Three more cannabis plots were located later. Cannabis crops appeared to have been harvested on two of them and the other had growing on it cannabis plants ranging in height from one metre to three metres. [10] There were two sheds on the property used for drying cannabis. They were approximately 40 metres high, longer than 100 metres and wider than 20 metres. They contained harvested cannabis plants hanging upside down to dry. There were 46 blue plastic, 60 and 200 litre drums containing dried cannabis heads. The total weight of the dried cannabis material was approximately 3.26 tonnes. Its street value was estimated at approximately 28 million dollars. The value of the live cannabis plants if harvested, dried, packaged and sold was estimated to be in the order of 80 million dollars. It is unclear whether this estimate related to all the cannabis plants on the property or to the plants growing in one plot. I am content to proceed on the former basis. Ten thousand dollars in cash was located in an ammunition container in a locked shipping container outside the residence. [11] Images found on computers in the residence showed the appellant and his son tending crops similar in size to those described above in 2005 and subsequent years. The computers also contained video footage of large commercial grade processes established for the production of hashish blocks from leftover cannabis. [12] Since 2004, the appellant had been purchasing water pumps, sprinkler heads, large quantities of poly piping and other items of plant and equipment of the type found on "Kinvarra". In making such purchases, the appellant normally used an alias, always paid in cash and tended to be secretive in his conduct. The manager of one such business recalled the appellant paying "a few thousand dollars" by handing

4 4 over notes wrapped in a newspaper. In that shop alone, the appellant spent in excess of $30,000. [13] Ms Millard, her son and daughter, each provided statements confirming the appellant's role as proprietor and manager of the enterprise on "Kinvarra". Ms Millard stated that she saw the appellant regularly count out $200,000 in thousand dollar lots. She asserted that such monies, on some occasions at least, were placed in a plastic drum and given to his son for secretion in a safe place. The Millards each claim to have been physically maltreated by the appellant and to have observed such maltreatment and animals being mutilated and killed for the purpose of instilling fear in them. [14] The following submissions were made on the appellant's behalf. The appellant's criminal history was minor and did not include any drug-related offences or any sentences for terms of imprisonment. The appellant had previously been on bail for indictable offences in New South Wales and had never failed to appear or breached any conditions of bail. There was a strong circumstantial case against the appellant that he is "connected somehow to the cannabis plants located on his ex wife's property." However, his role and the extent of his involvement in "distribution etc" is contingent upon accepting the evidence of Ms Millard and her children. That evidence is suspect as there is some acrimony associated with the breakdown of the marriage and Ms Millard and her children seek indemnities in respect of their own conduct. [15] There is likely to be a delay of up to two years before the appellant can be tried. Such a delay has been regarded as "inconsistent with modern concepts of civil rights." 1 The suggestion that the substantial cannabis production on the property must have generated a great deal of money which gives the appellant the capacity for flight should he wish to exercise it should be discounted. The allegations relating to money are general and are based on assertions by Ms Millard and her children. There is no evidence of the existence of substantial cash reserves or of access to any such reserves. The possibility of interfering with witnesses or of the appellant's offering violence should be disregarded as there is no evidence that the appellant was in contact with the Millards in the twelve months prior to his arrest. [16] The appellant, understandably, placed reliance on Almotared v DPP (Qld) [2008] QCA 95 in which it was held that the primary judge who, in giving her reasons for refusing bail used words very similar to those used by the primary judge here, thereby showed that she had "approached the issues explicitly on the basis that she was required to be satisfied that each risk was acceptable." [17] Counsel for the respondent conceded that if one looked at the primary judge's words without reference to the argument which had preceded the giving of reasons, it did appear that the onus of proof had been placed on the appellant. He argued, however, in his written submissions that the primary judge "was alive to the onus issue" as a result of oral and written submissions that the appellant was not required to "show cause" and a written submission that there was "an unacceptable risk of flight". It was submitted that in the words relied on by the appellant the primary judge merely paraphrased the correct test. Those submissions were not supplemented orally. 1 DPP v Bakir [2006] QCA 562 at para [5].

5 5 [18] I consider it unlikely that his Honour, being aware that the appellant was not in a show cause situation, acted on the basis that the appellant bore the onus of proof. I therefore have some sympathy with the respondent's submissions. However, as a general rule, one must look to the words used by a judge in his or her reasons in order to ascertain the basis for the judge's decision, particularly where there is no ambiguity of language. On any fair construction of the words under consideration, his Honour has placed the onus of proof, erroneously, on the appellant. The exercise of the primary judge's discretion thus miscarried. [19] The parties' legal representatives, implicitly if not expressly, agreed that the appropriate course was for this Court to decide whether bail should be granted rather than to remit the application for bail to the trial division. [20] I would refuse bail. The evidence establishes to my satisfaction that there is an unacceptable risk that the appellant, if released on bail, would: fail to appear; commit an offence; endanger the safety or welfare of a person; interfere with witnesses or otherwise obstruct the course of justice. [21] There is a strong prosecution case, even without the evidence of Ms Millard and her children, that the appellant was centrally involved from mid 2004 to 30 June 2008 in the production, packaging and distribution of cannabis on a heroic scale. The evidence suggests that he was the guiding mind of the enterprise. It may be inferred without reliance on the evidence of Ms Millard, that the appellant's unlawful activities yielded large profits. There is evidence that he consistently paid cash for purchases of plant, equipment and other things from about Ten thousand dollars in notes was found on "Kinvarra". The computer images support the conclusion that large scale production was underway well before mid [22] The scale of the production and processing on "Kinvarra" make it likely that if the appellant is convicted of possession, production or trafficking a sentence would be imposed in excess of the range of five to seven years suggested by Mr Boe who appeared for the appellant. The maximum penalties for production of and trafficking in cannabis are 20 years. [23] These considerations and the fact that there is evidence that a great deal of the money likely to have been derived from the activities on "Kinvarra" is unaccounted for suggest to me the existence of a substantial risk that the appellant will fail to appear. [24] That conclusion is not diminished by the evidence of weapons, ammunition and devices such as batons, handcuffs and shackles found on "Kinvarra". That evidence, including the evidence of the loaded handgun, give rise to a concern that the appellant was prepared to resort to violence to protect his interests. There is unlikely to be an innocent explanation for the existence of the arsenal on "Kinvarra" and, if Ms Millard is to be believed, the appellant made death threats, threatened violence and engaged in violent acts. There is no reason to suppose that the appellant's character has undergone a transformation as a result of his arrest. [25] That a trial of the charges may not take place for about two years is a matter of considerable concern. However, that and the other matters relied on by the appellant's counsel are insufficient to warrant an exercise of discretion in the appellant's favour in view of my conclusions as to the risks involved in the grant of bail.

6 6 [26] For these reasons I would dismiss the application for bail and the appeal. [27] FRASER JA: I agree with the orders proposed by Muir JA and his Honour s reasons for those orders.