Gherbesi v Burgoyne [2006] NTSC 24


PARTIES:                                         GHERBESI, Peter John




                                                         BURGOYNE, Robert Roland






FILE NO:                                          JA 3 of 2006 (20508009)


DELIVERED:                                   28 March 2006


HEARING DATES:                           22 March 2006


JUDGMENT OF:                               MARTIN (BR) CJ






Appeal against conviction and forfeiture of motor vehicle – witness antecedents not disclosed – omission does not amount to a miscarriage of justice – verdict supported by evidence – failure to give reasons for ordering forfeiture – appeal dismissed.


Misuse of Drugs Act (NT), s 34(3)

Mallard v The Queen (2005) 80 ALJR 160, followed.






    Appellant:                                     J McBride

    Respondent:                                  R Noble & K Ratclifte



    Appellant:                                     Povey Stirk

    Respondent:                                  DPP


Judgment category classification:       C

Judgment ID Number:                        Mar0603

Number of pages:                               16






Gherbesi v Burgoyne [2006] NTSC 24

No. JA 3 of 2006 (20508009





                                                     PETER JOHN GHERBESI





                                                     ROBERT ROLAND BURGOYNE







(Delivered 28 March 2006)


[1]       This is an appeal against a decision of a Magistrate convicting the appellant of unlawfully supplying a trafficable quantity of a dangerous drug.  The appellant also appeals against the decision of the learned Magistrate ordering that the appellant’s motor vehicle be forfeited.

[2]       Mr Trent Palmer gave evidence that on 4 April 2005 he made an arrangement with members of the Drug Investigation Unit of the Northern Territory Police to purchase two grams of methamphetamine (“speed”) from another Crown witness, Ms JO.  Police provided Mr Palmer with $600 in marked notes.  Mr Palmer drove to Ms JO’s residence at about 5pm and she agreed to provide him with two grams of speed.  She told him she had to see “Pete” (the appellant).  Mr Palmer gave Ms JO the $600 in marked notes and left a short time later.

[3]       Mr Palmer said that at about 7pm Ms JO telephoned him.  He went to the premises, but was told by Ms JO that she did not have the drugs.  Ms JO left the premises and returned about ten minutes later.  On her return she gave Mr Palmer two grams of speed.  Mr Palmer subsequently gave the drugs to police.

[4]       The evidence of Mr Palmer was not challenged in cross-examination.

[5]       Ms JO gave evidence of a telephone conversation with Mr Palmer in which he asked if she could help in getting him to two grams of speed.  She confirmed receiving $600 from him.  According to Ms JO, initially she saw the appellant at premises at Hele Crescent.  Later she went with the appellant to the appellant’s house at Sargent Street.  She asked the appellant if he could help obtain two grams of speed and he replied in the negative, but said he would be in contact with her later that afternoon.

[6]       Ms JO said that after messages passed between her and the appellant during the day, at about 7pm she received a text message from the appellant telling her to meet him at the front of her premises.  She then contacted Mr Palmer to say she might be able to help him.  Mr Palmer arrived at her premises before she had received the speed.  She left the premises briefly and met the appellant at the front where he was waiting in his car.  She got into the car and they drove up the road during which time she removed some of the speed from the bags for her own use.  They then returned to the front of Ms JO’s premises where she got out of the car and the appellant left.

[7]       According to Ms JO, she returned inside and gave the bags containing the speed to Mr Palmer. 

[8]       As to the $600 she had received from Mr Palmer, Ms JO said she was not totally sure, but she thought she had given the money to the accused that afternoon at Sargent Street or when she got into the car at the front of her premises that evening.  She said she gave the exact money to the appellant that had been given to her by Mr Palmer.

[9]       During the course of her examination, Ms JO said that after the appellant had been charged she told the appellant’s solicitor that she had obtained the drugs from some person other than the appellant.  She said she gave a false story to the solicitor and that she was telling the truth in court.  Ms JO said she gave the false story because the accused was a close friend and she had got off drugs and straightened out her life.  She did not follow through by giving a false statement to the police.

[10]    Ms JO pleaded guilty to supplying and possessing a quantity of methamphetamine.  She participated in the CREDIT program over a period of approximately four months following which she was sentenced to four months imprisonment commencing on 3 November 2005.  That sentence was suspended immediately upon condition that she be under the supervision of the Director of Correctional Services.

[11]    Ms JO’s evidence was challenged in cross-examination.  She denied propositions that she had been paid a sum of money by the appellant for the purchase of furniture and that she gave him the $600 in part repayment following a change of mind about the sale. 

[12]    Ms JO admitted in cross-examination that subsequently she made contact with the appellant and said “What do you want me to do?  I want to make this right”.  She said she felt bad because she and the appellant were friends.  She was going to change her statement to the police because of the friendship and because she was getting the appellant into trouble and did not want that.  She maintained, however, that the transaction with the appellant had occurred. 

[13]    Ms JO said that when she spoke to the appellant he told her to see his solicitor, find out his story and follow it.  She agreed that she may have told the appellant’s solicitor that she had given $600 to the appellant as re-payment of money received for furniture.  In re-examination Ms JO said that the appellant told her he had advised his solicitor that he had given Ms JO money for furniture following which she changed her mind and refunded the $600.

[14]    The prosecution also led evidence from police officers who conducted a surveillance operation at the time of the relevant transactions.  They observed the movements of Mr Palmer.  They also observed the appellant call at Ms JO’s residence at about 7pm, following which Ms JO was seen to get into the appellant’s car and the car was driven up the road.  A couple of minutes later the car returned and Ms JO left the vehicle to enter her premises.  Police observed these events occurring at a time when Mr Palmer was inside the premises of Ms JO.  Those observations supported the evidence of Mr Palmer and Ms JO as to the sequence of events. 

[15]    Although there was a period during which police were not observing Ms JO, surveillance of her movements earlier that day confirmed her attendance at the appellant’s premises.

[16]    The following day a warrant was executed at the appellant’s premises.  The $600 in marked notes was found in the appellant’s wallet. 

[17]    The appellant gave evidence that he was working for a removal and storage business.  He said that he had been contacted by Ms JO at the end of January 2005 to do a quote for her to relocate from Alice Springs to Perth.  The appellant said that during their dealings in connection with the move they agreed on a sale of furniture from Ms JO to the appellant for $1,350 and the appellant paid that amount to Ms JO in cash early in March 2005.

[18]    According to the appellant, he did not take delivery of any of the items.  Subsequently Ms JO told him she would not be going to Perth because of a restraining order against her.  Ms JO agreed to refund the $1,350.

[19]    The appellant said that earlier on the day in question he was about to leave his office when Ms JO arrived.  She gave him $350 and said she would have more that night and he should call her.  The appellant believed that the $350 was part payment of the furniture money that was owed to him.  Ms JO gave evidence that this amount was recompense for the appellant permitting her to use his vehicle.

[20]    The appellant said that at about 5.30 – 5.45pm or a bit later he received a telephone call from Ms JO.  She told him to call around because she had more money for him.  On his way out to dinner he met Ms JO in front of her premises and, although he was expecting her to come to the driver’s window, she jumped in the passenger seat.  She told him to drive down the street.  When he asked why, she said it was Trent’s (Mr Palmer) van and he was looking after Kate.  She said she did not want him to see who she was with. 

[21]    The appellant said he drove down the street for a short distance before turning around.  Just before he turned around Ms JO threw money into the console and told him it was $600.  He grabbed the money, counted it and returned Ms JO to her premises.  He believed the $600 was repayment for the furniture debt.

[22]    As to the subsequent events involving the additional statement by Ms JO to the appellant’s solicitor, the appellant said that Ms JO contacted him saying she wanted to make it right because she knew he had not sold drugs to her.  He told her that all he wanted her to do was tell the truth and to see his solicitor or her own.

[23]    In his reasons, the Magistrate specifically stated that he was satisfied that Mr Palmer and Ms JO were telling the truth in respect of the events concerning the supply of drugs and the obtaining of the drugs from the appellant.  His Honour said he did not accept the evidence of the appellant that the payment was repayment of furniture money.  His Honour found it odd that, on the appellant’s case, at 7pm Ms JO must have had the drugs on her when she went to the appellant’s vehicle to give him the $600 refund while keeping Mr Palmer waiting.  Noting that no other person was seen by surveillance at the residence of Ms JO who could have been the supplier of drugs, his Honour concluded:

“The only hypothesis consistent with the evidence is that the defendant called to JO’s property to supply the amphetamine and that the $600 handed over by her was the payment for the drug.  There is no other explanation.”

[24]    The Magistrate explicitly stated that he was satisfied that the version of the events given by the appellant concerning the furniture transaction was totally fictitious and was a story concocted to fit in with the known prosecution case.  His Honour noted that there was no reason for Ms JO to enter the vehicle and drive up the road if she was only paying $600 as repayment of the furniture money.

[25]    Counsel for the appellant, who was not counsel at the trial, submitted that the verdict of the Magistrate was unreasonable and unsafe.  Particular reliance was placed on a note written by Ms JO which contained a list of furniture and prices for the individual items in the list. 

[26]    During cross-examination Ms JO agreed that she and the appellant talked about furniture and prices and that she made up the list.  She agreed they had discussions, but said she could not remember the discussions word for word because during that period she was “pretty wiped out”.  She said she did not really remember a lot of what went on during that period.

[27]    Ms JO agreed that discussion occurred about the possible sale, but she disagreed with the suggestion that agreement was reached.  She also disagreed with the proposition that the appellant paid her $1,350 on account of the furniture.

[28]    The appellant had also written on the list.  He filled in a total figure of $1,610 at the bottom of the individual amounts and wrote the words at the very bottom of the list “paid $1350 1st wk March”.  The appellant said in evidence that soon after receiving the note he wrote in the total of $1,610 and that after he paid $1,350 to Ms JO he made the very bottom entry.  He said the note was sitting on his desk under some paper work on the day that he gave her the money.  Asked if he thought it was important that Ms JO witness his notation or put some signature on the document, the appellant said he did not give any thought to that as he was expecting to do an uplift of furniture and removal to Perth.  Asked if he wrote the final entry in preparation for the court case, the appellant replied “No I did not”.

[29]    The fact that Ms JO wrote the note did not provide significant support for the appellant’s case.  It was a matter for the Magistrate whether he accepted the evidence of Ms JO about the note or whether he had a doubt about it.  Counsel for the appellant criticised the remarks of the Magistrate about the note which were as follows:

“I find it partly strange that on the document where he was reportedly indicating a receipt for payment of furniture monies he inserted the date “first week March” instead of an actual date.  That indicates to me a strong likelihood that that notation on the list of furniture was entered at a date subsequent to the date of the compiling of the list, at a time when the defendant may well not have remembered the exact date on which the transaction was said to have occurred.”

[30]    It was open to the Magistrate to be concerned about the particular notation.  If, as the appellant said in evidence, the note was sitting on his desk on the day he gave her the money and he made the notation after giving Ms JO the money, it would be a reasonable expectation that the appellant would have entered the actual date rather than endorsing the note “lst week March”.  In my view this criticism of the Magistrate is without substance.

[31]    Counsel for the appellant referred to what he suggested were inconsistencies within the evidence of Ms JO.  In my opinion, however, the matters to which counsel referred were minor and of the type ordinarily expected when witnesses give evidence many months after the events in question.  In particular, the inconsistencies were not unexpected given Ms JO’s consumption of drugs at the relevant time and the effect of those drugs upon her mental faculties.

[32]    The Magistrate was well aware of Ms JO’s prior inconsistent statement to the appellant’s solicitor.  It was open to the Magistrate to accept Ms JO’s explanation for making that statement.  Neither the existence of the prior inconsistent statement, nor any other part of the evidence, compelled a conclusion that there was a doubt about the reliability of Ms JO’s evidence.  It was open to the Magistrate to accept Ms JO as a witness of truth.

[33]    Speaking generally, the evidence of Ms JO was supported by other evidence which the Magistrate accepted, including the evidence of Mr Palmer and the surveillance officers.  The Magistrate had the distinct advantage of seeing and hearing Ms JO and the appellant, an advantage not possessed by this Court.  I am unable to discern any error in the approach of the Magistrate and, upon a consideration of the evidence, I am not left in any doubt about the guilt of the accused.  I have reached this view notwithstanding the question of the prior offending by Ms JO which was not disclosed to counsel for the appellant at trial.  I now turn to that question.

[34]    Prior to trial, the appellant’s solicitors wrote to the Director of Public Prosecutions requesting details of Ms JO’s prior criminal history.  The Director responded indicating that a request had been made of police to supply details of that history.  Subsequently the Director further communicated with the appellant’s solicitor advising that Ms JO did not have any criminal antecedents and that the prosecution of Ms JO in respect of supply the drugs to Mr Palmer had not been finalised.

[35]    Ms JO does have a record of prior offending.  It is common ground that, through inadvertence, the police provided incorrect information to the Director.  In August 2000 Ms JO committed the offences of aggravated serious criminal trespass in an occupied residence, two offences of receiving and one of damaging property.  She was convicted on 8 September 2000 and sentenced to 15 months imprisonment.

[36]    Those offences occurred in South Australia between 16 and 18 August 2000.  In 1999 in Western Australia Ms JO was convicted of fraud and receiving and fined $100 for each offence.  The record indicates that on 19 September 2000 the appellant was convicted in a Western Australian court of stealing and stealing as a servant and sentenced to 19 months and 18 months intensive supervision respectively (“ISO”).  If Ms JO appeared in a Western Australian court on 19 September 2000, the sentence of 15 months imposed in South Australia on 8 September 2000 must have been fully suspended.

[37]    On 23 November 2000 Ms JO was convicted of a breach of the ISO order and a further 18 months ISO was imposed together with 75 hours of community work.  On the same occasion Ms JO was convicted of resisting arrest and stealing for which a fine of $100 and an order of 18 months ISO with 75 hours of community work were imposed respectively.  On 20 December 2001 Ms JO was convicted of a breach of the ISO order of 23 November 2000 and sentenced to four months imprisonment which was suspended.

[38]    Ms JO’s record of prior offending should have been disclosed to the appellant.  Her prior offending was plainly relevant to her credit.  Whether she would have been cross-examined about that offending remains uncertain.  Had she been cross-examined on such matters relating merely to credit, the appellant would have been liable to be cross-examined about his prior offending.  On 13 May 2003 the appellant was convicted of five offences of making a false statement committed on separate occasions between May 2001 and January 2002.  On the same occasion he was convicted of three offences of obtaining a payment which was not payable committed on separate occasions during January and February 2002.  A single sentence of seven months imprisonment was imposed which was suspended on home detention for a period of five months.  The appellant was ordered to make restitution of $7,936.02. 

[39]    Counsel for the appellant frankly acknowledged that he was unable to say that Ms JO would have been cross-examined at trial about her prior record of offending.  As counsel put it, the appellant was deprived of the opportunity of testing the credit of Ms JO in that manner.  Counsel argued that as a consequence a miscarriage of justice has occurred.

[40]    The principles are not in doubt.  As Kirby J observed in Mallard v The Queen (2005) 80 ALJR 160, “the question is whether the omission has occasioned a miscarriage of justice”.  His Honour continued:

“[83] … The courts are guardians to ensure that ‘justice is done’ in criminal trials.  Where the prosecutor’s evidentiary default or suppression ‘undermines confidence in the outcome of the trial’, that outcome cannot stand.  A conviction must then be set aside and consequential orders made to protect the accused from a risk of a miscarriage of justice.  At least, this will follow unless an affirmative conclusion may be reached that the ‘proviso’ applies – a conclusion less likely in such cases given the premise.

[84]   In case of very limited non-disclosure which the appellate court concludes affirmatively to have been unlikely to have altered the outcome of the criminal trial, the proviso may be applied as it was in Lawless.  However, in a case where the non-disclosure could have seriously undermined the effective presentation of the defence case, a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand.  Such was the case in Grey.” (citations omitted).

[41]    Applying those principles to the facts under consideration, in my opinion miscarriage of justice has not occurred.  It would have been obvious to the Magistrate that Ms JO had been a substantial user of drugs.  She admitted being involved in the supply to Mr Palmer.  It is a common experience in criminal courts that persons like Ms JO who are substantial users of drugs both sell drugs and commit offences of dishonesty to obtain funds to finance their habit.  It would not have surprised the Magistrate to have been informed of Ms JO’s prior offending. 

[42]    The failure of the prosecution to disclose the record of prior offending does not undermine my confidence in the outcome of the trial.  I am satisfied that disclosure to the Magistrate would not have altered his Honour’s view of the credit of Ms JO in comparison with the credit of the appellant.  For these reasons, the appeal against conviction is dismissed.

[43]    The appellant also complains that the Magistrate erred in ordering the forfeiture of the appellant’s motor vehicle which he was driving at the time of the drug transaction.  In particular, counsel submitted that the failure of the Magistrate to give reasons for the order was an error of law. 

[44]    The power to order confiscation is found in s 34(3) of the Misuse of Drugs Act which provides that the court “may” order that any vehicle “that relates” to the offence of which the person is found guilty be forfeited to the Crown.  The Crown applied for forfeiture of the appellant’s motor vehicle which it was said was valued at approximately $3,000.  Discussion occurred between the prosecutor and the Magistrate as to whether, should forfeiture be ordered, the fact of forfeiture was to be taken into account at arriving at sentence because forfeiture would constitute a punishment.  The prosecutor submitted that the fact of forfeiture should not be taken into account.

[45]    During submissions as to sentence by counsel for the appellant, counsel acknowledged that the drug transaction was a commercial transaction for profit.  Counsel then said that “the only submission” he would make in respect of the application for forfeiture was that in the event the court made the decision in favour of forfeiture, the fact of forfeiture should be taken into account as a penalty for the purposes of sentencing.  The Magistrate indicated agreement with that proposition and counsel followed with the observation that there are “two ways the State moves to punishment and that is against property and it’s against the person by way of imprisonment or the deprivation of liberty.”  His Honour then observed that unless counsel demonstrated to the contrary, he was going to treat forfeiture as being a part penalty.

[46]    In brief sentencing remarks, the Magistrate referred briefly to the facts of the offending being a one off offence of significance supply and then sentenced the appellant to three months imprisonment.  His Honour suspended the sentence forthwith.  Having indicated the sentence, his Honour said:

“and I order forfeiture to the Crown of the Ford Falcon sedan, registration 721065, pursuant to section 34(3) of the Misuse of Drugs Act.”

[47]    It would have been preferable if the Magistrate had indicated briefly his reasons for ordering forfeiture.  However, his failure to do so is understandable.  Counsel for the appellant did not contest the application for forfeiture.  In substance counsel conceded that forfeiture should occur while endeavouring to ensure that it was taken into account as part of the penalty.  Given the attitude of counsel for the appellant at the sentencing stage, in my view this ground of appeal is not made out.  The appeal against the order of forfeiture is dismissed.