Armstrong v The State of Western Australia - [2010] WASCA 108

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ARMSTRONG -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 108

CORAM: PULLIN JA
BUSS JA
MAZZA J

HEARD: 13 MAY 2010

DELIVERED : 16 JUNE 2010

FILE NO/S: CACR 150 of 2009

BETWEEN: BRYAN McMILLAN ARMSTRONG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND 638 of 2009

Catchwords:

Criminal law - Appeal against conviction - Possession of methylamphetamine with intent to sell or supply - Whether the appellant possessed 2 g or more of methylamphetamine - Whether verdict unreasonable, or could not be supported having regard to the evidence - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 30(1), (2), (3)(a) and (5)(c)
Misuse of Drugs Act 1981 (WA), s 6(1), s 6(2), s 11(a)
Sentencing Act 1995 (WA), s 39(2)(a)

Result:

Leave to appeal granted
Appeal allowed
Conviction set aside
Appellant guilty of simple possession of methylamphetamine

Category: B

Representation:

Counsel:

Appellant: Mr L Levy SC
Respondent: Mr J McGrath

Solicitors:

Appellant: Max Crispe
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Martinez v The State of Western Australia [2007] WASCA 143
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Scriva v The State of Western Australia [2010] WASCA 89
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
The State of Western Australia v Pollock [2009] WASCA 96

PULLIN JA: I agree with Mazza J.
BUSS JA: I agree with Mazza J.
MAZZA J: The appellant was tried before Yeats DCJ and a jury on one count of wilfully destroying evidence and one count of possession of methylamphetamine with intent to sell or supply it to another, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). After the close of the State's case, her Honour found that the accused had no case to answer on the charge of wilfully destroying evidence and found him not guilty. On 16 September 2009, the jury convicted him of the charge of possession of methylamphetamine with intent to sell or supply it to another. The learned trial judge later imposed a sentence of 4 years and 6 months' immediate imprisonment and made a parole eligibility order. The appellant appeals to this court against his conviction.

The grounds of the appeal

The grounds of appeal are:
1.The verdict of guilty should be set aside because it is unreasonable or cannot be supported by the evidence.
Particulars
a)The totality of the evidence was incapable of supporting a finding beyond reasonable doubt that the appellant was in possession of 2 or more grams of methylamphetamine.
b)The remaining circumstantial evidence was incapable of supporting a finding beyond reasonable doubt that the appellant intended to sell or supply any or all of the prohibited drugs in his possession.
2.The learned trial judge erred in law by failing to fully and fairly put the defence case to the jury.
Particulars
a)The learned trial Judge failed to inform the jury what the appellant's evidence was in relation to the question of whether methylamphetamine was soluble in circumstances where this issue was critical to the question of whether the appellant was in possession of 2 or more grams of methylamphetamine.

On 4 January 2010, Wheeler JA referred the question of leave on ground 1 to the hearing of the appeal and gave leave to appeal on ground 2.

Overview of the case

The prosecution case

At about 10.00 pm on Monday 22 September 2008, police officers went to the appellant's house in Thornlie to execute a search warrant issued under the Misuse of Drugs Act. The appellant was initially observed outside at the clothesline. Upon becoming aware of the police presence, he rushed into the house through a sliding laundry door and locked it, in an attempt to prevent the police from entering. As he moved towards the door, a police officer noted that he appeared to be holding something in his hand. The State's case was that he was holding a quantity of methylamphetamine. The appellant then went to the toilet to dispose of the drug, closing the door behind him.
Meanwhile, the police, having forced their way through the laundry door into the house, tried to get into the toilet. After several unsuccessful attempts, the police threw into the toilet a 'distraction device' which gave off a loud noise and blinding light. The deployment of this device enabled the police to enter the toilet and restrain the appellant, but not before he had put all the methylamphetamine down the toilet.
The distraction device broke the toilet bowl into pieces and damaged the cistern, causing a considerable amount of water to run onto the floor, spreading to the surrounding areas, including the laundry. It took some minutes before the water could be turned off.
The police discovered in the remnants of the toilet bowl a crystalline substance which, on later analysis, proved to be 1.53 g of methylamphetamine. The police also found in the area of the toilet a total of four plastic clipseal bags. One of these bags was sealed and contained 2 mls of liquid and a small amount of damp crystalline material, of which methylamphetamine was a component. The other three bags had been ripped open.
The appellant's clothing was seized by police. His socks, jumper and tracksuit pants were later found to have traces of methylamphetamine on them.

A search of the house was undertaken. In the kitchen, the police found a set of electronic scales with traces of methylamphetamine on its surface. The police found a box of unused clipseal bags in the pantry and, in a bin, two used clipseal bags, one of which had traces of methylamphetamine on its inner surfaces, and an empty 600 g container of the common drug cutting agent, MSM.
The State's case was that the appellant was in possession of a large, but unspecified, quantity of methylamphetamine, well in excess of the amount of 2 g, in the order of an ounce or ounces, with an intention to sell or supply it to another. The State alleged that the appellant disposed of the methylamphetamine in the toilet and that the 1.53 g of crystalline methylamphetamine found in the toilet bowl was all that remained of the larger quantity he possessed. The State's case was that a great deal of the methylamphetamine had dissolved in the toilet or its surrounds in the minutes between the deployment of the distraction device and the turning off of the water. The State's case as to quantity was entirely circumstantial.

The defence case

The defence case was that the accused was a long‑term user of methylamphetamine. On the Saturday before the police raid, he had purchased half an eight ball of methylamphetamine weighing 1.7 g or 1.75 g. When the police arrived at his house, he panicked, realising that he had methylamphetamine in his bedroom. He ran to the bedroom, grabbed the plastic bag which contained the drugs and other plastic bags which previously had drugs in them, and ran to the toilet with the intention of disposing of the methylamphetamine and the bags. While in the toilet, and in a panicked state, he ripped the bags open, not knowing which one had the drugs in it. The defence case was that the 1.53 g of crystalline methylamphetamine found in the broken toilet bowl was the remnants of the methylamphetamine he had purchased. The appellant denied he was in possession of 2 g or more of the drug and he said that the methylamphetamine he had purchased was for his personal use.

The critical issue for the jury

By the time her Honour came to sum up the case, the question of the quantity of methylamphetamine which the accused possessed immediately before the police raid had become the critical issue for the jury to decide.
Her Honour directed the jury that the issue for them to decide was whether, in all the circumstances, the only reasonable inference open was that the appellant possessed 2 g or more of methylamphetamine (ts 197). Her Honour instructed the jury as to the presumption in s 11(a) and sch V of the Misuse of Drugs Act. She correctly instructed the jury that if it was satisfied beyond reasonable doubt that the appellant possessed 2 g or more of methylamphetamine, he was deemed to possess that drug with an intent to sell or supply it to another unless he proved to the contrary.
Her Honour told the jury that the State's case was that the appellant possessed 'ounces' of methylamphetamine (ts 198), and that the defence case was that the appellant possessed 1.7 g of the drug (ts 197).
Her Honour told the jury that if it found that the appellant possessed 1.7 g of methylamphetamine, '[t]here's simply not enough evidence to satisfy you beyond reasonable doubt that he did intend to sell or supply' (ts 198).
Her Honour further told the jury:
The only test is, whether he had two grams or more, but if you were satisfied that he must have had a substantial quantity as the State suggests, an ounce or more, because of the conditions and everything that happened, then the presumption operates and ladies and gentlemen that would be a lot of methylamphetamine for your own use and there is no evidence to assist Mr Armstrong in that circumstance (ts 199).
In effect, her Honour told the jury that if it was satisfied beyond reasonable doubt that the appellant possessed an ounce or ounces of methylamphetamine, he would be found guilty as charged. However, if the jury was not satisfied beyond reasonable doubt that the appellant possessed the large quantity of methylamphetamine alleged by the State, the appellant would only be guilty of simple possession on the basis of his admission that he possessed 1.7 g of the drug.
Trial counsel did not object to the approach taken by her Honour, and counsel in this court took no exception to it.

The prosecution evidence at trial

The evidence led at trial in respect of the issue of possession was as follows.

Prosecution witnesses

Tactical Operator 26 (TO26)

At about 10.00 pm on 22 September 2008, TO26, in company with Tactical Operator 10 (TO10), was in the vicinity of the laundry door of the appellant's premises about to execute a Misuse of Drugs Act search warrant. He saw the appellant move very quickly from a clothesline into the house through the laundry door. As he did so, he appeared to be holding something (ts 15). TO26 and his colleague identified themselves as police and yelled 'don't move'. TO26 attempted to enter the house, but the sliding laundry door was locked. TO26 and TO10 forced their way into the house, with TO26 smashing the glass sliding door (ts 16). They entered the laundry, and realised that the appellant had gone into another nearby room and closed the door behind him. This room turned out to be a toilet.
TO26 said that he and TO10 then started 'shoulder charging the door' together (ts 16). Each time they did this, the door would spring open and then close.
On one of these occasions, TO26 managed to put his arm through the door and grab the appellant's clothing. At this point, TO26 saw the appellant crouching over the toilet bowl. He said the appellant 'appeared to have his left arm around the bowl and with his right arm was putting something into the toilet' (ts 17).
Eventually, in an effort to get the appellant out of the toilet area, a distraction device was thrown into the toilet area. This device created 'a very loud bang and a very bright flash' (ts 17), which had the desired effect and enabled TO26 to drag the appellant out of the toilet area onto the floor of the laundry and handcuff him (ts 17).
TO26 said that the distraction device destroyed the toilet bowl and caused water to run over the floor. TO10 attempted to turn the water off without success. A short time later, another officer turned the water off (ts 21).

Tactical Operator 10

TO10 corroborated most of the evidence of TO26.
TO10 was the officer who threw the distraction device into the toilet (ts 33). After it had been deployed, TO10 looked into the toilet and noticed 'a large pooling of water in the toilet' (ts 34). He said that he could not find the tap for the cistern, and that he went outside to find a way to turn off the water, but was unsuccessful. By the time he went back inside the house, someone else had turned the water off (ts 35). TO10 said that the distraction device had caused extensive damage to the toilet, and that there was water and toilet cleaning products 'around the place' (ts 35). He noticed the remnants of a plastic bag at the front of the toilet, which he indicated to one of the investigators (ts 35).

Clinton Philip May

On 22 September 2008, Mr May was a police officer. He is no longer a police officer. He was the designated exhibits officer on the night. All together, 16 items were seized by the police and recorded on an exhibits log (exhibit 10). Later, some of these items were analysed for the presence of illicit drugs. I will refer to the items which were seized and their analysis in the context of another State witness, Detective Sergeant Taylor.
At trial, the State tendered and played, through Mr May, a DVD which recorded parts of the police search of the house. The appellant was cautioned. He made no admissions against interest.
A police officer informed the appellant that forensic officers would attend the scene to conclude a forensic examination. While certain items found at the house were seized by police, no evidence was presented at trial of any forensic examination.
The DVD shows that the toilet was extensively damaged. The pan or bowl was broken into pieces and there was a large hole in the cistern from which water must have flowed.
The appellant confirmed that there was approximately $1,000 in cash in his vehicle. He also confirmed that he asked the police to leave it there. The cash was not seized.

Detective Sergeant Roy Michael Morrish

Detective Sergeant Morrish was one of the police officers who attended the appellant's residence to execute the search warrant. He also gave expert opinion evidence about methylamphetamine.
Detective Sergeant Morrish saw TO26 and TO10 attempting to push open the toilet door. He witnessed the deployment of the distraction device. He said that he handcuffed the appellant (ts 64). He observed 'a fair bit of damage to the toilet and there was water spraying out'. He said that he turned the water off at the stop‑cock. Detective Sergeant Morrish observed some clipseal bags on the toilet floor amongst the debris. He recalled seeing three bags, one of which had a small amount of liquid in it, while the others were ripped open.
Detective Sergeant Morrish saw some crystalline substance in the remnants of the toilet bowl which was seized and handed to the exhibits officer (ts 65). He said that he went outside where he observed a lot of water (ts 65, 66). When he returned inside, he noted that there was water all over the toilet floor and that 'everything was soaked' (ts 66). He noted that the appellant had changed his clothes.
Detective Sergeant Morrish's expertise and experience with respect to methylamphetamine was not challenged. He gave evidence that methylamphetamine is purchased in weights varying from pounds or kilos through to ounces, parts of ounces, gram lots, down to an amount of one‑tenth of a gram known as a 'point' (ts 67). He said that, although the most common form of consuming the drug in the past was by injection, at the time of the alleged offence the most common method of consuming it was by smoking it (ts 67).
Detective Sergeant Morrish described how methylamphetamine was commonly diluted with a cutting agent. He said that a common cutting agent was MSM (ts 68).
Detective Sergeant Morrish gave very brief evidence about the solubility of methylamphetamine. In examination‑in‑chief, the following exchange took place (ts 69 ‑ 70):
HAYLOCK, MS: …
… Just going back to the toilet bowl on that particular day, you were present when some crystal substance was scraped off the bottom of that bowl. Is that right?‑‑‑It was.
… What can you tell us about water and methylamphetamine?‑‑‑It's actually soluble, where it dissolves in the water.
HAYLOCK, MS: … So that has an impact on the purity of an item, does it?‑‑‑It does.
CRISPE, MR: That's a leading question. I object to it.
HAYLOCK, MS: Sorry.
YEATS DCJ: Well, put your question differently?
HAYLOCK, MS: Yes. Detective Sergeant, just in relation to the solubility you've referred to, what, if any, impact does that have on the purity?‑‑‑It would reduce the purity.
Detective Sergeant Morrish said that scales of the type found at the appellant's home were used to weigh out all the methylamphetamine or to weigh up the cutting agent. He said that scales were usually found at premises from which drugs are sold (ts 71).
Detective Sergeant Morrish said that the clipseal bags in the box found in the kitchen appeared to be identical to the ones located in the toilet. He said that bags of that size were 'usually used for packaging larger amounts of drugs' (ts 71). By 'larger amounts' he said he meant ounces and above (ts 72).
Detective Sergeant Morrish acknowledged that although 'not the norm', larger bags were sometimes used to package amounts of less than an ounce (ts 72).
He agreed that methylamphetamine can be snorted and smoked (ts 76). He agreed that methylamphetamine was sometimes sold in a quantity of 1.75 g, known as half an eight ball (ts 77).
Detective Sergeant Morrish agreed that it was usual for the person who was buying drugs to weigh it before paying and he had heard of people using scales for this purpose (ts 78 ‑ 79).
He agreed that there was no rule that, because a bag is a certain size, it is only used for a certain quantity, although he maintained that he did not commonly find small amounts of drugs in bags of the type found in the toilet (ts 79).

Detective Sergeant Darren Lindsay Taylor

Detective Sergeant Taylor was the overall supervisor of the operation at the appellant's house. He seized the clothing that the appellant was wearing on the night and a mobile telephone that he had in his pocket (ts 85). These items were given to the exhibits officer. Some of them were sent to the Chemistry Centre of Western Australia for analysis.
The items that were seized by the exhibits officer are set out in the table below. Where an item was analysed by the Chemistry Centre the result of that analysis is indicated.

Police exhibit log number	Description of item on exhibit log	Location found	Drug analysis
1	Plastic glad clipseal bag containing clear liquid and crystal material	Toilet floor	Methylamphetamine identified as component of damp crystalline material
2	Quantity (3) ripped glad clipseal bags	Toilet floor	No analysis
3	Quantity (1.53 g) of clear crystal material	Bottom of toilet pan	Methylamphetamine was detected in the crystalline material
4	Ceramic toilet pan	Toilet area	No analysis
5	Sample of water (65 mls) obtained from drain, collected in sterile jar	Drain near the toilet, outside house	Common illicit drugs were not detected in the liquid
6	Empty 600 g jar of crystal MSM	Kitchen bin	No analysis
7	Plastic clipseal bag with traces of white crystal material	Kitchen bin	Traces of methylamphetamine were detected on the inner surfaces of the plastic bag
8	Plastic clipseal bag with traces of white crystal material	Kitchen bin	No common illicit drugs were detected in the plastic bag
9	Black electronic scales with traces of white powder	In cardboard box on top of fridge in kitchen	Methylamphetamine was detected on the surfaces of the scales and cover
10	Box of clipseal bags	Kitchen pantry 4th shelf	No analysis
11	Deleted
12	Two white socks (wet)	Appellant	Traces of methylamphetamine were detected on the surfaces of the socks
13	Blue and white boxer shorts (wet)	Appellant	Common illicit drugs were not detected on the surfaces of the boxer shorts
14	Black and gold jumper (wet)	Appellant	Traces of methylamphetamine were detected on the surfaces of the jumper
15	Black tracksuit pants (wet)	Appellant	Traces of methylamphetamine were detected on the surfaces of the tracksuit pants
16	Sony Ericson (sic) mobile phone	Appellant	No analysis

The defence evidence at trial

The appellant gave evidence in his own defence. No other evidence was called on his behalf.
The appellant, who was 27 years of age at the time of the search, said that he had been a user of amphetamines on and off since he was approximately 15 or 16 years old and was using amphetamines in the period leading up to his arrest. He said that he used the drug mainly on weekends and special occasions, such as music festivals (ts 124). He said he normally purchased half an eight ball of methylamphetamine weighing 1.75 g. He said his preferred way of using the drug was to smoke it, although he sometimes snorted it or would 'ingest' it (ts 125).
On the Saturday night before he was arrested, he purchased half an eight ball of methylamphetamine at a tavern. He said that the drug was for his use and he did not intend to share it with anyone else (ts 125).
The appellant said that on the night in question, he was at the clothesline when he heard heavy footsteps which he 'figured' came from the police. He said that he quickly ran inside the house through the laundry door and locked it. He then ran to his bedroom and grabbed the plastic bag which contained the drugs he had purchased at the tavern, along with 'a few other bags' that he had previously purchased drugs with. He explained that he kept those bags so that if he needed to, he could lick any residue in them 'to get high' (ts 126, 127).
The appellant said that he ran back down a hallway into the toilet and closed the toilet door (ts 127). He said that the light in the toilet was off. He said he did not know which bag had the drugs in it, so he just ripped at the bags hoping that he would get the right one (ts 128). He said that he knew that the police were trying to get into the toilet. He said that while he was trying to rip open a bag, there was an explosion which dazed him. The next thing he knew was that he was lying in the laundry, handcuffed. He said that there was water gushing around him and that the water leaked into the laundry and soaked him (ts 129).
The appellant said that he had the electronic scales to weigh the drugs that he purchased to ensure that he did not 'get ripped off', and to weigh the amount he intended to use (ts 130).
He acknowledged that the police found $1,000 in his vehicle. He said that he had withdrawn this amount from his bank account for his personal use (ts 131). He said that he used the MSM to mix with the methylamphetamine to give it a better taste, reduce its strength and create more smoke (ts 131).
The appellant said that he had purchased the unused clipseal bags found in the kitchen at a local supermarket (ts 133). He said that he had used the plastic clipseal bags in the rubbish bin to mix drugs before he smoked them (ts 134).
The appellant denied the suggestion that all of the bags that he carried into the toilet had drugs in them (ts 140).
In cross‑examination, the appellant was asked about the solubility of methylamphetamine in water. The appellant gave the following evidence (ts 148 ‑ 149):
HAYLOCK, MS: …
… Mr Armstrong, there was approximately one and a half grams of methylamphetamine found in the toilet bowl. You heard that, didn't you?‑‑‑Yes, ma'am
All right. Now, there's water in the toilet, isn't there? Yes?‑‑‑There was, ma'am, yes.
All right. We heard evidence yesterday that methylamphetamine is water soluble?‑‑‑Is it? Yes, we heard that yesterday, ma'am.
Okay. Well, that's what I'm suggesting to you; there was - there was a lot more methylamphetamine there, wasn't there, originally, than this 1.5 grams?‑‑‑No, ma'am. There was a little bit more, yes, but not a lot more.
Well, methylamphetamine, as we've heard, is water soluble?‑‑‑Yeah.
So I'd suggest to you that there was much more there than this remainder that was found at the bottom of the toilet?‑‑‑But why would there be some in the toilet?
YEATS DCJ: Now, just a minute. Don't ask the question?‑‑‑Oh, sorry, ma'am.
YEATS DCJ: Answer the question.
HAYLOCK, MS: I'm sorry, if you can just answer - answer my question - my question?‑‑‑To my knowledge, ma'am, that the rocks don't turn into water that - until you apply heat, obviously.
…
- - - we heard from Detective Morrish - I won't get into further debate with you about this but we heard that with methylamphetamine crystal, it is water soluble, and I'd suggest to you in - the remainder that was found at the bottom of the toilet bowl was simply that there was much more that you had in those three bags; isn't that right?‑‑‑No, ma'am.
The only other evidence the appellant gave about the solubility of methylamphetamine was later in cross‑examination (ts 156):
Well, I'd suggest to you that there was much more than that there, isn't that right?‑‑‑I'm sorry if it looks like that, but no.
Because methylamphetamine is water soluble, isn't that right?‑‑‑So I'm told.
He said that he tore open the bags over the top of the toilet (ts 159). The appellant said that he did not know how the methylamphetamine got on his clothes (ts 161).

Ground 1

The legal principles

This ground is formulated to reflect the terms of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) which provide:
30.Appeal against conviction, decision on
(1)This section applies in the case of an appeal against a conviction by an offender.
(2)Unless under subsection (3) the Court of Appeal allows the appeal, it must dismiss the appeal.
(3)The Court of Appeal must allow the appeal if in its opinion -
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; …
The test to be applied where it is alleged that a verdict is unreasonable or cannot be supported by the evidence was formulated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 493 as follows:
The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (footnotes omitted)
Their Honours went on to say:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above. (494 ‑ 495) (footnotes omitted)
This test has been applied in this State in such cases as Martinez v The State of Western Australia [2007] WASCA 143, and very recently in Scriva v The State of Western Australia [2010] WASCA 89.
As the State's case on quantity was circumstantial, I must, when undertaking the task of independently assessing the evidence, consider all of the relevant evidence. I must assess the combined weight of all the proved circumstances, and consider whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant possessed an ounce or ounces of methylamphetamine: Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 535; Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578.

The merits of ground 1

In light of the jury's verdict, it must have rejected the appellant's evidence that the only methylamphetamine he possessed was the 1.75 g he had purchased the previous Saturday. Accordingly, in undertaking an assessment of the evidence, I have put to one side the appellant's evidence on quantity and examined the case based on the evidence adduced by the State.
The State's case that the appellant had an ounce or ounces was based on the following circumstances, which were not, in the end, disputed by the defence:
1.the appellant's panicked reaction when he realised that the police were at his house;
2.the appellant's actions in pouring methylamphetamine into the toilet in order to dispose of it;
3.the presence of 1.53 g of methylamphetamine in the remnants of the toilet bowl and the small amount of methylamphetamine in one of the plastic clipseal bags found on the toilet floor (item 1 of the exhibits log);
4.the presence in the toilet of four plastic clipseal bags, one of which contained methylamphetamine while the other three were ripped;
5.the very considerable amount of water that had flown from the broken toilet onto the toilet floor and its surrounds, which took minutes to turn off;
6.the presence in the kitchen of the electronic scales, the empty MSM container and the used clipseal bags in the bin;
7.the presence of methylamphetamine on some of the appellant's clothing;
8.Detective Sergeant Morrish's expert evidence that plastic clipseal bags of the size found in the toilet and kitchen were usually used for larger amounts of drugs (ounces and above); and
9.Detective Sergeant Morrish's evidence that methylamphetamine dissolves in water.
I have not included in this analysis the $1,000 in cash found in the appellant's vehicle. This money was returned to the appellant by the police. Mr McGrath on behalf of the respondent at the hearing of the appeal, conceded that the cash should not be considered part of the State's circumstantial case (appeal ts 26).
The State's case theory was that the quantity of methylamphetamine that the appellant had in his possession, immediately before the distraction device was deployed, had been very largely dissolved by the water which flowed from the broken toilet.
Two matters were central to this theory. First, that the plastic clipseal bags which the police found in the toilet area must have contained ounces of methylamphetamine. Second, and most crucially, that the quantity of methylamphetamine possessed by the appellant nearly all dissolved in the minutes between the deployment of the distraction device and the turning off of the water flowing from the toilet.
As to the first matter, this proposition is based on the evidence of Detective Sergeant Morrish that bags of the size found by the police were usually used for packaging large amounts of drugs - ounces and above. However, he also testified that large bags were sometimes used to package amounts of less than an ounce, and that there was no rule that because a bag was a certain size, it was only used for a certain quantity of drug.
As to the second matter, in order for the jury to come to this conclusion it required, in my view, evidence not just that methylamphetamine in crystalline form was soluble but also evidence as to the rate it dissolves in water. As to the latter, there was no evidence whatsoever.
Detective Sergeant Morrish's brief testimony, to which I have already referred, was the only real evidence about the solubility of methylamphetamine in water. The appellant, although a user of methylamphetamine, did not consume it by dissolving it. He said little more in his evidence than that he accepted Sergeant Morrish's evidence on the subject. His evidence in cross‑examination that '[t]o my knowledge … rocks don't turn into water … until you apply heat' (ts 148) is more a statement of his understanding than his actual knowledge.
Detective Sergeant Morrish's evidence about solubility was not disputed. However, in order for the jury to judge the State's contention that a large quantity had dissolved in minutes, the jury had to know how quickly such a quantity of methylamphetamine could dissolve in water. As to this, the jury could not use their life experience. It was a matter which could not be decided without the assistance of expert testimony. In this case, there was none.
It is tempting to conclude that the large quantity of methylamphetamine washed away in the aftermath of the distraction device. However, in my view, that would be nothing more than a supposition in the absence of evidence that traces of methylamphetamine were found in samples taken from the toilet, laundry and associated drains. No water samples were taken from the scene, save for the sample of water taken from the drain near the toilet (item 5 of the exhibits log), which, on analysis, revealed the presence of no common illicit drugs. In my mind, this points away from a large quantity of methylamphetamine dissolving after the deployment of the distraction device.
I am conscious that the police discovered electronic scales and an empty container of MSM: common indicia of drug‑dealing. Other common indicia were not found, such as lists recording drug transactions, amounts of cash which are unaccounted for, weapons, a security system, and incriminating telephone and SMS communications. I add to this, the absence of evidence of any thorough forensic examination.
While the evidence raises a strong suspicion that the appellant dealt in methylamphetamine in the past, the key issue was whether the evidence established that on this particular occasion he possessed an ounce or ounces of the drug. I do not think it did, and I do not see how the jury could have rationally come to that conclusion.
I have, in undertaking my assessment of the evidence, considered all of the circumstantial facts relevant to the issue of quantity to which I earlier referred. I have paid full regard to the benefit the jury had of seeing and hearing the witnesses. On the case that was put to the jury by the State, and on the evidence adduced in support of it, I am firmly of the view that it would be dangerous in all the circumstances to allow the guilty verdict to stand. In my opinion, it was not open to the jury to be satisfied beyond reasonable doubt that on the night in question the appellant possessed the larger quantity of methylamphetamine alleged by the State.
For these reasons, I would uphold ground 1.

Ground 2

This ground contends that her Honour failed to fully and fairly put the defence case to the jury. In my view, this ground has little merit and can be dealt with briefly.
It is well settled that a trial judge must fairly put before the jury the accused's case: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41]; The State of Western Australia v Pollock [2009] WASCA 96 [5], [146] ‑ [155].
The appellant does not complain that her Honour failed to fairly put the defence case during her summing up. Her Honour made it very clear in the course of her summing up that the appellant's case was that he possessed no more than 1.7 g of methylamphetamine (ts 189).
The appellant's complaint in ground 2 relates to her Honour's response to a note sent to her from the jury during its deliberations. The note was in these terms (ts 213):
How soluble is crystal meth? How soluble is MSM? Is it highly soluble?
Her Honour accurately told the jury '[t]here's very little evidence. I can't answer your question' (ts 215). She then read to the jury that part of Detective Morrish's evidence (ts 69) to which I referred earlier in these reasons.
The appellant submitted that her Honour should have, in response to the jury's enquiry, referred to the appellant's evidence about the solubility of methylamphetamine and her failure to do so amounted to a failure to fairly put the defence case.
Neither of these contentions is correct.
As a matter of law, a trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice: Domican v The Queen (560) (Mason CJ, Deane, Dawson, Toohey, Gaudron & McHugh JJ).
In any event, as I have already pointed out, the appellant's testimony about the solubility of methylamphetamine was essentially an acknowledgement of what he had heard from Detective Sergeant Morrish. To the extent that it was not - here I am speaking of the statement at ts 148 '[t]o my knowledge … the rocks don't turn into water … until you apply heat' - it is not a matter with which he apparently had personal experience.
The appellant's experienced trial counsel did not request that the appellant's evidence on solubility be read to the jury. The only conclusion which can be drawn from this is that defence counsel, quite correctly in my opinion, viewed the appellant's evidence on the topic as having no real value to the jury.
Finally, her Honour's response that there was no evidence on the rate of solubility was accurate and favourable to the appellant.
In my opinion, ground 2 has not been made out and should be dismissed.

Conclusion

In my opinion, ground 1 has been made out, but ground 2 has not. I would set aside the conviction. I would not order a retrial because, in my opinion, the evidence was insufficient to justify the conviction: Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317, 321. Accordingly, a judgment of acquittal on the offence of possession of methylamphetamine with intent to sell or supply should be entered.
However, on the appellant's own evidence he committed the offence of possession of methylamphetamine with respect to the half an eight ball he had at the time that the police executed the search warrant.
Section 30(5)(c) of the Criminal Appeals Act allows this court to enter a judgment of conviction for an offence other than the offence for which the appellant was convicted if it is satisfied that the jury itself was satisfied of the facts which prove the alternative offence. I have no doubt that the jury would have been satisfied beyond reasonable doubt that the appellant possessed 1.7 g of methylamphetamine. In my view, this court should enter a judgment of conviction for an offence of possession of methylamphetamine: Misuse of Drugs Act, s 6(2).

For my part, because the appellant has been in custody since his conviction, I would impose no penalty upon him pursuant to s 39(2)(a) of the Sentencing Act 1995 (WA).

Orders

In my opinion, the orders of the court should be:
1.That leave to appeal on ground 1 be granted.
2.The appeal be allowed on ground 1, but otherwise dismissed.
3.The conviction of the appellant on 16 September 2009 be set aside.
4.That a verdict of acquittal be entered on the charge of possession of methylamphetamine with intent to sell or supply.
5.Pursuant to s 30(5)(c) of the Criminal Appeals Act, this court enters a judgment of conviction for the offence of possession of methylamphetamine.
6.Pursuant to s 39(2)(a) of the Sentencing Act, this court imposes no sentence.
7.The appellant be released immediately.