Beins v The State of Western Australia
[2006] WASCA 102
•22 MAY 2006
BEINS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 102
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 102 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:208/2005 | 22 MAY 2006 | |
| Coram: | ROBERTS-SMITH JA | 22/05/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | EDWARD JOHN BEINS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail pending appeal Appeal against conviction Possessing methylamphetamine with intent to sell or supply Principles applicable to bail pending appeal Likely prospects of success on appeal |
Legislation: | Bail Act 1982 (WA), Sch 1 Pt C cl 4 |
Case References: | Fermanis v The State of Western Australia [2005] WASCA 212 Jones v The State of Western Australia [2006] WASCA 79 R v Tieleman (2004) 149 A Crim R 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BEINS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 102 CORAM : ROBERTS-SMITH JA HEARD : 22 MAY 2006 DELIVERED : 22 MAY 2006 FILE NO/S : CACR 208 of 2005 BETWEEN : EDWARD JOHN BEINS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MAZZA DCJ
File No : IND 325 of 2004
Catchwords:
Criminal law and procedure - Bail pending appeal - Appeal against conviction - Possessing methylamphetamine with intent to sell or supply - Principles applicable to bail pending appeal - Likely prospects of success on appeal
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Legislation:
Bail Act 1982 (WA), Sch 1 Pt C cl 4
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant : Mr R K Williamson
Respondent : Mr M R Jones
Solicitors:
Applicant : Williamson & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Fermanis v The State of Western Australia [2005] WASCA 212
Jones v The State of Western Australia [2006] WASCA 79
Case(s) also cited:
R v Tieleman (2004) 149 A Crim R 303
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1 ROBERTS-SMITH JA: This is an application for bail pending appeal. The applicant was convicted on 15 September 2005 following a trial before a District Court Judge and jury on one count of possessing methylamphetamine with intent to sell or supply contrary to section 6(1)(a) of the Misuse of Drugs Act 1981, that being count 1 on the indictment and one count of possession of methylamphetamine as an alternative verdict contrary to section 6(2) of the Misuse of Drugs Act, that being count 2.
2 Count 1 involved 79 grams of the drug at 17 per cent purity and count 2 involved 5.7 grams at 23 per cent purity. An appeal notice seeking leave to appeal against conviction was filed on 9 November 2005. Pullin JA granted an extension of time and leave to appeal on 3 February 2006.
3 There are two grounds of appeal and they are as follows:
"1. The learned judge erred in law by failing to direct the jury that there was no evidence in support of the prosecutor's suggestion that the appellant was holding the drug for someone such as Mr Paparone, and therefore they should reject that hypothesis of guilt as speculative.
Particulars
- 1.1 There was no evidence of any communication between Mr Paparone, or any other person, and the appellant, the content of which was capable of raising the inference that the appellant agreed to act as bailee of the drug for Mr Paparone or anyone else.
1.2 When the learned judge said to the jury that the prosecutor had submitted to them that the appellant 'intended to … supply [the drug] in the sense that he was looking after it for someone, perhaps Mr Paparone, who, after all, had been raided by police in June and was on bail, and therefore would not want to be holding any of the drug himself' he led the jury to wrongly believe that there was evidence in support of that proposition.
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- 2. The learned judge erred in law by failing to direct the jury that there was no evidence in support of the prosecutor's suggestion that the appellant was declaring the proceeds of the sale of drugs to be income legitimately earned by his tattooing work and therefore they should reject that hypothesis as speculative.
Particulars
- 2.1 There was no evidence which was capable of raising the inference that the appellant sold drugs for cash or other consideration.
2.2 When the learned judge said to the jury in connection with the fact that the police did not find any cash in the appellant's house, 'Mr Foulsham [the prosecutor] suggested to you that tattooing is a good cover for hiding money, because tattooing is a cash business, and the sale of drugs is also a cash business. So that's the reason why no large amounts of cash were found in the accused's house, because he didn't need to keep it in his house. He could have banked it the guise of money derived from his tattooing' he led the jury to believe that there was evidence in support of that proposition."
5 According to a letter from the Department of Corrective Services annexed to Mr Williamson's affidavit it appears that the applicant could have been released on bail any time after 27 April this year and that his earliest eligibility date for release on his current sentences is 16 May 2007.
6 The principles which apply to this application are not in dispute. By cl 4 of Pt C of Sch 1 to the Bail Act, in deciding whether or not to grant
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- bail to an offender awaiting the disposal of appeal proceedings, the Judge must consider whether there are exceptional reasons why the offender should not be kept in custody and if there are, even then shall grant bail only if satisfied bail may properly be granted having regard to the ordinary considerations relevant to any application for bail.
7 Those ordinary considerations are set out in cl 1 and cl 3 of Pt C.
8 Where the prospect of success of an appeal is one of the matters relied upon as establishing exceptional reasons, something more than an arguable case must be shown. It has been expressed in various ways, such as that the appeal is "most likely to succeed" or that there are "strong grounds for concluding the appeal would be allowed".
9 In Fermanis v The State of Western Australia [2005] WASCA 212 I explained at [15] and [16] that there is no particular distinction between expressions of that kind. They do not purport to set some specific threshold of potential success. Each is predicated upon the notion that the prospect of success must be sufficiently likely as to give rise to a real concern that the applicant would suffer an injustice by having been kept in custody on an unsound conviction or sentence.
10 Furthermore, where delay is also one of the factors relied upon as constituting either of itself or in combination with some other factor an exceptional reason within the meaning of cl 4, as a general proposition, the authorities reflect that it is necessary for the Judge to give consideration to the strength of the grounds of appeal and the effect of the applicant serving a substantial portion of his or her sentence, thus rendering a successful appeal a hollow victory.
11 The mere fact that leave to appeal has been granted does not advance an argument that there are exceptional reasons for the purposes of cl 4 Pt C of Sch 1. Why that is so is explained in Jones v The State of Western Australia [2006] WASCA 79 at [10] to [17].
12 In his affidavit Mr Williamson deposes as to the personal circumstances of the applicant. He deposes that according to his instructions, the applicant is 40 years old and has two children, a daughter aged 17 and a son aged 14 years. They live with their mother at Kewdale which is about a 10 minute walk from the applicant's own home.
13 Before his imprisonment he saw his daughter nearly every day and his son every day. The son would visit the applicant every day after school. They stayed with him every second weekend and half of the
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- school holidays. If he were to get bail he would see his son every day and his daughter about four times a week; apparently she now has a casual job. Once a week his children have been visiting him in prison but that is distressing to them and to him. If he was on bail he would be able to resume helping his son with his school work. Since his imprisonment the son's school work has suffered and the applicant is worried about that and about the company he now keeps.
14 He says, according to Mr Williamson, that if he got bail he would spend time with his son and he would not have so much time to spend with others who are a bad influence on him. Furthermore, until his imprisonment the applicant was self-employed as a tattoo artist working from home at Cloverdale. He is apparently well known in tattooing circles and has a good reputation. Were he to get bail he would resume his work as a tattoo artist. If he were not able to work to his full capacity from home he could get work at a tattoo shop without difficulty. The applicant says he needs to earn an income.
15 Before going to prison he was paying his children's mother $200 a fortnight and he is keen to resume doing that. Their mother does not work and the children have suffered a reduced standard of living since he has not been able to pay maintenance. He also owes at least $14,000 to his sister for legal fees. He owns the house and land at Clifton Hills; before he was charged he owed $10,000 on the mortgage but the Director of Public Prosecutions froze the property and the bank has since added various charges to the amount he owes which he now understands to be about $30,000. The applicant can arrange a surety and has indicated he would abide by any condition of bail.
16 These personal matters of course only come into play under cl 1 and cl 3 of Pt C of Sch 1, that is to say, the ordinary considerations to which I have referred as applying generally to any application for bail. And as I have explained, they do not arise at all for consideration unless and until the applicant has demonstrated under cl 4 that there are exceptional reasons why he should not be kept in custody pending the hearing of his appeal.
17 Mr Williamson submitted to me today that the applicant has a very strong appeal with very good prospects of success. It will be appreciated from what I have said that expressing it in that way does not reflect the height of the threshold which the applicant has to reach having regard to the authorities on the meaning of the term in cl 4. As in Jones, the first question on this application is, as I have stated, whether or not there are
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- exceptional reasons why the applicant should not be kept in custody pending the hearing of his appeal.
18 The starting point for any consideration of the substance of the case seems to me the enlivening of s 11 of the Misuse of Drugs Act under the circumstances. There is no dispute that the quantity of methylamphetamine the subject of each count raised the s 11 presumption, nor is there any dispute, as I apprehend it, about the effect of that presumption.
19 What that does is provide evidence of an intent to sell or supply sufficient for the jury to make a finding of that beyond reasonable doubt unless the applicant persuades the jury on the balance of probabilities that in respect of the particular charge he did not have an intent to sell or supply. In other words, it effectively reverses the onus of proof with respect to that element. The burden of proof, as I have indicated, is on the balance of probabilities, not the burden of proving it beyond reasonable doubt which of course always remains upon the prosecution to prove its case.
20 The point at issue in relation to ground 1 is that the prosecutor put to the jury in relation to the explanation given by the applicant that there were some, what he suggested were, I think, obvious possibilities, as to how the drug had come into the applicant's possession or why, and why there was or might not be in the case evidence of cash and other incidentals of drug dealing.
21 Without attempting to give a precise summary of the evidence the applicant told the jury that his occupation was tattoo artist, that one of his customers was a Mr Paparone, that he was at Paparone's home when the police searched it and found amphetamine manufacturing equipment. Subsequent to that, in payment for a big tattooing job, Paparone gave to him what the applicant said he understood to be three ounces of amphetamines.
22 Soon afterwards he tried some of the drug and thought it was weak so he decided to use the contents of the other smaller bag, the subject of count 2, before he would resume using any from the first bag which was the subject of count 1. The jury convicted the applicant on count 1 as charged, that is, possession with intent to sell or supply but acquitted him on the intent on count 2, finding him guilty of mere possession of the bag containing 5.7 grams of amphetamine.
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23 In cross-examination the applicant denied the prosecutor's suggestion to him that he got money from selling amphetamine and paid it into his bank account, he also denied what the prosecutor put to him about him looking after the drug for Paparone. He said: "No, we done a deal and it was mine."
24 In the course of his address to the jury the State prosecutor suggested they might think that the only reason the applicant had the drug in each instance was because he intended to sell or supply it to others and that what he had suggested to the applicant in cross-examination, namely that the tattooing business was a good way of dealing in drugs because it is a cash business and drug money can be added in with the income from the tattooing and paid straight into the bank and nobody is any the wiser and suggested that was what had happened in this case.
25 The prosecutor further put to the jury that although the applicant was saying that he got it from Paparone and the jury knew that Paparone was in the business of manufacturing amphetamine because there was evidence that he was caught with an amphetamine factory and the applicant was actually there at the time, that fact suggested a close association between the two, not just a casual business relationship as selling amounts of amphetamine in return for tattoos.
26 It was suggested, the prosecutor said, that the applicant was at the top of the supply chain because he said that he got it from the manufacturer and he suggested what the State was putting forward was that he, (that is the applicant), was working with Paparone and was looking after it for Paparone because on the evidence the latter had been searched and the amphetamine factory was found at his place in June, which was three months prior to the drugs being found with the applicant.
27 The prosecutor submitted to the jury that if Paparone had come and given the drugs to the applicant a week before, he would have had a very good reason for doing so because he, Paparone, was then on bail on amphetamine charges. The prosecutor suggested another possibility was that the applicant was holding the drug for Paparone on the basis that he could return it in due course and receive some reward.
28 The trial Judge gave directions to the jury about this including warning them that the Court was no place for guess work, speculation or arriving at theories unsupported by the evidence. He directed them to approach the case in a logical way. He gave directions about s 11 of the
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- Misuse of Drugs Act and how that operated and described how inferences may be drawn.
29 His Honour reiterated the suggestions which had been made to the jury by the prosecutor as to what could have been the reason why no large amounts of cash were found in the applicant's house and how it was that he could have been in possession of the amphetamine. He pointed out that according to the prosecution the evidence established - or at least the jury should accept the evidence established - that the amphetamine found was close to the manufacturer because it was still wet.
30 He reminded the jury that the prosecution had submitted to them that the evidence showed the applicant may have either intended to sell or supply it, sell it or supply it in the sense that he was looking after it for someone, perhaps Paparone, who had been raided by police in June and was on bail and therefore would not want to be holding any of the drugs himself.
31 The submissions advanced both before the trial Judge and in the Appellant's Case and to be advanced on the appeal are in substance that there was no evidence for what has been variously described as the Paparone or bailment theory. Mr Williamson submits that there was no evidence of any communication between Paparone and the applicant capable of raising the inference that the applicant actually agreed to act as bailee of the methylamphetamine for Paparone. Likewise, he submits there was no evidence that the absence of cash could be accounted for by the applicant banking drug dealing money in his tattooing business receipts.
32 The respondent's submission again in substance emphasises the combined weight of the methylamphetamine was almost three ounces which according to figures provided by an expert witness, Detective Horne, had a value between $18,000 and $24,000 depending on the quality and circumstances of sale.
33 It is conceded that no indicia usually associated with the sale of drugs or the personal use of drugs were found at the applicant's house. However, the State reiterates the submission earlier made that the applicant gave evidence that he worked as a tattoo artist and his customers always paid in cash. He testified that he did not keep any business records and his income was approximately $500 per week before tax.
34 It is submitted that the State relied at trial upon the s 11 presumption and simply put before the jury for its consideration two alternative
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- scenarios supported by the evidence, acceptance of either of which would lead to a finding that the applicant possessed the drugs with an intent to sell or supply.
35 The first scenario, based on the quantity of drugs found, was that the applicant was going to sell the drug himself. The second scenario, based on the applicant's testimony concerning Paparone, was that he was warehousing the drug for Paparone. This is said to be based on the applicant's evidence and a lack of indicia of sale of drugs which supported the inference that he was holding them for another.
36 The State reiterates the submission that the absence of cash was capable of supporting the inference that the applicant had the opportunity to launder the money through his tattoo business.
37 It seems to me there is a degree of confusion on both sides in relation to the proper operation of s 11 of the Misuse of Drugs Act and the effect of evidence sought to be relied upon either to support the presumption or to refute it.
38 Mr Williamson submits that the only difference between the way the State presented its case on counts 1 and 2 was the bailment theory and so what was put to the jury about that must have influenced them. However, apart from the Paparone connection there is an obvious distinction between counts 1 and 2 - that being that the quantity of the drug in respect of count 1 was 79 grams.
39 The Court of Appeal may be persuaded that distinction was sufficient to reasonably and rationally account for the jury returning the differing verdicts, although not on the face of it in any way dependent upon what has been described as I have indicated, as the "warehouse" or "bailment for Paparone theory".
40 Further, to describe the absence of packaging, of cash, of scales and any other incidents of drug dealing as being "cogent evidence that he did not intend to sell or supply" as it is described by counsel for the applicant, is logically unsound. The absence of evidence is by definition not evidence of anything. It seems to me the State tends to be under that same misapprehension. The presumption in s 11, as I have explained, was brought into play by the quantity of the drugs found. The onus therefore was on the applicant to prove on the balance of probabilities that he did not have an intent to sell or supply.
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41 Mr Williamson appears to be contending that the argument put to the jury by the prosecution about the applicant's evidence involved calling upon the jury to make a positive finding that the applicant was holding the drugs on behalf of Paparone. That, I think, misconceives the nature of the argument. What was in issue at that point was whether the jury was able to accept the applicant's explanation on the balance of probabilities.
42 The Court of Appeal might take the view that all that was being put by the arguments advanced were possibilities which were sufficiently real to lead the jury to a view that, in light of the evidence as a whole, the applicant's evidence could not be accepted in respect of count 1. In such a circumstance the s 11 presumption would prevail.
43 The applicant does have a reasonable prospect of success but I am not persuaded there is such a significant prospect of the applicant succeeding on either ground as to either alone or with the likely delay before hearing amount to exceptional reasons why he should not be kept in custody pending his appeal.
44 The asserted likely delay is said to be that the applicant, by the end of this month, will have served 8½ months of his total sentence of 3 years and 4 months. He will not be eligible for release on parole until 20 May 2007 so still has approximately a year to serve before then. His appeal may be listed in August or more likely September this year.
45 If having heard the appeal the Court of Appeal then considers his prospects of success are so good as to constitute exceptional reasons the Court could revisit the question of bail pending judgment should an application then be made, thus for present purposes he is contemplating probably only from now until September before that point.
46 I reiterate that on the material before me I am not persuaded there is such a significant prospect of the applicant succeeding as to, either alone or with the likely delay, amount to exceptional reasons why he should not be kept in custody pending the hearing of the appeal. Accordingly the application must be dismissed.