Beins v The State of Western Australia [No 2] - [2006] WASCA 272

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BEINS -v- THE STATE OF WESTERN AUSTRALIA [NO 2] [2006] WASCA 272

CORAM: ROBERTS-SMITH JA
PULLIN JA
BUSS JA

HEARD: 11 AUGUST 2006

DELIVERED : 13 DECEMBER 2006

FILE NO/S: CACR 208 of 2005

BETWEEN: EDWARD JOHN BEINS
Appellant
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:

Appeal - Criminal law and procedure - Appeal against conviction - One offence of possession of methylamphetamine with intent to sell or supply - One offence of possession of methylamphetamine - Prosecutor suggesting appellant may have been holding drugs for another as bailee - Prosecutor suggesting appellant putting drug money through tattoo business - Whether speculative - Whether trial Judge should have directed jury to disregard - Whether miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(c), s 30(4), s 30(5)
Misuse of Drugs Act 1981 (WA), s 11

Result:

Appeal allowed
Conviction quashed
Retrial ordered

Category: A

Representation:

Counsel:

Appellant: Mr R K Williamson
Respondent: Mr L Hobson

Solicitors:

Appellant: Williamson & Co
Respondent: State Director of Public Prosecutions

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

Abbott v Western Australia (2005) 152 A Crim R 186
Beins v The State of Western Australia [2006] WASCA 102
Bruce v The State of Western Australia [2006] WASCA 236
Darkan v The Queen (2006) 80 ALJR 1250
Dyers v The Queen (2002) 210 CLR 285
Fox v Percy (2003) 214 CLR 118
Gerakiteys v The Queen (1984) 153 CLR 317
King v The Queen (1986) 161 CLR 423
Lander v The Queen (1989) 52 SASR 424
R v Baring (2005) 92 SASR 117
R v ITA (2003) 139 A Crim R 340
Reid v The Queen [1980] AC 343
RPS v The Queen (2000) 199 CLR 620
Spiteri v Visyboard Pty Ltd [2005] VSCA 132
Weiss v The Queen (2005) 224 CLR 300

Case(s) also cited:

Anikin v Sierra (2004) 79 ALJR 452
Luxton v Vines (1952) 85 CLR 352
Nassoor v Nette (1937) 58 CLR 446
Parker v The Queen (1997) 186 CLR 494
R v Wilkes (1948) 77 CLR 511

ROBERTS-SMITH JA: This is an appeal against conviction. The appellant 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 simple possession of methylamphetamine (as an alternative verdict) contrary to s 6(2) of the Misuse of Drugs Act. That was an alternative to count 2, which had charged possession with intent to sell or supply.
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.
The appellant was sentenced to 3 years 4 months' imprisonment on count 1 and 6 months' imprisonment on count 2 (to be served concurrently with that on count 1). An order was made that he be eligible for parole. He was also declared to be a drug trafficker.
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 against conviction on 3 February 2006.
The appellant subsequently applied for bail pending appeal. That application was dismissed on 22 May 2006 (Beins v The State of Western Australia [2006] WASCA 102).
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
1.1There 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.
1.2When 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.
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
2.1There was no evidence which was capable of raising the inference that the appellant sold drugs for cash or other consideration.
2.2When 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."
As I observed in my reasons for dismissing the bail application, 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 in the circumstances of this case. 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.
What the section does is deem any quantity of drug over a prescribed amount to be sufficient evidence of an intent to sell or supply for the jury to make a finding of that beyond reasonable doubt, unless the appellant 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 on an accused of proving they did not have an intent to sell or supply as I have indicated, is on the balance of probabilities. The burden of proving the offence beyond reasonable doubt of course always remains upon the prosecution (Abbott v Western Australia (2005) 152 A Crim R 186).
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 appellant that there were some, what he suggested were obvious, possibilities as to how the drug had come into the appellant's possession or why, and why there was or might not be in the case evidence of cash and other incidentals of drug dealing.
I will give a brief summary of the evidence. The appellant told the jury that his occupation was that of tattoo artist, that one of his customers was a Mr Paparone, and 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 appellant said he understood to be three ounces of amphetamines.
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 appellant 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.
In cross‑examination the appellant 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."
In the course of his address to the jury the State prosecutor suggested they might think that the only reason the appellant 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 appellant 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. He suggested that was what had happened in this case.
The prosecutor further put to the jury that although the appellant was saying that he got the drugs 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 appellant was actually there at the time, that fact suggested a close association between the two, not just a casual business relationship selling amounts of amphetamine in return for tattoos.
It was suggested, the prosecutor said, that the appellant 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 the appellant was working with Paparone and was looking after the drugs 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 appellant.
The prosecutor submitted to the jury that if Paparone had come and given the drugs to the appellant 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 appellant was holding the drug for Paparone on the basis that he could return it in due course and receive some reward.
The trial Judge gave directions to the jury about this including warning them that the court was no place for guesswork, 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 Misuse of Drugs Act and how that operated and described how inferences may be drawn.
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 appellant'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.
He reminded the jury that the prosecution had submitted to them that the evidence showed the appellant 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.
The submissions advanced both before the trial Judge and in the Appellant's Case and now 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 appellant capable of raising the inference that the appellant 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 appellant banking drug dealing money in his tattooing business receipts.
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.
It is conceded that no indicia usually associated with the sale of drugs or the personal use of drugs were found at the appellant's house. However, the State reiterates the submission earlier made that the appellant 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.
The respondent submits that the State relied at trial upon the s 11 presumption and simply put before the jury for its consideration two alternative scenarios supported by the evidence, acceptance of either of which would lead to a finding that the appellant possessed the drugs with an intent to sell or supply.
The first scenario, based on the quantity of drugs found, was that the appellant was going to sell the drug himself. The second scenario, based on the appellant's testimony concerning Paparone, was that he was warehousing the drug for Paparone. This is said to be based on the appellant's evidence and a lack of indicia of sale of drugs which supported the inference that he was holding them for someone else.
The State reiterates the submission that the absence of cash was capable of supporting the inference that the appellant had the opportunity to launder the money through his tattoo business.
The appellant's evidence‑in‑chief was that he had a serious car accident in 1995 in which he was badly injured, that he subsequently had to have many operations, that he suffered considerable pain and so about 1996 he began taking amphetamines to overcome the pain. The advantage of taking amphetamines instead of analgesics or pharmaceutical or prescription painkillers was that the latter made him drowsy and depressed and were ineffective, whereas amphetamines did not. He obtained the amphetamines from customers who came to him for tattooing work.
The appellant testified he had met Paparone about a year before he was charged. A friend told him he knew someone who wanted a lot of tattooing done. He told the friend to bring the person around. Paparone came to him and made a booking for the following week. At one stage Paparone telephoned him and the appellant went to Paparone's house. They were discussing tattoos when the police raided the house.
The appellant said he later did some tattoos on Paparone's arm. Paparone wanted more work done. According to the appellant, Paparone offered to pay him in "speed", but he told Paparone that although he would always accept that as a gift, he wanted to be paid cash. Eventually he agreed to take the amphetamines instead. Paparone agreed to give him 3 ounces of speed for a tattoo to cover his back. The appellant's evidence was that a full back tattoo job would cost at least $9000.
He said when Paparone came for another session while the appellant was still working on Paparone's arm, Paparone gave him the 3 ounces. He told the appellant it was the same as his personal supply, which he produced and some of which they both then used. That was about a week before the police raided the appellant's shop.
When he later tried the drug Paparone had given him, the appellant found it was poor quality; it did not have much of an effect on him. He telephoned Paparone to complain. They argued about the quality of the drug. He did not see Paparone after that.
The appellant's evidence was that the 5.7 grams in the other bag found had nothing to do with Paparone. That was an amount he had accumulated from various smaller quantities he had been given by different customers. He just mixed them all together in the same bag. He said it would have taken him about six days to get through the 5.7 grams. He could not say how long it would have taken him to get through the 79 gram bag, but he was probably using about 3 grams a day.
In cross‑examination, the appellant said he did his tattooing work from home. He had no sign outside, but did have cards. He kept no records. People always paid him in cash. He agreed the 79 grams of amphetamine was damp when found by police.
He agreed he had a television set in his bedroom connected to a surveillance camera which viewed past the front door towards the front of the property, where he kept his motor bike. He said the camera was focused on the bike, but conceded anyone who wanted to come to the front door would have to walk past the bike and he would know who was at the front door when they knocked.
Asked about the police raid on Paparone's premises in June 2003, he agreed he was there in the kitchen at the time. He knew then that Paparone was manufacturing amphetamines, although he had not seen him actually doing it. He saw the manufacturing equipment when the police found it.
The appellant agreed that he knew Paparone was on bail when Paparone gave him the 79 grams of amphetamine.
Later, the cross‑examination turned to the issue of cash (BAB 94 ‑ 95):
"You have told us that tattooing is a cash business, haven't you?‑‑‑Yes.
So if you were - and I suggest to you that you were trading in drugs and that the tattooing was a good cover for trading in drugs?‑‑‑No, no. I just tattooed for money and people would give me gifts for a bit of extra work.
And tattooing is a good way - if you get cash from selling drugs, you can make out that it's part of your tattooing business, can't you?‑‑‑No, I'm just into tattoos. I just like doing tattoos as tattoos and that's what I'm interested in.
Because it's a cash business?‑‑‑Yeah, which is good.
And I suggest to you that you mix money from the sale of your drugs with the money from the tattooing so that the police and the tax authorities et cetera, et cetera can't ‑ ‑ ‑"
At that point, counsel for the appellant objected on the ground there was no evidentiary basis for that suggestion as there was no evidence of cash having been found. The State prosecutor said what he was seeking to suggest was that there did not have to be cash on the premises because the appellant could put it straight into the bank and say it was from his tattooing business. The trial Judge allowed the questioning to continue on that basis (BAB 96):
"FOULSHAM, MR: Well, I put it to you that that's what you've done, you get money from selling amphetamine and then you pay it into your bank account ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ don't you?‑‑‑No, I don't. No, I don't at all. I get money for tattooing."
Finally, after further questions about the appellant's own drug use, (BAB 98):
"Now, Paparone was on bail at this time, wasn't he?‑‑‑Yes.
When he gave you that drug, you say, or when he sold you that drug?‑‑‑Yes.
I put it to you that you were looking after it for him?‑‑‑No. No, we've done this deal and it was mine.
It was yours?‑‑‑Yeah, it was mine.
Yours to sell to somebody else?‑‑‑No, mine to have - to have the whole lot."
On this, the State prosecutor said to the jury in his closing address (BAB 99 ‑ 100):
"We say that the only reason he had it was because he intended to sell or supply it to others, and what I have been suggesting in cross‑examining him is that the tattooing business is quite a good way, if you are into drug dealing, of dealing in drugs because it's a cash business, and any cash business would come into that category - maybe even a cafe or any business where the customer is paying cash - drug money can then be added in with the income from the tattooing and paid straight into the bank and nobody is any the wiser, and I suggest to you that that's what is happening in this case.
Of course my learned friend will say, well, of course there was no cash found, but when you can mix it up like that you don't have to have large sums of cash in the house like some drug dealers do. We have had evidence that some drug dealers sometimes keep large amounts of cash in the house, but you could have a bank account where you pay in the money from your tattooing and then you pay in the cash as well which you get from the sale of drugs, and nobody is any the wiser.
He says he doesn't keep records of his tattooing - he has given that evidence - so how is anybody to know how to trace the money? So we say that that is something that you can look at when you are considering these issues, and we say that the only reason he had this very large amount of amphetamine in his premises was for the purpose of sale or supply. We also say if he is so addicted to methylamphetamine that he needed such a large quantity, there would have been traces of methylamphetamine around. You would expect to see coffee cups or maybe spoons or something with traces of methylamphetamine on them.
Of course they could have been washed, but you would expect something of that nature around - or syringes or something like that. We say if he was so addicted, you might well expect there to be syringes around; but there was nothing of that nature either. I know there were no little bags, there were no little scales but, as I say, there was also no evidence of drug‑taking, and if someone is so addicted to amphetamine, you would expect they might be a little bit careless with leaving things like syringes or coffee cups with traces of amphetamine in them around."

He went on to make the point that the amphetamine was still damp and (so) was close to the supplier. He went on (BAB 100 ‑ 101):
"He's saying that he got it from Mr Paparone, and we know that Mr Paparone was in the business of manufacturing amphetamine because we have got evidence that he was caught with an amphetamine factory and that the accused was actually there at the time. So, if that's the case, I would suggest that suggests a close association between the two, not just a casual business relationship of selling amounts of amphetamine in return for tattoos.
In my submission, that suggests some sort of business relationship between the two and it suggests that the accused is at the top of the supply chain because he says that he got it from the manufacturer, and we suggest that he was either intending to sell it when it dried out, or he was working with somebody else, Paparone, and was looking after it for Paparone because you have to remember that the evidence is that Paparone was searched and the amphetamine factory was found at his place in June, whereas this search didn't happen until 23 September, so there is a three‑month gap between the two, and if Paparone came and gave it to him a week before, Paparone would have a very good reason for not wanting to hold it himself if he was on bail on amphetamine charges.
The other possibility is that he was holding it for Paparone on the basis that he return it to Paparone in due course in return for something - some reward. The prosecution says that tattooing is a cash business and that that is a good way to hid the money. We also say that - I know that you can get these surveillance devices, they are available and if people want them, they can have them but, on the other hand, if you are in the business of selling drugs and you do want to know who comes to your front door, and the way the accused described it as being set up, it certainly was looking at the front of the premises and the motorbike was fairly close to the front of the premises, so you would be able to see the front of the premises when somebody called at the door, and that gives you an opportunity to find out who it was when he looked and decided whether he wanted to answer the door or not or pretend to be away.
We say that obviously you wouldn't convict him simply because he had a surveillance device, but when you look at the evidence, when you look at this very large amount of amphetamine that was found in his presence, it's one of those factors that you can just look at and consider."
The appellant's trial counsel began his address by listing the range of items (glucose or other cutting agent, electronic scales, empty bags, customer lists and large amounts of cash) which he suggested were usually found associated with drug dealers but not with drug addicts and pointed out the appellant was not found to have had a single tool of the drug trade. Instead, the police found "a substantial quantity" of the drug to which he was addicted. Counsel argued the fact that the drug Paparone gave the appellant was only 17 per cent pure helped prove the appellant did not intend to sell or supply it. He asserted that "street level" purity is 30 to 60 per cent, and he advanced certain arithmetical calculations intended to show the quantity would only have been worth about $6800, which the appellant was not happy to get for a tattoo job worth some $9000.
Mr Williamson told the jury there was no doubt Paparone was a drug dealer and manufacturer. He said Paparone was a convicted drug criminal who had been caught by police red‑handed soon after he was out of gaol for drug dealing and manufacturing and not long before the day they went to the appellant's house and there was no doubt there was a connection between Paparone and the appellant. He said that connection had to do with tattooing and there was no evidence to connect the appellant to drug dealing. He put to the jury that the appellant had "lunged" at the opportunity to take a relatively large amount of amphetamine in payment for a $9000 tattoo. He said the surveillance television monitor was a cheap gadget which proved nothing and was simply a "red herring".
I interpolate here that what counsel had told the jury about the purity of amphetamine at street level, was not an accurate reflection of the evidence.
Detective Senior Constable Horne had been asked about the purity and cost of the drug in his evidence‑in‑chief. That went as follows (BAB 47 ‑ 48):
"… purity … does vary considerably, considering a number of factors: where the person is in the supply chain. Commonsense would be if you are higher up in the chain, closer to the manufacture stage, the drug would be purer. As it moves down the line to street level, then it's going to decrease in purity because people add dilutants to it to increase its volume and the actual quality will drop.
What's the normal dilutant that they use?---Like I said, it does vary a lot but generally anything below 30 per cent you would think would be street‑value drugs, even on the lower end of the scale.
Sorry, that wasn't the question. I really asked what they used to dilute the ‑ ‑ ‑?‑‑‑My apologies. Sorry. There's a number of things they use: epsom salts, glucose; for the crystal they use a product called dimethylsulfone, which is MSN, which is like a health product, anything that really can be added to increase the volume. If you have one ounce of methylamphetamine and add some glucose to make it into two ounces, it increases the profit margin.
How is methylamphetamine sold? What sort of volumes?‑‑‑It varies to exactly where you are in the supply chain. If you are a street user, then you probably start off buying points, what are called points.
What is a point?‑‑‑Point 1 of a gram, so one‑tenth of a gram and that may go up. You buy half a gram, a gram, an eight ball, which is an eighth of an ounce or 3.5 grams approximately, up to - into ounces, half ounces and if you are higher up, then you buy in pounds and kilograms.
Can you give us an estimate of first of all a point? You said that's sold in a clipseal bag, and how much would - what would be a normal price - we are dealing with 2003 now, remember. Don't worry about changes since then, 2003. What was the price for ‑ ‑ ‑?‑‑‑Generally a point is sold for $50 on the street.
What about a gram?‑‑‑It varies between - from my experience, between 250 and 400 dollars.
What about an eight ball that you mentioned? That's an eighth of an ounce, you said?‑‑‑One eighth of an ounce, or about 3.5 grams. That can be - range from 600 to 1200 dollars, obviously depending on demand, purity and that type of thing.
During 2003 what was the street price, in your experience, for an ounce of amphetamine?‑‑‑Between 6 and 8 thousand dollars.
Why would it vary so much in price?‑‑‑Amount available; who your contacts are; where you are in the supply chain, and the quality."
In cross‑examination it was put to the witness that a purity in excess of 60 per cent would be considered high. He agreed with that and with the proposition that a purity of 30 per cent or below would indicate the drug was for street sale and use. He further agreed that the prices he had mentioned were usual market prices and that special prices could be fixed between individuals, as for example, "mates rates".
I turn now to the trial Judge's directions to the jury. I shall confine myself to those aspects which bear upon the grounds of appeal.
At the very outset of his directions the Judge emphasised that the jury room was no place for guesswork, speculation, conjecture or arriving at theories which are unsupported by the evidence. Later, he emphasised that although there were two charges being tried at the same time, each must be considered separately by them and the jury ultimately had to deliver separate verdicts with respect to each count. The verdicts may be the same or they may be different and a verdict on one charge must not of itself dictate the verdict on the other.
His Honour said that the element of intent was what was really at the heart of the trial. He told them that if the State proved beyond reasonable doubt that the appellant possessed 2 grams or more of methylamphetamine, the law was that he would be deemed to have possessed the drug with an intent to sell or supply it unless the contrary was proved. He gave an adequate and accurate direction on the operation of s 11 of the Misuse of Drugs Act. He emphasised that in deciding whether the appellant had established that he possessed methylamphetamine in each charge for his own use, the jury had to consider all of the evidence.
He explained what an inference is and noted that both counsel had urged them to draw inferences in relation to this issue. He added that it was entirely for the jury what inferences they might draw from a fact or a collection of facts, but he repeated that they were not to speculate, conjecture or look for theories not supported by the evidence.
He moved then to put his directions into a factual context. Referring to the contents of the two bags of drugs which had been found, he pointed out that the undisputed evidence was that there were differences in the makeup of the methylamphetamine in the two bags such that it was evident that it came from different batches.
After reminding the jury of some of the undisputed aspects of the evidence, he summarised the cases which had been put to the jury.
In respect of the State case he specifically mentioned that the undisputed evidence of Detective Horne was that the value of 3 ounces of methylamphetamine, which is close to a weight of 79 grams, was somewhere between $18,000 and $24,000. He reminded the jury that the State was arguing that the only reason the appellant would have such a large quantity of the drug in his possession (in relation to count 1) was because he was going to sell or supply it. He said the State prosecutor had suggested to the jury 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. That is the reason why no large amounts of cash were found in the appellant's house - he did not need to keep it because he could have banked it in the guise of money derived from his tattooing. He mentioned the State prosecutor's argument that the amphetamine that was found was close to the manufacturer because it was still in wet form, and that the evidence showed the appellant either intended to sell the drug or to supply it in the sense that he was looking after it for someone, perhaps 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 mentioned other features of the State prosecutor's submissions, but said the main plank of the State's case with respect to count 1 was simply the sheer volume of methylamphetamine found.
His Honour then turned to summarise the defence case.
Relevantly for present purposes he reminded the jury that Mr Williamson had emphasised that the purity level in both bags was street level, that Detective Horne's evidence was that anything under 30 per cent was street level amphetamine and counsel had argued that the 3 ounces of low grade methylamphetamine was fair payment for a back job which would have cost normally about $9000.
Later, pertinently, he said (BAB 147):
"… Mr Williamson suggested in his closing that based on Detective Horne's evidence you could conclude that one ounce of 17 per cent methylamphetamine was worth $2272 and three ounces was worth three times that sum; that is, $6816. Detective Horne did not give evidence to that effect. He was not asked about the value of one ounce or three ounces of 17 per cent methylamphetamine. It would be best, I think, if you concentrated on what Detective Horne said in his evidence on this point …"
His Honour then read extracts from the evidence of Detective Horne to which I have referred.
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.
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. That feature was given considerable emphasis by the prosecution.
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 the "warehouse" or "bailment for Paparone" theory.
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 appellant, 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 appellant to prove on the balance of probabilities that he did not have an intent to sell or supply.
Mr Williamson appears to be contending that the argument put to the jury by the prosecution about the appellant's evidence involved calling upon the jury to make a positive finding that the appellant 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 appellant's explanation on the balance of probabilities. The jury was not being asked by the State to make any positive finding about whether the appellant was warehousing the drug for Paparone or whether he was laundering the cash proceeds of drug dealing through his tattoo business bank account. They were being suggested as reasonably possible explanations for his possession of the large (wet) quantity the subject of count 1 and why no cash was found on the premises. They were being advanced as reasons why the jury should not accept that it was more probable than not that the appellant was in possession of the drugs only for his own use and no part of them were intended by him for sale or supply.

All the appellant really said in substance, was that he was a drug addict and that the drugs found in his possession on 23 September 2003 were for his own use, which was shown by the fact that no cash or drug‑dealing equipment was found.
It seems to me 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 appellant's evidence could not be accepted. In such a circumstance the s 11 presumption would prevail. The jury clearly accepted the appellant's evidence to that extent in respect of count 2, but not in respect of count 1.
His Honour ought to have directed the jury that they were not being asked to find as facts either that the appellant was warehousing the 79 grams for Paparone or that he was putting cash from drug dealing into his bank account as tattooing proceeds. Nonetheless, in light of his Honour's clear and correct direction on the drawing of inferences and the effect of s 11, the jury could not have reasoned incorrectly. If those possibilities, or either of them, caused the jury not to be persuaded on the balance of probabilities that he was telling the truth when he said he had no intent to sell or supply (in respect of the drug the subject of either count), that was not an incorrect or wrong process of reasoning.
For the reasons given above, the trial Judge was under no obligation to direct the jury in the manner contended for by these two grounds. Accordingly, each ground must fail.
I would dismiss the appeal.
PULLIN JA: I have had the opportunity of reading Roberts‑Smith JA's reasons for decision. His Honour has referred to the relevant evidence

which saves me the trouble of doing likewise, save where it is necessary to amplify some aspect in my reasons.

The grounds of appeal allege a miscarriage of justice. In Weiss v The Queen (2005) 224 CLR 300 the High Court discussed and explained the difference between the expression "miscarriage of justice", where it appears in s 30(3)(c), and "no substantial miscarriage of justice", where it appears in s 30(4) of the Criminal Appeals Act 2004 (WA). In short, the phrase "miscarriage of justice" in s 30(3)(c) means any departure from trial according to law, regardless of the nature or importance of that departure: Weiss [18]. When it comes to determining whether there is "no substantial miscarriage of justice", consideration has to be given to matters beyond the question of whether there has been a departure from applicable rules of evidence or procedure. The appellate court must review the whole record of trial. Before the Court can decide that there is no substantial miscarriage of justice, the appellate court must be persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the accused's guilt of the offence on which the jury returned its verdict of guilty: Weiss [44].
An appellate court invited to consider whether a substantial miscarriage of justice has actually occurred is to proceed in the same way as an appellate court invited to decide whether a jury verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty: Darkan v The Queen (2006) 80 ALJR 1250 at [84]. In my recent judgment in Bruce v The State of Western Australia [2006] WASCA 236, I summarised the considerations to be taken into account in those circumstances. One of those considerations is that often the appellate court does not get taken to, or read all the evidence received at trial. This is not such a case. It has been possible in this case to read all of the transcript because the trial only lasted for two days. It is true that this Court has not had the benefit of seeing the appellant give evidence, although it is necessary to bear in mind the observation made in Fox v Percy (2003) 214 CLR 118 [30] that "an ounce of intrinsic merit or demerit … is worth pounds of demeanour". Another limitation frequently mentioned is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence. However, that does not mean that the Court of Appeal should not make its own independent assessment of the evidence if it is possible to do so.
With those observations on the law, I now turn to the question about whether there was a miscarriage of justice as alleged by the appellant in its grounds of appeal.
Counsel for the prosecution sought to adduce some evidence about why there was no money found in the possession of the appellant when the police raid occurred. The prosecutor appears to have formed the view that if there was no large quantity of money found in the appellant's possession the jury might conclude that he was not selling the drug. The prosecution sought to adduce evidence explaining the lack of any money by cross‑examining the appellant. The first proposition put to the appellant was that any money that he collected from the sale of drugs he laundered by treating the moneys as proceeds of his tattooing business. This suggestion was denied by the appellant and not proved by any evidence. The alternative proposition put to the appellant was that he had no money because he was not selling the drug but was warehousing it, that is holding it, for Paparone. If that were so, the suggested inference was that he would be guilty of supplying the drugs when he returned them to Paparone. This was also denied. There was no evidence to support the proposition put to the appellant.

Counsel for the prosecution referred to these theories in his closing address and the Judge then said in summing up:
"Mr Foulsham 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 reasons 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 in the guise of money derived from his tattooing.
Mr Foulsham disputed that the accused man used drugs to the extent that he said that he did. Mr Foulsham argued that if he did use drugs to the extent that he said, you would have expected that the police would have seen some evidence of that drug use when they visited his house on 23 September 2003, but they didn't see any evidence of his drug use.
Mr Foulsham said that amphetamine that was found was close to the manufacturer, because it was still in wet form. Mr Foulsham submitted to you that the evidence showed that the accused man either intended to sell or supply it - sell it, rather, or supply it 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 wouldn't want to be holding any of the drug himself."
Having referred to what the prosecutor "suggested" or "submitted", his Honour did not explain to the jury that the questions asked by counsel for the prosecution did not amount to evidence. His Honour did not explain what the jury were to do if they decided to accept one of the theories or what to do if they rejected them. His Honour did not direct the jury that the questions could not be converted into evidence by a process of inference.
The trial Judge, in his summing up, need have said nothing more than that the jury should base its decision on the evidence (which direction he did give) and that theories advanced by prosecuting counsel in the form of questions did not amount to evidence. If his Honour chose to refer to the two theories put forward by the prosecutor (as he did), then his Honour should have followed this reference with a direction that these theories did not amount to evidence and should be ignored. It is uncontroversial that counsel's questions do not amount to evidence, and cannot be converted into evidence by a process of inference: Lander v The Queen (1989) 52 SASR 424 at 426 per King CJ; R v Baring (2005) 92 SASR 117 at [70]; Spiteri v Visyboard Pty Ltd [2005] VSCA 132 at [41]. (I here put aside circumstances in which implied admissions may arise out of questions put by a party's own counsel - see Spiteri, ibid and Baring, ibid.)
In my opinion, the direction by the trial Judge had the potential to sidetrack the jury into considering the theories put by prosecuting counsel. The jury may have decided that it was significant that there was no money found in the appellant's possession and then concluded that he did earn money from drug dealing but that the money was laundered through the tattooing business or, alternatively, that he had no money on him because the drug was being warehoused to be resupplied to Paparone. If so, it was impermissible reasoning. This was an occasion where it was important to warn the jury about how they should not reason: RPS v The Queen (2000) 199 CLR 620 at [41].
The simple issue which the jury had to consider was whether the appellant had satisfied them on the balance of probabilities that he was not in possession of the drug with the intention of selling or supplying it. The appellant's case was very simple. He said it was for his own use. The jury had to decide whether they believed him. In making that decision they could take into account all the evidence they had heard. It would distract them to consider the prosecutor's two theories about why no money was found.
In my opinion, the failure of the trial Judge to direct the jury that the two theories put by prosecuting counsel did not amount to evidence amounted to a miscarriage of justice because of the possibility that it would lead the jury into a wrong process of reasoning or impermissibly distract them from the issue they had to decide.

Application of s 30(4) - Whether there was no substantial miscarriage of justice

The question the jury had to decide was whether, in light of all the evidence, they believed the appellant when he said that the drug was for his own use and not for sale or supply to others. This Court now has to consider the same question in deciding whether there has been no miscarriage of justice. The evidence included evidence as to the quantity of the drug, the fact that it was moist and had come from a dealer (which the appellant himself admitted), the fact that the appellant was given drugs with a street value of between $18,000 and $24,000 to meet an anticipated debt of $9000, the fact that he had a surveillance camera at his house, his explanation for why he had the camera, fact that there were no signs of self‑administration of drugs, and the fact that he had no large sum of money in his possession. Some of the evidence pointed to his guilt and some to his innocence. Some of the evidence is unclear. So, for example, Detective Horne put a "street price" on the drug of $18,000 to $24,000, but also gave evidence that the price would vary depending on "where you are in the supply chain". Paparone was a manufacturer and might therefore have been prepared to sell for a price below street value.
If at all possible, the Court of Appeal should make a decision itself rather than order a retrial, which is always a regrettable course of action for a court to take. Unfortunately, in this case I am of the opinion that the task cannot be carried out by this Court without seeing the appellant give his evidence. Even though demeanour is nowadays seen as relatively less important than other factors, it is not irrelevant, and it was certainly relevant in this case. The appellant bore the onus of proving lack of intent to sell or supply on the balance of probabilities. There is evidence pointing both ways on the issue, and without observing the appellant give his evidence, I am not able to reach the point where I can conclude one

way or the other about whether the appellant did not intend to sell or supply the drug to others. I therefore cannot conclude that no substantial miscarriage of justice has occurred.

I would therefore allow the appeal, set aside the conviction and order a retrial.
BUSS JA: The material facts and the grounds of appeal are set out in the reasons for judgment of Roberts‑Smith JA. I refer to them to the extent necessary to explain my reasons.

Section 11(a) of the Misuse of Drugs Act 1981 (WA)

Section 11(a) of the Misuse of Drugs Act 1981 (WA) provides, relevantly, that, for the purposes of s 6(1)(a) of the Act, which creates the offence of possession of a prohibited drug with intent to sell or supply it to another:
" … a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug; …"
In Abbott v Western Australia (2005) 152 A Crim R 186, Steytler P said, at 188 [4], in relation to s 11(a):
" … Once the fact of possession of more than the specified quantity is proved beyond reasonable doubt or, as in this case, admitted, the prosecution has no other onus to discharge. The very purpose of s 11(a) of the Act is that of putting upon the accused, in such a case, the onus of establishing on the balance of probabilities that, on the whole of the evidence at the trial, he or she did not intend to sell or supply the drug to another. Consequently, the only work to be done by inferences arising from facts other than the quantity of the drug in the accused's possession would be that of helping, or hindering, the accused in that endeavour. …"

The appellant's case at trial

The appellant's case at trial was, relevantly, as follows:
(a)The appellant admitted possession of each of the bags of methylamphetamine found by the police at his home.

(b)The appellant denied, however, any intent to sell or supply.
(c)The appellant said he was a drug addict and all of the methylamphetamine was for his personal consumption.
(d)The police did not find a large amount of cash at the appellant's home (or, relevantly, elsewhere).
(e)The police did not find any drug‑associated paraphernalia at the appellant's home (or, relevantly, elsewhere); for example, there were no plastic bags for packaging, no scales for weighing drugs and no notebook or other means of recording the names of customers and details of transactions.
(f)The level of purity of the methylamphetamine was consistent with evidence as to the level of purity of the drug when sold for use "on the street".
(g)The appellant said that:
(i)he carried on business as a tattoo artist;
(ii)Mr Paparone was a customer of the tattooing business;
(iii)the customers of the tattooing business paid him in cash, he did not keep any business records, and during the last financial year he earned about $500 per week before income tax from the business;
(iv)he was at Mr Paparone's home when the police searched it and found methylamphetamine manufacturing equipment (about 3 months before the police searched the appellant's home and charged him);
(v)about one week before the appellant's home was searched, Mr Paparone gave him the 79 grams of methylamphetamine, the subject of count 1 on the indictment, as payment for tattooing work which he was to carry out on Mr Paparone;
(vi)the tattooing work to be performed for Mr Paparone was worth at least $9000; and
(vii)shortly after receiving the 79 grams of methylamphetamine from Mr Paparone, he used some of that drug and thought it was "weak" and, in consequence, decided to use the other, smaller, quantity of methylamphetamine, the subject of count 2 on the indictment, before using any more of the drug received from Mr Paparone.

The appellant had a television in his bedroom. It was connected to a surveillance camera. The camera enabled him to view the front door of his house and his motor cycle (which he parked towards the front of the property).
The appellant denied, in cross‑examination, the prosecutor's suggestion that he obtained money from selling methylamphetamine and then laundered the money by mixing it with cash from the tattooing business and paying it into his bank account. The appellant also denied, in cross‑examination, the prosecutor's suggestion that he was holding the 79 grams of methylamphetamine for and on behalf of Mr Paparone.

The prosecution's case at trial

The prosecution did not adduce in its case any evidence to support its allegation of money laundering or its allegation that the methylamphetamine, the subject of count 1, was being held for and on behalf of Mr Paparone. The prosecutor merely cross‑examined the appellant on those issues.
As Roberts‑Smith JA recounts in his reasons, there was evidence from a police officer that three ounces of methylamphetamine (being the approximate combined weight of the methylamphetamine the subject of counts 1 and 2) had a value between $18,000 and $24,000, depending on its quality and circumstances of sale.
The prosecutor, in his address to the jury, made, relevantly, these submissions:
(a)(At t/s 2 ‑ 3) "We say that the only reason he had it was because he intended to sell or supply it to others, and what I have been suggesting in cross‑examining him is that the tattooing business is quite a good way, if you are into drug dealing, of dealing in drugs because it's a cash business ... drug money can then be added in with the income from the tattooing and paid straight into the bank and nobody is any the wiser, and I suggest to you that that's what was happening in this case."
(b)(At t/s 3 ‑ 4) "He's [the appellant's] saying that he got it from Mr Paparone, and we know that Mr Paparone was in the business of manufacturing amphetamine because we have got evidence that he was caught with an amphetamine factory and that the accused was actually there at the time. So, if that's the case, I would suggest that suggests a close association between the two, not just a casual business relationship of selling amounts of amphetamine in return for tattoos.
In my submission, that suggests some sort of business relationship between the two and it suggests that the accused is at the top of the supply chain because he says that he got it from the manufacturer, and we suggest that he was either intending to sell it when it dried out, or he was working with someone else, Paparone, and was looking after it for Paparone because you have to remember that the evidence is that Paparone was searched and the amphetamine factory was found at his place in June, whereas this search didn't happen until 23 September, so there is a three‑month gap between the two, and if Paparone came and gave it to him a week before, Paparone would have a very good reason for not wanting to hold it himself if he was on bail on amphetamine charges.
The other possibility is that he was holding it for Paparone on the basis that he return it to Paparone in due course and return it for something, some reward. … "

The learned Judge's summing up

The learned Judge, in his summing up to the jury, said, relevantly:
(a)(At t/s 124) "You have to decide this case coldly and dispassionately, without fear or favour. The jury room is no place for guesswork, speculation, conjecture or arriving at theories which are unsupported by the evidence. Don't waste time considering what other evidence you might like to have heard but didn't. As I have said, approach the case in a strictly impartial way. Approach the case in a logical way and decide this case on the evidence which has been brought before you by the parties and on no other basis."
(b)(At t/s 134) "The accused would not discharge the onus cast upon him if he satisfied you that it was more likely than not that some of the drug would be for his own use. Now, in considering whether the accused has discharged his onus, you may draw inferences whether for or against the accused. Both counsel have, in effect, urged you to do so. An inference is a logical deduction which arises from the fact or facts which you find to be proved.
It's the process of deducing from a proven fact or facts the existence of another fact. It's entirely for you what inferences you might draw from the fact or a collection of facts, but don't speculate, conjecture or look for theories which are not supported by the evidence. You will recall that I have given you a direction to that effect earlier in my charge."
(c)(At t/s 137) "According to the State, the only reason that the accused man would have such a large quantity of the drug in his possession - this is with respect to count 1 - is because he was going to sell or supply it. 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 in the guise of money derived from his tattooing.
Mr Foulsham disputed that the accused man used drugs to the extent that he said that he did. Mr Foulsham argued that if he did use drugs to the extent that he said, you would have expected that the police would have seen some evidence of that drug use when they visited his house on 23 September 2003, but they didn't see any evidence of his drug use.
Mr Foulsham said that amphetamine that was found was close to the manufacturer, because it was still in wet form. Mr Foulsham submitted to you that the evidence showed that the accused man either intended to sell or supply it - sell it, rather, or supply it 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 wouldn't want to be holding any of the drug himself."

Judicial instructions to juries in criminal trials

In RPS v The Queen (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ observed, at 637 [41] ‑ [42], in relation to judicial instructions in criminal trials:
"Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case (Alford v Magee (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ). No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues (Alford v Magee (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ). It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence (eg, Longman v The Queen (1989) 168 CLR 79; Domican v The Queen (1992) 173 CLR 555).
But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues (See, eg, Tsigos v The Queen (1965) 39 ALJR 76 (n)). But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel."
The point to be emphasised, in the context of this appeal, is their Honours' observation that, in some cases, ensuring a fair trial of the accused will require the judge to warn the jury about how they should not reason.
In R v ITA (2003) 139 A Crim R 340, Ipp JA (with whom Buddin and Shaw JJ agreed) considered the functions of the judge in a criminal trial. His Honour said, at 354 [90]:
"One of those functions is to ensure that the jury have sufficient knowledge and understanding of the evidence without assistance. Another is to identify the issues in the case and to relate the law to those issues. At times the judge may be required to relate some or all of the evidence to the issues and the law and to explain what evidence can be used to decide particular issues. The precise nature of the task of the judge depends on many things, including the context of the trial, its length, its complexity, the way that it has been run, the issues that arise and, importantly, whether counsel seek more from the judge than that which has been provided. The judge must ensure that the case of the accused is put fairly before the jury and, of course, must ensure that the accused has a fair trial. …"

The merits of the appeal

The appellant bore the onus of establishing, on the balance of probabilities, that, on the whole of the evidence at the trial, he did not intend to sell or supply to another the 79 grams of methylamphetamine the subject of count 1. Plainly, the appellant would not discharge that onus unless the jury accepted the truth of his evidence that the drug in question was for his personal consumption. His credibility was of critical importance.

The appellant adduced evidence concerning the absence of a large amount of cash and of any drug‑associated paraphernalia when the police searched his home. He contended that the absence of such evidence supported his own evidence that the drug, the subject of count 1, was for his own use.
The prosecutor's suggestions to the appellant, in cross‑examination, that:
(a)the absence of cash when the police searched his home was explicable on the basis that cash from drug dealing was mixed with cash from the tattooing business and deposited in his bank account; and
(b)the 79 grams of methylamphetamine was being held for and on behalf of Mr Paparone,
were properly put for the purpose of seeking admissions that the appellant's evidence‑in‑chief, as to the drug being for his personal consumption, was untrue. The prosecutor's questions were not, of course, evidence of the facts asserted. The appellant's denials were evidence, and the weight to be given to them was a matter for the jury. It was open to the prosecutor, in his address to the jury, to submit that the absence of a large amount of cash and of any drug‑associated paraphernalia when the police searched the appellant's home did not necessarily support the appellant's case. Other explanations, for the absence of such evidence, were possible.
The learned Judge, in his summing up, summarised for the jury the prosecutor's suggestions and submissions in relation to the absence of a large amount of cash and of any drug‑associated paraphernalia. In my opinion, his Honour should then have explained to the jury that:
(a)the prosecutor's suggested explanations, in his cross‑examination of the appellant and in his address to the jury, for the absence of a large amount of cash and of any drug‑associated paraphernalia, were not evidence;
(b)the appellant's denials in cross‑examination of the prosecutor's suggested explanations were evidence, and the weight to be given to them was a matter for the jury; and
(c)it was not open to the jury to reason or conclude that they should reject the appellant's evidence that the 79 grams of methylamphetamine was for his personal use because:
(i)the absence of a large amount of cash was to be explained on the basis that the appellant was laundering money derived from drug dealing by mixing it with cash from the tattooing business; or
(ii)the absence of any drug‑associated paraphernalia was to be explained on the basis that the appellant was holding the 79 grams of methylamphetamine for and on behalf of Mr Paparone.
His Honour's general statement, earlier in his summing up, to the effect that the jury should not engage in guesswork or speculation, or arrive at theories which were unsupported by the evidence, was not sufficient in the circumstances of the case (in particular, the prosecutor's suggested explanations for the absence of a large amount of cash and of any drug‑associated paraphernalia and his Honour's express recounting of those suggestions), properly to safeguard the legitimate interests of the appellant. There was a significant risk that, in the absence of an appropriate direction from his Honour, the jury might reject the appellant's evidence by impermissibly reasoning or concluding in the manner I have mentioned in [97] above.
The learned Judge's failure to direct the jury appropriately constituted a misdirection, and therefore a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act 2004 (WA).

Section 30(4) of the Criminal Appeals Act

It is necessary now to consider whether no substantial miscarriage of justice has occurred, within s 30(4) of the Criminal Appeals Act.
In Weiss v The Queen (2005) 224 CLR 300, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ enunciated, at 315 [39], three fundamental propositions in relation to the proviso to s 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(4) of the Criminal Appeals Act) which, their Honours said, must not be obscured:
"First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Second, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Third, the standard of proof of criminal guilt is beyond reasonable doubt."
Later, their Honours summarised, at 316 [41], the statutory task which must be performed by an appellate court in deciding whether to dismiss an appeal against conviction on the ground that no substantial miscarriage of justice has occurred:
"That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself."
Their Honours acknowledged, at 317 [44], that no single universally applicable description of what constitutes "no substantial miscarriage of justice" can be given. They added, however, that one negative proposition may safely be offered:
"It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty."
Also see Darkan v The Queen (2006) 80 ALJR 1250 at 1267 - 1268 [84], 1269 [94] - [96].
I have examined the record of the trial, but I am unable to conclude that the only conclusion reasonably open on the evidence was that the appellant had failed to establish, on the balance of probabilities, that he did not intend to sell or supply to another the methylamphetamine the subject of count 1. The "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record preclude my being satisfied in relation to that issue. It requires an assessment of the appellant's credibility. Some of the objective evidence at the trial supported the appellant's case, other objective evidence was against it, and the balance of the objective evidence was equivocal. I am unable to decide, without having seen and heard the appellant give evidence, whether the manner in which he gave his evidence bore upon his credibility. I am not satisfied that no substantial miscarriage of justice has occurred. In my opinion, s 30(4) of the Criminal Appeals Act should not be applied.

Section 30(5) of the Criminal Appeals Act

Section 30(5) of the Criminal Appeals Act provides, relevantly:
"If the Court of Appeal allows the appeal, it must set aside the conviction of the offence ('offence A') and must -
(a)order a trial or a new trial;
(b)enter a judgment of acquittal of offence A;
(c)if -
(i)the offender could have been found guilty of some other offence ('offence B') instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A;
(d)…; or
(e)… "
In Reid v The Queen [1980] AC 343, the Privy Council advised in relation to the principles to be applied in considering whether a retrial should be ordered where a conviction is quashed on appeal. Their Lordships said, at 349 ‑ 350:
"Their Lordships have already indicated in disposing of the instant appeal that the interest of justice that is served by the power to order a new trial is the interest of the public ... that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury. Save in circumstances so exceptional that their Lordships cannot readily envisage them it ought not to be exercised where, as in the instant case, a reason for setting aside the verdict is that the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury even if properly directed. It is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant. At the other extreme, where the evidence against the defendant at the trial was so strong that any reasonable jury if properly directed would have convicted the defendant, prima facie the more appropriate course is to apply the proviso ... and dismiss the appeal instead of incurring the expense and inconvenience to witnesses and jurors which would be involved in another trial.
In cases which fall between these two extremes there may be many factors deserving of consideration, some operating against and some in favour of the exercise of the power. The seriousness or otherwise of the offence must always be a relevant factor: so may its prevalence; and where the previous trial was prolonged and complex, the expense and the length of time for which the court and jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so. The length of time that will have elapsed between the offence and the new trial if one be ordered may vary in importance from case to case, though having regard to the onus of proof which lies upon the prosecution lapse of time may tend to operate to its disadvantage rather than to that of the defendant. Nevertheless there may be cases where evidence which tended to support the defence at the first trial would not be available at the new trial and, if this were so, it would be a powerful factor against ordering a new trial.
The strength of the case presented by the prosecution at the previous trial is always one of the factors to be taken into consideration but, except in the two extreme cases that have been referred to, the weight to be attached to this factor may vary widely from case to case according to the nature of the crime, the particular circumstances in which it was committed and the current state of public opinion ... On the one hand there may well be cases where despite a near certainty that upon a second trial the defendant would be convicted the countervailing reasons are strong enough to justify refraining from that course. On the other hand it is not necessarily a condition precedent to the ordering of a new trial that the Court of Appeal should be satisfied of the probability that it will result in a conviction."
Their Lordships emphasised that their statement was not to be treated as exhaustive, and the order in which the various factors were listed was not necessarily indicative of the comparative weight to be attached to them. Also see Dyers v The Queen (2002) 210 CLR 285 at 314 ‑ 315 [82] ‑ [83], where Kirby J enumerated instances where the High Court had refrained from ordering a retrial, Gerakiteys v The Queen (1984) 153 CLR 317 and King v The Queen (1986) 161 CLR 423.
In the present case, counsel for the appellant contended, in his written submissions, that, if the appeal were to be allowed, a retrial should not be ordered and, instead, judgment of conviction should be entered for "simple possession" in relation to count 1. The written submissions state, relevantly:
"At a retrial, the prosecution could not submit that the appellant did not intend to consume all of the smaller bag, lest it challenge the correctness of the partial acquittal on count 2 which can only be explained by the jury accepting the appellant's testimony that he was a drug user and rejecting the prosecutor's submission that he was not. So a prosecutor could not argue that the appellant was not a substantial user of the drug, as the prosecutor did at the first trial. The other argument as to the facts the prosecutor put in support of his urging of guilty verdicts was that the evidence was probative of the appellant holding the larger bag for Paparone. At a retrial the prosecutor could not use that argument either. So, at a retrial, he or she would have to argue a different prosecution case, which is not permitted (King v The Queen (1986) 161 CLR 423 at 433 per Dawson J: 'The Crown should not be given an opportunity to make a new case which was not made at the first trial'.) In response to that new prosecution case, the appellant would have to, again, say on oath and argue that he was a badly addicted user of the drug, a point which the first jury accepted (that is why it partially acquitted on count 2) but which did not find expression in the verdict on count 1, presumably because of the prosecutor's illegitimate advocacy of the bailment theory (and the judge's failure to direct). To subject the appellant to another trial because of errors made by others at the first trial, despite the efforts of his counsel, thereby forcing him to present the same defence case, one which is now substantially vindicated by the partial acquittal on count 2, in response to a now substantially weaker (and new) prosecution case would involve 'relatively little practical point for the vindication of the criminal law' (Parker v The Queen (1996‑7) 186 CLR 494 at 531 per Kirby J)."
At the hearing before this Court, however, counsel for the appellant abandoned that submission, and conceded that, if the appeal were to be allowed, a retrial should be ordered. In my opinion, that concession was properly made.
The critical issue at the trial was whether the drugs were for the appellant's personal consumption. He carried the onus of establishing, on the balance of probabilities, that, on the whole of the evidence at the trial, he did not intend to sell or supply the drugs to another. It is apparent, from the jury's verdicts, that they found that the appellant used drugs. It is also apparent that the jury accepted the appellant's evidence that the significantly smaller quantity of the drug, the subject of count 2 (5.7 grams), was for his own use; but they were not so satisfied in relation to the significantly larger quantity, the subject of count 1 (79 grams). It is true that the prosecution could not argue at a retrial on count 1 that the drug, the subject of count 2, was not for the appellant's own use or raise any other argument inconsistent with the verdict on count 2. Those constraints do not, however, require the conclusion that the prosecution's case at a retrial on count 1 would be materially different from its case at the trial.
Section 30(5) of the Criminal Appeals Act confers a broad discretion on this Court in relation to whether a retrial should be ordered. A significant consideration militating against ordering a retrial is that the appellant has served a substantial part of the sentence imposed on him for count 1. On the other hand, however, the allowing of the appeal and the quashing of the conviction on count 1 does not arise in consequence of an insufficiency of evidence or some similar defect. The basis for that outcome is technical. The charge made in count 1 is serious, offences of that kind are prevalent, the trial was not prolonged or complex, and the length of time between the alleged commission of the offence and a retrial should not materially prejudice the conduct of the appellant's case. I consider that it is appropriate, on the application of the principles enunciated in such cases as Reid, Gerakiteys and King, to order a retrial.

Conclusion

I would allow the appeal, quash the appellant's conviction in relation to count 1 on the indictment, and order a retrial on that count.