Bevan v The State of Western Australia - [2010] WASCA 101

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BEVAN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 101

CORAM: OWEN JA
BUSS JA
BLAXELL J

HEARD: 16 APRIL 2010

DELIVERED : 27 MAY 2010

FILE NO/S: CACR 146 of 2009

BETWEEN: RUSSELL IDRIS BEVAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND 333 of 2009

Catchwords:

Criminal Law - Evidence - Evidence obtained by way of a scientific or technical process - Admissibility of mobile phone data downloaded by a computer software programme - Insufficient evidence that the software programme was reliable and that the downloading process was operated properly

Legislation:

Nil

Result:

Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)

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

Chiou Yaou v Morris (1987) 46 NTR 1
Crawley v Laidlaw (1930) VLR 370
Gassy v The Queen (2008) 236 CLR 293
Mehesz v Redman (No 2) (1980) 26 SASR 244
Porter v Kolodzeij [1962] VR 75
R v Ciantar (2006) 16 VR 26
R v Weatherall (1981) 27 SASR 238
The Statue of Liberty [1968] 2 All ER 195
Weiss v The Queen (2005) 224 CLR 300
Wilde v The Queen (1987) 164 CLR 365

OWEN JA: I agree with Blaxell J.
BUSS JA: I agree with Blaxell J.
BLAXELL J: This is an application for leave to appeal from the appellant's conviction for an offence of possessing methylamphetamines with intent to sell or supply. In August 2009 the appellant stood trial in the District Court on an indictment alleging that he had committed two such offences (on 18 January and 4 September 2008). He was acquitted of count 1 but convicted of count 2, and then sentenced to 26 months immediate imprisonment with eligibility for parole.
The appellant raises two grounds of appeal, and both relate to evidence at trial of text messages allegedly found on a mobile phone in his vehicle. He contends that the trial judge erred in law in admitting this evidence, because it had no probative value (ground 1), and because the computerised processes by which the text messages were downloaded from the mobile phone were not shown to be reliable (ground 2).

The evidence at trial

As the appellant elected not to testify, the only evidence at trial came from the prosecution. The following is a summary of that evidence.
On 4 September 2008, the appellant was alone and driving his Porsche motor vehicle on Barrack Street, Perth. He was stopped by police who carried out a video recorded search of the vehicle. In the front centre console the police found $6,000 in cash and a Nokia mobile phone. The appellant admitted that the cash was his and told the police that he had won it at the Casino the previous night. Nothing was said about the mobile phone. The police later ascertained that the phone was registered in the name of a company which had no connection to the appellant.
The police then executed a search warrant at the appellant's apartment in Mill Point Road, South Perth (which search was also recorded on video). In a cupboard above the range hood in the kitchen, there were three clipseal bags containing powders. The powders were later tested and found to be 13.7 g of methylamphetamine with 15% purity, 4.51 g of methylamphetamine with 16% purity, and .54 g of pseudoephedrine, respectively.
In the freezing compartment of the refrigerator, there was another clipseal bag containing a substance later found to be 31.1 g of

dimethylsulphone (DMS) with minute traces of methylamphetamines. Although DMS is an anti‑inflammatory medication used for joint pain relief, it is also commonly used in the illicit drug trade as a cutting agent for the dilution of methylamphetamine.

The police also located a set of electronic scales in the kitchen. When tested, the scales had traces of methylamphetamine on the surface. In the kitchen pantry there were boxes of unused clipseal bags as well as a box of disposable rubber gloves.
Three large garbage bags containing rubbish were near the front door of the apartment. The contents of these bags included items of mail addressed to the appellant, some used clipseal bags, and four used disposable gloves.
Two of those gloves were later found to have traces of methylamphetamines. Swabs taken from inside the other two gloves (which had no traces of methylamphetamine) produced mixed DNA profiles consistent with having come from at least two individuals. The partial major components recovered from each of those profiles were the same and matched the appellant's DNA profile. In respect of one of the gloves, the probability of finding that partial DNA profile if it had come from someone other than, and unrelated to, the appellant was less than one in 1.3 billion. The probability ratio in respect of the other glove was less than one in 470.
Also found in the kitchen were two exercise books (one with a green cover, and the other with an orange cover) as well as a large 2008 diary. The entries in the diary included a notation 'My b-day' against the date 14 October 2008. The appellant's birthday is on 14 October, and when asked if it was his diary he said: 'Yeah, I think it's my diary'. He also said that the entries in the diary were 'possibly' made by him.
The exercise books contained notations which the prosecution alleged to be drug‑related 'tick lists'. They included lists of initials, dates and numbers as well as columns headed 'tick' and 'coin'. Detective Sergeant D L Taylor, who had extensive experience in drug investigations, gave evidence that the notations and terminology used in the exercise books were consistent with them being a record of dealings in illicit drugs. There was also evidence from a handwriting expert that notations on particular pages of the diary and of the 'tick list' in the orange exercise book were written by the same person.
The mobile phone that had been seized from the appellant's vehicle was later downloaded. This process involved the use of a computer, a web camera, software programmes, and disks. It produced records of a number of text messages allegedly stored in the memories of the SIM card or of the mobile phone itself. A single page listing 10 of these text messages became an exhibit.

The evidence of the text messages

The downloading of the mobile phone had been carried out by First Class Constable G J W Brouwer. Constable Brouwer had no formal qualifications or training in electronic data retrieval. However, during two years of an engineering course at university he had programmed and used computers. He had also 'built some computers' himself. As a police officer he had downloaded mobile phones on at least eight previous occasions. Nevertheless, he regarded his knowledge of this process as that of a 'lay user'.
On 18 November 2008, Detective Sergeant Taylor asked Constable Brouwer to download the mobile phone found in the appellant's vehicle. Constable Brouwer did this using the same process as on the eight previous occasions. He first recharged the phone because it had a flat battery. He then disassembled it and removed the SIM card. The SIM card was 'hooked up' to a laptop computer and downloaded using 'XRY' software. The downloaded data was saved to a file in the computer and then burnt onto a disk. The data included 28 text messages which were all dated either 17 or 18 April 2008.
On 27 November 2008, Detective Sergeant Taylor asked Constable Brouwer to download the memory of the mobile phone itself (as distinct from the SIM card). Constable Brouwer did this using a process which he had not previously experienced, but which he had seen demonstrated. It required the use of a software programme which had been specially ordered from 'a company over East'. It was Constable Brouwer's evidence that the software worked with different brands of mobile phones and that it 'tried to do its best job at doing it'.
Constable Brouwer did not elaborate on the nature of this second process other than to say that it involved a web camera taking 'film' of messages on the screen of the mobile phone itself. This camera 'panned through each message … plus the extra data like the phone number and so on'. The data acquired in this way was burnt onto a second computer disk.
No evidence was given as to the number of text messages produced by the downloading of the mobile phone memory. However, some of the text messages produced by each process were tendered in a paper format as agreed between counsel. This consisted of a single sheet listing six text messages from the mobile phone memory, and four messages from the SIM card. The sheet did not include any additional data such as telephone numbers or the dates of text messages.
Detective Sergeant Taylor testified that some of the terminology used in the text messages (as tendered) was consistent with them referring to transactions or proposed transactions involving illicit drugs. Furthermore, three of the text messages appeared to be addressed to a person named either 'Rus' or 'Russ'.
At the commencement of trial the appellant's counsel objected to the text messages being received into evidence (on grounds consistent with the particulars in the grounds of appeal set out below). In a series of rulings, the trial judge held that the text messages were admissible, and ultimately did so on the basis that they formed part of the circumstantial case against the appellant. Her Honour nevertheless held that there were some deficiencies in the evidence which would be highlighted to the jury, and that it would be a matter for them whether the text messages had some connection to the accused.

The grounds of appeal

The appellant seeks leave to appeal on the following grounds (as amended during the hearing of the appeal):
1.The learned trial judge erred in law in allowing the admission of data messages found on a Nokia telephone in a vehicle in which the Appellant was travelling as there was little or no probative value in the evidence and that this led to significant prejudice to the Appellant. As a result of this error it is respectfully submitted that a miscarriage of justice occurred.
Particulars
1.1There was no evidence adduced by the State as to whether the phone was currently in use or active with a registered provider;
1.2There was no evidence that the phone was registered to the Appellant and the evidence such as it was, was that it was registered to someone other than the Appellant;
1.3Specifically, there was no evidence that data messages on the handset had been sent from another phone, nor from where they were sent if they had been sent, nor from what number they were sent, nor to whom they were sent.
1.4There were no dates, nor times recorded against the data messages that were in an admissible form
1.5Here there was no evidence as to whether the phone had been used by the Appellant nor whether the data found on the phone was sent from another phone, or how else the data may have found its way to the phone
2.The learned Trial Judge erred in allowing evidence of data messages found on a Nokia telephone in a vehicle in which the Appellant was travelling to be adduced by Constable Brouwer.
Particulars
2.1The data messages were not obtained by a technical or scientific process in respect of which judicial notice of the accuracy of the technical or scientific process could have been taken.
2.2There was no or insufficient evidence that -
(a)the process was of a type generally accepted by experts as being accurate;
(b)the particular process was accurate;
(c)the particular process was used properly by Constable Brouwer.

Whether the text messages had probative value

In tendering the text messages, the State was not seeking to prove that the contents of any of them were true, or that they were directly connected to either of the quantities of methylamphetamines the subject of the counts in the indictment. Their purported relevance was that they had been found on a mobile phone in the appellant's vehicle, and were part of the circumstantial case against him that he possessed each quantity of methylamphetamines.
For evidence to be relevant, it must rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. This requires an analysis of the facts in issue in the proceedings, and of the circumstances which bear upon the question of their probability. To establish relevance, it is necessary to point to a process of reasoning by which the evidence in question could rationally affect the jury's assessment of the probability of the existence of a fact in issue (Washer v Western Australia (2007) 234 CLR 492 [5]).
In the present instance, and with respect to count 2, the pertinent fact in issue was the appellant's possession of the methylamphetamines found in his apartment on 4 September 2008. There was a nexus between this alleged fact and the text messages because the latter were of a general character consistent with them being communications in the course of illicit drug dealing. Furthermore, three of the messages were addressed to 'Rus' or 'Russ', which was not a common name and was a shortened version of the appellant's first name. There was also the coincidence that the text messages were in a mobile phone in the appellant's possession at the very same time that he allegedly possessed the methylamphetamines found in his apartment.
It necessarily follows that the existence of the text messages in such circumstances could rationally affect the jury's assessment of whether or not the appellant had been in possession of the methylamphetamines. In this regard, the mobile phone and the messages it contained had similar relevance to the exercise books and other drug‑related paraphernalia allegedly found in his apartment. They were simply separate items of circumstantial evidence which, in combination, were capable of supporting an inference (as the only reasonable inference) that the appellant had possessed the methylamphetamines.
Accordingly, it was unnecessary for the State to prove that the mobile phone was registered to the appellant, or that he was in some other way connected to it (and to the messages it contained) beyond the mere fact that it was found in his vehicle. Similarly, with other items of circumstantial evidence such as the electronic scales, the DMS powder, and the exercise books, the State did not need to prove any connection with the appellant beyond them being found in his apartment.
For these reasons, I consider that the text messages had probative value, and that the first ground of appeal is without merit.

The admissibility of evidence obtained by scientific or technical means

There is a rebuttable presumption at common law as to the accuracy of 'notorious' scientific or technical instruments which, by general experience are known to be reliable. Accordingly, readings from watches, clocks, thermometers, speedometers, and 'a variety of other ingenious contrivances for detecting different matters' can be received into evidence without specific proof of their accuracy (Porter v Kolodzeij [1962] VR 75, 78). This presumption can also apply to scientific or technical processes and things such as chemical tests to detect bloodstains (Crawley v Laidlaw (1930) VLR 370, 374), recordings of radar echoes showing movements of ships (The Statue of Liberty [1968] 2 All ER 195) and printouts of computerised data (Mehesz v Redman (No 2) (1980) 26 SASR 244; R v Weatherall (1981) 27 SASR 238).
The presumption amounts to judicial notice of the fact that an instrument, device or process which is in general use and known to be trustworthy, is prima facie accurate. It follows that when evidence from a new type of scientific instrument or process is adduced for the first time, there must be proof of its reliability and accuracy (Porter v Kolodzeij at 78; and Chiou Yaou v Morris (1987) 46 NTR 1, - an early case of satellite navigation establishing the position of a ship). As and when the reliability of a new instrument becomes more generally known, the law permits the shorthand of judicial notice, and specific evidence of accuracy is unnecessary (Chiou Yaou at 8).
When specific evidence of the accuracy of a new instrument is required, this need not come from the manufacturer. It is sufficient that the expert who uses it can say that it is an instrument which is accepted and used by competent persons as a reliable aid in the carrying out of the scientific procedure in question, and that he so regards it (Mehesz at 247).
Once it is established that an instrument is accurate (whether by way of the presumption or by specific evidence) there must also be evidence that it was operated properly on the particular occasion in question. With simple procedures (eg the reading of a thermometer) this presents no difficulty. With other more complicated procedures, it is usually necessary to prove the training, experience, and competency of the operator, as well as the fact that the instrument was correctly operated on the particular occasion. In Mehesz at 251 ‑ 252, White J summarised the applicable principles as follows:
1.If the instrument falls within the class of instrument known as notorious scientific instruments, the court will take judicial notice of its capacity for accuracy, so that the operator merely proves that he handled it properly and read it properly on the particular occasion.
2.If the instrument is not a notorious scientific instrument, its accuracy can be established by evidence: (a) that the instrument is within a class of instrument generally accepted by experts as accurate for its particular purpose; (b) that the instrument, if handled properly, does produce accurate results; ((a) and (b) must be established by expert testimony, that is, by experts with sufficient knowledge of that kind of instrument; and upon proof of (a) and (b), a latent presumption of accuracy arises which allows the court to infer accuracy on the particular occasion if it is proved)-(c) that the particular instrument was handled properly and read accurately by the operator on the particular occasion; ((c) can be established by a trained and competent person familiar with the operation of the instrument, not necessarily the type of expert who proves (a) and (b)).
3.Where the actual accuracy of the measurement can be inferred from all of the proved circumstances, it is not necessary to rely upon the presumption arising from (a) and (b), proof of which is superfluous.
(See also the decision of the Victorian Court of Appeal in R v Ciantar (2006) 16 VR 26 [9]).
To the above principles I add the obvious comment that a court will not be satisfied that an instrument was 'handled properly' on a particular occasion, if it does not understand what was required of the operator for this to be so. Detailed evidence as to the workings of the instrument need not be given (Chiou Yaou at 10). However, it is necessary that there be sufficient evidence for the court to apprehend what it was that the operator had to do in order to ensure an accurate result.

Whether the text messages were admissible

Mobile phones and laptop computers are ubiquitous items which have been in common use in the community for a number of years. Most people (including school children) are very familiar with the processes of sending and receiving text messages on mobile phones, and of downloading data from computers. It is also a matter of general knowledge and experience that these processes are accurate in the sense that the data displayed (or printed out) replicates what is actually there. It follows that mobile phones and laptop computers each fall into the category of 'notorious' scientific instruments.

In my view, the downloading of data from a mobile phone into a laptop computer is a process which probably requires very little evidence to be readily understood, but which is not yet generally known to be accurate. Accordingly, relevant data obtained in this way will be admissible if there is evidence from a suitably qualified person to prove that the process produces accurate results, as well as evidence to show that the downloading was properly carried out on the particular occasion in question. (There is no reason why evidence as to both of these matters cannot come from a person who has had sufficient experience of the process on previous occasions).
In the present case, Constable Brouwer carried out two separate downloading operations, one from the SIM card, and the other from the mobile phone itself. He was experienced in carrying out the first operation in that he had downloaded SIM cards using the same software and successfully produced similar data on at least eight previous occasions. Although this evidence suggests that the downloading was carried out properly on the particular occasion in question, it permits only a vague understanding of what was involved. In this regard, and as a matter of common knowledge, a SIM card cannot be 'hooked up' directly to a computer. Of necessity, some additional device must have been involved.
There are greater difficulties in understanding the second downloading process (from the mobile phone memory). Constable Brouwer was not asked to explain this process in any detail, but he made mention of a web camera taking film of the text messages while they were displayed on the mobile phone. It was the first time he had experienced the relevant software and he did not have any formal training in its use. It was also his evidence that the software 'tried to do its best job at doing it'. To my mind this clearly raised questions as to the reliability of the software and of Constable Brouwer's correct use of it. In my view, the prosecution failed to establish that the downloading process was of a type generally accepted by experts as being accurate, and that the particular downloading by Constable Brouwer was properly performed.
It follows that ground 2 has been made out, and that the trial judge erred in law in admitting the text messages into evidence. Accordingly, and pursuant to s 30(3) of the Criminal Appeals Act 2004, this court must allow the appeal if it is of the opinion (inter alia) that the conviction should be set aside because of that error of law, or that there was a miscarriage of justice. If the court comes to that opinion, it may nevertheless dismiss the appeal (pursuant to the proviso in s 30(4)) if it considers that no substantial miscarriage of justice has occurred.

The principles governing the exercise of the proviso

In Weiss v The Queen (2005) 224 CLR 300, the High Court dealt with the Victorian equivalent of s 30(4) which is in substantially the same terms. The court stated that:
The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred' [35].
In undertaking this task:
Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, 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. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt [39].
…
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 [41]. (Authorities cited have been omitted)
The court in Weiss (at [42]) pointed out that no absolute rules or singular tests should be applied by an appellate court when examining the record beyond the three fundamental propositions referred to above. In this regard, any attempt to formulate other rules or tests would distract attention from the statutory test and the very wide diversity of circumstances in which the proviso must be considered. Nevertheless, the court drew particular attention to the following matters:
First, the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt [43]. (Authorities cited have been omitted)
The court went on to observe that:
No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But 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 [44].
If, after undertaking the task required by s 30(4) the appellate court is persuaded that the evidence properly admitted at trial proved the accused's guilt beyond reasonable doubt, this will not foreclose the possibility that there are circumstances which justify allowing the appeal and ordering a new trial. Such circumstances would include 'a significant denial of procedural fairness', or errors amounting to 'such a serious breach of the presuppositions of the trial as to deny the application of the … proviso' (Weiss at [45] ‑ [46].
It was in this context that the majority of the court in Wilde v The Queen (1987) 164 CLR 365, 373 referred to errors of a kind which were 'so radical or fundamental' that their very nature excluded the application of the proviso. Such errors included any departure from the essential requirements of the law which went to 'the root of the proceedings'.
However, the court in Weiss did not confirm the formulation in Wilde, and there may now be some doubt about categorising errors in this way. In this regard it is significant that in Gassy v The Queen (2008) 236 CLR 293, Gummow and Hayne JJ at [33] considered that 'a taxonomy of errors at trial which describes some as 'fundamental' and others as not' raised difficulties similar to judicial statements about the application of the proviso in substitution for the statutory test. The statutory test is whether the appellate court considers that no substantial miscarriage of justice has occurred, and their Honours also observed that:
In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial [34].
In MNO v The State of Western Australia [2009] WASCA 59, Buss JA (at [66] ‑ [75]) reviewed these and other authorities as to the circumstances in which it is proper to allow an appeal and order a new trial notwithstanding satisfaction as to an appellant's guilt beyond reasonable doubt. I respectfully agree with his Honour's conclusion that:
[Q]uestions of degree are involved in determining whether, in the circumstances of a particular case, an appellate court considers that the nature of the error or miscarriage at trial precludes the court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the prosecution case or the appellate court's opinion as to the accused's guilt [75].

Whether the proviso should be applied in the present case

This court can be satisfied that the appellant is guilty of the offence on which the jury returned its verdict of guilty, if there was admissible evidence which proved beyond reasonable doubt his possession (whether solely or jointly) of the 18.21 grams of methylamphetamines found in his apartment on 4 September 2008. If the appellant did possess the methylamphetamines, he is presumed to have had the required intent to sell or supply to another, given that there was no evidence to the contrary (s 11 Misuse of Drugs Act 1981 (WA)).
The evidence of the mobile phone text messages was part of the prosecution's circumstantial case that the appellant did indeed possess those methylamphetamines. Without that evidence there is still a strong circumstantial case against the appellant arising from the various drug‑related items found in his apartment as well as the substantial quantity of cash found in his car.
Obviously, the mere fact that the methylamphetamines were in the appellant's apartment does not of itself establish that he possessed them. However, his possession of the drugs will be proved beyond reasonable doubt if the only reasonable inference from all of the admissible circumstantial evidence is that he had control or dominion over, and 'the order or disposition' of them (s 3 Misuse of Drugs Act).
Accordingly, important issues are whether the appellant lived in the apartment alone, and whether there was any opportunity for some other person to place the methylamphetamines there without his involvement or knowledge. In this regard, there was very little direct evidence as to the occupancy of the apartment, and the jury was only told (during cross‑examination of Detective Sergeant Taylor) that the (unidentified) landlord had leased it to an (unidentified) company. (Although details of the lease arrangements were discussed with the appellant on video, the DVD was tendered without a soundtrack and that conversation did not become part of the evidence).
Nevertheless, it was not in issue at trial that the appellant resided in the apartment. In this regard some of the questions during cross‑examination of prosecution witnesses referred to 'the accused's bedroom' (also described at times as the 'main' bedroom). Furthermore, the DVD of the police search (Exhibit 21) clearly showed that the main bedroom was in regular use (with the 'accused's clothes' hanging in the wardrobe), whereas the second 'spare' bedroom was sparsely furnished and appeared to be unoccupied. It was also relevant that items of discarded mail addressed to the appellant were found in the three garbage bags.
The only issue in respect of occupancy that was raised by the defence was whether some female person may have been sharing the appellant's bedroom. To this end, police witnesses were asked if they had observed female clothes in the bedroom, or female toiletries in the bathroom. No witness could recall seeing such items and the DVD of the search did not assist with this issue. In the end, the evidence did not establish whether or not some unknown female may have been sharing the appellant's bed at material times.
The DVD vision of the appellant's kitchen at the time of the police search was significantly probative. The methylamphetamines were found in a cupboard on top of a relatively low level rangehood above the stove. The cupboard was approximately at eye level and it had two hinged doors with a single shelf inside.
When the left hand door of the cupboard was opened, the clipseal bag containing the largest quantity of methylamphetamines (13.7 g) was immediately visible on the nearest edge of the shelf. Immediately to the right of this bag was a round tin which contained the small bag of pseudoephedrine. Behind the tin, and only partially obscured from view was the second bag of methylamphetamines (containing 4.51 g).
Most of the other drug‑related items were on the section of the kitchen bench top between the sink and the stove. The large 2008 diary was nearest to the sink, and immediately to its right was the set of scales (later found to have traces of methylamphetamines). To the right of this again were the orange and green exercise books (one on top of the other). All of these items were open to view on a somewhat untidy bench top. The placement of the diary and exercise books amongst small stacks of correspondence and other stationery items suggested that they were generally kept in that location.
The bulk of the clipseal bags in the apartment were in their original boxes which were stored in the kitchen pantry cupboard. However, a quantity of loose clipseal bags were inside a large white plastic shopping bag on the kitchen bench adjacent to the exercise books.
Any person standing in front of the kitchen bench would have been within arm's length of the refrigerator opposite. At the top of the refrigerator there was a freezing compartment with a separate door. This door had two inbuilt storage racks inside. When the door was opened, the only item on the top most rack was a very large clipseal bag containing the 31.1 g of DMS. Obviously it is significant that the DMS was later found to contain traces of methylamphetamines (no more than 0.05%).
The contents of the two exercise books also have significant probative value. The orange exercise book has 15 pages of notations bearing dates between April and August 2008. Each of these pages is headed by an abbreviated first name or initials of some person. On most pages there are then three columns being the dates, brief descriptions, and amounts of money for various transactions. The only reasonable inference from the nature of the notations is that each page is effectively a running ledger of debits and credits for the various transactions listed. Many of the transactions bear descriptions such as '1 x ½', '½B', '1G' or '2B'; but others are indecipherable. The amounts that are debited or credited in each instance range between $200 and $17,000. All together there are a total of 94 such transactions listed in the orange exercise book.
The notations in the green exercise book have a commencement date of 7 August 2008 and appear to be a continuation of the entries in the orange exercise book but in a different format. The notations are on only three pages, two of which have four columns. From left to right these columns are the initials of various persons; quantities (such as '1.75 g' and '7.00 g'); a column headed 'Coin' (with amounts ranging between $150 and $2,300); and a column headed 'Tick' with similar amounts.
Detective Sergeant Taylor expressed the opinion (based upon his considerable investigative experience) that the descriptions of the transactions in the exercise books related to illicit drugs. For example, it was his opinion that '1.75 g' referred to 1.75 grams, and that '½B' referred to a 'half ball' of the particular drug. He was also in the position to testify that the prices shown against each transaction were consistent with the 'retail' street prices demanded for methylamphetamines at that time.
There is also evidence from the handwriting expert (Ms J J Hansen) that she examined the diary and the exercise books for comparison purposes. She chose sample pages from each of the orange exercise book and the diary, and it was her opinion that the notations on those two pages were written by the same person.
At the time of the police search of the apartment the appellant was asked if the diary was his and he responded: 'Yeah, I think it's my diary'. He also said that the entries in the diary were 'possibly' made by him. Against the date 14 October 2008 (which is the appellant's birthday) there is the notation 'My b‑day'.
Quite obviously, the traces of methylamphetamines found in the DMS powder are consistent with that substance being used as a cutting agent for that drug. The fact that the DMS powder, the electronic scales, the loose clipseal bags, and the exercise books were all located in close proximity to each other (and to the methylamphetamines) also adds to the probative value of each item.
Furthermore, four used rubber gloves were found in one of the rubbish bags near the front door. Two of these rubber gloves bore traces of methylamphetamines. The other two rubber gloves had mixed DNA profiles inside, the major component of which matched the appellant's profile.
The combination of all of these circumstances gives rise to a number of compelling inferences. Starting with the exercise books, these were clearly records of illicit drug transactions over a period which commenced in April, and continued beyond 7 August 2008. Those exercise books were found in close proximity to a number of items which could only be consistent with trading in methylamphetamines (vis. the two quantities of methylamphetamines; the electronic scales, the DMS, and the rubber gloves, all bearing traces of methylamphetamines; and the loose clipseal bags).
The various drug‑related items were open to view, and the appellant must necessarily have been aware of their presence in his kitchen. Furthermore, notations recording drug transactions in the orange exercise book were written by the same person who made at least some of the entries in the diary. The diary bore the entry 'my b‑day' against the appellant's birth date, and he also made an admission to the effect that he thought it was his diary. When regard is had to all of these circumstances I consider that the only reasonable inference is that the appellant possessed the methylamphetamines found in his kitchen cupboard. Accordingly, I am satisfied that the admissible evidence at trial proved beyond reasonable doubt the appellant's guilt of count 2 in the indictment.
The content of the mobile phone text messages had a similar general character to the content of the exercise books. It was all evidence which tended to show that the appellant was engaged in illicit drug transactions. This being so, I do not consider that the admission of the text messages into evidence amounted to a significant denial of procedural fairness or a breach of the 'presuppositions of the trial' to such a degree as would deny the application of the proviso. Accordingly, I consider that no substantial miscarriage of justice has occurred.

Conclusions

For the above reasons I consider that the appellant should be refused leave in respect of his first ground of appeal. Leave should be granted in respect of the second ground, but the appeal should be dismissed.