Bolton v The State of Western Australia
[2006] WASCA 34
•2 MARCH 2006
BOLTON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 34
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 34 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:201/2005 | 30 JANUARY 2006 | |
| Coram: | ROBERTS-SMITH JA | 2/03/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to adduce additional evidence on appeal refused Leave to add ground of appeal refused Application for leave to appeal refused Appeal dismissed Application for bail dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALLAN WILLIAM BOLTON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal Application for leave to appeal Application to amend Appellant's Case by adding new ground Scientific examination or testing of exhibits and other items after trial Whether additional evidence capable of raising reasonable doubt about applicant's guilt Appropriate test Criminal law and procedure Appeal Application to adduce additional evidence on appeal Section 40 Criminal Appeals Act 2004 (WA) "New" or "fresh" evidence |
Legislation: | Criminal Appeals Act 2004 (WA), s 40 |
Case References: | Bolton v The State of Western Australia [2005] WASCA 232 CDJ v VAJ (1998) 197 CLR 172 Edwards v The Queen (1993) 178 CLR 193 King v The Queen (1986) 161 CLR 423 Lawless v The Queen (1979) 142 CLR 659 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mickelberg v The Queen (2004) 29 WAR 13 Osland v The Queen (1998) 197 CLR 316 Pellicciotti v The Queen [2004] WASCA 10 R v Hoar (1981) 148 CLR 32 R v Ireland (1970) 126 CLR 321 R v Qian Li Zheng (1995) 83 A Crim R 572 Roth-Beirne v The State of Western Australia [2005] WASCA 170 Samuels v The State of Western Australia (2005) 30 WAR 473 Tkacz v The State of Western Australia [2005] WASCA 108 Zoneff v The Queen (2000) 200 CLR 234 Button v The Queen (2002) 25 WAR 382 Carr v The Queen (1988) 165 CLR 314 Hillstead v The Queen [2005] WASCA 116 Maher, Ex parte [1986] 1 Qd R 303 R v Abbott (1997) 97 A Crim R 19 R v Anthony [1962] VR 440 R v Bernt (1994) 70 A Crim R 1 R v Henning (unreported, CCA SCt of NSW, Gleeson CJ, Campbell and Matthews JJ, Nos 406/88, 425/88, 426/88, 436/88, 437/88, 11 May 1990) R v Jellard [1970] VR 802 R v Lowry and King (No 2) [1972] VR 560 R v Masters (1992) 26 NSWLR 450 R v Renzella [1997] VR 88 R v Walser (1994) 73 A Crim R 154 R v Whitehouse [1977] QB 868 R v Wilson (1994) 34 NSWLR 1 RPS v The Queen (2000) 199 CLR 620 Walsh v Sainsbury (1925) 36 CLR 464 Webb v The Queen (1994) 181 CLR 41 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BOLTON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 34 CORAM : ROBERTS-SMITH JA HEARD : 30 JANUARY 2006 DELIVERED : 2 MARCH 2006 FILE NO/S : CACR 201 of 2005 BETWEEN : ALLAN WILLIAM BOLTON
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'SULLIVAN DCJ
File No : IND 536 & 541 of 2004
Catchwords:
Criminal law and procedure - Appeal - Application for leave to appeal - Application to amend Appellant's Case by adding new ground - Scientific examination or testing of exhibits and other items after trial - Whether additional evidence capable of raising reasonable doubt about applicant's guilt - Appropriate test
(Page 2)
Criminal law and procedure - Appeal - Application to adduce additional evidence on appeal - Section 40 Criminal Appeals Act 2004 (WA) - "New" or "fresh" evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 40
Result:
Leave to adduce additional evidence on appeal refused
Leave to add ground of appeal refused
Application for leave to appeal refused
Appeal dismissed
Application for bail dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr P D Yovich
Solicitors:
Appellant : Simon Watters
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bolton v The State of Western Australia [2005] WASCA 232
CDJ v VAJ (1998) 197 CLR 172
Edwards v The Queen (1993) 178 CLR 193
King v The Queen (1986) 161 CLR 423
Lawless v The Queen (1979) 142 CLR 659
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mickelberg v The Queen (2004) 29 WAR 13
Osland v The Queen (1998) 197 CLR 316
(Page 3)
Pellicciotti v The Queen [2004] WASCA
R v Hoar (1981) 148 CLR 32
R v Ireland (1970) 126 CLR 321
R v Qian Li Zheng (1995) 83 A Crim R 572
Roth-Beirne v The State of Western Australia [2005] WASCA 170
Samuels v The State of Western Australia (2005) 30 WAR 473
Tkacz v The State of Western Australia [2005] WASCA 108
Zoneff v The Queen (2000) 200 CLR 234
Case(s) also cited:
Button v The Queen (2002) 25 WAR 382
Carr v The Queen (1988) 165 CLR 314
Hillstead v The Queen [2005] WASCA 116
Maher, Ex parte [1986] 1 Qd R 303
R v Abbott (1997) 97 A Crim R 19
R v Anthony [1962] VR 440
R v Bernt (1994) 70 A Crim R 1
R v Henning (unreported, CCA SCt of NSW, Gleeson CJ, Campbell and Matthews JJ, Nos 406/88, 425/88, 426/88, 436/88, 437/88, 11 May 1990)
R v Jellard [1970] VR 802
R v Lowry and King (No 2) [1972] VR 560
R v Masters (1992) 26 NSWLR 450
R v Renzella [1997] VR 88
R v Walser (1994) 73 A Crim R 154
R v Whitehouse [1977] QB 868
R v Wilson (1994) 34 NSWLR 1
RPS v The Queen (2000) 199 CLR 620
Walsh v Sainsbury (1925) 36 CLR 464
Webb v The Queen (1994) 181 CLR 41
(Page 4)
1 ROBERTS-SMITH JA: The applicant makes a number of applications. The first is an application for leave to appeal against conviction. In relation to that, there is also an application to add a new ground of appeal, for leave to adduce additional evidence in support of his appeal and for bail pending appeal. There is also an application for leave to appeal against sentence. I have granted leave in respect of that and it is not necessary to refer to it further for present purposes.
2 The applicant was charged jointly with one Belinda Hayley on an indictment dated 18 June 2004, the offence being that between 4 September 2000 and 15 August 2002 they manufactured a prohibited drug, namely methylamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA).
3 Following trial before O'Sullivan DCJ and a jury in the District Court at Perth, both were convicted.
4 On 3 October 2005 the applicant was sentenced to immediate imprisonment for a term of 3 years 4 months, with eligibility for parole.
5 Ms Hayley was also sentenced to 3 years 4 months' imprisonment, but that sentence was suspended for 2 years.
6 Both the applicant and Ms Hayley filed appeal notices against conviction on 25 October 2005. The grounds of appeal are virtually identical.
7 The applicant made an application for bail pending appeal. That was heard before me on 24 November 2005. Judgment was delivered on 1 December 2005 (Bolton v The State of Western Australia [2005] WASCA 232) ("the bail decision"). Bail was refused. At that stage, neither the applicant nor Ms Hayley had filed an Appellant's Case.
8 Each filed an Appellant's Case on 5 December 2005.
9 Apart from minor differences in relation to grounds 3 and 4, the submissions advanced on behalf of each of them are virtually identical.
10 By application filed 21 November 2005, the applicant sought an order that exhibits seized by police from his property concerning the charge of which he was convicted, and being not tendered as exhibits at trial and remaining within the custody or control of the police, be delivered to the office of the DPP for the purpose of them being independently examined by an expert engaged by the applicant.
(Page 5)
11 I heard that application on 24 November 2005 and made the order sought.
12 By notice dated 18 January 2006 the applicant and Ms Hayley applied for an order that an expert, Mr John Franceschini of Sharp & Howells Pty Ltd, Chartered Chemists, Victoria, be permitted to take a swab for analytical purposes from items seized from their premises by police and tendered as exhibits at their trial.
13 At the hearing of that application on 30 January 2006 it became apparent that the only item which the applicant sought to be the subject of this order was a five litre flask, which was exhibit 3 at trial. I made the orders sought, with some additional directions.
14 On 13 February 2006 the applicant filed an application seeking:
"Leave that at the hearing of his appeal against conviction he be permitted to rely upon the fresh evidence set out in Ground 5 of his (Amended) Grounds of Appeal dated 13 February 2006."
15 The applicant also filed with that application, a document headed "(Amended) Appellant's Submissions in support of his appeal against conviction" also dated 13 February 2006.
16 The grounds of appeal thus filed were the same as those in the Appellant's Case except for a new ground 5, with the previous ground 5 becoming ground 6.
17 Although an applicant may file an Appellant's Case with amended or different grounds to those on the appeal notice without requiring leave (r 28(5) Supreme Court (Court of Appeal) Rules 2005 (WA)), to amend or change grounds thereafter, leave is required.
18 The applicant's grounds of appeal, including the proposed new ground 5 are:
"Ground 1
The charge was that the Appellant, with another, manufactured a prohibited drug contrary to s6(1)(b) of the Misuse of Drugs Act 1981.
The learned trial Judge erred and there was a miscarriage of justice when, on one basis he put the charge to the jury as a conspiracy to manufacture when the Appellant and his co-
(Page 6)
- defendant entered into an agreement or what amounted to an agreement (t-s 317E)
Ground 2
The learned trial Judge erred when he put the position of the Appellant and his co-accused, regarding their standing as parties to the offence, in a conflicting way;
(i) Initially His Honour stated that either one of them was the principal and the other gave assistance (t-s 319A).
(ii) Conversely, the learned trial Judge later stated in his summing up that either they were each principals or, alternatively, they were each aiders (t-s 3281B).
Ground 3
The learned trial Judge erred when he failed to give a lies direction to the jury during him summing up. However, in his final address to the jury, counsel for the Respondent raised the issue of lies by the Appellant's co-defendant [t-s 15B(30.09.05)] and, further, it was also suggested the Appellant was also lying [t-s 13C (30.09.05)].
Ground 4
Notwithstanding that the Appellant's co-defendant gave evidence that implicated, to a degree, the Appellant, the learned trial Judge did not direct the jury at all as to how the evidence of one co-accused could be used against the other.
Ground 5
Evidence obtained since the trial, particulars of which appear below, in conjunction with the existing Grounds of Appeal, is capable of raising a reasonable doubt as to whether the Appellant was involved in the manufacture of methylamphetamine, rendering the verdict unsafe or unsatisfactory:
Particulars of Fresh Evidence
5.1 A report of John Franceschini ("Franceschini") dated 6 February 2006 ('Report') states:
(Page 7)
- (a) The Appellant was convicted of manufacturing methylamphetamine by the Iodine/pseudoephedrine/hypophosphorous acid technique ('technique') (P1 Report; t-s 45-56);
(b) Before the primary court the respondent outlined the chemicals and equipment said to have been used by the Appellant in the technique (t-s 46-47);
(c) The items stated by the respondent before the primary court, said to have been used in the technique, would not be considered to fully represent the items expected of a typical drug manufacturing facility of the type mentioned (P2 Report).
- 5.2 There were numerous items seized from the Appellant's premises, relied upon by the State, that were not tested for the chemicals used in the manufacture of amphetamine (P3 Report)
5.3 A number of items that would reasonably be expected to be present in the manufacture of methylamphetamine using the technique were not found at the Appellant's premises (P2 Report).
Ground 6
If not sufficient so as to individually found a miscarriage of justice, the above five grounds, when viewed cumulatively, are such that a miscarriage of justice occurred."
19 The applications were heard before me on 16 February 2006.
20 It seems to me that I should logically deal with the applications in relation to the further evidence first, then the application for leave to appeal in respect of each ground and finally, the application for bail.
Application for further evidence
21 It can immediately be seen that the "new ground" application is in fact two applications. The first is an application for leave to add a new ground of appeal; the second is for leave to adduce fresh evidence in support of that ground.
(Page 8)
22 The application is supported by an affidavit of Ms Hayley filed 13 February 2006, to which annexure BJH6 is described as "Preliminary Report of John Franceschini dated 06.02.06" ("the Franceschini letter").
23 By application filed 13 February 2006, the applicant seeks bail pending appeal and sought an expedited hearing of that application. The submission in support of the bail application acknowledges that exceptional circumstances need to be shown before bail will be granted pending appeal. It is said that here they are that the new ground, in conjunction with evidence obtained since the trial, is capable of raising a reasonable doubt whether the applicant was involved in the manufacture of methylamphetamine, rendering the verdict unsafe or unsatisfactory. It is further submitted that the Franceschini letter fortifies the conclusion, based upon the existing grounds of appeal, that a miscarriage of justice has occurred, and standing alone would be capable of raising a significant doubt as to the appellant's guilt. Finally, more specifically in respect of the exceptional reasons criterion, it is submitted that in light of the doubt the Franceschini report raises regarding whether the items seized from the applicant's property amounted to those required to manufacture methylamphetamine using the technique outlined by the respondent, the applicant's appeal in relation to ground 5 is "most likely to succeed".
24 As presented by the applicant, the bail application accordingly relies upon him being granted leave to amend his grounds of appeal by the addition of the new ground 5, being granted leave to adduce the evidence referred to, and demonstrating that the quality and effect of that evidence would be to lead to a conclusion that an appeal against conviction is most likely to succeed.
25 It is pertinent to note that both this applicant's case (CACR 201 of 2005) and Ms Hayley's (CACR 200 of 2005) were listed before me on 16 February 2006, originally for submissions on their applications for leave to appeal. As I have observed, their grounds are virtually identical, except Ms Hayley has not sought leave to amend to add the ground about the expert evidence obtained since trial, although she had foreshadowed she will be doing so. She, on the other hand, in reliance upon the very same letter from Mr Franceschini, made an application on 13 February 2006 that the hearing of her application for leave to appeal be vacated so that she "… can finalise further evidence, namely an expert's report, grounding an additional Ground of Appeal based upon such fresh evidence." She sought an adjournment of the application until a dated after 31 March 2006, at which time she expects Mr Franceschini's final
(Page 9)
- report to be available. I granted her application which therefore presently stands in abeyance.
26 When I pointed this out to Mr Watters (who appears for both the applicant and Ms Hayley) and drew his attention to the apparent inconsistency between the two, with the applicant wishing to have his applications determined presently on the basis of Mr Franceschini's letter, whereas Ms Hayley has taken the position her application for leave to appeal should not be dealt with until a further report was provided, he said his client was aware of the apparent incongruity, but insisted on proceeding with his applications on the basis of the report dated 6 February 2006. He said the submission is that that report, standing alone, is capable of casting a reasonable doubt on the verdict.
27 The application is supported by an affidavit of Ms Hayley sworn and filed 13 February 2006.
28 She deposes that she is the de facto partner of the applicant and was tried jointly with him. At their joint trial the State prosecutor outlined the technique said to have been used by them to manufacture "amphetamine" (sic). She deposes that in opening, the State prosecutor listed chemicals and equipment used in the technique. She says that of those so listed, only some were actually seized by police. The chemicals listed by the prosecution and seized were caustic soda, acetone, Sudafed/pseudoephedrine, and methylated spirits. Those listed but not seized were iodine, hypophosphorus acid and hydrogen chloride. The equipment listed and also seized, she says, was glassware (5 litre Buchner flask), electric frypans, a respirator mask, plastic funnels, jars and scales. Equipment items not seized were a stove, safety glasses, rubber gloves, syphons and clip bags.
29 She further deposes that a number of other items said by prosecution witnesses in evidence to be used in the manufacture of amphetamine and indicative of persons being involved in the manufacture of amphetamine, were either not found or were not seized from the applicant's property. These included large sums of money, recipes or formula or a book with amounts, an address book, toluene, hydrochloric acid and Tantia scales.
30 According to Ms Hayley, prior to her joint trial with the applicant commencing 27 September 2005, they requested and instructed their respective trial counsel to obtain an expert's report dealing specifically with the question whether or not the items seized supported the manufacture of amphetamine using the technique relied upon by the
(Page 10)
- prosecution and secondly, whether there were traces on any of the items seized of any of the actual chemicals said to have been used in the technique.
31 Mr Watters relies upon that evidence as showing that the present application is not simply a belated attempt to run something on appeal which they had not thought of before. He says the expert evidence was not obtained and presented at trial despite the instructions of the applicant and Ms Hayley, but there would be no ground raised going to the reason for that, nor complaining about the way in which counsel conducted the case.
32 Ms Hayley deposes to the two applications made to me for access to an expert examination of particular items. She then refers to the Franceschini letter, the salient terms of which are set out below:
"We have been requested to provide a preliminary report based on our findings, discussions with experts and literature reviews regarding your impending appeal.
At this stage we have only the information provided by yourselves to act on and we understand that we may not have all the documentation or details regarding the case at this time.
Our understanding of the situation is as follows:
- You have both been convicted of manufacturing Methylamphetamine by the Iodine/Pseudoephedrine/Hypophosphorus Acid technique.
- You are both appealing your convictions and deny the charges
- Police seized a number of items from your premises which contained traces of Methylamphetamine and stated at the trial by the State to have been used in the manufacture of Methylamphetamine as follows:
o a glass Buchner flask - size not stated
o a plastic blender attachment-size and type not stated nor if a blender device was found
o a plastic funnel-size not stated
o glass jars-type and size not stated
(Page 11)
- o a rubber stopper-size not stated
- o three sets of electronic scales-size, capacity and working condition of each not stated
- Please note that if this list is comprehensive then it would not be considered to fully represent the items expected of a typical drug manufacturing facility of the type mentioned.
The additional items that would be expected to be available for the manufacture of Methylamphetamine by the method stated could include any combination or all of the following:
Separating Flask(s)
Buchner Funnel(s)
Blender
Hand Crushing device such as a Mortar & Pestle
Filter Papers-either analytical type or coffee filters might suffice
Heating mantle(s)
Gas or electric oven or portable oven
Electric Fan
Dishes, bowls, jars or buckets, possibly glass or Pyrex but don't have to be.
Assorted Rubber or plastic tubes, hoses or pipes
A reflux flask that would fit in the heating mantle (usually glass with 2 or 3 necks with condensers, stoppers or fittings)
Steel or glass bowls possibly containing oil or sand
Bottle(s) (plastic or glass)
Stirring Devices
Water Pump or Vacuum Pump
Pipette(s) or liquid sucking device
- Significant quantities (i.e. not just 1, 2 or 3, more like 100+) of empty or full 'Sudafed', 'Telfast', 'Zirtec', 'Demazin' or Home Brand type Cold and Flue tablets or other equivalent product containing Pseudoephedrine.
(Page 12)
- - We understand that none of the items collected were tested for the chemicals used to manufacture amphetamine which we understand includes the following items:
Iodine
Hypophosphorus Acid
Pseudoephedrine
Hydrochloric Acid
Sulfuric Acid
Volatile Organic Solvents such as Toluene or Ethanol
Salt (Table salt or sodium chloride)
Alkalis such as Caustic Soda or 'Drano' [sic],
or by-products, intermediaries, or cutting agents such as:
Methamphetamine Base Oil
Glucodin
Sugar
Paracetamol
Talc
Flour
Or Lactose amongst others
- You have stated that you would like the said items tested for traces of the chemicals involved for the purposes of supporting your appeals. Court orders are in place or being pursued in order to allow us to access the items at the court or the WA State Chemistry Centre as appropriate which we are prepared to do at your and our earliest convenience.
- We intend to examine and photograph all of the items involved to determine their viability in the potential manufacture of amphetamines.
- Some of the items collected should show evidence of residues of the precursors, actives, and by-products unless
(Page 13)
- they have already been cleaned thoroughly of such residues for testing purposes, in which case there should be analytical data available to support this, or they did not contain such residues in the first place.
- - Copies of the test reports should be available for perusal. If these items were not tested it would be considered unusual practice.
- We intend to take scrapings (dusts, solids or powders) or swabs/washings (for faint traces or residues or areas too difficult to scrape) from each item involved as appropriate and return them to our NATA accredited laboratory (Lab. No. 61) for testing purposes.
- Testing would involve a combination of analytical techniques such as Gas Chromatography/Mass Spectroscopy, LC/MS, Infra-Red Spectroscopy, Scanning Electron Microscopy, or classical chemical techniques where appropriate.
- We would like to see a copy of the reports prepared by Police Forensics. Should the charges have been clearly laid with respect to the manufacture solely by the specific method mentioned (i.e. Iodine/Hypo method) then questions related to the presence of the precursors in the equipment seized must be asked.
Our experts are available to support me in this matter, however, all sampling and reporting would be conducted by myself."
33 The Franceschini letter is what Mr Franceschini himself describes as "a preliminary report". It is clear it is not based on any expert examination of anything. To the extent the applicant appears to be anticipating that physical examination of the items seized will, or may, fail to reveal any trace of methylamphetamine precursors, that expectation is wholly speculative and completely unfounded on any evidentiary basis. The items have not even been examined by him. Even if they are examined and fail to reveal traces of precursors, it is apparent from the evidence given by Dr Dominic Reynolds at trial, that such result might be due to other factors (such as washing), which would not advance the applicant's position.
(Page 14)
34 The second point is that the opinions expressed in the letter are based only on information provided by the applicant and Ms Hayley (which is not set out) and which Mr Franceschini expressly acknowledges may not be all the documentation or details regarding the case. Indeed, in his submission for the respondent, Mr Yovich contends that it is obvious Mr Franceschini was not given either complete or accurate information about what was found or seized by police at the applicant's premises, and that there were other relevant items.
35 That is in fact so. For example, Mr Franceschini's statement that "significant quantities (i.e. not just 1, 2 or 3, more like 100+) …" of products containing pseudoephedrine would be expected to be available for the manufacture of methylamphetamine by the method stated, would appear to suggest he was told only a few pseudoephedrine products were found, whereas, as the State prosecutor described in opening (t/s 39):
"… in the category of Sudafed there were 30 tablets containing pseudoephedrine - so Sudafed-type tablets although they were brand named Sinus Relief - 30 tablets were found in a box on the kitchen table. There were a total of 109 Sudafed and Sinus Relief tablets containing pseudoephedrine found in a box next to a gas hot water system on the verandah. There were empty Sudafed blister backs on the kitchen benchtop. In a wardrobe of the main bedroom of the house there were 14 empty boxes, the boxes originally containing 30 tablets of Sudafed so 14 empty boxes of 30 tablets of Sudafed.
Also 13 empty blister packs of 15 tablets, so blister packs of 15; 13 of those also in the wardrobe."
36 Expert opinion evidence is inadmissible if it fails to set out the factual basis upon which the expert forms his or her opinion (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 per Heydon JA at [74] - [76]). The material relied upon by Mr Franceschini is not detailed.
37 Thirdly, the items found were not the only relevant evidence at trial and it was not the State's case that all the items and equipment necessary to manufacture methylamphetamine were conveniently present at the time of the police raid. The State's case was that some items and equipment were, which, together with other evidence, showed beyond reasonable doubt that the applicant and Ms Hayley were engaged in the manufacture of methylamphetamine.
(Page 15)
38 Critical evidence of the latter kind included documents relevant to the ordering, purchasing or attempted purchasing of chemicals (ingredients) from chemical supply companies by each of the applicant and Ms Hayley, between 4 September 2000 and 22 November 2001. These included documents relating to purchases and courier transfer of hypophosphorus acid and iodine.
39 The Court of Appeal may admit further evidence on the hearing of an appeal (s 40 Criminal Appeals Act 2004 (WA)). The power may be exercised by a single Judge (r 53 Supreme Court (Court of Appeal) Rules 2005). This is a wide discretion, not constrained by anything in s 40 itself. Nonetheless, such a provision should not be construed in such a way as to have the practical effect of obliterating the distinction between original and appellate jurisdiction and ordinarily, where it is alleged that the admission of further evidence requires a conviction be quashed and a new trial ordered, justice will not be served unless the Appeal Court is satisfied the further evidence would have produced a different result if it had been available at the trial (CDJ v VAJ (1998) 197 CLR 172, per McHugh, Gummow and Callinan JJ at [111]).
40 The evidence now sought to be relied upon plainly does not have that quality. It cannot be said that had it been called at trial it would have resulted in a different outcome. Furthermore, this is not "fresh evidence", on the basis of which an Appeal Court could reach a conclusion there was a miscarriage of justice because if the evidence had been led at trial, the jury may have acquitted (Mickelberg v The Queen (2004) 29 WAR 13, [416]; Roth-Beirne v The State of Western Australia [2005] WASCA 170, [40]). That is because on the applicant's own material, it could reasonably have been obtained before trial. It accordingly falls into the category of "new evidence" and so it is not enough to show the applicant may have been acquitted had it been led; no miscarriage of justice will be demonstrated unless the new evidence is capable of satisfying the Court the applicant is innocent, or at least raises such a doubt that he or she should not have been convicted (Tkacz v The State of Western Australia [2005] WASCA 108, [49]; Lawless v The Queen (1979) 142 CLR 659, 676; Mickelberg v The Queen (supra) at [413]).
41 The evidence upon which the applicant now seeks to rely is not capable of showing that he is innocent, nor of raising such a doubt that he should not have been convicted. It is therefore not capable of demonstrating there has been any miscarriage of justice. I would accordingly refuse the application for leave to adduce it on appeal.
(Page 16)
42 It follows that the application for leave to add the new ground must also fail.
Application for leave to appeal (other grounds)
43 The test to be applied by a single Judge of appeal or the Court on considering an application for leave to appeal is prescribed by s 27(2) of the Criminal Appeals Act. Leave to appeal on a ground must be refused unless that ground has a reasonable prospect of succeeding. The proper application of this test was explained in Samuels v The State of Western Australia (2005) 30 WAR 473 at [56] - [60].
Ground 1
44 For the reasons expressed at [26] of the bail decision (Bolton v The State of Western Australia [2005] WASCA 232), I am not satisfied that this ground has a reasonable prospect of success.
45 It is submitted that his Honour "erred and there was a miscarriage of justice when, on one basis he put the charge to the jury as a conspiracy to manufacture when the [applicant] and [Ms Hayley] entered into an agreement or what amounted to an agreement (t/s 317E)". I accept the submission that a Judge should not, without notice, put the prosecution case in a way not put by the prosecutor (King v The Queen (1986) 161 CLR 423). The submission then advanced thought, is that where an offence is completed, the substantive offence rather than a conspiracy ought to be charged (R v Hoar (1981) 148 CLR 32). That may be so, but in fact the applicant and Ms Hayley were charged with the completed offence. In talking to the jury about the applicant and Ms Hayley entering into an agreement or what amounted to an agreement, his Honour was not putting a case of conspiracy to the jury, but merely telling them, quite correctly, how they might find, if they were satisfied of it on the evidence, that both participated in the commission of the offence. The prosecution position had always been that the applicant and Ms Hayley had committed the offence together, which necessarily involved knowledge and agreement to do so (see for example t/s 4 - 5 of 30 September 2005).
46 The submission that there was no evidence the substantive offence of manufacturing had occurred because, as the State prosecutor said in opening, "[t]he State cannot say exactly where or when the manufacturing happened …" (t/s 55) does not bear on this ground. It raises an argument which is not a ground of appeal.
(Page 17)
Ground 2
47 The submissions advanced in support of this ground are that the State case against the applicant and Ms Hayley was that both of them were principals with the other, or as aiding the other, or other people, if other people were involved. At a later point the prosecutor put to the jury that the two were principals. It is submitted that his Honour erred when he put their position in what is said to be a "conflicting" way, in that initially he stated that either one of them was a principal and the other gave assistance or, conversely later stated to the jury that either they were each principals or, alternatively, they were each aiders.
48 I adopt the reasons I expressed at [27] of the bail decision.
49 I am not satisfied this ground has a reasonable prospect of succeeding before three Judges on the Court of Appeal.
Ground 3
50 The submissions advanced here refer first to what the State prosecutor said in his final address to the jury when referring to the evidence against the applicant and Ms Hayley and their denials of knowing about the items found on their property allegedly used to manufacture methylamphetamine. The prosecution put that the State's case was that Ms Hayley had simply lied to the jury about that, as had the applicant.
51 The submission then is that in light of that proposition, his Honour erred when he failed to give a "lies direction" (Edwards v The Queen (1993) 178 CLR 193, 210 - 211).
52 In his final address, the State prosecutor said (t/s 15):
"The state [sic] says this is just too much of a coincidence that those explanations offered are simply too convenient, that these two are simply not telling the truth and that fact that they are not telling the truth, you might think, is highlighted by this interesting piece of evidence."
53 An Edwards direction should be given only if the prosecution contends that a lie is evidence of guilt (Zoneff v The Queen (2000) 200 CLR 234, [16] - [17]).
54 In this case the State did not rely upon lies told by the applicant as evidence of guilt, and indeed they could not because what were said to be
(Page 18)
- lies arose out of the proof of the prosecution case itself (see R v Qian Li Zheng (1995) 83 A Crim R 572, 576 - 578). The Judge gave no direction to the jury at all about lies told by the applicant or Ms Hayley. The only potential issue here is whether the jury should have been told that if they were satisfied the applicant had lied in his evidence, that was relevant only to their assessment of his credit (Osland v The Queen (1998) 197 CLR 316 at [44]).
55 Here the applicant would have to satisfy the Court of Appeal there was a real risk that without such a direction the jury may have relied upon alleged lies by the applicant as proof of his guilt, so giving rise to a miscarriage of justice. There is no reasonable prospect that could be demonstrated. It should also be noted that the applicant's trial counsel did not ask his Honour to give a direction in accordance with Edwards, nor indeed to give a direction of the kind referred to in Zoneff. Although such an omission would not necessarily relieve a trial Judge from the obligation to deal with an issue in accordance with law (Pellicciotti v The Queen [2004] WASCA 10 per Templeman J at [21]), that circumstance does however reinforce the conclusion that no miscarriage occurred.
56 The evidence was that a very large number of items used in the manufacture of methylamphetamine had been found in the applicant's home and office premises. In his final address, the State prosecutor put to the jury that the "so-called innocent explanations" by the applicants about them, or claims of ignorance concerning the items, were not true. For example, he said that in relation to ingredients and equipment, Ms Hayley said she was not aware of a large bag of Sudafed which had been found in the master bedroom, she was ignorant of what was on the verandah and did not know that a 5 litre jug or flask, which was found to contain traces of methylamphetamine in it, was in the kitchen cupboard. Likewise, he referred to her denial that she knew anything about caustic soda on the verandah or a blender which was found, nor a large funnel also with traces of methylamphetamine manufacture, amongst other items. He made suggestions in relation to the applicant's explanations that he did not know about the Sudafed cardboard boxes and blister pack in a grey shopping bag in the master bedroom, a large funnel, a blender, three pasta jars and other items containing residues.
57 The specific passage relied upon by Mr Watters is at t/s 13, where the State prosecutor referred first to Ms Hayley:
"She, the state [sic] says, necessarily knew that the flask, the scales, the jars and the items outside on the verandah were there
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- and the state [sic] says Ms Hayley has simply lied to you about that, as has Mr Bolton."
58 Again, referring to evidence, inter alia, that the applicant had accepted that he signed an order for hypophosphorus and other purchases by the applicant and Ms Hayley, each of them said that others had access to the house and the ability to make orders, and the purchases must have been made by them. As to that, the prosecutor said (t/s 15):
"The state [sic] says this is just too much of a coincidence that those explanations offered are simply too convenient, that these two are simply not telling the truth …"
59 The jury could only have been satisfied these were lies if satisfied the applicant was involved in the manufacture of methylamphetamine: in other words, if he was guilty of the offence charged. What were said to be lies therefore went only to his credit. Having regard to the way the case was put to the jury, it is unlikely in the extreme that the Court of Appeal would be persuaded there was such a risk the jury may have used the claimed lies in an impermissible way, as to necessarily require a judicial direction that they were relevant only to credit. I am not satisfied this ground has a reasonable prospect of succeeding.
Ground 4
60 The observations I made about this ground at [31] of the bail decision is still apposite, notwithstanding counsel for the applicant has now drawn attention to some specific parts of the evidence. For example, it is submitted that when the State prosecutor put to Ms Hayley that she and the applicant were buying ingredients for manufacturing methylamphetamine, she replied "I don't remember … I haven't bought anything for drugs" (t/s 258). The submission based upon this is that Ms Hayley did not by that answer, exculpate the applicant. It is also said that she stated that various transactions involving the purchasing of chemicals were brought to the applicant's attention, but that is not developed.
61 To say that Ms Hayley's answer "did not exculpate" the applicant is not to say that her answer inculpated him. It did not do so. It was a mere denial that she had bought anything for the manufacture of drugs.
62 Likewise, her evidence that various purchases of chemicals had been brought to the applicant's attention has to be evaluated in the context that
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- both were saying such purchases were for innocent and legitimate purposes.
63 The applicant has not demonstrated this ground has a reasonable prospect of succeeding before the Court of Appeal.
Ground 6
64 In R v Ireland (1970) 126 CLR 321 the High Court held that an aggregate of errors in the conduct of a trial may properly lead to the quashing of a conviction and an order for retrial, even if the errors individually are incapable of producing that result.
65 There is no difficulty about that proposition as a matter of law. The question concerns the application of it to the facts of the particular case.
66 As I am not satisfied there is a reasonable prospect that any of the other grounds would succeed, it follows that I am not satisfied there could be shown an aggregation of errors in those respects, capable of constituting a miscarriage of justice, and accordingly this ground, likewise, has no reasonable prospect of success. The applicant's appeal will be dismissed pursuant to s 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005.
Application for bail pending appeal
67 Given my conclusion just expressed, there is no extant appeal pending. The application for bail accordingly falls away and must be dismissed.
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