Boyd v The Queen

[2013] NSWCCA 52

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Boyd v R [2013] NSWCCA 52

Hearing dates:

24 October 2012

Decision date:

07 March 2013

Before:

McClellan CJ at CL at [1]
Bellew J at [2]
Button J at [3]

Decision:

(1) Leave to appeal against conviction granted.

(2) Appeal against conviction dismissed.

(3) Leave to appeal against sentence granted.

(4) Appeal against sentence allowed.

(5) Quash the commencement date of the sentence of 29 May 2011.

(6) In substitution, impose a new commencement date of 14 January 2011. As a result, the first date upon which the applicant will be eligible for release upon parole will be 13 January 2015.

Catchwords:

CRIMINAL LAW - application for leave to appeal against conviction - drug offences - whether verdict is unreasonable - credibility of witnesses in question - otherwise strong circumstantial Crown case - appeal dismissed

CRIMINAL LAW - application for leave to appeal against sentence - error in back dating - Crown does not resist adjustment - sentence adjusted

Cases Cited:

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Category:

Principal judgment

Parties:

Dennis Boyd (applicant)
The Crown (respondent)

Representation:

Counsel:
C Steirn SC, T Jones (applicant)
J Pickering SC (respondent)
Solicitors:
One Group Legal (applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2009/158071

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-08-26 00:00:00

Before:

Ashford DCJ

File Number(s):

09/158071

Judgment

1. McCLELLAN CJ at CL: I agree with Button J.

1. BELLEW J: I agree with Button J.

1. BUTTON J: On 1 June 2011, the applicant was arraigned in the District Court of New South Wales at Parramatta before her Honour Judge Ashford and a jury panel. The indictment contained a single count averring that on 29 January 2009 the applicant supplied a commercial quantity of a prohibited drug; namely, 893 grams of methylamphetamine. The applicant pleaded not guilty, the jury was empanelled, and the trial commenced.

1. On 8 June 2011, the jury returned a verdict of guilty. Subsequently, her Honour sentenced the applicant to a term of imprisonment with a head sentence of 7 years 6 months and a non-parole period of 4 years to date from 29 May 2011.

1. The applicant seeks leave to appeal against conviction and has notified a single ground with regard to a question of fact: that the verdict of the jury is unreasonable or unable to be supported. That ground is resisted by the Crown.

1. There is also a single ground seeking leave to appeal against sentence, founded only on an asserted inadequacy in the backdate granted by her Honour. The Crown does not resist that adjustment. Accordingly, if the ground of appeal against conviction is not upheld, the application for leave to appeal against sentence can be dealt with briefly at the end of this judgment.

Appeal against conviction

1. The ground of appeal against conviction calls for a consideration of the evidence as a whole. It is convenient to analyse the Crown case by first identifying matters that were and were not in dispute at the trial. The evidence will be analysed generally in chronological order.

Crown case - undisputed facts

1. On 27 January 2009 at 6:52pm, the applicant engaged in an intercepted telephone conversation with a Mr Farrar. It was obvious from the terms of the conversation that they were friends. Mr Farrar informed the applicant that "me mate from Mussie" was intending to come over the following day. It was agreed between Mr Farrar and the applicant that that person should attend "tomorrow night". The applicant said "Yeah I should have it all serviced for him". Mr Farrar referred to another person attending as well. Towards the end of the conversation, Mr Farrar referred to "what we talked about you, you know eh?", and the applicant replied "yeah".

1. On 27 January 2009 at 10:40pm, an SMS message was sent from the mobile phone of the applicant to the mobile phone of Mr Farrar. The message was "Bro see you on weekend 100%".

1. On 28 January 2009 at 7:21am, a further telephone conversation took place between Mr Farrar and the applicant. The applicant asked "Can they come?", and a little later Mr Farrar replied "Yeah, yeah. Yep." The applicant requested that the visitor under discussion attend at 3pm. The applicant said "And um what, what ya said last time he's gonna do, eh?", and Mr Farrar replied "yeah, yeah, yep." Mr Farrar said "There's that and I'll just when, when I come down, when Azza comes down um what's there like fifteen I think". And the applicant replied "Alright". Mr Farrar said "And then, and then when I go on holidays it should be the rest when I get back", and the applicant indicated his assent.

1. On 28 January 2009 at 11:36am, a further telephone conversation took place between Mr Farrar and the applicant. Amongst other things, Mr Farrar said "Oi three tomorrow he said. Is that all right?", and the applicant replied "Yeah".

1. On 29 January 2009 at 10:10am, an SMS was sent from the mobile telephone of Mr Farrar to the mobile telephone of the applicant. The message consisted only of the mobile telephone number of a Mr Hobbs. Mr Hobbs lived in Aberdeen, a township near Muswellbrook.

1. On 29 January 2009 at 10:12am, a telephone conversation took place between Mr Farrar and the applicant. Mr Farrar said "That's Old Mate's number." As to the question as to whether the person under the discussion would "be there", Mr Farrar said "He will but - it'll be good", and the applicant replied "Alright mate".

1. On 29 January 2009 between 10:25am and 2:56pm, a number of curt SMS messages passed between the mobile telephones of the applicant and Mr Hobbs. An arrangement was made to meet at the Hungry Jack's restaurant at Wentworthville. The last message was sent from the mobile telephone of Mr Hobbs to that of the applicant, and was "Yeh im here".

1. On 29 January 2009 at 12.49pm, the vehicle of Mr Hobbs entered the carpark of Westfield Parramatta.

1. On 29 January 2009 at 1:21pm, a receipt was generated at the Pulse Pharmacy at Westfield Parramatta. It referred to a number of items, including two amounts of Glucodin.

1. On 29 January 2009 at 1:22pm, two CCTV photographs from Westfield Parramatta show images of Mr Hobbs strolling through that shopping centre, apparently with a female companion. In his right hand he is holding something that appears to be white and perhaps green, and is very generally consistent with the appearance of a shopping bag.

1. On 29 January 2009 at 3pm, the police conducted surveillance of the Hungry Jack's restaurant at Wentworthville. Detective Mackay was the operator of a video camera that was trained on the scene. During the video recording of events, Detective Mackay also provided a contemporaneous oral commentary about what he was seeing.

1. Detective Kiem was also one of the police undertaking surveillance at that location.

1. Mr Hobbs arrived at the restaurant in a red Nissan. The applicant arrived in a black BMW. Mr Hobbs alighted from his vehicle with something in his hand. He approached a vehicle that was, in fact, an unmarked police car. He sought to open one of its doors, but then returned to the Nissan.

1. The applicant and his female companion alighted and entered the restaurant. The Nissan was driven to a spot adjacent to the BMW. Mr Hobbs and a female companion then alighted from the Nissan and entered the restaurant. Shortly after, the applicant and Mr Hobbs met at the front of the restaurant. The two men shook hands.

1. The applicant returned to his BMW. Mr Hobbs returned to the Nissan. He then walked the short distance to the vehicle of the applicant and was carrying something in his right hand. Mr Hobbs entered the motor vehicle of the applicant. The applicant then drove the vehicle to a position some distance from where he had originally parked, but still within the car park of the restaurant. Mr Hobbs then alighted from the BMW and walked back to the Nissan. He then drove the Nissan and parked it so that it was adjacent to the BMW in its new position.

1. Mr Hobbs then alighted from the Nissan again. He entered the vehicle of the applicant a second time. After a short time, he left the BMW a second time and returned to the Nissan. The details of the latter movement were hotly disputed at the trial and are discussed in more depth later in my judgment.

1. Mr Hobbs then drove out of the car park, and police followed him. His motor vehicle was under continuous surveillance. He was observed to stop at a service station and purchase some ice (and to be perfectly clear, I refer to frozen water, not crystal methylamphetamine). He placed the ice in an esky in the boot of his motor vehicle.

1. The surveillance of Mr Hobbs continued until he was arrested at 3.45pm at Hornsby. His motor vehicle was searched and $10,000 in cash was located in the glove box. Located in the boot of the motor vehicle was an esky. Inside the esky was a green, blue and white shopping bag with the markings of Pulse Pharmacy. Located in the plastic bag was the receipt generated at 1.21pm. Also contained in the shopping bag were two plastic containers. They contained methylamphetamine in the quantity to which the count in the indictment referred.

1. No fingerprints or DNA evidence that could be linked to the applicant were located on any item found in the motor vehicle of Mr Hobbs.

1. The applicant was not followed by police on that day. Indeed, he was not arrested until months later. There was no evidence of anything found in his vehicle, or anywhere else, that could support the Crown contention.

1. On 29 January 2009 at 4:20pm, an SMS was sent from the mobile telephone of Mr Farrar to that of the applicant. It was "Did he come?". Two minutes later, "Yeah bra can u come tomorrow" was sent in reply.

1. On 30 January 2009 at 11:52am, Mr Farrar and the applicant had another telephone conversation. During the course of it, Mr Farrar asked "Did he just give you five 0 yesterday?", and the applicant replied in the affirmative. Thereafter Mr Farrar said "Oh fuckin' I can't get hold of him", And a little later "Nah. Yeah I'm just ah, I'm just wonderin' whether he got home or not." To that, the applicant replied "Oh yeah. Fuck", Mr Farrar said "Cock sucker. Fuck!", and the applicant said "Shit eh."

1. A police officer with expertise with regard to the trade in illicit drugs gave evidence that it is commonly believed in the drug milieu that cooling methylamphetamine by way of ice preserves it. He also gave evidence that the amount of drug seized from the boot of the motor vehicle of Mr Hobbs would be worth somewhere between $70,000 and $80,000.

Crown case - matters in dispute

1. Detective Mackay gave evidence that, whilst observing the events at the restaurant, he saw Mr Hobbs alight from the BMW the second time with a plastic bag in his hand. The submission of the Crown about that evidence was that the applicant had supplied the drugs to Mr Hobbs in the BMW, and that Mr Hobbs was taking them back to his vehicle.

1. That evidence was the subject of attack in cross-examination by senior counsel for the applicant. He made the following points. First, whilst providing the audio commentary, Detective Mackay made no mention of seeing anything in the hand of Mr Hobbs when he left the motor vehicle of the applicant after it had been moved. Secondly, Detective Mackay made no contemporaneous note or any other record of what he claimed in evidence to have seen, despite the ready availability of his diary, in which he had recorded other observations that day. Thirdly, to the contrary, Detective Mackay said to his colleagues in the surveillance commentary that, although he had seen Mr Hobbs take something to the motor vehicle of the applicant on the first occasion, he "did not see him take a package" from that motor vehicle on the second occasion.

1. One of the explanations given by the detective for those seeming lapses was "I had a lot of things going on in my mind".

1. To be clear, neither the Crown at trial nor in this Court denied that each of those three matters were aspects of the behaviour of Detective Mackay on the day.

1. Senior counsel for the applicant submitted that, even looking at the surveillance video very carefully, one could not see Mr Hobbs leaving the vehicle of the applicant the second time with anything in his hand, contrary to the evidence of Detective Mackay.

1. In short, senior counsel for the applicant bluntly put to Detective Mackay in cross-examination that his evidence was a fabrication, and made the same submission to the jury in his final address. That proposition was in turn disputed by the Crown at trial.

1. Detective Kiem gave evidence that, whilst undertaking surveillance duties at Hungry Jack's, she observed Mr Hobbs standing at the boot of his motor vehicle. That was after he had left the vehicle of the applicant for a second time. She said that the boot was up and she saw Mr Hobbs "moving or positioning an Esky in the back of the boot". Again, that evidence was the subject of attack.

1. In cross-examination, senior counsel for the applicant made two points. The first was that the video camera being used by Detective Mackay showed nothing of Mr Hobbs standing at the rear of his motor vehicle with the boot open. That was because the video camera panned across the scene and followed the motor vehicle of the applicant as it left the car park. When the video camera left the view of the Nissan, Mr Hobbs could not be seen at its rear. When the camera returned to his vehicle, again he could not be seen there.

1. Secondly, Detective Kiem agreed that the video, when played in Court, showed that "as you're passing to the rear of that red Nissan the man Hobbs is unsighted?" and "probably more importantly, the boot lid is closed is it not?" In short, the witness agreed that the video showed that as she walked past the vehicle the boot lid remained closed. And yet, when being cross-examined some months before, and at a time when the witness had not had the opportunity to see the video, she had given evidence on oath that the boot lid was "Still open as I walked past."

1. Again, senior counsel for the applicant did not put to the witness that she was mistaken or confused. He bluntly submitted that the evidence was fabricated, and nothing more than an inculpatory reconstruction of what was subsequently found by police to be in the boot of the vehicle of Mr Hobbs. The same submission was made to the jury.

1. The Crown disputed the proposition that the evidence of the witness had been fabricated.

1. Again, there was no dispute by the Crown at trial about the fact that the video did not show Mr Hobbs at the boot of his motor vehicle and thereby corroborate the evidence of Detective Kiem. The point was simply made that a video camera can only focus on one thing at a time, and it happened not to be focused there at the relevant time. Nor was there dispute about the transcript of what Detective Kiem had said on a previous occasion. As for the discrepancy about whether the boot lid was open or closed at the relevant time, the Crown Prosecutor sought to explain it in his final address by way of a detailed analysis of the video. Due to the fact that the segments of the video under discussion were not recorded with precision, it is not possible to reconstruct that analysis.

1. As noted above, the applicant was not arrested until months later. Senior counsel for the applicant submitted that that was because, the police in truth not having seen anything that could amount to evidence of supply by the applicant, they were in no position to do so. He submitted that the evidence of police that the delay was "due to an ongoing investigation" was another fabrication.

1. Finally, with regard to disputed matters, the video was played in this Court more than once. The Crown Prosecutor submitted that, looking at it carefully and in slow motion, one can indeed see something in the hand of Mr Hobbs when he leaves the vehicle of the applicant the second time. Senior counsel for the applicant submitted that one can see no such thing.

Aspects of trial

1. Mr Farrar and Mr Hobbs gave evidence for neither party. The applicant did not give evidence, called no witnesses, and did not raise character.

1. Although the focus of the single ground is very much on the evidence before the jury, it is necessary to detail one direction that her Honour gave the jury, in order to understand the submissions of senior counsel for the applicant in support of the ground. At the end of the summing-up, and contrary to the repeated submissions of the Crown at trial, her Honour said:

"Well I think as has fairly been put by defence counsel those links in the chain are essential in proving the Crown case beyond reasonable doubt. That is, acceptance of Mackay and acceptance of Kiem; the first one being of Mackay in relation to the supply matter and the second one of Kiem being in relation to the evidence of the plastic bag in the boot and the open boot and esky. So those two links again are essential matters upon which you must consider."

1. In his final address to the jury, senior counsel for the applicant made a forthright attack upon the Crown case as described above. However, he did not provide for the consideration of the jury a rational alternative hypothesis consistent with innocence and with the undisputed facts. For example, he did not submit that perhaps it was Mr Hobbs who had supplied the applicant with something illicit in return for the cash in the glove box, and therefore the whole Crown case was misconceived.

Submissions in this Court

1. Senior counsel for the applicant conceded that an analysis of all the evidence, including but not limited to the behaviour of the applicant at the scene, could lead to a conclusion that the state of affairs was "certainly suspicious". But, he submitted, it could not amount to proof beyond reasonable doubt of the offence charged. In particular, he submitted that the reasonable possibility that Mr Hobbs had the drugs in the boot before he attended at the restaurant cannot be ruled out.

1. He reiterated his attack on the evidence of Detective Mackay and Detective Kiem. He submitted that the direction in the summing-up that I have extracted was correct. In other words, he submitted that the propositions that Mr Hobbs had indeed been seen to have something in his hand when he left the vehicle of the applicant the second time (as sworn to by Detective Mackay), and that Mr Hobbs had indeed been seen standing at the boot of his vehicle moving around an esky (as sworn to by Detective Kiem), were indispensable intermediate facts that needed to be proven beyond reasonable doubt to the satisfaction of the tribunal of fact before a verdict of guilty could be returned. He relied upon the well-known decision of Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521.

1. He submitted in short that this Court, undertaking its own independent evaluation of the whole of the evidence, including the surveillance video, would not permit the conviction to stand.

1. The Crown submitted that the evidence of Detective Mackay, far from being of great assistance to the Crown case, left it open to valid criticism. But he submitted that an examination of all of the evidence in the Crown case, looked at in its entirety, amply supported the verdict of guilty. He submitted that the evidence of Detective Kiem was substantially less amenable to criticism than the evidence of Detective Mackay.

1. As for the direction that elevated the thrust of the evidence of the two detectives to the level of being indispensable intermediate facts, he submitted that that direction of her Honour was wrong. The Crown case, he submitted, was a circumstantial one, and there was a plethora of evidence, even if one were to discount fully the evidence of the two detectives, that there had been an illicit exchange between Mr Hobbs and the applicant of the drugs found in the boot of the Nissan. The evidence of the two detectives was not "a link in the chain". There was nothing about that evidence, or the Crown case as a whole, that required acceptance of it to the criminal standard at an intermediate stage of analysis.

1. His ancillary submission about the direction was as follows. Because the jury returned a verdict of guilty, it must be that the jury was indeed satisfied beyond reasonable doubt about the evidence of Detective Mackay and Detective Kiem. That finding has an important role to play with regard to the ground, because the jury had the opportunity to see and hear the witnesses give evidence, in contrast to the position of this Court. He submitted that, in combination with the verdict, the direction (although wrongful) served to show that the jury had made a positive finding about the credibility of both police officers that this Court would be very slow to contradict.

Determination

Applicable legal principle

1. There is no need for me to recount the development of the jurisprudence of the High Court of Australia with regard to this ground. It commenced in modern times with M v The Queen [1994] HCA 63; (1994) 181 CLR 487; developed in subsequent cases such as MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 and R v Hillier [2007] HCA 13; (2007) 228 CLR 618; and culminated most recently in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. Although there have been changes in terminology, and emphasis, the fundamental task of this Court with regard to such a ground has not been the subject of radical reformulation over the past 19 years.

1. Nor is there a need to quote at length from the judgments. It suffices to set out a number of basal propositions derived from the judgment of the plurality in SKA v The Queen.

1. First, the starting point is that the jury is, in our criminal justice system, the primary body entrusted with resolving questions of guilt or innocence. In fulfilling that role, the jury had the advantage of seeing and hearing the witnesses give evidence.

1. Secondly, the question is whether this Court thinks that the evidence was such that it was open to the jury to be satisfied that the guilt of the applicant had been proven beyond reasonable doubt.

1. Thirdly, the question is not whether there was, at law, evidence to sustain the conviction. That is a separate question.

1. Fourthly, this Court must undertake an independent analysis of the evidence as a whole, both "as to its sufficiency and quality". In doing so, this Court must undertake a weighing up of any competing evidence.

1. Fifthly, a doubt experienced by this Court will be, in most cases, a doubt that should have been shared by the jury. An exception to that proposition arises when the advantage of the jury in seeing and hearing the evidence is capable of resolving a doubt experienced by this Court.

My approach to the disputed matters

1. As I have said, the surveillance video was played in open court more than once. It certainly shows the presence and movements of the two vehicles and of the applicant and Mr Hobbs at the restaurant. It does show that, on the first occasion that Mr Hobbs moved from his motor vehicle to the motor vehicle of the applicant, Mr Hobbs had something in his hand. However, as for the stage when Mr Hobbs left the vehicle of the applicant the second time and returned to his own motor vehicle, I was simply unable to see clearly whether anything was in his hand or not.

1. Secondly, the criticisms of the evidence of Detective Mackay have a degree of force. It will be recalled that, despite his evidence that he saw something noteworthy and important, he made no mention of it to his colleagues at the time, and made no other record of having seen it. Indeed, he explicitly said in the commentary that he had not seen that very event. His explanations in the witness box for that state of affairs did not demand acceptance. Whilst making no finding confirmatory of the allegations of senior counsel for the applicant, I am comfortable in putting the evidence of Detective Mackay to one side, and analysing the ground on the basis of the other evidence.

1. Thirdly, it is true that the criticisms of the evidence of Detective Kiem are not as powerful. But it is very unfortunate that the objective record in the form of a video recording of what was said to have occurred at the boot of the Nissan shows nothing of what Detective Kiem says she observed. It is also important that, when giving evidence some months before about what she had observed, Detective Kiem had sworn to significant things that were inconsistent with what the surveillance video showed. In all the circumstances, whilst I do not put her evidence to one side, I do not accord it substantial probative weight.

1. I am quite aware that, in light of the direction in the summing-up and the verdict, that approach of mine must be different from that adopted by the jury. I shall return to that divergence, if necessary, later in my judgement.

1. My approach to the evidence of those two witnesses calls for consideration at this stage of the submission by senior counsel for the applicant that this Court, in its evaluation of the evidence, is fettered by the direction given by her Honour to the jury. That is because acceptance of such a submission would mean that, as a result of my approach to the evidence of the two witnesses, the ground must be upheld.

The direction

1. I respectfully consider that the direction was incorrect and should not have been given.

1. The Crown case was a circumstantial one. It relied upon all of the evidence to establish the proposition that, on the day and at the place of particularised in the indictment, the applicant had supplied not less than the commercial quantity of a prohibited drug. That could potentially be proven in a number of ways. Not the least of them were: the telephone conversations before and after the meeting; the transmission and receipt of the SMS messages; the undisputed behaviour of the applicant and Mr Hobbs at Hungry Jack's; the behaviour of Mr Hobbs after the meeting; and all of the items located in his motor vehicle.

1. It is certainly the case that acceptance of the proposition that Mr Hobbs was seen to leave the vehicle of the applicant the second time with something in his hand would bolster the Crown case. But acceptance of the proposition was not an essential prerequisite for proof of the offence. Nor was acceptance of the proposition that, shortly after he left the vehicle of the applicant, Mr Hobbs was seen to be standing at the boot of his motor vehicle doing something with an esky. Still less was acceptance of either of those propositions to the criminal standard necessary, and an indispensable intermediate point upon the path towards the destination of being satisfied to the same standard that the offence had been proven.

1. The disputed observations of which the two detectives gave evidence were matters that the jury needed to evaluate, along with all of the other facts, to determine whether the offence had been made out to the criminal standard. The two disputed events were not, in my opinion, in a special category.

1. In short, considering the matters that were the subject of the direction, in the context both of all of the other evidence in the case and the count in the indictment, I respectfully consider that it was an error to direct the jury as her Honour did. The question that then arises is whether, in its independent evaluation of the whole of the evidence for the purposes of the ground, this Court is constrained to apply a direction that it considers to be wrong.

1. The parties did not provide the Court with authorities as to the correct approach to the direction. But it is noteworthy that, in discussing a direction that a trial judge had given to a jury limiting the temporal basis upon which a verdict of guilty could be founded, the plurality in SKA v The Queen said at [22]:

"On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported. There is no doubt that the Court of Criminal Appeal was not bound by the ruling of the trial judge concerning the date of the 2006 offences. However, the Court of Criminal Appeal was required to form an opinion as to the date of the 2006 offences in order to weigh the whole of the evidence."

1. I do not accept the proposition that this Court, having come to the view that an error occurred at first instance with regard to a direction, should compound that error on appeal. Having come to the conclusion that the direction about indispensable intermediate facts was wrong, it would be remarkable if this Court were required, in effect, to direct itself in accordance with it.

1. In short, I am persuaded that the direction should not have been given. I do not consider that it fetters the approach of this Court to the evidence. Therefore I do not consider that my approach to the evidence of the two witnesses intrinsically leads to the success of the ground.

Evaluation of evidence

1. I consider that a number of inferences can be drawn from the undisputed evidence.

1. First, before the afternoon of 29 January 2009, a meeting was in the process of being set up at which an illicit transaction was to take place whereby the applicant would give or sell something to Mr Hobbs. I refer to the fact that the applicant was to meet a man whose mobile number he did not possess; that neither he nor Mr Farrar referred by name to that man at any stage; that Mr Farrar, with the concurrence of the applicant, referred to what was to occur elliptically on the telephone; that there were numerical references in the conversations between Mr Farrar and the applicant; that the applicant and Mr Hobbs communicated only by short SMS messages before the meeting, although each had the mobile telephone number of the other; and that, in the first conversation, the applicant referred guardedly to the fact that he "should have it all serviced for him." The latter statement shows that the applicant was intending to provide something that required preparation to Mr Hobbs.

1. Secondly, I am satisfied that the illicit event that had been arranged did come to fruition. The movements of the applicant and Mr Hobbs, and of their vehicles, support that proposition, including of course that Mr Hobbs entered the vehicle of the applicant not once but twice. So does the fact that, on the first occasion, Mr Hobbs entered the vehicle of the applicant with something in his hand.

1. Thirdly, it was impossible for Mr Hobbs to obtain the illicit drugs between the time when he left the restaurant and the time when he was arrested and they were found in the boot of his motor vehicle. That is because, as I have said, he was under continuous surveillance. That means that he possessed the drugs when he drove away from the Hungry Jack's. Is it reasonably possible that he possessed the drugs before he arrived there?

1. The inference can be drawn that the Pulse Pharmacy shopping bag in which the drugs were located was obtained at 1:21pm. It would be unlikely (though not impossible) for a person to obtain an item such as illicit drugs before 1.21pm and thereafter place that item in a shopping bag that was purchased subsequently. Furthermore, if it be the case that Mr Hobbs possessed the illicit drugs before he arrived at Westfield Parramatta, and left them in his vehicle some time shortly after 12.49pm whilst he walked through the shopping centre with his female companion, that would be a strangely risky thing to do with regard to so valuable a commodity.

1. It is true that the police did not have Mr Hobbs under surveillance before he arrived at the Hungry Jack's. It is also true that quite some time passed between the time when Mr Hobbs was observed at the shopping centre and when he arrived at the fast food restaurant. Senior counsel for the applicant submitted that it was quite possible that he had obtained the drugs after being at the shopping centre and before arriving at the restaurant. But in analysing that proposition one may query why a person would be driving around with a very valuable quantity of drugs stashed in his boot; why he would be leaving it there to enter a fast food restaurant with his companion; and why, on two occasions thereafter, he would be leaving it to enter the vehicle of a person whom he did not know.

1. Furthermore, in determining whether what had occurred at the restaurant involved the applicant supplying Mr Hobbs with the drugs in question, it is important to recall two aspects of the telephone conversations that took place between Mr Farrar and the applicant after the meeting. The first was a reference by Mr Farrar to whether or not the applicant had received "the five 0". The second was the concern expressed by Mr Farrar and the applicant about the inability to contact Mr Hobbs after the meeting.

1. The first reference supports the inference that the applicant had received something that can be expressed numerically from Mr Hobbs at the meeting. That item could, perhaps, be a firearm (expressed numerically by way of its calibre or other characteristic), or illicit drugs (expressed numerically with regard to weight, whether by way of the metric system or the imperial system). And it certainly could be a substantial sum of money: $50,000. It will be recalled that the police expert gave evidence that the drugs found in the boot of the Nissan were worth between $70,000 and $80,000.

1. As for the second aspect, it is open to the interpretation that Mr Farrar and the applicant were concerned that Mr Hobbs may have been arrested, and that that event could have adverse consequences for themselves. That may include, for example, Mr Hobbs inculpating them verbally. It could also include them being inculpated by something found to be in the possession of Mr Hobbs on arrest.

1. It is also noteworthy that Mr Hobbs obtained the ice from the service station directly after his meeting with the applicant, and not before it.

1. It is true that a sum such as $50,000 is not precisely consistent with the estimate of value provided in the expert evidence of the police officer. It is also true that the finding of $10,000 cash in the glove box of Mr Hobbs is not explained on the Crown case. It is also true that no scientific evidence linked the applicant with the items found in the motor vehicle. Finally, because the applicant was not arrested until some months later, there is no evidence that he possessed very soon after the meeting any item (such as a large amount of cash) that is supportive of the Crown case. I have taken into account all of those countervailing factors, but do not regard them as determinative.

1. Reflecting upon all of the evidence as a whole, I consider that it was open to the jury to be satisfied beyond reasonable doubt that, on the date and at the place particularised in the indictment, the applicant had supplied a commercial quantity of the prohibited drug to Mr Hobbs. In particular, I consider that it was open to the jury to be satisfied beyond reasonable doubt that the applicant supplied to Mr Hobbs the quantity of methylamphetamine located in the boot of the motor vehicle of Mr Hobbs.

1. Evaluating all of the evidence that I have recounted, I am also satisfied beyond reasonable doubt of the guilt of the applicant of the count contained in the indictment. To be clear, I have come to that conclusion even though, as part of my evaluation of the evidence, I have put the evidence of Detective Mackay to one side, and accorded the evidence of Detective Kiem little probative value.

1. In light of my own satisfaction that the offence has been proven beyond reasonable doubt, there is no need for me to revisit the issue discussed in [64] with regard to the evidence of the two detectives. That is because there is no doubt on my part that requires resolution in accordance with the fifth proposition in [60].

1. It follows that I would grant leave to appeal against the conviction, but dismiss the appeal against conviction.

Appeal against sentence

1. The Crown agrees with the proposition of the applicant that the commencement date of the sentence should be 14 January 2011 as opposed to 29 May 2011. The submission of the applicant is founded upon a detailed examination of his custodial history, and the reasons why he was in custody at various points. Because of the position of the Crown, there is no need for this Court to engage in an analysis of that history. In light of the concession by the Crown, I consider that it is appropriate for the adjustment sought by the applicant to be made.

Orders

1. I propose the following orders:

(1)   Leave to appeal against conviction granted.

(2)   Appeal against conviction dismissed.

(3)   Leave to appeal against sentence granted.

(4)   Appeal against sentence allowed.

(5)   Quash the commencement date of the sentence of 29 May 2011.

(6)   In substitution, impose a new commencement date of 14 January 2011. As a result, the first date upon which the applicant will be eligible for release upon parole will be 13 January 2015.

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Decision last updated: 11 March 2013