Brennan v The State of Western Australia - [2017] WASCA 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BRENNAN -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 50

CORAM: BUSS P
MAZZA JA
CORBOY J

HEARD: 5 & 26 AUGUST 2016

DELIVERED : 8 SEPTEMBER 2016

PUBLISHED : 17 MARCH 2017

FILE NO/S: CACR 111 of 2015
CACV 148 of 2015

BETWEEN: KELLY ANN BRENNAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DERRICK DCJ
File No  :IND 1462 of 2014

Catchwords:

Criminal law - Appeal against conviction - Possession of prohibited drug with intent to sell or supply - Whether conduct of defence counsel gave rise to a miscarriage of justice - Whether directions of trial judge were inadequate

Criminal law - Appeal against order - Where drug trafficker declaration made under the Misuse of Drugs Act 1981 (WA) s 32A(1)(b)(i)

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 32A(1)(b)(i), s 33(1)
Criminal Appeals Act 2004 (WA), s 40(1)(e)

Result:

Application to adduce further evidence refused
Leave to appeal refused on all grounds
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr L M Fox

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Durani v The State of Western Australia [2012] WASCA 172
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Lawless v The Queen (1979) 142 CLR 659
McMahon v The State of Western Australia [2010] WASCA 143
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

REASONS OF THE COURT: The appellant was charged in the District Court on indictment that on 14 March 2010, at Craigie, she attempted to possess a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Misuse of Drugs Act 1981 (the Act).
On 22 April 2015, after a trial before Derrick DCJ and a jury, the appellant was found guilty as charged and was duly convicted (ts 213).
On 12 June 2015, the appellant was sentenced to 2 years 7 months' imprisonment with eligibility for parole. The sentence was backdated to commence on 22 April 2015. His Honour also made a drug trafficker declaration pursuant to s 32A(1)(b)(i) of the Act (ts 249).
The appellant appealed against her conviction (CACR 111 of 2015) and the making of the drug trafficker declaration (CACV 148 of 2015).[1] The appellant was represented by counsel at her trial. However, in each of these appeals, the appellant was self‑represented. The appeal against conviction raises seven proposed grounds of appeal. The question of leave to appeal on all grounds was referred to the hearing of the appeal. The appellant accepts that the outcome of the appeal against conviction dictates the outcome in her appeal against the drug trafficker declaration (appeal ts 20).
[1] The appellant discontinued an appeal against sentence.
The hearing of the appeals was listed on 5 August 2016. On 1 August 2016, the appellant filed an application in the appeal against conviction seeking to adduce additional evidence pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) (CAA). The evidence comprised a statutory declaration sworn by Belinda Kaye Thomas on 28 July 2016, and a portion of the transcript of a covertly recorded conversation between the appellant and a prosecution witness, Brendan Earle. In fact, the actual recording of the conversation and the transcript were part of the evidence and material before the lower court. Thus the application in respect of the transcript was unnecessary: s 39(1) CAA.
At the hearing on 5 August 2016, counsel for the respondent said that he wished to cross‑examine Ms Thomas (appeal ts 19). After considering submissions from the parties, the court determined to hear all of the grounds of appeal save for ground 5, being the ground to which the proposed application to adduce additional evidence was directed. At the conclusion of the proceedings on 5 August 2016, the court reserved its decision on all grounds save for ground 5. The hearing of ground 5 was adjourned to 26 August 2016, and the appellant was given liberty to file and serve an affidavit from Ms Thomas, and to make arrangements for her to come to court with a view to her being cross‑examined by counsel for the respondent. The respondent was given liberty to file any affidavit evidence it wished to in response (appeal ts 23).
On 16 August 2016, an affidavit sworn by Ms Thomas on that day was filed. On 22 August 2016, the respondent filed an affidavit sworn by Mr Earle on 21 August 2016.
On 26 August 2016, counsel for the respondent submitted that this court should not accept as additional evidence in the appeal the affidavit of Ms Thomas, on the basis that it was incapable of advancing ground 5 of the appeal against conviction (appeal ts 37). This court unanimously upheld this submission and ordered that the affidavit of Ms Thomas should not be received in evidence (appeal ts 39). The court indicated that reasons for this decision would be given later. After hearing further brief submissions from the appellant, the court reserved its decision in relation to ground 5 (appeal ts 41).
On 8 September 2016, this court made orders dismissing the appellant's appeals and indicated that the reasons for doing so would be published later. What follows are our reasons for making these orders.

The State's case

In 1997, the appellant began a relationship with Stefan Jordan. In or about May 2002, the appellant purchased, in her name, a house in the suburb of Craigie. At all material times, the appellant and Jordan lived together at that address.
Jordan ran a business selling cannabis. Initially, the appellant was unaware of the business, but over time, and certainly by March 2010, she was aware of the enterprise. It was the State's case that, particularly when Jordan was overseas, the appellant helped him run his cannabis business.
On or about 14 March 2010, Jordan flew from Perth to Bali, supposedly to deal with difficulties in respect of a villa he had purchased there. He has not returned to Australia.
Brendan Earle was a long‑standing friend of Jordan. Earle lost his job in about December 2009. Earle was concerned about his ability to provide for his wife and four children. Jordan proposed to Earle that he could earn money by picking up and dropping off cannabis on Jordan's behalf. Earle agreed with the proposal and proceeded to work for Jordan on this basis. Although Earle usually dealt with Jordan, the State's case was that he dealt with the appellant when Jordan was away (ts 30).
Between February 2009 and 15 March 2010, Earle picked up and dropped off cannabis for Jordan on an unknown number of occasions.
On 14 March 2010, while Earle and his partner were holidaying in Broome, the appellant sent him a text message to the effect that she had a 'job' for him to do on 15 March 2010. Earle understood this to mean that there was a cannabis collection for him to perform that day. Earle returned to Perth on the evening of 14 March 2010. When he arrived, there were a number of text messages from the appellant on his mobile telephone telling him to contact her. Earle telephoned the appellant, who asked him to 'drop over and grab the paperwork' (ts 33). Earle understood 'paperwork' to mean money (ts 33).
Earle drove to the appellant's house in Craigie late on 14 March 2010. There he spoke to the appellant, who was the only one at home. When Earle arrived, he saw a large sum of cash on a table. The cash was in piles and was being counted or had been counted by the appellant. She then wrapped the cash up in what was described as 'black insulation masking tape'. The appellant then handed the package to Earle. According to him, the appellant then said, 'See you tomorrow'.
Early in the morning of 15 March 2010, Earle received a text message instructing him to meet a truck driver at a service station in Kewdale. The State did not allege that the appellant sent this text message. It appears to have come from the truck driver, Alan Winiata. The State's case was that Winiata had driven from South Australia with the cannabis on board his truck.
Earle met the truck driver at the service station. Earle handed the truck driver the money he had been given by the appellant. The truck driver gave him three boxes. Each box contained bags of cannabis. There were 50 bags in total. The total amount of cannabis in the bags was 22.808 kg. The three boxes were loaded into Earle's vehicle (ts 35). The truck driver and Earle then went their separate ways. Earle intended to take the boxes to the appellant's house. As he drove on Warwick Road, he was stopped by police. The police seized the three boxes containing cannabis and arrested Earle. The search of Earle's vehicle was video‑recorded by the police. The recording was played at the appellant's trial as part of the prosecution case (exhibit 3). With the consent of the appellant's trial counsel, the sound track was completely edited from the recording to prevent the jury hearing hearsay evidence from Earle and the arresting police officers (ts 74, 170).
Later that day, police officers went to Mr Winiata's room at a motel in Rivervale. There, they seized a package wrapped in black insulation tape. The package was later found to contain $187,000 in cash. The search of the motel room was recorded on video by the police. The DVD of this search was played to the jury (exhibit 5). As with the roadside search of Earle's vehicle, the sound recording of the search was removed with the consent of the defence (ts 82).
Earle was charged with possession of the 22.808 kg of cannabis with intent to sell or supply it to another. He agreed with the investigating police officers to cooperate in their ongoing investigation of the matter. He agreed to take part in a 'pretext' conversation with the appellant. On 22 March 2010, Earle went to the appellant's house and spoke to her. The conversation was covertly recorded by Earle. A recording of the conversation was tendered in evidence (exhibit 1). A transcript of the conversation was provided to the jury (BAB 3 ‑ 22). In this conversation, the appellant said that she was 'freaking out', and that she was going to ring Jordan because 'I think we have a problem' (BAB 7). At one point in the conversation, Earle asked:
When you did the money did you like - did you wipe it or anything or did you put it straight in the bag?
To which the appellant replied:
Straight in the bag (BAB 11).
The appellant told Earle that when she first met Jordan, she 'wasn't even allowed at the house when he was selling'. However, 'bit by bit, by bit by bit … I've been doing so much more' (BAB 11).
At another point in the conversation, the appellant told Earle that Jordan had told her to 'smash' her telephone (BAB 20).
On 23 June 2010, police officers executed a search warrant at the appellant's house. In the course of the search, the police found a note written by Earle in the appellant's handbag addressed to her and Jordan demanding money, failing which '… I'm talking to the cops'. The note, tendered by the State without objection, was not led as evidence of the truth of the statements made in it. Rather, it was led to show that the appellant was concerned about its contents, which, the State argued, was consistent with her having a greater knowledge of the transaction the subject of the charge than she claimed (ts 190).
Later on 23 June 2010, the appellant participated in a video‑recorded interview with the police (exhibit 7). The State's case was that, in that interview, the appellant told an 'Edwards lie' (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193), namely that she had not seen Earle since Jordan left for Bali and, specifically, that she had not seen Earle on the evening of 22 March 2010.
No telephone records or forensic evidence, including fingerprint or DNA evidence, was adduced by the State.
The State's case was that the appellant knowingly assisted Jordan in his cannabis‑selling business from time to time. She was aware that Jordan had arranged to purchase a quantity of cannabis for $187,000. According to the State, the appellant gave Earle $187,000 in cash, with the intention that Earle would exchange the money for the cannabis, and that the cannabis would be delivered by Earle into her possession the following day. As outlined, the exchange between Earle and Winiata took place; however, the police intercepted the cannabis before the appellant could take possession of it.
The State called two witnesses: Earle and the investigating officer, Detective Senior Constable Neil. It is unnecessary to refer to the investigating officer's evidence. In addition to Earle's testimony concerning his relationship with Jordan, their cannabis dealings and the events of 14, 15 and 22 March 2010, he testified to the effect that:
(a)on 27 July 2010 he pleaded guilty to a charge of possession of cannabis with intent to sell or supply it to another;
(b)he undertook to give evidence against the appellant;
(c)he was sentenced to 2 years' suspended imprisonment on the basis that if he did not give evidence against the appellant he would be re‑sentenced to a term of immediate imprisonment.[2]
[2] See s 37A Sentencing Act.

The defence case

The appellant testified on her own behalf. In examination‑in chief, she said that on the night of 14 March 2010, Earle came to her house and collected a package from her coffee table. She said that Jordan had previously told her that Earle would come and pick something up. She said she did not tell Earle what to do with the package, nor did she instruct him to come back to the house the following day with cannabis. In effect, she denied having any knowledge of what was to happen with the money or any intention to take possession of any cannabis. She said that she did not recall saying to Earle, 'See you tomorrow'.
In cross‑examination, her evidence somewhat unravelled. The appellant:
(a)accepted that over the period of her relationship with Jordan she became more aware of his involvement in the business of selling cannabis;
(b)stated that she knew Jordan was selling cannabis, as at March 2010, but she did not know to whom he sold cannabis or if he distributed the drug himself;
(c)stated that she allowed people to pick things up from her house at Jordan's request;
(d)contrary to her evidence‑in‑chief, admitted that she said to Earle, 'See you tomorrow'. She explained that the words meant 'see you later'.
The appellant agreed that she had arranged for Earle to come to her house late on 14 March 2010. She admitted that she believed that money 'was going one way and that cannabis was coming the other way'. She eventually admitted that she knew, or at least believed, that the package contained money, although she was not aware of how much money was in the package (ts 125 ‑ 126). Later, she said that she was not 100% sure what the package contained.
In the end, the appellant's case was that although:
(a)she was aware of Jordan's cannabis selling business;
(b)she believed or suspected that the package contained money;
(c)she believed that Earle's attendance at her house and collection of the package on the night of 14 March 2010 was related to Jordan's cannabis selling business; and
(d)she thought that the money contained in the package was going to be used to pay for cannabis,
she did not have any specific knowledge of what Earle was going to do with the package or of the transaction in which he was involved. She denied intending to possess the cannabis ultimately obtained by Earle and further stated that she did not request him to bring it to her house.
The appellant admitted in her evidence‑in‑chief that she told a number of lies in her interview with the police. She admitted that she lied when she told the police that she had not had any contact with Earle since Jordan's departure from Australia. In cross‑examination, she said that she did not recall why she lied. In re‑examination, she said she lied in order to distance herself from any involvement with Earle and Jordan.
With respect to the evidence of Earle, the case that was put to the jury in defence counsel's closing address was that he should not be accepted as a witness of the truth. It was said that he had minimised his own involvement and that he falsely implicated the appellant in order to obtain a favourable sentencing outcome for himself (closing address ts 17 ‑ 21).

The grounds of appeal

As we have said, the appellant relies on seven grounds of appeal. The grounds are, generally speaking, difficult to follow. Some, but not all, in effect complain that she has suffered a miscarriage of justice as a result of the conduct of her counsel at trial. At the outset of our analysis of the grounds, it is convenient to state the relevant legal principles in respect of alleged miscarriages of justice as a result of the conduct of defence counsel. Those principles were conveniently set out by McLure P in McMahon v The State of Western Australia [2010] WASCA 143 [24] ‑ [27]:
The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).
We note that in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Gaudron J referred to fresh evidence and not new evidence. See Durani v The State of Western Australia [2012] WASCA 172 [114].

Ground 1

Ground 1 complains, in effect, that the prosecution failed to disclose, prior to trial, items found by the police during the search of Earle's vehicle and his house on 15 March 2010. The appellant complains that the prosecution did not disclose that they found in the utility an unopened pack of clipseal bags and a piece of paper on which the following letters and numbers were written: E21, J10, C10, T7 and K2. It is said that the note was significant because the numbers add up to 50 - the approximate weight of the cannabis expressed in pounds and the letter might refer to the purchasers of the drug. In the search of Mr Earle's residence, the police found a quantity of cannabis consistent with personal use, clipseal bags and a set of electronic scales.
The appellant alleges that these items were important to her case because they tended to show that Earle 'was very much involved in the selling of cannabis and not just acting as a courier as he stated in his evidence'.
There is no substance to the allegations of non‑disclosure. They were disclosed. Prior to trial, defence counsel was provided with the brief for the prosecution. The brief contained:
(a)The video‑recording of the roadside search of Earle's utility. The clipseal bags and the note may be seen in the video‑recording and are referred to by the police in the course of the search.
(b)A Western Australian Police exhibits log relating to the search of Earle's utility, in which the scrap of paper appears as item 4 and the unopened clipseal bags appears as item 5.
(c)A Western Australian Police exhibits log relating to the search of Earle's residence, which refers to the cannabis, the clipseal bags and the electronic scales.
The appellant also alleges that the items found in Earle's utility and house constitute fresh evidence. Further, although not expressly stated by the appellant, it would appear that she complains that a miscarriage of justice arises by virtue of defence counsel's 'failure' to adduce evidence of these items at trial, presumably in support of a submission that Earle himself was engaged in dealing with cannabis, or that he had a greater involvement in the offence than he was willing to disclose in his evidence.
We do not accept these submissions. Fresh evidence is evidence which either did not exist at the time of the trial, or which could not then, with reasonable diligence, have been discovered. Patently the items found in Earle's utility and house do not answer this description. The items are new evidence. An appellate court will not allow an appeal on the basis of new evidence, unless it establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted: Lawless v The Queen (1979) 142 CLR 659, 675 ‑ 676. None of the material, individually or in combination, could reasonably be said to have the capacity to establish the appellant's innocence, nor does it raise such a doubt that this court should be satisfied that the appellant should not have been convicted. In these circumstances, any 'failure' by defence counsel to adduce the evidence is incapable of giving rise to a miscarriage of justice.
The various complaints of miscarriages of justice encompassed by ground 1 are without merit. The ground has no reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 2

Ground 2 concerns an alleged failure by defence counsel to adduce 'important evidence'. The 'important evidence' purportedly not adduced was the absence of any DNA evidence, fingerprints or mobile telephone records which incriminated the appellant.
We have already pointed out that no forensic evidence of any kind was adduced at trial. The appellant, in her written submissions, refers to a portion of defence counsel's opening address, as follows:
There will also be some evidence in relation to forensics; you'll hear Mr Earle give evidence that [the appellant] was allegedly concerned about fingerprints or DNA on money. Well, we'll hear some evidence, because it - there was some testing done on the money in the packaging to see whether there was in fact any DNA or fingerprints which would incriminate [the appellant]. In fact, there wasn't. But that evidence will come from Detective Blake [sic - Detective Neil] (ts 25).
In fact, no evidence was led from Detective Constable Neil about DNA or fingerprint testing, nor was he cross‑examined on the issue. However, the appellant has suffered no miscarriage of justice as a result of this. The absence of forensic evidence incriminating the appellant was drawn to the attention of the jury by defence counsel in his closing address in support of the case to acquit. Defence counsel submitted that the appellant told the truth when she said in her police interview that her DNA and fingerprints would not be found on the money. He told the jury:
So there's no DNA or fingerprint evidence relevant in relation to tying [the appellant] to the money (closing address ts 23).
These submissions were reiterated by his Honour in the summing up. His Honour said:
[Defence counsel] reminded you that when [the appellant] was interviewed and was asked by the police, she said 'you will not find my prints or my DNA on the money'. There obviously has been no evidence of any DNA or prints of [the appellant] being found on the packaging or the money and so the submission made is, the absence of that evidence in this case is consistent with what she told the police and, therefore, that reflects well on her credibility is the submission that is, in essence, made on her behalf (ts 199).
The appellant's position before the jury could not have been materially improved by Detective Constable Neil giving the evidence defence counsel foreshadowed in his opening address. Ground 2 has no reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 3

Ground 3 complains about the 'omission' to put before the jury the audio of the video recording of the roadside search of Earle's utility (exhibit 3). Further, with respect to the recording of the pretext conversation between Earle and the appellant on 22 March 2010, the prosecution did not play the recording of a conversation between Earle and his girlfriend, which was recorded immediately after the conversation between Earle and the appellant. In this conversation, Earle told his girlfriend that, 'If the recorder worked. It's fucking brilliant'.
There is no miscarriage of justice as a result of the editing of the audio from the roadside search. A reasonable forensic decision was made by defence counsel to remove the audio from the video, bearing in mind that any admission made by Earle in the appellant's absence was inadmissible against her. The appellant says that the removal of the audio from exhibit 3 meant that the jury was unaware of the note located in Earle's utility. This submission has no merit. The footage shown to the jury includes images of the note.
With respect to the conversation Earle had with his girlfriend shortly after the pretext conversation with the appellant, the conversation was irrelevant and self‑serving and thus was inadmissible. Ground 3 has no reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 4

Ground 4 is difficult to understand. It reads:
4.Similar fact evidence. Prosecution erred in that they were unable to succinctly uses [sic] of the evidence and clear directions were not formatted to limit such uses and to contain misuse or to guard against undue prejudice thus the evidence is inadmissible. Error of law.
The ground is directed to the pretext conversation. The pretext conversation was not similar fact evidence and could not reasonably be understood in this way.
The pretext conversation was admissible because the appellant made statements against interest. The prosecutor in his closing address submitted that statements made by the appellant supported Earle's evidence and that the conversation proved that the appellant lied when she said to the police she had not seen Earle since Jordan had left for Bali. Defence counsel, in his closing address, urged the jury to listen to the recording and highlighted that nowhere in it did the appellant show any concern when Earle did not return the cannabis to her (closing address 20 ‑ 21). His Honour accurately summarised these arguments to the jury in his summing up. The issues were simple and clear‑cut. No particular direction was required by his Honour as to the use to which the pretext conversation could be put, much less its 'misuse'. No exception was taken by defence counsel to his Honour's direction.
Ground 4 has no reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 5

Ground 5 alleges that the appellant suffered a miscarriage of justice 'because there were multiple lies/conflicting evidence told by Crown witness'. The 'Crown witness' referred to by the appellant is Brendan Earle. The written submissions which accompany ground 5 allege that Earle 'was briefed by prosecution four days prior to attending court to give evidence which could suggest Mr Earle was led by prosecution on what to say in his evidence to allow for a successful conviction of [the appellant]' (WAB 9).
There is no evidence to support the assertion that Earle 'was led by the prosecution on what to say in his evidence'. The fact that Mr Earle may have been proofed by the prosecutor before trial cannot reasonably give rise to an inference that the prosecutor told Earle what to say in his evidence with a view to falsely convicting the appellant.
It is unnecessary to detail the statements alleged by the appellant to be lies and conflicting testimony given by Earle. It is sufficient to observe that there is real doubt as to whether they can properly be characterised as lies and inconsistencies. The matters raised by the appellant were, at best, peripheral to Earle's credibility. In any event, these matters were canvassed by defence counsel in his cross‑examination of Earle and Detective Senior Constable Neil.
We now turn to the additional evidence the appellant sought to adduce in support of ground 5.
In Ms Thomas's affidavit sworn 16 August 2016, she stated that in March or April 2015 she spoke to Earle via an online dating website. Earle told her that he was giving evidence against a woman (the appellant) in respect of cannabis 'he was caught with'. Ms Thomas said that Earle told her that 'he was being made to make a statement … against a woman he felt sorry for'. According to Ms Thomas, she asked Earle why he felt sorry for the woman. He replied:
It wasn't really her that was to blame and that in fact it was her boyfriend. That her boyfriend had fled the country and they were unable to extradite him as he was in Thailand. He said that he had to give evidence against [the appellant] otherwise he would lose his daughter.
In Earle's affidavit, sworn 21 August 2016, he accepted that he had contact with a person named 'Bel' over the online dating website. However, he did not recall saying:
(a)the appellant was 'a good woman';
(b)speaking about giving evidence in the appellant's trial;
(c)saying that he felt sorry for the appellant; or
(d)anything about losing his daughter.
Earle said that he had not been forced to give evidence at the appellant's trial and that he never told anyone that the appellant was innocent or that she was not involved in the cannabis the subject of the trial.
The appellant submitted that Ms Thomas's affidavit shows that Earle falsified his evidence at trial. This submission cannot be accepted. At its highest, and leaving the contents of Earle's affidavit to one side, Ms Thomas's affidavit is incapable of establishing or even giving rise to a real (as distinct from a fanciful) possibility that Earle's evidence at trial was false or unreliable. Even if Earle had said that the appellant was 'a good woman' and that her boyfriend was, in effect, more culpable than she was, these statements fall a long way short of establishing an admission that Earle intended to give false evidence at the appellant's trial. So too does any expression by Earle to the effect that he felt obliged to give evidence against the appellant for fear of losing his daughter.
As the evidence of Ms Thomas was incapable of establishing or even giving rise to a real (as distinct from a fanciful) possibility that Earle's evidence was false or unreliable, it would be futile to allow the application to adduce additional evidence in the appeal.
Ground 5 has no reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 6

Ground 6 appears to be a generalised criticism of the directions that his Honour gave with respect to Earle's evidence.
At trial, defence counsel made much of Earle's conviction for the offence of possession of cannabis with intent to sell or supply to another; that he was sentenced to a suspended term of imprisonment by reason of his undertaking to give evidence against the appellant; and that if Earle failed to comply with the undertaking he faced an immediate term of imprisonment.
Prior to the summing up, his Honour raised the question of whether an accomplice direction was required in respect of Earle's evidence. The prosecutor agreed that a direction was required. Defence counsel did not seek to be heard on the issue. His Honour gave a direction to the jury in these terms:
I first want to speak to you about the witness Mr Earle. Mr Earle was, on his evidence and on the State's case, heavily involved in the events which have given rise to the charge against Ms Brennan.
He is also a witness on whose evidence the State places considerable reliance. The evidence adduced during the trial revealed the following about Mr Earle. He was charged as a result of being found in possession of the 22.808 kilograms of cannabis. He pleaded guilty to the offence with which he was charged. He was sentenced to two years imprisonment for the offence. However, his sentence was suspended, which meant that he did not actually have to serve any of the two-year term in prison.
He received a suspended sentence because he assisted police and agreed to give evidence at any future proceedings relating to the incident, the subject of the charge against Ms Brennan.
The sentencing judge told him that if he does not give evidence in any such future proceedings he would be brought back before the court and re-sentenced. Members of the jury, as is readily apparent from what I've just said Mr Earle had a certain degree in self-interest in giving the evidence that he did.
He received the suspended term of imprisonment because he had assisted the police and had agreed to give evidence in any future proceedings concerning the incident, the subject of the charge against Ms Brennan. Moreover, if he had not given the evidence which he did during the trial he would have been taken back before the judge who sentenced him so that the judge could re-sentence him.
In those circumstances he would obviously be at very grave risk of being sentenced to a term of imprisonment to be immediately served. That is a term of imprisonment that was not suspended. The fact that Mr Earle is, on his own admission, a person who is engaged in serious criminal conduct and that he had a degree of self-interest in giving the evidence that he gave, are matters that you should take into account in assessing the credibility of his evidence.
It is not the position that the existence of these facts means that you must reject his evidence. You can accept his evidence. However, the existence of these matters that I have referred to does mean that you must, before you accept Mr Earle's evidence, as to the role that Ms Brennan played in the cannabis transaction that forms the basis of the charge against her.
Scrutinise Mr Earle's evidence carefully in light of the other evidence adduced during the trial and any other facts you find are established. You should consider whether there is any other evidence which confirms Mr Earle's evidence as to Ms Brennan's role in the events forming the basis of the charge against her.
The reason why you should do that is that you might not want to accept Mr Earle's evidence in the absence of other independent evidence which confirms Mr Earle's evidence (ts 188 ‑ 189).
Defence counsel took no exception to these directions.
His Honour directed the jury to carefully scrutinise Earle's evidence, having regard to his plea of guilty, the penalty that was imposed upon him and Earle's self‑interest in giving evidence against the appellant. His Honour instructed the jury that these were matters the jury should take into account in assessing the credibility of his evidence. His Honour also instructed the jury to consider whether there was any other evidence capable of confirming Earle's account. It cannot reasonably be argued that these directions gave rise to any miscarriage of justice. To the contrary, they were in the appellant's interests.
The appellant further alleges that 'the prosecution erred by not properly informing the jury of the motives behind Crown witnesses evidence [sic]'. Exactly what this means is unclear. Assuming that the appellant is referring to Earle, and insofar as his motive for giving evidence may have been self‑preservation, the issue was plainly left to the jury to decide.
Finally, for the sake of completeness, we note that the appellant made this submission in support of the ground:
The occupier's presumption of possession did not apply to a trafficking offence.
No such 'presumption' exists, nor was it referred to in the appellant's trial.
Ground 6 has no reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 7

Ground 7 is a compendious ground in which the appellant asserts that defence counsel did not adequately prepare the appellant for trial and that there was a conflict of interest between defence counsel 'and a known acquaintance of the appellant'. The written submissions in support of this ground make further allegations against defence counsel being:
(a)evidence of good character was not adduced on behalf of the appellant;
(b)she was 'coerced' into giving evidence;
(c)the appellant was not properly prepared by defence counsel to give evidence; and
(d)she was told by defence counsel that it would be 'helpful' if she cried during her evidence.
None of these allegations have substance. It is true that no good character evidence was tendered on behalf of the appellant. Assuming, in the appellant's favour, evidence of good character was available and that the failure to adduce it was an irregularity, there was no significant possibility that it affected the outcome. This is because any such evidence would have been countered by the fact that the appellant, on her own testimony, knowingly associated with Jordan and was prepared to assist him in his cannabis selling business. Its effect would have been further diminished by the lies the appellant admittedly told the police.
There is simply no evidence to support the allegation that the appellant was 'coerced' into giving evidence. Moreover, the statement made by the appellant in her written submissions to the effect that defence counsel 'advised her' that it would be in her interest to give evidence appears to contradict the assertion that she was coerced into giving evidence.
There is no evidence to support the assertion that the appellant's counsel told her that it would be helpful if she cried during her evidence.
There is no merit to the allegation that defence counsel had a 'conflict of interest'. The alleged conflict of interest and the identity of the 'known acquaintance' of the appellant are not explained in the appellant's written submissions. In her oral submissions she alleged that defence counsel spoke to Jordan at some point during the trial (appeal ts 29). Whether defence counsel spoke to Jordan is not the subject of any evidence. Even if he did, the appellant has not explained how this gave rise to a conflict of interest.

Ground 7 has no reasonable prospect of succeeding. Leave to appeal should be refused.