Chen v The State of Western Australia
[2018] WASCA 11
•6 FEBRUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CHEN -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 11
CORAM: MARTIN CJ
BEECH JA
CHANEY J
HEARD: 6 DECEMBER 2017
DELIVERED : 6 FEBRUARY 2018
FILE NO/S: CACR 14 of 2017
BETWEEN: JIAN LIANG CHEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :HERRON DCJ
File No :IND 1203 of 2015
Catchwords:
Criminal law - Offence of possession of prohibited drug with intent to sell or supply - Whether any error in judge's directions concerning evidence of prior illicit commercial dealings between the same parties - Whether verdict unreasonable or unable to be supported - Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)
Result:
Application for leave to appeal refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M A Tedeschi
Respondent: Mr L M Fox
Solicitors:
Appellant: M A Tedeschi
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT: The appellant appeals against his conviction on one count of possessing methylamphetamine with intent to sell or supply. He seeks leave to appeal on two grounds. The first complains that the judge erred in his direction concerning the use to which the jury could put evidence relating to prior illicit commercial dealings between the appellant and others. The second is that the verdict, having regard to the evidence, is unreasonable and cannot be supported. In our opinion, there is no merit in either ground. Leave to appeal should be refused on all grounds, and the appeal dismissed.
The charge
The appellant was jointly charged with Mr Hongxiang Chen and Ms Lu Ting Yu that on 6 December 2014, at Perth, they had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. After Mr Hongxiang Chen pleaded guilty before trial, the appellant was tried on an indictment jointly charging him with Ms Lu Ting Yu.
The State case
The prosecution case may be summarised as follows.
Prior to 6 December 2014, the police received information that some suspected drug dealers were coming to Perth via the Indian Pacific train from the eastern states. Accordingly, a surveillance operation was mounted at the Perth Railway Station for the arrival of the train in Perth on the morning of 6 December 2014.[1]
[1] ts 402.
One man who got off the train was Mr Huan Hang. He took a taxi to 15 Aberdeen Street, Northbridge, and met Mr Hongxiang (Nathan) Chen (also known as Hong Chen), who had arrived by air from the eastern states that morning along with the appellant, Mr Jian Liang (Jonny) Chen.[2]
[2] ts 403.
Mr Huan Hang and Mr Hongxiang Chen went down to the carpark of the building, with Mr Huan Hang carrying a suitcase and Mr Hongxiang Chen carrying nothing. About ten minutes later, Mr Hongxiang Chen emerged from the car park carrying a backpack.[3] It was the state's case that Mr Hongxiang Chen's backpack came from Mr Huan Hang's suitcase and contained the methylamphetamine.[4] When the police obtained the backpack on 23 December 2014, traces of methylamphetamine were found inside it.[5] The appellant did not go down to the carpark with the two men.
[3] ts 403.
[4] ts 403 - 404.
[5] ts 409.
Mr Huan Hang then left and went to Flight Centre to book a flight back to Sydney. The police stopped him and searched his suitcase, but found nothing that would allow them to hold him, and so they let him go.[6]
[6] ts 404.
The Aberdeen Street apartments were kept under surveillance, and Mr Hongxiang Chen and Ms Lu Ting Yu were seen coming down into the foyer of the apartments and then catching a taxi to a house in Kenwick. At the house, Mr Hongxiang Chen picked up a small bag. The police stopped the taxi on its return journey, at about 1.30 pm. The bag was found to contain $92,850 in cash, and Mr Hongxiang Chen's wallet contained just over $10,000 in cash. Mr Hongxiang Chen and Ms Lu Ting Yu were taken in for questioning. Police then executed a search warrant and gained entry to the apartment at 15 Aberdeen Street.[7]
[7] ts 404.
When the police arrived at the apartment, the appellant was asleep in the main bedroom.[8] The police found a Bulgari jewellery box containing a clip seal bag which contained just over 16 g of methylamphetamine. A digital scale was in the kitchen, along with clip seal bags of various sizes, disposable gloves, scissors, and traces of methylamphetamine. In the laundry a shoebox was found containing a number of clip seal bags containing methylamphetamine. In total, there was approximately 3.4 kg of methylamphetamine of a purity of 80% ‑ 81%. If it were sold in one ounce lots it would have a street value of approximately $1.22 million.[9] DNA with a high degree of probability of being that of Ms Lu Ting Yu was found on the shoebox.[10]
[8] ts 404 - 405
[9] ts 405.
[10] ts 405.
The apartment at 15 Aberdeen Street had been leased for six months by Lu Ting Yu, and the keys had been picked up from the agent by the appellant.[11] Large sums of money had gone into the bank accounts of Ms Lu Ting Yu, the appellant and Mr Hongxiang Chen over the previous three ‑ four years, in the range of $115,000 to $300,000. The amount of money being deposited in their bank accounts did not sit easily with their occupations: Ms Lu Ting Yu was an unemployed student, the appellant was a plasterer, and Mr Hongxiang Chen was a builder.[12] Each had also booked numerous trips to Perth between July and December 2014 - the appellant having been booked to travel to Perth nine times in that period.[13]
[11] ts 406, State closing submissions ts 12.
[12] ts 1277; 1307.
[13] ts 406.
We turn to the appellant's case at trial.
The appellant's case at trial
In essence, counsel for the appellant explained, in opening, that the issue was whether the appellant had possessed the drugs, there being no dispute that 3.4 kg of methylamphetamine was found in the apartment in which the appellant was asleep.[14]
[14] ts 423 - 424.
Counsel emphasised that the police did not find any drugs or other paraphernalia in close proximity to the appellant.[15] There was no evidence that the appellant knew of the existence of the drugs or that linked him directly to the drugs.[16] There was no fingerprint or DNA evidence relating to the appellant.[17] There was no contact between the courier Mr Huan Hang and the appellant.[18]
[15] ts 424.
[16] ts 424.
[17] ts 425.
[18] ts 425.
The issue for the jury in relation to the appellant would be whether the evidence has satisfied them beyond reasonable doubt that the appellant was in possession, jointly or otherwise, of the methylamphetamine.[19]
[19] ts 426.
The evidence at trial
The trial occupied more than two weeks. The appellant's detailed schedule of evidence provides a comprehensive and accurate summary of the evidence, as the respondent accepts.[20] It is not necessary to detail the evidence of the numerous witnesses. It is sufficient to give a broad overview.
[20] White AB 52.
The evidence called by the State established the primary facts that we have set out in outlining the State case. There was, in substance, no challenge to those primary facts in the course of cross‑examination by counsel for the appellant.
Most of the witnesses called by the State were either detectives or covert operatives employed by the Western Australian police. They described the covert surveillance operation that took place on the morning of 6 December 2014 and outlined their observations of the interactions between Mr Huan Hang and Mr Hongxiang Chen.
Video surveillance footage from the apartment at 15 Aberdeen Street was received in evidence.[21]
[21] Exhibit 8.
Detectives gave evidence as to what they observed and found when they executed the search warrant at 15 Aberdeen Street.[22] There was also a video of the execution of a search warrant.[23] Certificates of analysis of the contents of the shoe box demonstrated there was approximately 3.4 kg of methylamphetamine of a purity of 80% ‑ 81%.[24] If sold in one ounce lots, there was evidence that the drugs would have a street value of approximately $1.22 million.[25]
[22] See the evidence of Lee Buchan, Christopher Lockwood, Robert Bove and Anna Shaw.
[23] Exhibit 18.
[24] Exhibit 29; ts 667 - 668.
[25] ts 1017.
Bank statements were tendered in order to prove the deposit of significant amounts of cash into an account of the appellant.[26]
[26] Exhibit 43.
There was also evidence as to phone records, and as to the bookings and flight history of the appellant, Ms Lu Ting Yu and Mr Hongxiang Chen.
The appellant did not give or adduce any evidence at trial.
The judge's summing up
Given the confined nature of the grounds of appeal, it is not necessary to give a detailed outline of the judge's comprehensive summing up.
The trial judge commenced with conventional directions as to general matters applicable to all criminal trials.
His Honour directed the jury as to the elements of the offence of possessing a prohibited drug with intent to sell or supply. He explained that there were three elements; the identity of the accused as the person who did the things constituting the offence, possession of a prohibited drug, and intention to sell or supply.[27]
[27] ts 1423.
His Honour commenced an explanation of the element of possession in the following way:[28]
Possession is a different concept from ownership, it is wider than physical possession. Possession means:
To knowingly have control or custody of a prohibited drug, or have dominion over a prohibited drug with the intention to possess that drug.
In short, it means having something, knowing that you have it and intending to exercise some control over it. There are three requirements for possession. Knowingly, custody or control and intention.
[28] ts 1424.
In relation to the knowledge requirement, his Honour said, among other things:[29]
First, the accused must have knowledge that the thing possessed is a prohibited drug of some kind.
The accused does not have to know the type or quantity of the prohibited drug he or she actually possessed, but they must have knowledge that what possessed was a prohibited drug of some kind.
In this case each of the accused have denied they had any knowledge of the presence of the substances and that the substances found were prohibited drug. That is, that they were methylamphetamine.
It is not sufficient for the State to prove that he or she suspected that it was a prohibited drug, they must have knowledge in the sense, that I'll explain, it was a prohibited drug.
Knowledge means that he or she was aware they were in possession of a prohibited drug, or believed in the likelihood, in the sense that there was a significant or real chance, that the item in question was a prohibited drug.
[29] ts 1424 - 1425.
Although, in the appellant's written submissions, there appears to be some criticism of the judge's direction concerning knowledge, at the hearing of the appeal counsel for the appellant properly conceded that there was no room for complaint as to the judge's direction concerning knowledge.[30]
[30] Appeal ts 26 - 27.
His Honour directed the jury that whether the appellant had this knowledge was a question of fact exclusively for the jury to determine and that it was a matter to be inferred from all the circumstances.[31]
[31] ts 1425.
His Honour emphasised that the inference of knowledge could only be drawn if it is the only rational inference available.[32]
[32] ts 1425.
His Honour gave a detailed explanation of the meaning of possession.[33] No complaint is or could reasonably be made as to his Honour's direction in that respect.
[33] ts 1425 - 1427.
The judge summarised the State case.[34] The State submitted that Mr Hongxiang Chen would not have left the appellant alone in the unit unless he had been involved and was trusted with the drugs.[35]
[34] ts 1432 - 1437.
[35] ts 1436.
The judge then summarised the defence cases in relation to possession.[36] Both accused submitted that:
(1)The inference that he or she was in possession was not the only reasonable inference in that there was an opportunity for someone else to hide the drugs in the unit.[37]
(2)It was Hongxiang Chen who brought the drugs into the unit and stored and dealt with the drugs without their knowledge and permission. He had exclusive possession of the drugs.[38]
(3)Neither of the accused had exclusive access to any of the areas where the drugs were found.[39]
[36] ts 1437 - 1442.
[37] ts 1437.
[38] ts 1437.
[39] ts 1437
The judge's summary of the appellant's case included the following:
(1)He was asleep when the police executed a search warrant. The drugs were not in the bedroom where he was asleep.[40]
(2)There were no drug related items in that bedroom or near the appellant.[41]
(3)There was no forensic evidence such as DNA or fingerprints to tie the appellant to the drugs found.[42]
(4)The appellant did not meet and had no connection with Mr Huan Hang, the person who brought the drugs to Perth.[43]
(5)The moneys deposited into his bank account were understandable and explicable for a plasterer who would sometimes be paid in cash, as the appellant said in his record of interview with police.[44]
(6)The appellant was not present when drugs were exchanged in the carpark. The appellant submitted this supported an inference that he was not involved.[45]
(7)The State could not prove that the person identified in the airline booking was the same person that flew, or that the appellant had paid for flights.[46]
(8)It was Mr Hongxiang Chen and Ms Yu who paid the rent.
[40] ts 1440.
[41] ts 1440.
[42] ts 1440.
[43] ts 1440.
[44] ts 1440 - 1441.
[45] ts 1441.
[46] ts 1441.
The judge told the jury that possession was the main issue in this trial.[47] He informed them that both accused say they were not in possession of the drugs because they had no knowledge of the presence of the drugs in the kitchen and the laundry and each was unaware of the existence of the drugs. Consequently, he or she could not have and did not have control of or an intention to exercise control or dominion over the drugs and thus was not in possession.[48]
[47] ts 1442.
[48] ts 1442.
The judge reminded the jury that neither accused have to prove anything in relation to the elements of identity and possession.[49]
[49] ts 1442.
His Honour then dealt with the third element, intention to sell or supply.[50] His Honour explained the operation of the statutory presumption.[51] Again, there is and could be no complaint as to this direction.
[50] ts 1442 - 1444.
[51] ts 1443 - 1445.
The judge directed the jury as to the evidence of the relationship between the parties as background information that they could take into account in deciding the case against each accused. The judge's direction in that respect is the subject of grounds 1(a) and 2(a) of the appeal. We will set out the judge's direction on that topic in dealing with those grounds.
In concluding, the judge reiterated that in the context of the issues in this case the jury must focus on whether the State had proved beyond reasonable doubt that each of the accused was in possession, in the sense his Honour had explained, of the methylamphetamine found by police in the unit.[52]
[52] ts 1474.
The judge summarised the issues in the following way:[53]
Are you satisfied beyond reasonable doubt that each of the accused, considering the cases against them separately, had possession of the approximately 3.4 kilograms of methylamphetamine found by police in the unit?
That is, did each of the accused know that drugs were in the unit, have custody of or control over the drugs and have an intention to exercise control or dominion over the drugs?
[53] ts 1487.
Grounds of appeal
At the hearing of the appeal, the appellant was granted leave to amend[54] ground 1 so that it reads as follows:
1.(a) His Honour Judge Herron misdirected the jury in law in relation to whether the appellant had possession of the prohibited drugs; and
(b)The verdict of guilty should be set aside because having regard to the evidence it is unreasonable and cannot be supported.
[54] Appeal ts 11.
Ground 2 is in the following terms:
2.His Honour misdirected the Jury on possession (jointly or otherwise) of the prohibited drugs by:
(a)directing the Jury, it was open to find an intention to possess exercise dominion or control of the drugs by taking into account irrelevant and inadmissible acts of alleged illicit commercial dealings prior to the date of the alleged offence, to show each accused was part of a plan or agreement to possess prohibited drugs as charged;
(b)directing the Jury that they could take into account irrelevant and inadmissible acts of alleged illicit commercial dealings prior to the date of the alleged offence, as acts to establish a joint criminal enterprise between the co-accused and others prior to the date of the alleged offence, which could not prove the commission of the offence as charged by the Appellant, as a principal offender under section 7(1 )(a) of the Criminal Code (WA) as a matter of law on the proper statutory construction of that section without applying the common law of joint criminal enterprise to establish criminal liability; and
(c)By reason of the misdirection of the Jury there has been a substantial miscarriage of justice.
At the hearing of the appeal, counsel for the appellant abandoned ground 2(b).[55] He also explained that grounds 1(a) and 2(a) essentially cover the same complaint.[56]
[55] Appeal ts 36.
[56] Appeal ts 14 ‑ 15.
We begin with the complaints made in grounds 1(a) and 2(a).
Ground 1(a) and 2(a): the judge's direction concerning the relationship evidence
These grounds of appeal complain of the judge's direction concerning the use to which the jury could put evidence adduced by the State, without objection, as to the relationship between the appellant, Mr Hongxiang Chen, and Ms Lu Ting Yu. The grounds do not complain of the admission of the evidence.
The judge told the jury that the evidence and the relationship between the parties was background information that they could take into account in deciding the case against each accused. He began by explaining the State case as to how that evidence was relevant:[57]
The State case is that each of the accused Ms Yu and Mr Chen together with Hong Chen were together involved in an illicit drug-distribution operation involving the sale or supply of methylamphetamine found by the police in the unit.
The State case is that prior dealings between each of the accused and with Hong Chen, and their past conduct and actions is evidence from which you are entitled to infer the nature of the relationship between the accused, and between them and Hong Chen.
The State says that for some months and weeks leading up to 6 December 2014, they were involved together in an illicit commercial activity ‑ or in illicit commercial activities. They'd planned together or reached an agreement with each other to become involved in illicit commercial activities, and to possess the methylamphetamine found by police in the unit; that is, that the relationship between each of the accused, and between them and Hong Chen was an illicit commercial relationship. The State also described it as a commercial relationship.
The State submits that from the following facts and circumstances, you can infer there was an illicit commercial relationship between each of the accused and Hong Chen.
[57] ts 1470 - 1471.
His Honour then identified the facts and circumstances on which the State relied.[58]
[58] ts 1471 - 1472.
His Honour gave the following directions as to how the jury might use the evidence concerning the alleged prior illicit dealings:[59]
[59] ts 1472 - 1474.
The relationship evidence provides important contextual evidence which is relevant as to the meaning to be given to the communications and contact between the accused, and the accused and 3rd parties, including Mr Chen. It is also relevant to explain the purpose of the conduct or actions of each of the accused in the lead-up to and on 6 December 2014.
It is, on the State case, part of the evidence that goes to show that each of the accused were involved in or were a part of a plan or an agreement to possess the methylamphetamine found in the unit with an intent to sell or supply it to another as alleged.
The past conduct of each of the accused is proximate to the offence alleged in the indictment, and the State submits that the conduct demonstrates the relationship between each of the accused and Hong Chen was not an innocent relationship unconnected or unrelated to illicit activities. It was not just a girlfriend-boyfriend relationship between Ms Yu and Hong Chen, or just a close friendship between Jian Chen and Hong Chen.
If you are not satisfied the communications between the accused and Hong Chen, and their past conduct and contact with each other is related to or connected to illicit commercial activities, or you are not satisfied the relationship between the accused, and between the accused and Hong Chen was an illicit commercial relationship, you should ignore this evidence.
However, when considering the case against each accused, if you are satisfied the past conduct and actions of the accused, the renting of the unit, the bank transactions, and the travelling to and from Perth from Sydney or Melbourne, staying in Perth for only short period of time show each of the accused were involved in illicit commercial activities in the weeks or months leading up to 6 December 2014 when the offence in the indictment is alleged to have occurred, then this may be taken into account in deciding whether Ms Yu and Mr Chen were in possession of the methylamphetamine found at the unit with an intent to sell or supply it to another.
It is only in those circumstances that you can take into account the conduct of one of the accused when considering the case against the other accused. It is only in those circumstances that you can take into account the past conduct and actions of the accused. So if you are satisfied the nature of the relationship between each of the accused was an illicit commercial relationship, you can use the evidence of the conduct and actions of one accused when considering the case against the other accused.
The evidence is also relevant to rebut a suggestion that the accused had an innocent association with the drugs; for example, that he or she did not know the presence of the drugs in the unit, and therefore that they were not in possession of the drugs.
However, even if you are satisfied that the nature of the relationship between each of the accused, and between each of them and Hongxiang, was an illicit commercial relationship, that relationship is not direct evidence that the accused committed the offence with which he or she has been charged.
Further, it does not automatically follow that even if the accused were involved in illicit commercial relationship with each other, that they committed the offence charged.
As I have said, you cannot deliver a guilty verdict unless, having considered all the evidence, you are satisfied beyond a reasonable doubt that the accused is guilty of the charge.
In the context of the issues in this case, you must focus upon whether the State has proved beyond reasonable doubt that each of the accused were in possession, in the sense I have explained, of the methylamphetamine found by police in the unit.
For the reasons that follow, in our opinion there was no error in the judge's directions on this topic.
The central issue for the jury was whether they were satisfied beyond reasonable doubt that the appellant knew of and intended to possess the drugs in the unit of which he was the sole occupant when the drugs were found by the police. That issue invited attention as to whether there was any other reasonable inference, from the known facts concerning the events of 6 December 2014, other than that the appellant knew of and intended to possess the drugs. Evidence of the prior relationship between the appellant and the other two people involved was relevant to whether there was any alternative reasonable inference, including as to whether the appellant's claim to the police that he was innocently asleep in the unit in which the drugs and other material were found was an alternative reasonable inference.
That is how the judge explained to the jury how they could use the evidence of the prior relationship between the parties. Further, the judge carefully and properly limited the use to which the relationship evidence could be put. His Honour told the jury that:
(1)it did not follow that if the accused were involved in an illicit commercial relationship with each other that they committed the offence charged; and
(2)a guilty verdict could only be delivered if the jury was satisfied that the State had proved beyond reasonable doubt that that accused was in possession of the methylamphetamine found at the unit.[60]
[60] ts 1473 - 1474.
The appellant's submissions assert that the decision of the Court of Criminal Appeal of this State in Atholwood[61] supported his complaint as to the judge's direction. Atholwood does not assist the appellant's argument. In Atholwood, Malcolm CJ said as follows:[62]
It was submitted on behalf of the Crown that the evidence was admissible as it tended to show that the appellant was dealing in drugs. Where the issue at a trial is whether a person found in possession of a drug possessed it for sale or supply, the fact that the person is currently engaged in the business of a drug dealer is a fact relevant to the issue. It is not mere evidence of propensity to commit crime. In such a case the prosecution is entitled to lead evidence on the finding of both the drugs which were found in the clothes and the paraphernalia to which reference was made for two purposes. First, the evidence is admissible as relevant to the prosecution case that, contrary to his denials, the appellant was caught in possession of the drugs. Secondly, the evidence is admissible to rebut any defence that the appellant had with regard to not having access to those drugs freely. If the appellant was involved in a drug business at the time of the search, then in the absence of any alternative explanation, it was reasonable to regard the drugs found in his bedroom and the paraphernalia in the kitchen as part of the business of the sale and supply of drugs: R v Sultana (1994) 74 A Crim R 27 per Gleeson CJ at 29; and per Sully J at 36 ‑ 37, which was recently applied by this Court in Evans v R [1999] WASCA 252 at [31] per Malcolm CJ, with whom Anderson and White JJ agreed. In that case, as in this, the defence to a charge of possession of drugs was a denial of any knowledge of the presence of the drugs. The drugs were found in a car driven by the accused. Evidence tending to show that the accused was dealing in drugs was admissible to support the Crown case that the accused was in possession of the drugs and to rebut the defence that he was in possession for his own use, as was the case in Sultana (supra).
The evidence of the drugs found in the bedroom and the paraphernalia in the kitchen was also relevant to negativing an innocent association between the appellant and the drugs in the same way as evidence may be led to negative innocent association between one person and another or a person and a building: cf Harriman v The Queen (1989) 167 CLR 590 per Brennan J at 594 ‑ 596; Dawson J at 597 ‑ 603; Toohey J at 609 ‑ 610; Gaudron J at 613; and McHugh J at 628 and 630 ‑ 635; Markovina v R (1996) 16 WAR 354 per Malcolm CJ at 363; and Crawford v Evans, unreported; CCA SCt of WA; Library No 950320; 22 June 1995 per Malcolm CJ at 15.
[61] Atholwoodv The Queen [2000] WASCA 76; (2000) 110 A Crim R 417.
[62] Atholwood [9] - [10].
The appellant emphasises that, in Atholwood, the evidence was to the effect that drug paraphernalia was found at the same time as the time of the alleged offence. That is true, but it does not assist the appellant. At the risk of stating the obvious, the fact that there is some difference(s) in the circumstances of this case and the circumstances of Atholwood does not provide any support for the contention that, consequently, the result in this case must be different. The proper use of the evidence in this case is to be assessed by reference to the facts and circumstances of this case. In this case the evidence of the parties' prior illicit commercial dealings was relevant to negativing any reasonable inference of an innocent association between the appellant and the drugs found in the apartment.
The appellant referred to a number of other decisions, none of which has any relevance to this appeal. Those decisions concerned different charges, for example, charges of drug trafficking, different facts and circumstances and, in one case, a fundamentally different issue, namely a question of duplicity.
The appellant's submissions emphasised that the State case as to the prior relationship evidence was said to concern illicit dealings, not specifically drug dealings. It may be that the approach of the prosecutor at trial was, in this respect, somewhat generous to the appellant. In any event, this point does not give rise to any legitimate complaint about the judge's direction to the jury. As the judge explained, a finding by the jury that the appellant had previously engaged with the same parties in illicit dealings was relevant to the jury's assessment of what, if any alternative reasonable inferences were available, including whether the appellant's innocent presence as the sole occupant of an apartment in which Mr Hongxiang Chen had left drugs worth more than $1 million was a reasonable inference. This would be so regardless of whether that prior illicit dealing was drug dealing or, for example, money laundering.
The appellant further submits that the judge's reference to illicit commercial dealings invited speculation by the jury as to the nature of those illicit dealings.[63] That submission is mere assertion. Nothing in what the judge told the jury invited any such speculation.
[63] Appeal ts 16, 17, 22, 25.
When pressed, counsel had difficulty in identifying what particular passage or passages of the judge's direction revealed error.[64] In our view, that is because no error is revealed in anything his Honour said.
[64] Appeal ts 20 ‑ 26.
In the fifth paragraph of the passage we have set out at [48], his Honour referred to illicit commercial activities 'in the weeks or months leading up to 6 December 2014'. The appellant submits that the reference to months leading up to the date of the offence was erroneous in that it invited the jury to have regard to matters that were too far removed from the question of the appellant's guilt of the offence on 6 December 2014.[65] There is no merit in that complaint. First, the evidence led by the State, without objection, included matters which had occurred in the preceding months. Such evidence having been led, the judge did not err in directing the jury as to how they might use that evidence. Secondly, and in any event, the fact that some parts of the relationship evidence relied on by the State occurred months prior to the offence did not remove its relevance and probative force. For example, the fact that the appellant had picked up the keys to the Aberdeen Street unit when it was leased by Ms Yu was relevant. So too was the deposit of two substantial sums of cash into accounts of the appellant on 23 October 2014.
[65] Appeal ts 23.
For these reasons, there is no merit in grounds 1(a) and 2(a). We would refuse leave to appeal in respect of those grounds.
Ground 1(b): was the verdict unreasonable or unable to be supported?
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well‑known. They were summarised by this court in Wells v The State of Western Australia:[66]
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
[66] Wells v The State of Western Australia [2017] WASCA 27 [13].
The State case against the appellant relied upon the drawing of inferences as to the appellant's knowledge and intention. The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in The Queen v Baden Clay:[67]
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances established on the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[67] The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [46] - [47].
The appellant submits that it was not open to the jury to be satisfied beyond reasonable doubt that he knew of the presence of the drugs in the flat, and intended to possess them. In this respect, the appellant emphasises the following matters:[68]
(1)His presence in the apartment, for only about half an hour prior to falling asleep, did not mean he was in possession of the drugs found in the apartment.
(2)The drugs, scales and clipseal bags were not found in close proximity to the appellant.
(3)None of the appellant's DNA was found on the bags containing the drugs, or on the drugs, scales or clipseal bags.
(4)Nor was there any fingerprint evidence that implicated the appellant.
(5)There was no evidence that the appellant was present when the drugs were exchanged between Mr Huan Hang and Mr Hongxiang Chen.
(6)The evidence was that others, not the appellant, collected the money
[68] White AB 33 ‑ 37; appeal ts 34.
The matters highlighted by the appellant are only part of the evidence. In our opinion, when the whole of the evidence is considered, it was well open to the jury to be satisfied that the only reasonable inference was that the appellant knew of the drugs in the apartment, and intended to possess them. The following unchallenged aspects of the evidence sustained, indeed in our view compelled, that conclusion:
(1)The appellant arrived in Perth on 6 December 2014 on the same plane as Mr Hongxiang Chen, the two flights having been booked together.[69]
(2)The appellant, Mr Hongxiang Chen and Ms Lu Ting Yu had each booked many trips to Perth in the period July to December 2014, most of which had been booked together and involved the appellant and Mr Hongxiang Chen travelling together.[70]
(3)On 6 December 2014, the appellant was booked to stay in Perth for only one night.[71]
(4)The appellant had received deposits of cash of about $200,000 into his bank account in the period from July 2010 to December 2014, including two deposits on 23 October 2014, one of $20,000 and one of $25,000.[72]
(5)Some weeks earlier, the appellant had collected the key for the apartment in Aberdeen Street.[73]
(6)There had been extensive telephone contact between the appellant and the other two alleged participants in the time leading up to 6 December 2014, including six attempts by Ms Lu Ting Yu to telephone the appellant on 6 December 2014.[74]
(7)As soon as Mr Hongxiang Chen arrived in Perth he met Mr Huan Hang and then collected drugs from him (this was not disputed by the appellant at trial or on appeal).
(8)Mr Hongxiang Chen and the appellant arrived together at the Aberdeen Street apartment.[75]
(9)Thereafter, the appellant was found, alone, in the apartment with drugs worth over $1 million.
(10)The appellant told police he had a reason why his fingerprints or DNA might be found on the drugs.[76]
[69] Exhibit 65, ts 925; record of interview page 6.
[70] Exhibit 17.
[71] Exhibit 17; record of interview page 18.
[72] ts 13, 1472, 1568.
[73] Exhibit 3.
[74] ts 1154.
[75] ts 462, exhibit 8; exhibit 58.2; record of interview pages 8 - 9.
[76] Record of interview, page 18, exhibit 58.2
These undisputed facts gave rise to compelling inferences that:
(1)The purpose of the trip to Perth by all three was to engage in the acquisition of a parcel of methylamphetamine.
(2)After Mr Hongxiang Chen obtained the drugs, he left them in the custody of the appellant at the Aberdeen Street apartment.
(3)The appellant was aware of those drugs and, while he was at the apartment, intended to possess them.
In our opinion, no other reasonable inference arose on the evidence at trial. Thus, on a consideration of the whole of the evidence, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
For these reasons, there is no merit in ground 1(b). We would refuse leave to appeal on that ground.
Conclusion
For the reasons we have given, the following orders should be made:
1.Leave to appeal is refused on all grounds.
2.The appeal is dismissed.
8
1