Do v The State of Western Australia
[2014] WASCA 218
•21/11/14
DO -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 218
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 218 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:214/2013 | 8 AUGUST 2014 | |
| Coram: | McLURE P MAZZA JA HALL J | 21/11/14 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THI MY HUONG DO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against conviction Appellant convicted after trial of one count of attempting to possess methylamphetamine with intent to sell or supply Whether a substantial miscarriage of justice arose from the incompetence of defence counsel Whether material irregularity caused by failure to object to certain evidence Whether material irregularity caused by introduction of prejudicial evidence Whether expert evidence admissible Whether there was a significant possibility any material irregularity affected the outcome Turns on own facts |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1) |
Case References: | Anderson v The Queen (1992) 64 A Crim R 312 Brown v The State of Western Australia [2008] WASCA 48 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 Marchesano v The Queen [2000] WASCA 225; (2000) 116 A Crim R 237 R v Birks (1990) 19 NSWLR 677 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DO -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 218 CORAM : McLURE P
- MAZZA JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
File No : IND BRO 10 of 2013
Catchwords:
Criminal law and procedure - Appeal against conviction - Appellant convicted after trial of one count of attempting to possess methylamphetamine with intent to sell or supply - Whether a substantial miscarriage of justice arose from the incompetence of defence counsel - Whether material irregularity caused by failure to object to certain evidence - Whether material irregularity caused by introduction of prejudicial evidence - Whether expert evidence admissible - Whether there was a significant possibility any material irregularity affected the outcome - Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A G Elliott
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Max Crispe Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v The Queen (1992) 64 A Crim R 312
Brown v The State of Western Australia [2008] WASCA 48
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
Marchesano v The Queen [2000] WASCA 225; (2000) 116 A Crim R 237
R v Birks (1990) 19 NSWLR 677
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
1 McLURE P: I agree with Mazza JA.
2 MAZZA JA: This is an appeal against conviction.
3 On 19 September 2013, the appellant was convicted after a trial before a judge and jury in the Broome District Court of one count of attempting to possess a prohibited drug, namely methylamphetamine, 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 (WA).
4 There are two grounds of appeal. In essence, they allege that there was a substantial miscarriage of justice by reason of the incompetence of defence counsel at the trial. It is alleged that defence counsel:
(a) failed to object to inadmissible and prejudicial comments made by the principal investigating detective during a visually recorded interview with the appellant on 20 November 2012;
(b) failed to object to hearsay evidence introduced by that detective in the same interview;
(c) failed to object to inadmissible opinion evidence given by another detective; and
(d) in the course of cross-examining the principal investigating detective, asked questions which introduced prejudicial evidence about the appellant.
5 In my opinion, the grounds of appeal have not been made out and the appeal must be dismissed. My reasons for this conclusion are as follows.
Overview of the prosecution case at trial
6 The State adduced evidence at trial to this effect.
7 On the morning of 20 November 2012, police officers seized a package from the Broome post office addressed to the appellant's post office box, apparently from a person named Derek Tran who gave a return address in Queensland.
8 The police 'deconstructed' the package. Inside an Express Post bag was a computer game box which enclosed two freezer bags. One of the bags contained a clipseal bag, inside of which was 27.8 gms of methylamphetamine with a purity of 74%. The police substituted the methylamphetamine with an inert substance, rock salt. The package was then 'reconstructed' and returned to the Broome post office for collection.
9 Later that day, the appellant went to the post office and asked for the package. At that time, the package could not be found. The appellant left her contact details with the supervisor. Eventually, the package was located and the appellant was notified. In due course, the appellant returned to the post office and took delivery of it. By this time, she was under covert visual surveillance. She was seen to return to her place of residence with the package.
10 A short time later, at approximately 4.00 pm, the principal investigating detective, Detective Sergeant Wilson, and other police officers executed a Misuse of Drugs Act search warrant at the appellant's home address in Broome. When the police first saw the appellant she was in the study smoking some of the contents of the package, presumably in the belief that it was methylamphetamine. The search was video recorded. An unedited version of that recording was tendered at trial and played to the jury as part of the prosecution case (exhibit 8). The appellant was cautioned and, at times in the search, answered various questions put to her by police. No criticism is made of defence counsel in respect of the admissibility of exhibit 8.
11 In the study, the police found the clipseal bag containing the inert substance which the police had earlier substituted. A small quantity of rock salt crystals were found on the desk. The packaging, including the Express Post bag, the computer game box and the freezer bags, was also found on the desk.
12 Glass pipes and other equipment used for the smoking of methylamphetamine was found at a number of locations in the house, including the study and the bedroom she shared with her partner, Mitchell Cork.
13 In the appellant's bedroom, the police found:
(a) in a drawer in the walk-in wardrobe, $3,000 in cash;
(b) on a shelf in the walk-in wardrobe, four or five freezer bags similar to the freezer bags found in the study in which the methylamphetamine had been wrapped;
(c) on a set of drawers next to the appellant's side of the bed, a jar of the commonly used cutting agent, MSM; and
(d) in the same set of drawers, a large quantity of clipseal bags.
14 In the kitchen on top of the refrigerator, the police found a set of electronic scales capable of measuring small weights.
15 The police also found a further $1,050 in cash in the appellant's purse.
16 The police did not tell the appellant during the search that they had earlier intercepted the package addressed to the appellant and replaced its contents with rock salt.
17 The appellant said that she was the purchaser of the 'methylamphetamine' found in the study. She denied selling or giving any of it away. She denied that the drugs were sent to her in the package. She maintained that the package contained a computer game. When asked where the game was, she said that she had put it with the other computer games she owned in the lounge room. When asked to show the police where it was, she was unable to do so.
18 In answer to questions about the clipseal bags, she said that she used them for storing 'scrap booking' items. However, none of the scrap booking items she then possessed were kept in similar clipseal bags. As to the electronic scales, she said that she used them to weigh drugs she bought for her own use to make sure, in effect, that she got what she paid for.
19 At the conclusion of the search, the appellant was immediately taken to the Broome police station where she was formally interviewed by Detective Sergeant Wilson and Detective Smith. It is apparent that at or about this time, Mitchell Cork had been or was being questioned by police.
20 The interview with the appellant at the police station was video recorded. An unedited version of this interview was tendered at trial as part of the prosecution case (exhibit 13). It is now said by the appellant that her trial counsel should have objected to, and sought the excision of, various things said in the interview by Detective Sergeant Wilson. I will describe in detail these parts of the interview later in these reasons. What is unchallenged is:
(a) the appellant admitted that she and her partner were users of methylamphetamine;
(b) she said that she had been using methylamphetamine for approximately eight months and that she was 'a social user' of the drug, however, she described her use as a habit;
(c) she told the police that she had not bought 1 ounce of methylamphetamine before. Previously, she had bought 'a gram here, a gram there';
(d) she admitted that she had acquired the 'methylamphetamine' the police discovered in the study. Initially, she denied that it had been in the package she picked up from the Broome post office. Later in the interview, when it was revealed that the police had seized the package and substituted the methylamphetamine in it with rock salt, the appellant did not maintain her initial position;
(e) she was not, at the beginning of the interview, prepared to tell the police how much she had paid for the drug. However, she said that she had been able to pay for it from a $13,000 tax refund. Later, after the police referred to her bank statements and certain payments that she had made and her apparent inability to pay for such a quantity of methylamphetamine, she said, in effect, that she had obtained the drug on credit. When questioned about where she would get the money to pay for the drug, she said that she would 'get a job'. Later, she said that Mitchell Cork owed her money. She eventually revealed that the drug had cost 'about $5,000';
(f) she gave the same explanations she had in the search video for the electronic scales and the clipseal bags;
(g) when asked about the freezer bags found in the walk-in wardrobe, the appellant said that they had been in the Express Post package. When it was pointed out to her by the police that this was incorrect, she said that the freezer bags in the walk-in wardrobe had contained smaller amounts of methylamphetamine she had previously bought for her own use;
(h) the appellant said to the police that the cash found at her house belonged to her partner and that she '[had not] had time to put it in the bank'; and
(i) the appellant consistently denied having sold drugs previously or intending to supply any of the 'methylamphetamine' found by the police to anyone. She maintained that the approximately 1 ounce of the drug was for her own use. She told police 'you'll be surprised … how much we do tend to go through'. When asked to provide detail about her use she said 'it depends on the week'. She said she bought an ounce so that she did not have to 'deal with it'.
21 Detective Sergeant Wilson testified at trial. In the course of his cross-examination, defence counsel asked questions which, it is now said, unfairly introduced prejudicial evidence against the appellant about her past.
22 The State's case also comprised expert opinion evidence. Some of this was given by Detective Sergeant Wilson, but the most significant evidence of this type came from Detective Sergeant Baddock.
23 The State adduced from their expert witnesses uncontroversial evidence as to:
(a) the common names by which methylamphetamine is referred, including 'speed' and 'ice';
(b) the weights in which methylamphetamine is sold;
(c) the price of methylamphetamine in Broome in 2012; a 'point' (0.1 gms) being $100 - $200, and an ounce being approximately $28,000;
(d) the purity of 74% being 'very high' and that the methylamphetamine had the potential to be cut or diluted using an agent such as MSM. According to Detective Sergeant Baddock, if the methylamphetamine had been cut to a street purity of between 8 - 12% and sold in point lots, the 1 ounce would have been worth approximately $194,600; and
(e) items commonly seen and associated with the sale or supply of methylamphetamine, which included electronic scales, clipseal bags, 'tick notes', cash, video surveillance (although less so in Broome) and the use of mobile telephones.
24 Detective Sergeant Baddock's evidence went further than merely these matters. He gave evidence as to the quantities of methylamphetamine a person can consume, the period of time over which a person can sustain using certain quantities of the drug, and a user's tolerance to methylamphetamine. This evidence was adduced without objection. The appellant now says that defence counsel should have, but failed, to object to this evidence which, it is said, was inadmissible.
25 The appellant did not give or adduce any evidence in her defence.
26 The appellant did not contest at trial that she had attempted to possess the methylamphetamine in the package.
27 The decisive issue for the jury was whether the State had proved beyond reasonable doubt that the appellant had attempted to possess the drug with an intention to sell or supply it to another.
The closing addresses
The State case
28 As the appellant was charged with an attempt to possess a prohibited drug with intent to sell or supply it to another, the presumption in s 11 of the Misuse of Drugs Act did not apply: Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202. Accordingly, the onus was on the prosecution to prove beyond reasonable doubt that the appellant intended to sell or supply at least some of the methylamphetamine to another.
29 The State's circumstantial case with respect to intent relied on the combination of these factors:
1. The quantity, purity and value of the methylamphetamine.
2. Although the appellant was a user of methylamphetamine, the amount and purity of the drug was too much for the personal use of a social user.
3. Items found in the search of the appellant's house, most notably cash, electronic scales, clipseal bags and the MSM which were, according to the unchallenged expert evidence, common indicia of drug dealing.
4. The appellant had no apparent means of paying for the drugs apart from selling them.
30 The State's case was that the appellant had told many lies in her conversations with the police on 20 November 2012, and that the jury should reject the appellant's statements to the effect that she intended to use all the drugs she attempted to possess herself. The State relied on one of the lies she told as a lie born out of a consciousness of guilt. That lie concerned the use of the clipseal bags.
The defence case
31 Defence counsel submitted that the jury should conclude, from an examination of the evidence as a whole, that the appellant attempted to possess the drugs for her own use. He accepted that the appellant had been untruthful in her answers to the police, but notwithstanding this submitted the jury should accept the statements made by her to the effect that she had no intention to sell or supply methylamphetamine to anyone. He emphasised that the appellant had been consistent in this respect. He stressed, in the context of exhibit 13, that the appellant, 'despite heavy questioning' (ts 104), refused to acknowledge that she intended to traffic the drugs.
32 Defence counsel submitted that there were innocent explanations for the presence of the indicia relied upon by the State to demonstrate an intention to sell or supply. For example, he submitted that MSM had innocuous uses or could be used by drug users to dilute the purity of the drug prior to use. He sought to explain the electronic scales by suggesting that they could be used for purposes other than those associated with illicit drugs. He urged the jury to accept the appellant's statements that the clipseal bags would have been used by her for scrap booking. Finally, he submitted that there were other explanations for the cash that was found other than drug dealing.
33 As to the quantity of the drug the appellant attempted to possess, defence counsel submitted that there was 'no evidence as to how long meth lasts for before it goes off', and that the methylamphetamine could have been purchased with the intention for it to be used over an extended time. Defence counsel drew an analogy with a large jar of Vegemite or jam. As he put it, 'it stays on the shelf and you would use that item until it runs out'. Defence counsel pointed out that methylamphetamine is expensive in Broome. He suggested there was 'nothing unreasonable' about importing a large quantity of the drug from the eastern states for a comparatively low price.
34 Defence counsel submitted that there was no reliable evidence as to how much a user of methylamphetamine could or could not use. He specifically noted the failure of the prosecution to call evidence as to this topic from 'a qualified medical practitioner'.
The grounds of appeal
35 It is convenient to now set out the grounds of appeal in full:
1. A substantial miscarriage of justice arose by reason of the incompetence of trial counsel.
Particulars
- (a) Defence counsel's failure to object to inadmissible and prejudicial comments, statements and opinions made or given by Detective Sergeant Wilson during the visually recorded interview with the appellant on 20 November 2012, namely:
i. that the appellant was not telling the truth in the interview and had earlier lied to him;
ii. that the Appellant was being evasive during the interview;
iii. that she could not give a plausible explanation for her attempt to possess the drugs and what she had said was 'ridiculous';
iv. that the drugs were not all for her own use
(b) Defence Counsel's failure to object to the hearsay evidence introduced by Det Sgt Wilson [in the visually recorded interview] with respect to what he said that Mr Mitchell Cork had told him about the items relied upon by the Prosecution as indicia of drug dealing, which was contrary to the explanation given by the Appellant.
(c) Defence Counsel's failure to object to the inadmissible parts of the opinion evidence given by Detective Sergeant Baddock in relation to:
i. the quantities of methylamphetamine that a person can consume;
ii. the period of time that a person can sustain using quantities of approximately 1.4 grams of methylamphetamine a week;
iii. an individual's tolerance levels to methylamphetamine.
(d) Defence counsel's questions that introduced prejudicial evidence, namely the fact that police had 'information about the accused and her associates, and about her past' that the Defence would not want him to go into (see transcript page 41).
2. By reason of the inadmissible, irrelevant and prejudicial evidence referred to in Ground 1(a), (b), (c) and (d) above, the Appellant did not have a fair trial in accordance with law and suffered a substantial miscarriage of justice.
36 Leave to appeal has been granted in respect of each ground.
The legal principles applicable to miscarriages of justice caused by the conduct of counsel
37 The legal principles upon which the appeal must be decided are well known and have been traversed frequently in this court in recent times.
38 A criminal trial is not an inquisition, it is an adversarial proceeding. Defence counsel, who is, in effect, an accused's agent, has a very wide discretion as to how the defence is to be run. Accordingly, an accused is ordinarily bound by the way in which his or her counsel has conducted their case. While it is accepted that the conduct of defence counsel can give rise to a miscarriage of justice, an appellant who makes this allegation carries a heavy burden: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74].
39 The question of whether there has been a miscarriage of justice (in the sense that there has been no fair trial according to law) in this case involves the consideration of two issues. The first issue is whether counsel's conduct constituted a material irregularity in the trial. The second issue is whether there is a significant possibility that the irregularity affected the outcome.
40 The concept of material irregularity must be considered having regard to the wide discretion given to defence counsel to conduct the case as he or she thinks best. It is well recognised that a conviction will not be set aside merely because of decisions made by counsel without, or contrary to, instructions or involving errors of judgment or even negligence: R v Birks (1990) 19 NSWLR 677, 685. Further, it will be difficult to establish a material irregularity where the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views, and it will be even harder for an appellant to succeed where counsel has made a choice because of a perceived forensic advantage. An apparently rational decision made by defence counsel will not amount to a material irregularity because it may appear that the decision was not carefully considered, was unwise or produced consequences which operated to the disadvantage of the accused.
41 Even if a material irregularity has been demonstrated, there remains the question of whether, having regard to the whole of the case, there is a significant possibility that the irregularity affected the outcome. With respect to this question, a relevant factor to be considered is whether, and how, the irregularity was dealt with by the trial judge.
Ground 1
42 The gravamen of this appeal is ground 1. The success of ground 2 depends upon the success of ground 1.
43 Ground 1 identifies four areas of evidence in which it is alleged that counsel's conduct gave rise to a miscarriage of justice. They are:
(1) particular (a) which concerns aspects of exhibit 13;
(2) particular (b) which concerns hearsay statements made in connection with Mitchell Cork;
(3) particular (c) which concerns some of the opinion evidence of Detective Sergeant Baddock; and
(4) particular (d) which concerns answers given by Detective Sergeant Wilson in cross-examination with respect to intelligence the police had about the appellant prior to the search.
44 I will deal with each of these particulars in turn.
Particular (a) - aspects of exhibit 13
45 In her written submissions, the appellant identified 11 parts of exhibit 13 which, it is said, were inadmissible and which defence counsel should have objected to. In essence, it is said by the appellant that Detective Sergeant Wilson made prejudicial comments, statements and opinions in the interview which should have been edited from the version played to the jury. It is submitted that there was no rational forensic reason for counsel's failure.
46 I will discuss each objection in the order set out in the appellant's case:
1. 'I would ask you to tell the truth …' (interview ts 15).
47 Detective Sergeant Wilson made this statement in the course of questions and answers about how the appellant was able to pay for the drugs found at her house. The relevant exchange is in these terms:
Q: Alright. How do you afford to pay for these drugs?
A: No comment. I don't know, hard to explain.
Q: Pardon?
A: I don't know how to explain.
Q: Well, I mean I would ask you to tell the truth …
A: Well.
Q: … That's how you explain it?
A: … At the end of the day I might of [sic] not paid for it yet (interview ts 14 - 15). (emphasis added)
48 The request, 'I would ask you to tell the truth …' is a response to the appellant's professed inability to explain how she paid for the drugs. In this context, to ask her to tell the truth is, in substance, a request to explain how she could afford to pay for the drugs. In context, there was nothing unfair or prejudicial about Detective Sergeant Wilson's request.
2. 'This is like pulling teeth'
49 This statement was made during an exchange between Detective Sergeant Wilson and the appellant concerning the contents of the package she collected from the Broome post office. The relevant exchange proceeded in this way:
Q: Did you collect a package today?
A: Yes.
Q: Was it that package?
A: Yes.
Q: Ok. So you have a recollection about it?
A: Yes.
Q: Can you tell me about the package?
A: Um, I collected a package that contained stuff in it.
Q: What was in it?
A: A box.
Q: And what was in the box?
A: A game case.
Q: And well this is a bit like pulling teeth. What was in the game case?
A: Well presuming it's what you guys think it is, the drugs?
Q: That's, that's what I think, yes. Was that in the game case?
A: No (interview ts 16). (emphasis added)
50 The respondent concedes that Detective Sergeant Wilson's comment 'this is a bit like pulling teeth' was 'extraneous' but submits that it was not materially prejudicial.
51 The impugned statement was clearly an expression of frustration and ought not to have been made. Juries should not be taken to be fools. Reasonable jurors would have perceived the comment to be nothing more than an expression of frustration. In my opinion, it had no capacity to materially prejudice the jury.
3. 'I still believe that those drugs came out of that bag'
52 This statement was made in the context of the appellant's statements to the effect that the 'methylamphetamine' found by the police had not come in the package she had collected from the Broome post office. The precise context in which the statement was made is as follows:
Q: OK. Do you agree that packaging, those freezer bags was [sic] found quite close to …?
A: Yep.
Q: … The Express Post …
A: Yep.
Q: … bag? So I still believe those drugs came out of that bag.
A: OK.
Q: … Wrapped in that packaging?
A: OK.
Q: OK. Is that the case?
A: No (interview ts 17- 18). (emphasis added)
53 Detective Sergeant Wilson's 'belief' that the drugs had been in the package, although well founded in fact, was irrelevant, but in context it was not prejudicial. By the time exhibit 13 was played to the jury, it was well aware that the appellant did not dispute that the drugs she attempted to possess were, indeed, sent to her in the package. In these circumstances, Detective Sergeant Wilson's expression as to his belief was incapable of giving rise to any prejudice to the appellant.
4. Hearsay statements made by Mitchell Cork
54 I will deal with this part of the interview in my reasons concerning particular 1(b).
5. 'MSM … is, and I suspect you know, is commonly used as a cutting agent'
55 The question asked by Detective Sergeant Wilson was directed to the appellant's knowledge of MSM as a cutting agent. The question was legitimate, having regard to the discovery of MSM in the appellant's bedroom on the drawers next to her side of the bed. The factual contention that MSM was a common cutting agent was not in dispute at trial. As I have already said, Detective Sergeant Baddock's unchallenged evidence was that MSM is commonly used to dilute the purity of methylamphetamine. No unfairness arose as the result of this question.
6. '[Y]ou choose not to tell me …'
56 This comment was made in a fairly lengthy exchange between Detective Sergeant Wilson and the appellant over how she was able to afford the methylamphetamine. At this stage of the interview she had indicated that she was not prepared to say from whom she had bought the drug and how much she had paid for it.
57 It must be accepted, as the respondent does in this case, that the comment 'you choose not to tell me' was inadmissible and should have been edited from exhibit 13. The statement potentially undermined the appellant's right to silence. However, the learned trial judge clearly and firmly directed the jury in his summing up that it was the appellant's choice whether or not to speak to police and that any exercise of her right to silence could not be held against her (ts 114). In these circumstances, any prejudice which may have flowed from the comment was neutralised.
7. 'So let's stop the façade about … these drugs … not being in that parcel' and '[the interview has] been going around in circles a fair bit'.
58 The comment 'let's stop this façade' etc, was made immediately after Detective Sergeant Wilson revealed to the appellant that the police had earlier seized the package, discovered the methylamphetamine and replaced it with rock salt. As I have previously noted, up to this point, the appellant had maintained that the 'methylamphetamine' found by the police had not come in the package. In context, the impugned passage was no more than Detective Sergeant Wilson indicating to the appellant that what she had said was plainly untrue, a proposition that defence counsel accepted in his closing address. In these circumstances, there was nothing unfairly prejudicial about the comment.
59 The statement 'it's been going around in circles a fair bit' is not, in context, any criticism of the appellant. The comment was made by Detective Sergeant Wilson to indicate that he was 'covering stuff we've already spoken about' (interview ts 30).
8. 'You lied to me before'
60 The context in which the impugned statement was made is as follows:
Q: I'm glad, I'm glad you bring that up. You know I had two bags of these freezer bags, this one's got two in it and that was from up the, um, office?
A: Mm'hm.
Q: At your house and this one's got four or five and that, that was from the walk-in robe in your house?
A: Yep.
Q: Okay. Again I can confirm that that package had two in it today?
A: Mm'hm.
Q: Okay. Now you lied to me before when you told me that all of these freezer bags were in the same package?
A: Okay.
Q. Okay. You also told me that, um, you've previously bought drugs before.
A. Yep.
Q. … in gram amounts?
A. Yep.
Q. Okay. And I suspect the same packaging that you actually previously had bought more than gram amounts and pehaps even the same quantities?
A. Well, how do I …
Q. Can you explain to me …
A. Afford to do that? (interview ts 32). (emphasis added)
61 The appellant had told the police during the search that the freezer bags found in the walk-in robe in her bedroom had come from the package which she had collected from the Broome post office. This was untrue. The package contained only two freezer bags, while four or five bags had been found in the walk-in robe.
62 In context, there was nothing prejudicial about the impugned statement. By the time it was made, it was clear to both Detective Sergeant Wilson and the appellant that she had lied about the source of the freezer bags found in the walk-in robe. Indeed, by her answer 'Okay', she accepted this to be so, a position that she maintained at trial. In these circumstances, it cannot be said that the impugned comment was unfair or prejudicial to her.
9. 'I mean I could sit here and say that … '
63 The context in which this impugned statement was made concerned the credibility of the appellant's statements as to the source of the drugs she attempted to possess. The impugned statement was made in the following exchange between Detective Sergeant Wilson and the appellant:
Q: So I'm gonna ask you again, whose [sic] Derek Tran?
A: I don't know a Derek Tran.
Q: So you got someone you don't know sending you drugs, a person that you've got to pay …
A: Yep.
Q: … and you haven't got any money to pay him, is that, is that what you're telling me?
A: Yep.
Q: Who …
A: A silent, it's a silent person.
Q. A silent person?
A. Yep. They don't know I'm a friend of a friend.
…
Q. I mean I could sit here and say that I think that sounds ridiculous but I've got a feeling that's falling on deaf ears?
A. Okay. (interview ts 33). (emphasis added)
64 This comment was irrelevant. I accept the respondent's concession that it should have been edited out. However, no material prejudice was caused to the appellant. The jury were given an explicit direction to 'totally ignore' any expressions of opinion made by Detective Sergeant Wilson as to the credibility of the accounts given by the appellant (ts 114 - 115). Those directions cured any potential prejudice that arose from this impugned statement.
10. Hearsay comments concerning Mitchell Cork.
65 I will deal with these in the context of particular 1(b).
11. 'By selling it'
66 Detective Sergeant Wilson indicated to the appellant in the course of questioning her that he knew that the appellant intended to sell the drugs she attempted to possess in order to pay for them. The precise exchange is in these terms:
Q: How were you gonna make your money to pay for these drugs?
A: Well I don't know.
Q: I do.
A: By selling it?
Q: By selling it.
A: To who? (interview ts 34). (emphasis added)
67 The impugned comment 'by selling it', was responsive to the appellant's answer to the question immediately before it. In context, the appellant was being asked if she intended to pay for the drugs by selling them, a proposition she had always denied. Insofar as Detective Sergeant Wilson was expressing his opinion that she intended to sell the drugs to pay for them, that opinion was irrelevant and inadmissible. However, there was no material prejudice to the appellant from these questions. It was legitimate for Detective Sergeant Wilson to question the appellant as to how she intended to pay for the drugs. To the extent that he was expressing a personal opinion, the jury was strongly directed to ignore such statements.
68 Having analysed each of the impugned parts of exhibit 13 (leaving aside those parts dealing with Mitchell Cork), none of the alleged failures of defence counsel to object gave rise to a miscarriage of justice. Although not decisive to the determination of this particular, I would add that defence counsel appears to have made a forensic decision to not object to the contents of the interview to make the point to the jury that she remained firm in her position that she did not have an intention to sell or supply in the face of 'heavy questioning'. Particular 1(a) has not been made out.
Particular (b) - hearsay statements
69 Ground 1(b) takes issue with the admissibility in exhibit 13 of questions put by Detective Sergeant Wilson to the appellant in relation to information apparently provided to the police by Mitchell Cork. Mr Cork did not testify at trial.
70 Relevantly, there are two parts in the interview in which Detective Sergeant Wilson refers to statements said to have been made to police by Mitchell Cork.
71 The first of these exchanges is in these terms:
Q: MSM. Now, you told me at the house that you don't know anything about this.
A: Mm.
Q: Do you want to rethink that?
A: No.
Q: Obviously we've spent a bit of time speaking with Mitchell?
A: Yep.
Q: Okay. And he's told us something about this.
A: Okay.
Q. So is there anything you want to tell me about it?
A. No.
Q. Do you know what MSM is used for?
A. No, I don't (interview ts 21 - 22).
72 Later in the interview, Detective Sergeant Wilson returned to the subject of MSM:
Q: Is it Mitchell's?
A: If you have a …
Q: Is that Mitchell's?
A: Yeah.
Q: He tells me he doesn't know anything about it?
A: Well, I took it from him ages ago.
Q: Guess what, he tells me he doesn't know anything about those - all those clipseal bags either?
A. Because he doesn't know that I use.
Q. He tells me that they were - they actually came out of your drawers on …
A. Yes.
Q. … that side of the bed?
A. And it is my drawers on that side of the bed.
Q. Mm. So one of youse [sic] is lying?
A. Well, at the end of the day I have not cut or sold that stuff (interview ts 34).
73 It is accepted by the respondent that insofar as the questions asked by Detective Sergeant Wilson conveyed hearsay statements from Mitchell Cork, they should have been excised from exhibit 13. The respondent accepts that there is no objective reason why defence counsel would not have objected to these questions and sought their excision.
74 While it may be accepted that counsel's failure to object to Detective Sergeant Wilson's questions amounted to a material irregularity, it cannot be accepted, in light of his Honour's directions to the jury, that there was any reasonable possibility that it affected the outcome.
75 The learned trial judge was clearly alive to the point and he directed the jury in clear and emphatic terms that they were to ignore statements made by Detective Sergeant Wilson which conveyed statements made to police by Mitchell Cork. The direction is in these terms:
… during the interview of [the appellant] back at the Broome police station, the police when questioning [the appellant] informed her of what the police had allegedly been told by her boyfriend, Ms [sic] Cork, who had also been interviewed by the police.
This supposed information from her boyfriend must be ignored by you. This is because it is what we call hearsay evidence, which by law cannot be taken into account. You have not heard any evidence directly from Mr Cork. The rule of law is that evidence cannot consist of what somebody else has told somebody else, so what the police tell [the appellant] in that interview about what Mr Cork says, you should put out of consideration (ts 114).
76 The system of criminal justice requires the assumption, that, as a general rule, juries understand and follow the directions they are given by trial judges: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13]. Counsel for the appellant in oral argument accepted these propositions and did not seek to argue that the jury would not have faithfully applied his Honour's directions.
77 For these reasons, particular 1(b) has not been made out.
Particular (c) - opinion evidence of Detective Sergeant Baddock
78 The impugned evidence given by Detective Sergeant Baddock was elicited in examination-in-chief and by the appellant's counsel in cross-examination.
79 The portions of the evidence in question are as follows. The impugned evidence is italicised. In examination-in-chief:
Q: What's the most common transaction that's used in drug dealing?
A: Cash.
Q: So what would you expect to find at a drug dealer's home?
A: Yes, cash.
…
Q: Through your work, have you spoken to people that use methylamphetamine?
A. Yes, I make a point of it.
Q. And through your communication with these people, are you able to assist the jury in telling them what a heavy user of methylamphetamine or how much a heavy user would use?
A: Yes, methylamphetamine is a very serious drug when it comes to a person's health, so the usage cannot be sustained over a long period of time but a person who the terminology is used recreational user would be a person that would use methylamphetamine, for instance, on a weekend recreationally. They would use point one of a gram – 0.1 of a gram at a time and would use that maybe once or twice a day on a Saturday and a Sunday, so that would be point four of a gram over a weekend, but that couldn't be sustained.
Q: Sorry, so you said what do you define that as, a recreational user?
A: Yes, yes, yes. So a low level user that would just use it whilst socialising in parties and recreationally. At the other end of the spectrum you would have a person that is very dependent on methylamphetamine who would use 2 street grams a day, which is 1.4 grams, which is a very, very heavy, heavy user. However, once again, that would not be able to be sustained for a long period of time. It creates a lack of sleep, you're unable to sleep during the use of the drug, so when I say 1.4 grams a day, that would not be constantly. There would have to be a substantial break in between the heavy usage (ts 59 - 60).
80 Then in cross-examination, in answer to defence counsel's questions, Detective Sergeant Baddock's evidence was as follows:
Q: How many bags would a person use – would a heavy – did you say a heavy user would use a week?
A: 1.4, so 14.
Q: So 14 bags. So if I were to have $5000 and I was a heavy user, at street prices, I would get roughly about a month out of $5000. Would that be about roughly right?
A: Yes. Yep. But once again, that can't be sustained throughout the week.
Q: So how long – how long would it take to use those – that number of bags?
A: It all depends on the individual and their tolerance to the drugs. It's not really something I could answer. It's really up to the individual.
Q: Okay?
A: But they would need a break from using methylamphetamine for an extended period of time.
Q: Okay. If someone was a new user, though, they might not know that they would need a break, would they?
A: They would know they would need a break.
Q: Well, what if they don't? If they took it every – once a week, they might just not have the knowledge, wouldn't they?
A: Yes, depends what you're talking about. If – are you talking about extended use or just one time, single use?
Q: I'm talking about someone who is just starting to go on to extended use?
A: Yes. There will come a time with a person's body where they will need to sleep and their body won't tolerate it any more and they will need a break from the drug.
Q: Yes. Okay. Is it – is it a – again, you may not be able to answer this question. But from an addiction point of view, is it the sort of thing that a person can't help, that they want to have more and more and more?
A: It's addictive, yes.
Q: So if I were a – would it be a fair comment to say that if I were a person who had only used sparsely and I was starting to become addicted that I might legitimately form the expectation that I need more and more and more to get – because I'm using more and more and more? Would that be a fair – even though, you say obviously, once they actually use it, they won't be able to use that much. But if I were just starting to get addicted, would it be fair comment to say that they might think they need more and more and more?
A: Yes. The – I suppose if you use the comparison of alcohol as well. As your body becomes more tolerant to alcohol, the same goes with addictive drugs as well that the body requires more to get the stimulus that you require. However, the example that I give of the two street grams, 1.4 grams, for a heavy user, these are people that I have spoken to that have used drugs for eight, nine years. So they would be at the top of the scale as far as drug usage goes.
Q: Yes. So it's pretty hard. I guess, without further information, it's really pretty hard for you to make any call one way or the other – certainly in relation to Ms Do – as to what levels she could or couldn't tolerate, wouldn't it?
A: Yes. I'm not here to make any comments regarding the accused (ts 64 - 65).
81 The appellant contends that the impugned evidence went 'well beyond' Detective Sergeant Baddock's expertise. It was submitted that the opinions given by Detective Sergeant Baddock could only have been given by 'a suitably qualified person such as a toxicologist or pharmacologist'.
82 It is well settled in this State that a police officer, by virtue of study or practical field experience (including information received from drug users) may give opinion evidence as to, inter alia, the characteristics of methylamphetamine and the patterns of consumption of illicit drugs: Marchesano v The Queen [2000] WASCA 225; (2000) 116 A Crim R 237 [21] - [25]; Brown v The State of Western Australia [2008] WASCA 48 [20] - [21]. In Brown, Wheeler JA, with whom McLure and Miller JJA agreed, applied the principles set out by Olsson J in Anderson v The Queen (1992) 64 A Crim R 312, 324 - 325, as follows:
As is pointed out by the learned author P Gillies, 'Law of Evidence in Australia' (2nd Edition 1991), at pp 377 to 379, whilst the classic field of expertise is that which relates to an organised branch of knowledge which is identifiable as a discipline in the social or physical sciences, fields of expertise, for the purposes of the law of evidence, are not so confined. A person may be viewed as relevantly being an expert in an area of skill or knowledge by virtue of nothing more than his or her practical experience in a field which may not necessarily have been reduced to organised, documented knowledge.
…
The courts have, in any event, long held that (as in Weal v Bottom) a person may be classified as having relevant expert status by virtue of formal training, or through mere practical experience or informal study in appropriate circumstances … the credentials required depend fundamentally on the field of expertise in question. The basic principle involved is that the person must, through knowledge, however acquired, have reliable knowledge and/or skill reaching beyond that in the possession of the trier of fact (generally see the comments of Young J in his article headed 'Quasi experts', contained in (1992) ALJ 379.)
83 Thus if Detective Sergeant Baddock had knowledge acquired through sufficient practical experience, his evidence as to the general effect of methylamphetamine and the rates of consumption of the drug, whether by a recreational user or a heavy user, was admissible. Similarly, his general evidence as to tolerance and interference with sleep were also matters upon which Detective Sergeant Baddock could properly testify.
84 Contrary to the submissions of the appellant, none of these matters were within the exclusive domain of a toxicologist.
85 The evidence concerning Detective Sergeant Baddock's expertise was unchallenged. It was led from him by the prosecutor, without objection, in these terms:
Q. Detective Senior Sergeant Baddock, you are the officer in charge of the Broome Detective's Office?
A. Correct.
Q. Between 2002 and 2004, you were attached to Organised Crime Squad?
A. Correct.
Q. And your role there was an investigator?
A. Correct.
Q. Now between 2006 and 2008 you were attached to the Organised Crime Squad as a supervisor and team leader?
A. Yes.
Q. During this period, you were the Inaugural Drug Expert Committee chairperson and the Clandestine Laboratory Investigation team leader within the Organised Crime Squad?
A. Correct.
Q. And the team is responsible for the investigation of illicit drug manufacture and distribution within the State of Western Australia?
A. That's right.
Q. You have been a police officer for 21 years?
A. Yes.
Q. And a detective for 17 years?
A. Yes.
Q. You have worked for the Organised Crime Squad for five years, collectively, and various other units that partly focus on drug investigations such as the West Metropolitan Tactical Investigation Group and Suburban Detectives Office. Is that right?
A. Yes, that's correct.
Q. You have a Diploma in Policing?
A. Yes.
Q. A Diploma in Criminal Investigation?
A. Yes.
Q. Advanced Diploma of Public Safety, Police Investigation?
A. Yes.
Q. Advanced Diploma in Business Management?
A. Yes.
Q. Diploma in Occupational Safety and Health?
A. Yes.
Q. And you're currently completing your Graduate Certificate in Criminal Investigation at the University of Western Australia?
A. Yes.
Q. During your career as a police officer, you have had dealings with numerous illicit drugs including amphetamines; methylamphetamines; LSD; heroin; MDMA, commonly known as ecstasy; cannabis; GHB and steroids?
A. That's correct.
Q. And you have acquired considerable knowledge in relation to the sale and supply of illicit drugs by speaking with informants, undercover operatives, questioning suspects, reading literature and monitoring telephone interception product and covert listening devices?
A. That's correct.
Q. You've also completed the nationally accredited drug investigators course?
A. Yes.
Q. You've completed a Western Australia Clandestine Laboratory Safety and Investigation course and a Queensland Clanlab investigation course?
A. Correct.
Q. You have facilitated and lectured on drug investigation and clandestine laboratory investigation courses?
A. Yes.
Q. You have attended an international drug profiling conference attended by scientists, chemists and drug investigators from around the world and in 2010 attended the Australasian Chemical Diversion Conference after being invited by the organising committee. Is that right?
A. Correct.
Q. And you've attended the scene of numerous clandestine drug laboratories producing amphetamines, GHB and home bake heroin?
A. Correct.
Q. During your time as a detective, you have been the case officer for a large amount of operations that involve the use of telecommunication intercepts. You have been responsible for monitoring the product and making assessments as to the evidentiary value of the product and decoding slang and coded terminology. Is that right?
A. Yes, that's correct.
Q. You've given drug expert testimony numerous times in the Magistrates Court, the District Court and you've also provided evidence in the Supreme Court, the Court of Criminal Appeal. Is that right?
A. Correct (ts 54 - 56).
86 In addition to this evidence, I have already referred to Detective Sergeant Baddock's testimony that, through his work, he made a point of speaking to people who used methylamphetamine. He testified as to the knowledge he gained from that contact.
87 In my opinion, Detective Sergeant Baddock had sufficient expertise to properly give the impugned evidence. That expertise was mainly acquired through practical experience developed during his time as a drug investigator, including, but not limited to, his dealings with those who use methylamphetamine. Detective Sergeant Baddock emphasised the general nature of his evidence and the individuality of each person's drug use. He did not purport to give evidence specific to the appellant.
88 As the evidence was admissible, there can be no miscarriage of justice. In any event, it is clear from defence counsel's cross-examination of Detective Sergeant Baddock that he sought to gain a forensic advantage for the appellant by accepting the witness's expertise and attempting to elicit from him expert testimony favourable to the appellant. The broad thrust of defence counsel's approach was that $5,000 worth of methylamphetamine (being the quantity the appellant told police she had purchased) might be consumed by an individual for him or herself.
89 Particular 1(c) has not been made out.
Particular (d) - the cross-examination of Detective Sergeant Wilson
90 At the outset of defence counsel's cross-examination of Detective Sergeant Wilson, he established that he had never previously met the appellant. The cross-examination then proceeded in this way (the impugned portions are italicised):
Q. No. So you wouldn't – before this incident, you wouldn't have recognised her or had any cause to want to - - -?
A. Other than research we had done prior to the search warrant, no.
Q. Sorry. I didn't hear that?
A. Other than intelligence work we had done in relation to what information we had, no, I wouldn't have known her.
Q. Okay. So you have done some intelligence work prior to this?
A. Yes.
Q. Okay. Now could you give me – or could you give me an indication, in your experience, the sorts of things I would look at, and the jury and myself, a little bit lay remember, the sorts of things I would look at to find out whether or not someone was selling – the sorts of things you would find at a house where people were selling or supplying people with drugs?
A. That I would look at?
Q. Yes. In your experience?
A. Yes. I would look at intelligence (indistinct) all police indices, which I did. The - - -
Q. Sorry. You have to – I just want to get a list of things you might know, so just – you have to go slowly. I couldn't hear you?
A. So I would look at intelligence that we hold, as in police hold.
Q. By intelligence, do you mean, like, other people you've spoken to or things like that?
A.No. I would look at information held about your client. About the accused, and about her associates, and about her past. I don't think you want me to go into it.
Q. No, no, no. No, I'm – you're just telling me, would you look at things like, for example, would you look at things like clip seal bags?
A. Physical items. I would be looking for clip seal bags; I would be looking for MSN, which is used, in my experience, to mix with ice and to bolster it for the purposes of sale.
Q. I'm talking generally, I should say, not particularly in relation to this matter. I just – I just want to get an indication of the sorts of things which I would find at a house, in your experience, where someone is a seller of drugs. So one is clip seal bags, you've said - - -?
A. Well those things, in my experience. Yes. Clip seal bags, MSN. Sometimes there might be lists of people that owe money: IOU lists.
Q. Yes?
A. Sometimes there might be evidence or intelligence obtained from telephones. I would look for scales. I would look for cash. A lot of the things we found in the accused [sic] house.
Q. Okay. Okay. And there's nothing – is there anything else major that you would normally find that you can think of? That you would look for?
A. I mean – what are you asking me, yes?
Q. There probably not – there may not be?
A. Ask me specifics, and I will tell you whether I do or don't, yes.
Q. No, no. That's fine. That's – generally. I'm asking – you're the expert, so I'm relying on you?
A. Well, I'm not an expert, but generally - - -
Q. Sorry?
A. Generally, that is what I would look for (ts 41 - 42). (emphasis added)
91 It is clear that initially in the passage from which I have just quoted, defence counsel sought to build on the answer Detective Sergeant Wilson had given, stating that he did not know the appellant personally. Detective Sergeant Wilson responded by referring to 'intelligence work' done prior to the execution of the search warrant. No objection has been taken by defence counsel to this part of the cross-examination, presumably because it would have been obvious to the jury that some kind of intelligence work had been done prior to the police becoming aware of the package and executing the search warrant upon the appellant's house.
92 It appears that defence counsel, having heard Detective Sergeant Wilson's reference to intelligence gathered prior to the execution of the warrant, then sought to embark upon a different tack, that is, trying to establish that some of the usual indicia associated with drug dealing was absent from the appellant's house. This may be seen by defence counsel asking about 'the sorts of things you would find at a house where people were selling or supplying people with drugs'.
93 The answers given by Detective Sergeant Wilson are not responsive to this question. Instead, he expanded upon the kind of intelligence work that was done in relation to the appellant, culminating in the impugned answer, 'I would look at the information held about your client. About the accused, and about her associates, and about her past. I don't think you want me to go into it'. The key aspect about this answer is that, although vague in its terms, it suggests, or is at least reasonably capable of suggesting, that the police have information to the effect that the appellant has a past involvement with illicit drugs and associates with others who have the same interest.
94 It is clear from defence counsel's reaction, 'No, no, no' and the questions that follow that the answer was unresponsive to his question. His follow-up questions remained on the topic of the items found in the appellant's home. It is in that context that Detective Sergeant Wilson made the second impugned comment, 'A lot of the things we found in the accused [sic] house'.
95 The respondent submitted that although the answers given by Detective Sergeant Wilson were non-responsive to the questions asked by defence counsel, nonetheless the answers were elicited as a result of the questions asked by the appellant's counsel. The appellant submitted that the answers were prejudicial to the appellant and that no remedial direction was given to the jury about this part of Detective Sergeant Wilson's evidence.
96 The learned trial judge was plainly concerned by Detective Sergeant Wilson's evidence and raised the matter with counsel in the absence of the jury (ts 82 - 83). Counsel agreed that the matter would be best dealt with by his Honour giving an appropriate direction. That is what his Honour did.
97 The direction that his Honour gave to the jury in his summing up was as follows:
Don't guess or speculate about matters that are not in evidence. Earlier there was a question put about whether there was certain information gathered. Well, there was simply no evidence about that so you don't speculate about what may or may not have been found if that inquiry was made. There is simply no evidence about it so just put it aside (ts 110). (emphasis added)
98 The sentence 'earlier there was a question put about whether there was certain information gathered' is, in context, a reference to questions and answers put to Detective Sergeant Wilson about police 'intelligence' concerning the appellant. Contrary to the appellant's submissions in this appeal, a remedial direction was given by his Honour. This direction was sufficient to deal with any potential miscarriage of justice as a result of the first impugned statement. I accept that defence counsel's pursuit, in cross-examination, of information to the effect that the appellant was not known to the police was unwise and I am unable to perceive any objective forensic reason for doing so. That said, in the end, due to the astuteness of the learned trial judge, the matter has not given rise to a miscarriage of justice.
99 The second impugned statement may be dealt with shortly. The statement is no more than a description of some of the commonly seen indicia of drug dealing, a matter not in dispute in this case. The second impugned statement was admissible.
100 Particular 1(d) has not been made out.
Ground 2
101 The success of ground 2 depends upon the success of ground 1. As none of the particulars in ground 1 have been made out, that ground should be dismissed. It follows that ground 2 should also be dismissed.
Conclusion and orders
102 Neither ground of appeal has been made out. Accordingly, the appeal must be dismissed. The appropriate order to be made in this appeal is:
1. The appeal is dismissed.
103 HALL J: I agree with Mazza JA.
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