Durham v The Queen
[2016] WASCA 121
•13 JULY 2016
DURHAM -v- THE QUEEN [2016] WASCA 121
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 121 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:141/2015 | 12 APRIL 2016 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 13/07/16 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on proposed ground 2 refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | VAUGHAN MAURICE DURHAM THE QUEEN |
Catchwords: | Criminal law Appeal against conviction Importing a marketable quantity of a border controlled drug Whether a miscarriage of justice was occasioned by the learned trial judge's failure to direct the jury that no adverse inference could be drawn against the appellant by reason of him exercising his right to silence Whether a miscarriage of justice was occasioned by the Crown's reliance on evidence adduced at trial that money was 'illegally obtained' as evidence that the appellant was of bad character Proviso |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3), s 30(4) Criminal Code (Cth), s 307.2(1) Criminal Investigation Act 2006 (WA) |
Case References: | AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Durani v The State of Western Australia [2012] WASCA 172 Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197 Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 McMahon v The State of Western Australia [2010] WASCA 143 MJS v The State of Western Australia [2011] WASCA 112 Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95 SAM v The State of Western Australia [No 2] [2016] WASCA 64 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Zanon v The State of Western Australia [2016] WASCA 91 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DURHAM -v- THE QUEEN [2016] WASCA 121 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BRADDOCK DCJ
File No : IND 1415 of 2014
Catchwords:
Criminal law - Appeal against conviction - Importing a marketable quantity of a border controlled drug - Whether a miscarriage of justice was occasioned by the learned trial judge's failure to direct the jury that no adverse inference could be drawn against the appellant by reason of him exercising his right to silence - Whether a miscarriage of justice was occasioned by the Crown's reliance on evidence adduced at trial that money was 'illegally obtained' as evidence that the appellant was of bad character - Proviso
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (Cth), s 307.2(1)
Criminal Investigation Act 2006 (WA)
Result:
Leave to appeal on proposed ground 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr D W L Renton & Ms M Hemsley
Solicitors:
Appellant : Brennan & Co
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Durani v The State of Western Australia [2012] WASCA 172
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197
Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414
McMahon v The State of Western Australia [2010] WASCA 143
MJS v The State of Western Australia [2011] WASCA 112
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95
SAM v The State of Western Australia [No 2] [2016] WASCA 64
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Zanon v The State of Western Australia [2016] WASCA 91
1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: On 22 May 2015, following a five-day trial by jury before Braddock DCJ, the appellant was convicted of one count of importing a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code (Cth). The offence was alleged to have occurred at Perth on 5 February 2014.
4 The appellant now appeals to this court against that conviction. The grounds of appeal upon which he relies are as follows:
1. A miscarriage of justice was occasioned because the learned trial Judge did not direct the jury that the appellant had a right to remain silent in the face of police questioning, and that it was not open to them to draw any adverse inferences against the appellant from the fact that he had declined to answer questions that had been put to him during an interview with police officers on 6 February 2014.
2. A miscarriage of justice was occasioned by the prosecution's reliance on evidence adduced at trial that the appellant was found by police to be in possession of $125,700 in cash in a safe deposit box as evidence that he was of bad character generally in circumstances in which such evidence was inadmissible for the purposes of proof of bad character.
5 Leave to appeal has been granted on ground 1. The application for leave to appeal on ground 2 was referred to the hearing of the appeal. In the event that either or both grounds are made out, the respondent seeks to invoke the proviso pursuant to s 30(4) of the Criminal Appeals Act2004 (WA).
The Crown opening
6 The Crown case was that, on 1 February 2014, while the appellant was in Thailand, he attended at a DHL Express (DHL) outlet in Chiang Mai with a box which contained a motorcycle fuel tank. Welded to the underside of, and protruding into, the motorcycle fuel tank was a steel box. Inside the steel box was a white-coloured substance which, on later analysis, was found to be 218.8 g of pure heroin. The appellant paid for the box containing the motorcycle fuel tank and the heroin to be delivered to his home address in South Hedland. This box was air-freighted to Perth, where an x-ray examination of the parcel by Australian Customs and Border Protection (Customs) officers revealed an anomaly in the motorcycle fuel tank. When it was ascertained that the substance in the steel box was likely to be heroin, the Australian Federal Police (AFP) were called.
7 The appellant arrived in Perth from Thailand on 6 February 2014 and was spoken to by AFP officers. The Crown case was that it was the appellant who imported the heroin into Australia.
8 The prosecutor told the jury that the Crown would adduce evidence of the appellant's interview with AFP agents on 6 February 2014, but she said nothing about the contents of that interview. No reference was made in the Crown's opening address to the money in the safety deposit box, which is the subject of proposed ground 2.
Defence counsel's opening address
9 The appellant was represented at trial by competent and very experienced defence counsel. He said that he intended to explain 'what the defence is so that you get it from the start' (ts 25).
10 He foreshadowed that the appellant would give evidence. Defence counsel told the jury that the appellant:
(a) had worked all his life and was 'extremely financially well off by dint of inheritance and hard work'; however, he was a long-term, but 'functioning heroin addict' (ts 25);
(b) had become addicted to heroin as a young man after using marijuana for pain relief which, unknown to him, had been laced with heroin;
(c) would holiday in Thailand, but, apart from some minor heroin use in 2006, did not use the drug in that country; and
(d) would testify to the effect that he was a motorcycle enthusiast and that, from time to time, would import motorcycle parts from Thailand to his home in South Hedland.
11 With respect to the alleged offence, defence counsel told the jury, in substance, that the appellant delivered the motorcycle fuel tank to the DHL outlet in Chiang Mai for consignment to him in South Hedland. It was said on his behalf that he did not put the motorcycle fuel tank in a box, or weld the steel box onto its underside, or secrete the heroin inside the steel box.
12 Defence counsel asserted that, for the appellant to have imported heroin into Australia in this way, when he had put his true name and address on the consignment papers, would make the appellant 'the dumbest drug important [sic: importer] in history' (ts 29).
13 Defence counsel said the appellant 'had nothing to do with [the importation]. He didn't have to do it. He's not a drug dealer …' (ts 29).
14 Defence counsel proffered the theory that:
Someone had interfered with [the motorcycle fuel tank]. Someone under [the appellant's] name and details has piggybacked onto this [motorcycle fuel] tank to get 200-odd grams of pure heroin into Australia (ts 29).
The issue to be decided by the jury
15 It was clear after the opening addresses that the key issue for the jury to decide was whether the Crown had proved beyond reasonable doubt that it was the appellant and not someone else who had secreted the heroin in the motorcycle fuel tank and arranged for it to be imported into Australia from Thailand.
The Crown's case in detail
16 On 27 January 2014, the appellant flew from Perth to Bangkok. From there, the appellant travelled to Chiang Mai. The appellant remained in that city for some time.
17 On 1 February 2014, a box containing a motorcycle fuel tank was lodged at a DHL outlet in Chiang Mai. A 'Performa [sic: Proforma] Invoice' dated 1 February 2014 recorded the appellant as both the shipper and the consignee. The address given for the consignee was the appellant's then residential address in South Hedland. The mobile telephone number recorded on the document belonged to the appellant. A forensic document examiner testified that the appellant's handwriting appeared on various parts of the invoice, including the parts to which I have referred (ts 137 - 140; exhibits 3, 10).
18 The box was given a barcode and waybill number by DHL, which enabled the box to be tracked on its journey to Australia up to the point of delivery (ts 66). The Crown adduced evidence from a DHL employee, Paul Stewart Chrystall, which showed that the box left the Chiang Mai outlet on 3 February 2014 and was transported to Bangkok. From Bangkok, it was sent to Singapore. On 4 February 2014, it was despatched by air to Perth, where it arrived on 5 February 2014 (ts 67 - 68, 81 - 82).
19 Mr Chrystall explained what happens to an item once it arrives in Perth (ts 70 - 71). He said:
(a) Each item is kept within a secure DHL container.
(b) That container is unloaded by ground handlers and then driven by a DHL driver to its storage facility.
(c) There, the container is unloaded and the items within it are removed one by one.
(d) Each item is scanned, after which they are examined by Customs. Customs will either hold an item in a secure bond location, or it will clear the item and refer it to the DHL warehouse where delivery of the item will be arranged.
(e) 'Every movement' of items delivered to DHL's storage facility is captured by CCTV footage.
20 On 5 February 2014, the box addressed to the appellant was held by Customs officers at DHL's premises (ts 98). It was x-rayed. The x-ray revealed an 'anomaly' in its shape (ts 101). When the box was opened and the motorcycle fuel tank was removed, a steel box was found welded to the underside of the motorcycle fuel tank. The steel box protruded into the motorcycle fuel tank itself (ts 103 - 105). It contained a substance which, on presumptive testing, appeared to be heroin (ts 105 - 106). At that point, AFP agents were called.
21 AFP agents undertook a comprehensive examination of the box and the motorcycle fuel tank. An alfoil block was found in the steel box. The block comprised 325.7 g of powder (ts 122). Based on a later analysis, it was ascertained that the powder was heroin and that its pure weight was 218.8 g (ts 124; exhibit 8), being a marketable quantity of that drug.
22 The appellant's return journey from Thailand to Perth was unexpectedly extended. He was originally scheduled to travel from Chiang Mai to Perth via Bangkok on 5 February 2014. However, that flight was cancelled and the appellant was rerouted to fly to Perth from Bangkok via Sydney. Consequently, he left Bangkok on 5 February 2014, but did not arrive in Perth until the following day.
23 Upon his arrival at Perth Airport on 6 February 2014, the appellant was met by AFP agents. He voluntarily accompanied those agents to the AFP's offices in West Perth where he was interviewed by Federal Agents Malcolm Thew and Glen Willert. The interview was video-recorded. An unedited DVD record of that interview was played at trial without objection and was tendered in evidence (exhibit 19) (the AFP interview). I will refer to what was said in that interview shortly.
24 The appellant was not arrested at the conclusion of the AFP interview. Instead, he was taken to a motel near Perth Airport where he stayed the night (ts 159). On the following day, 7 February 2014, the appellant flew to Port Hedland, arriving there at about 10.25 am (ts 144). Shortly after his arrival, he was approached by Western Australian Police officers. He voluntarily accompanied them to his residence in South Hedland. After the appellant unlocked the front gates and front door of his house, a search warrant under the Criminal Investigation Act 2006 (WA) was executed (ts 145). The relevant parts of the search were video-recorded. A DVD of the recording was played and tendered at trial without objection (exhibit 11) (the WAPOL search). I will refer to the WAPOL search in greater detail shortly.
25 On 19 February 2014, Federal Agent Willert executed a search warrant at the premises of the Commonwealth Bank in South Hedland. The purpose of the search was to examine a safety deposit box held in the appellant's name at the bank. Federal Agent Willert obtained the key to the safety deposit box with the cooperation of the appellant. The safety deposit box was found to contain $125,700 in $50 notes (ts 157 - 159). The money was seized. The execution of the search warrant was video-recorded. A DVD of the recording was played and tendered at trial without objection (exhibit 15).
The AFP interview
26 The AFP interview began at 5.04 pm and concluded at 7.06 pm on 6 February 2014. At the outset of the AFP interview, the appellant was cautioned. He was informed that Federal Agents Thew and Willert were making inquiries into the importation of a border controlled drug into Australia. The appellant was then asked about his trip to Thailand. The appellant told the Federal Agents that he went to Thailand for nine days (question 96). After giving details of his flight, he was asked to tell the Federal Agents about his 'whole trip' (question 108). The agents asked him about each day of the trip, commencing with his departure on 27 January 2014 (question 108). The appellant gave an account of his activities up to 1 February 2014, and answered the questions that had been put to him. When the appellant was asked about what he did on 1 February 2014 (the day on which the appellant went to the DHL outlet in Chiang Mai), he said:
Oh, well, I don't like where we're getting here. I think I might [need] a lawyer (question 170).
27 Shortly after this, at 5.36 pm, the AFP interview was suspended and the appellant was given the opportunity to contact a lawyer for advice, which he did. The AFP interview then resumed at 6.26 pm. From then on, for the most part, the appellant answered the questions put to him with the words 'No comment'. However, interspersed with 'No comment' answers were a number of other responses. For example:
(a) Question 191: 'Is there anything you'd like to tell me that you did on that Saturday the 1st of February?'
Answer: 'No.'
(b) Question 194: 'What I'm basically - what we're basically doing, Vaughan, is - is we've told you that we're conducting inquiries into an importation of a border controlled drug, okay, and we're basically giving you an opportunity to - to tell us about your trip to Thailand. Okay? And it's only fair for you to, you know, discuss that trip. It's only fair that we're giving you that opportunity to discuss your trip to discuss your trip to Thailand. Okay. So is there anything you'd like to add, I mean, anything you'd like to tell me about Saturday the 1st?'
Answer: 'No.'
(c) Question 196: 'Is there anything you'd like to tell me about that particular day?'
Answer: 'No.'
(d) Question 210: 'Vaughan do you own any motorbikes?'
Answer: 'Yes.'
(e) Question 213: 'Just explain to me what motorbikes you have?'
Answer: 'They're in New Zealand.'
(f) Question 214: 'They're in New Zealand are they? So you haven't got any here in Port Hedland I mean South Hedland?'
Answer: 'No.'
(g) Question 215: 'You're not making any motorbikes or doing any motorbike selling?'
Answer: 'I have parts of my motorbikes.'
(h) Question 221: 'Explain to me why you've got parts in Port Hedland when your motorbikes are in New Zealand?'
Answer: 'Because they're cheaper over there to get over there than what they were here to buy.'
(i) Question 222: 'So the parts in Thailand are cheaper to buy there than here?'
Answer: 'Yes.'
(j) Question 225: 'Has it been five years, ten years you've been working on motorbikes?'
Answer: 'I've had motorbikes my whole life.'
(k) Question 228: 'I'll go back to my earlier question before I said why have you had spare parts in Port Hedland when your motorbikes are in New Zealand?'
Answer: 'Because I hadn't been there for - since the [Christchurch] earthquake to take my parts back over there.'
(l) Question 241: 'And obviously once again your phone number was 041 761 9415. When you were in Chiang Mai were you there with anyone else?'
Answer: 'No.'
(m) Question 242: 'You were there by yourself?'
Answer: 'Yes.'
(n) Question 250: 'Okay. Explain to me how this package with all of your details which are correct because the same details that you told us where you flew to Chiang Mai, where you were staying, your name, your phone number, where you're currently living here in South Hedland. Your name, your number.'
Answer: 'I've got nothing to say.'
(o) Question 251: 'So how do we explain this invoice [a reference to the DHL Proforma Invoice referred to at [17] above]?'
Answer: 'I don't know.'
(p) Question 252: 'Tell me about this invoice, Vaughan.'
Answer: 'Nothing I can tell you about it I'm sorry.'
(q) Question 269: [The appellant was shown a photograph of the undercarriage of the motorcycle fuel tank.] 'It's a simple question. Does anything look unusual to you on this fuel tank?'
Answer: 'No.'
(r) Question 275: 'Explain to me how your name - all of your details are on this invoice, that was sent with the package. A fuel tank that has concealed heroin.'
Answer: 'Yeah, no comment, so.'
28 Defence counsel cross-examined Federal Agents Willert and Thew. In the cross-examination of Federal Agent Willert, he confirmed that when he questioned the appellant about his assets, he (the appellant) did not 'allude to the safety deposit box' containing the money (ts 159). In that context, the following exchange took place in which defence counsel referred to the right to silence (ts 159 - 160):
BRENNAN, MR: But - what you're saying is he didn't tell you everything he owned in the world when you first spoke to him?---Correct.
You don't have to even speak to you blokes, do you?---Say that again, sorry?
You don't even have to speak to police if you don't want to, do you?---That's correct, no.
In fact, that's what you said to him when you first started interviewing him on video?---Correct.
29 A short time later, defence counsel asked Federal Agent Willert, in the context of the AFP interview (ts 160):
BRENNAN, MR: And you interviewed him after first warning him he didn't have to speak, is that right?---That's correct, yes.
And he chatted away with you for a while, didn't he?---That's correct.
30 The cross-examination carried on (ts 161):
BRENNAN, MR: And, indeed as it moved along, after an hour or so it was apparent that you were moving towards the point of suggesting - and it was apparent from your questions - that you considered that [the appellant] was the person responsible for the importation, correct?---That's correct, yes.
31 Defence counsel continued (ts 161):
BRENNAN, MR: Was he in your view, can I put it that way, as a suspect?---Of course he was a suspect, yes.
32 Federal Agent Willert confirmed that the appellant had been warned by him that he did not have to speak to police, and accepted that the appellant 'took advantage of that' after he got legal advice (ts 165). Defence counsel made it clear during the course of the cross-examination that he was making no allegation of impropriety towards the AFP agents in respect of the interview.
33 Defence counsel's cross-examination of Federal Agent Thew was, in substance, to ascertain from him that he had no personal experience of the cost of heroin on the street in January and February 2014 (ts 183 - 184).
The WAPOL search
34 It may fairly be said of the WAPOL search that the appellant was cooperative and answered the questions put to him by the investigating officers. Various paraphernalia consistent with heroin use was found, as well as small plastic bags and two sets of electronic scales. Various motorcycle parts were also found, including shock absorbers, exhaust pipes, mufflers and a fuel tank. So, too, were documents indicating that some of these parts were obtained from a Triumph dealer in Chiang Mai called Britbike (Chiangmai) Co Ltd.
The appellant's evidence
Examination-in-chief
35 The appellant testified openly as to his ongoing struggle with heroin (ts 226). He told the jury that he was seriously injured in a motorcycle accident in New Zealand when he was 16 years old (ts 185). He smoked marijuana for pain relief but, unbeknown to him, the marijuana had been laced with heroin (ts 185 - 186). As a result, he became addicted to heroin. The appellant testified in some detail as to his efforts to rehabilitate himself and the relapses which have occurred, sometimes precipitated by matrimonial breakdown.
36 In 2001, he came to Western Australia and in 2005, he went to work in Port Hedland as a subcontractor painter (ts 190 - 191). He testified to the effect that his heroin addiction had not interfered with his ability to work in his chosen trade as a painter and decorator, nor impeded his financial success. The appellant derived income not only from work he did on houses owned by BHP, but also by doing 'cash jobs' for private customers (ts 192, 204 - 205). He also earned money buying items from people who were leaving town and then reselling them at a large profit at a public market known as 'Dreamer's Corner' (ts 196). As a result of his hard work and enterprise, as well as money and property in New Zealand that he was given and later inherited from his father, the appellant accumulated assets in both Port Hedland and New Zealand. As at the time of the offence, he estimated his net worth to be 'approximately $2 million' (ts 203). This included real estate in Port Hedland and Christchurch, New Zealand; various vehicles, including motorcycles; an Australian bank account with a credit balance of approximately $126,000, and a $500,000 term deposit in New Zealand (ts 202 - 203). He explained that he purchased the heroin he used on trips to Perth.
37 The appellant testified that the money kept in the safety deposit box the subject of the search on 19 February 2014 was from 'cash jobs' he had done. He testified that in about December 2008, he obtained the safety deposit box because he had accumulated so much cash. He said that he intended to keep it there until he could work out what tax was to be paid. He denied that the cash came from selling drugs or from any illegitimate source (ts 204 - 205).
38 The appellant explained that he was a frequent visitor to Thailand from 2006. He said that on his first two visits there, he bought 'heroin' for his personal use. On the first occasion, the heroin was of very poor quality. On the second occasion, it was not heroin at all. After this, he did not buy the drug in Thailand (ts 196 - 198).
39 The appellant testified that he owned two Triumph motorcycles; one a Thruxton and the other a Bonneville (ts 202 - 203). He said that in September 2012 and February 2013, he purchased from a Triumph dealership in Chiang Mai parts that were suitable for his Triumph Thruxton. The appellant said that he sent those parts to his home at Port Hedland via DHL (ts 207 - 208). In May 2013, the appellant once again visited Thailand. At the guest house at which he was staying were some motorcycle mufflers he had previously ordered over the internet. The mufflers were sent to his home (ts 209). He also said that in October 2013, he purchased, in Chiang Mai, a fuel tank and mechanical speedometer for his Triumph Bonneville, and had them sent to his Port Hedland address (ts 210 - 211). Upon his return to Australia, he found that the motorcycle fuel tank would not fit his machine. Subsequently, he discovered the dimensions of a fuel tank that would fit the Triumph Bonneville (ts 212 - 214).
40 The appellant's testimony regarding his visit to Chiang Mai in early 2014 may be summarised in this way:
(a) On 27 January 2014, he flew from Perth to Chiang Mai via Bangkok (ts 214).
(b) He denied purchasing any heroin while in Thailand (ts 215).
(c) On the afternoon of 1 February 2014, he went to get something to eat. On a tuk-tuk trip back to the guest house at which he was staying, he saw a motorcycle fuel tank on a table outside a motorcycle rental, sales and hire shop. As a result, he stopped and went inside the shop. Having ascertained that the motorcycle fuel tank would fit his Triumph Bonneville, he purchased it along with some other parts (ts 215 - 218).
(d) After purchasing the motorcycle fuel tank, the appellant noticed that 'the DHL shop was still open' (ts 218). He went inside with the motorcycle fuel tank and consigned it to his address in South Hedland. He said that he left the motorcycle fuel tank at the shop without packing it in a box. He did not weld the steel box, which police later discovered, to the underside of the motorcycle fuel tank (ts 217 - 221).
(e) On 5 February 2014, he left Chiang Mai. Unexpectedly, his direct flight to Perth was cancelled and he had to fly to Perth via Sydney. As a result, he did not arrive in Perth until 6 February 2014 (ts 221 - 222).
(f) Upon his arrival in Perth, he was approached by AFP agents and agreed to accompany them back to their office in West Perth, where he was interviewed (ts 222).
41 Defence counsel asked a series of questions concerning why the appellant, part-way through the AFP interview, asked to speak to a lawyer. The exchange between defence counsel and the appellant was as follows:
Why did - can you explain to the jury why you said that when you said that, please? --- Well, because all of a sudden the penny dropped that I was the intended suspect in this situation.
Had you thought that up until that point?---No. I - I was - I didn't know what it was about.
Well, I think - yeah?---I get stopped at the - trying to walk off the aeroplane and I get stopped and asked this and I was just gobsmacked as to what it was about. Nothing was said until this interview started.
Yes?---And I'm trying to work it all out.
All right. So you say - your words were 'the penny dropped' and what - - -?---Yes.
When you say 'the penny dropped' which is a euphemism, of course, for - what do you mean 'the penny dropped'?---Well, I finally realised that, you know, they're looking at me as Mr Big Drug Importer.
Righto. And it - when you - when the penny dropped what did you say to them?---I want to see a lawyer.
All right. And did they stop the interview?---Yes.
And did they - as we've heard, did someone give you a phone book?---Yes. Well, they looked up in the phone book and we tried to find a solicitor's number. It was [an] after hours type thing so we had to ring several of them, or they rang several of them.
And you finally got to speak to a solicitor?---Finally got to speak to a solicitor, yes.
And without going into too much detail, did he tell you how to deal with the interview from there on [sic] in?---Yes, he did.
What did he say to you?---He said - - -
Or she. I don't know, was it a he or a she?---It was a he, and he said, 'Say nothing. Just answer "no comment" to all their questions'.
And is that what you endeavoured to do after that?---That's what I attempted to do after that (ts 223 - 224).
42 The appellant testified that he returned to Port Hedland the following day (ts 224). With respect to some of the items found during the WAPOL search, he said:
(a) he would decant heroin that he brought into smaller bags so that 'it would last' and not for the purpose of dealing heroin in South Hedland (ts 225); and
(b) the electronic scales that were discovered were to weigh out amounts for his personal use (ts 225 - 226).
43 Towards the conclusion of his examination-in-chief, the appellant said that he was aware that, if found with heroin in Thailand, he risked being executed and that one of the consequences of being found in possession of large quantities of narcotics in Australia was that his personal assets would be 'frozen and confiscated' (ts 226 - 227). The appellant also said that, by reason of his subcontracting work (referred to in [36] of these reasons), he had a key which enabled him, at any time, to access vacant properties belonged to BHP in the Port Hedland area (ts 227 - 228).
44 The appellant denied that he had modified and secreted heroin into the motorcycle fuel tank which he bought in Chiang Mai on 1 February 2014 and sent to his address in South Hedland (ts 229).
Cross-examination
45 The appellant was cross-examined at some length (ts 229 - 280).
46 The Crown prosecutor questioned the appellant about some of the answers he gave in the AFP interview. He was asked about his answer to question 269 (referred to in [27(q)] of these reasons) (ts 244 - 248, 252 - 253). He explained that, while he may have answered 'No', he meant 'No comment' (ts 253). He agreed that there was something plainly unusual about the motorcycle fuel tank (ts 253). He denied the Crown Prosecutor's suggestion that he answered 'No' to question 269 because he was trying to distance himself from the alterations which had been made to the motorcycle fuel tank (ts 254).
47 The Crown prosecutor drew the appellant's attention to testimony he had given that, after he returned to Port Hedland, he intended to go to the Gold Coast to visit his granddaughter, which evidence contradicted a statement he made in the AFP interview that he had intended to travel to New Zealand (ts 254 - 255; AFP interview question 33).
48 The Crown prosecutor raised with the appellant why he had sought legal advice part-way through the AFP interview. Relevantly, the following exchange took place:
You say that you answered questions given to you by the AFP for the first 30 minutes or so of the interview because you did not know what it was all about - - -?---That's correct.
- - - is that correct? And that you asked for a lawyer as soon as you figured out you were the suspect, is that right?---Yes, I did.
What was it about the question you were asked that made you realise you were the suspect?---Just the culmination of everything.
If I can take you to the question you were asked?
Your Honour, it's question 170 on page 25 and it appears at 3150 on the tape.
You were asked:
'Okay, Saturday, 1 February, we've only got a few more days to go.'
1 February was mentioned and then you sought a lawyer. What was it about that particular date which made you suddenly realise you needed legal representation?---Just thinking about the whole questions right from the word go.
The questions up to that point were just your daily activities in Chiang Mai, weren't they?---Yes.
Nothing about drug use, were they?---No.
Nothing about buying fuel tanks. You were mentioned a date and suddenly you required legal assistance, why was that?---As I said, it was a culmination of all their questions.
You realised when they mentioned 1 February they must have been talking about the fuel tank, didn't you?---No, not necessarily.
And you knew what was in that fuel tank which is why you needed legal assistance, isn't that right?---No, that is not correct (ts 255).
49 The Crown prosecutor questioned the appellant about a statement he made during the WAPOL search to the effect that he did not need any parts for the Triumph Bonneville and that he only purchased parts for his Triumph Thruxton in Chiang Mai. The Crown prosecutor put to him that this contradicted his evidence-in-chief to the effect that he had purchased a fuel tank in Chiang Mai for the Triumph Bonneville in October 2013 (ts 267 - 268). The appellant apparently agreed and explained that the purchase of the motorcycle fuel tank in Chiang Mai for the Triumph Bonneville in October 2013 'completely slipped my mind' in the WAPOL interview (ts 268).
50 The appellant accepted that, when he was asked about his assets during the WAPOL search, he omitted to mention the safety deposit box held by him at the Commonwealth Bank in Port Hedland (ts 270).
51 He explained that he did not bank the money in the safety deposit box because he had no time to do the paperwork and was waiting for his accountant, who had gone to Broome, to return to Port Hedland (ts 270 - 271).
52 The Crown prosecutor suggested that the money in the safety deposit box related to the appellant's 'illegal activities'. The appellant denied this allegation and maintained that he had earned it by working (ts 272).
53 The appellant accepted that there was a contradiction between his evidence in which he said that he only used heroin in Thailand during his first two visits there (referred to in [38] of these reasons), and what he said during the WAPOL search about using heroin in Thailand in 'the last couple of years'.
54 Defence counsel did not re-examine the appellant (ts 280). No other evidence was adduced for the defence.
The closing addresses
55 By the time counsel came to deliver their closing addresses, it was patently clear that it was either the appellant, or someone who came into contact with the motorcycle fuel tank after the appellant had delivered it to the DHL office in Chiang Mai, who had secreted the heroin inside the motorcycle fuel tank. It was also clear that the appellant's credibility was a crucial issue for the jury to decide.
The Crown prosecutor's closing address
56 The Crown prosecutor submitted that it was irrational that a DHL employee (or employees) would have secreted the heroin in the motorcycle fuel tank and imported it into Australia (closing addresses, 21 May 2015, ts 6 - 9).
57 She submitted that the appellant's testimony was inconsistent in a number of respects, including that he had said during the WAPOL search that he did not get parts for his Triumph Bonneville in Chiang Mai (closing addresses, 21 May 2015, ts 9 - 11).
58 The Crown prosecutor pointed out that there was no evidence, apart from the appellant's testimony, that he had purchased the motorcycle fuel tank on 1 February 2014, and that he could have bought it earlier and welded on the steel box before he took it to the DHL office (closing addresses, 21 May 2015, ts 10 - 14). It was suggested that the appellant did not personally take the motorcycle fuel tank with him when he returned to Australia because there was a greater likelihood that the tank would be examined by Customs than if it had been dispatched via DHL (closing addresses, 21 May 2015, ts 14 - 15).
59 With respect to the AFP interview, the appellant did not invite the jury to reason from the appellant's 'No comment' answers that he was guilty. However, the Crown prosecutor submitted that the appellant stopped answering questions only when the date of 1 February 2014 was mentioned. As to this, the Crown prosecutor said:
Also look at his explanation as to why he suddenly stopped answering questions. He said it dawned on him that he was suddenly the suspect. The question he was asked was, 'Let's turn to 1 February'. Prior to that point there had been no mention of a fuel tank, no mention of him sending a fuel tank by DHL. Yes, he knew that they were making inquiries about the importation of - of drugs. He knew that, yes. But suddenly a date is mentioned. The date that fuel tank happened to be lodged with DHL. And the [appellant] knew exactly what they were talking about and knew that he was the potential suspect (closing addresses, 21 May 2015, ts 16).
60 The Crown prosecutor drew the jury's attention to question 269 and the appellant's answer 'No'. She submitted that the appellant 'was trying to distance himself from what was clearly an unusual-looking fuel tank' (closing addresses, 21 May 2015, ts 16).
61 In relation to the $125,700 in money found in the safety deposit box, the Crown prosecutor made two points. First, the appellant had not mentioned it when he was asked to disclose his assets. Second, the money had been hidden in the safety deposit box because it had been 'illegally obtained' (closing addresses, 21 May 2015, ts 17). The Crown prosecutor stopped short of alleging that the money had been the proceeds of prior drug dealing. She put it this way:
Now the Crown submits that the existence of that $125,700 in $50 notes sitting in the safety deposit box, and the absence of the [appellant] referring to it, can only mean one thing, and that was that the [appellant] was trying to hide that money because that money was illegally obtained. Now obviously the Crown has no evidence as to what or how that came about, but that's the Crown submission to you as the only rational inference that can be made from the existence of that money (closing addresses, 21 May 2015, ts 17).
62 The Crown prosecutor referred to the evidence of the appellant's heroin use. She observed that from day one of the trial, the appellant had neither hidden his heroin use, nor had he 'tried to say that he's a perfect person with no criminal activities' (closing addresses, 21 May 2015, ts 17).
63 The Crown prosecutor submitted that the appellant's testimony about his heroin use was, in some respects, inconsistent. For example, his testimony to the effect that he has not used heroin in Thailand since 2006 is contradicted by statements made during the WAPOL search that he had used heroin in Thailand 'in the last couple of years' (closing addresses, 21 May 2015, ts 17).
Defence counsel's closing address
64 Defence counsel referred to the appellant's right to silence. He emphasised that, although the appellant did not have to speak to police, nor give evidence, he chose to do so. The clear implication was that those choices enhanced his credibility. Defence counsel, in substance, urged the jury to weigh the fact that he had done these things when considering the significance of any inconsistencies between what the appellant had said in his interviews and his sworn testimony (closing addresses, 21 May 2015, ts 23).
65 Defence counsel, with considerable rhetorical flourish, submitted to the jury that they had heard 'matters of great prejudice and sympathy' so that '[the jury] could see the picture of [the appellant's] life and how he got into this [court] room today' (closing addresses, 21 May 2015, ts 24).
66 Defence counsel acknowledged that the credibility of the Crown's witnesses was not in question, and that 'the only person whose credibility is in the gun sight, if you like, is [the appellant] …' (closing addresses, 21 May 2015, ts 25).
67 Defence counsel described the appellant as 'a functioning, successful heroin addict' (closing addresses, 21 May 2015, ts 25). He submitted that the appellant's version of events should be believed, because the appellant:
(a) was an intelligent man who would not risk being 'hanged in Thailand', or 'sent away in Australia forever', or lose everything for which he had worked and which he inherited from his family (closing addresses, 21 May 2015, ts 26);
(b) had withstood cross-examination by 'an extremely competent barrister out of Sydney who did an excellent job' (closing addresses, 21 May 2015, ts 26); and
(c) had no need financially to import heroin into Australia. Defence counsel posed the rhetorical question to the jury 'Why would he do it, why would he do it in his circumstances where he's got more money than most of us?' (closing addresses, 21 May 2015, ts 26).
68 Defence counsel submitted to the jury that the appellant 'gave his evidence openly and honestly' (closing addresses, 21 May 2015, ts 27). In this regard, he submitted that:
(a) an indication of the appellant's open and honest approach was to be found in the AFP interview;
(b) it was not until 'well into the record of [the AFP] interview' that the appellant realised 'he was the one they were after' (closing addresses, 21 May 2015, ts 27); and
(c) after speaking with a lawyer, the appellant did 'what any smart person would do, and shut his mouth' (closing addresses, 21 May 2015, ts 28).
69 Defence counsel reminded the jury that the appellant spoke to police after being warned he did not have to do so in the WAPOL search (closing addresses, 21 May 2015, ts 29). It was suggested that, if the appellant 'was a real villain' he would have, after the AFP interview, telephoned his housemate and got him to dispose of an 'Esky full of used syringes' that were in his bedroom (closing addresses, 21 May 2015, ts 29).
70 With respect to the $125,700 in cash found in the safety deposit box, defence counsel submitted that there was no evidence to support the Crown proposition that this money was unlawfully obtained. Defence counsel went further than the Crown had and said that there was no evidence that the money was the proceeds of selling drugs (closing addresses, 21 May 2015, ts 29 - 30).
71 It was submitted on behalf of the appellant that he was clearly a long-term motorcycle enthusiast, and that there was nothing suspicious about him sending motorcycle parts to Australia from Thailand. Defence counsel reminded the jury that the appellant said during the WAPOL search that he was 'bamboozled about the heroin in the [motorcycle fuel] tank' (closing addresses, 21 May 2015, ts 31).
72 Defence counsel made what he described as 'a critical point' by highlighting that the appellant had consigned the motorcycle fuel tank using his true name and address, when he could have had the item sent to a false name at any of the addresses of the vacant BHP houses in Port Hedland to which he had access (closing addresses, 21 May 2015, ts 31 - 33).
73 Defence counsel sought to deal with the Crown prosecutor's submission concerning the appellant's answer to question 269. He noted that the appellant had, both before and after that question, answered 'No comment', and that the jury should accept that the appellant's answer 'No' to question 269 was meant to be 'No comment'. On this basis, defence counsel submitted that the jury should reject the Crown prosecutor's submission that the appellant was being evasive (closing addresses, 21 May 2015, ts 35 - 36).
74 Defence counsel, while emphasising that the appellant bore no onus of proof, took the jury through the evidence that had been led about the consignment of the box containing the motorcycle fuel tank from Chiang Mai to Perth. He suggested that it was possible that the heroin could have been secreted in the motorcycle fuel tank for delivery to Perth by a person (or persons) connected with DHL (closing addresses, 21 May 2015, ts 36 - 45).
75 Defence counsel suggested that:
[T]he real guts of this case is dead simple, did [the appellant] put the heroin in the [motorcycle fuel] tank or not before he gave it to DHL? That's all there is to it. If he [is] guilty as charged, you'll be five minutes don't waste our time, go in there and convict him. If you believe he put that stuff [the heroin] in the [motorcycle fuel] tank, game over, let's go home. And that's the only issue (closing addresses, 21 May 2015, ts 36).
The summing up
76 Relevantly to ground 1, the learned trial judge directed the jury, in orthodox terms, that the Crown bore the onus of proving the charge and that the appellant had nothing to prove at all (ts 290). She instructed the jury that the appellant did not have to give evidence, but he chose to do so and thereby submitted himself to cross-examination by the Crown prosecutor (ts 291).
77 Her Honour instructed the jury that part of the evidence for them to consider was the recording of the AFP interview. Her Honour told the jury that questions posed to the appellant were not evidence unless accepted by him (ts 296).
78 Her Honour did not direct the jury, in the context of the AFP interview, that the appellant had a right to remain silent, and that no adverse inference could be drawn against the appellant from the fact that he declined to answer some of the questions that were put to him during that interview.
79 Defence counsel took no exception to her Honour's directions. Specifically, he did not seek a direction of the kind now contended for by the appellant's ground 1.
Ground 1
The appellant's submissions
80 The appellant's basic proposition is that a miscarriage of justice was occasioned as a result of the absence of a direction to the jury to the effect that no adverse inference could be drawn against the appellant by reason of him exercising his right to silence in the AFP interview.
81 Senior counsel for the appellant accepted that defence counsel made a forensic decision to elicit from the appellant the reasons why he decided to seek the assistance of a lawyer in the AFP interview. Senior counsel accepted that it was legitimate for him to be cross-examined by the Crown prosecutor on the point. However, senior counsel said that defence counsel's forensic decision did not amount to a complete waiver of the appellant's right to silence. Senior counsel for the appellant submitted that this is evident by defence counsel's reference to the right to silence in his closing address.
82 In oral submissions, it was submitted on behalf of the appellant that the 'No comment' answers the appellant gave in the AFP interview were 'a major issue in the trial' that were 'used positively by the prosecution' against the appellant (appeal ts 10, 13).
83 Senior counsel for the appellant submitted that, if defence counsel took a forensic decision not to seek a direction from the trial judge about the appellant's right to silence, it was not an objectively reasonable one to take (appeal ts 19 - 23).
84 No argument was advanced on the part of the appellant that the 'No comment' answers were inadmissible.
The Crown's submissions
85 Counsel for the Crown submitted, in substance, that the 'No comment' responses were not an important part of the case. It was submitted that the focus of the case was on what the appellant said rather than what he did not say, and that there was no risk that the jury would reason impermissibly on the basis of the appellant answering questions in the AFP interview 'No comment'.
Disposition of ground 1
86 The disposition of ground 1 requires consideration of two legal principles: the right to silence and that, ordinarily, an accused person is bound by the way their trial is conducted by counsel.
87 The leading case in Australia on the right to silence is Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95. The right was described by Mason CJ, Deane, Toohey and McHugh JJ in these terms:
A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played (99).
88 Relevantly to this case, one of the incidents to the right to silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To do so would render the right valueless. It follows that it should not be suggested, either by evidence led by the prosecution or by questions asked or comments made by the prosecutor or trial judge, that an accused's exercise of the right may provide a basis for inferring a consciousness of guilt (Petty (99)).
89 Another incident of the right to silence is that it must not be suggested that a previous silence by an accused about a defence he or she raises at the trial provides a basis for inferring the defence is a recent fabrication or otherwise suspect or unacceptable (Petty (99)).
90 The legal principles with respect to the conduct of counsel are well known and were described by McLure P in McMahon v The State of Western Australia [2010] WASCA 143. Those principles were substantially derived from the various judgments delivered in TKWJv The Queen [2002] HCA 46; (2002) 212 CLR 124; see also Durani v The State of Western Australia [2012] WASCA 172 and SAM v The State of Western Australia [No 2] [2016] WASCA 64.
91 The general position is that counsel's decisions bind the client, even when those decisions involve errors of judgment or negligence. Ordinarily, it is difficult to establish a material irregularity when the alleged error concerns forensic choices upon which competent counsel could have differing views. Where there is an objectively rational forensic reason for adopting a particular course in a trial, it will be a rare case where the trial will have miscarried.
92 Had the Crown sought to use the 'No comment' answers adversely to the appellant (see, for example, Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414), a direction of the type the appellant sets out in ground 1 would have been required. However, and contrary to senior counsel's submission, the Crown prosecutor did not take that approach. On my reading of the trial record, including the cross-examination of the appellant and her closing address, the Crown prosecutor made no suggestion, either explicit or implicit, that the appellant's guilt could be inferred from his 'No comment' answers. Nor did she suggest that the appellant's exculpatory account of events he gave in the witness box was a recent invention.
93 As I have mentioned, the Crown prosecutor cross-examined the appellant about why he sought legal advice partway through the AFP interview. She suggested that, when the events of 1 February 2014 were mentioned, he sought legal advice because he knew that police were talking about the motorcycle fuel tank and the heroin that was in it. The cross-examination was used to base the submission put by the Crown prosecutor in her closing address referred to at [59] of these reasons.
94 The cross-examination and submission made to the jury in the Crown prosecutor's closing address were confined to the issue of why the appellant sought legal advice at the point in the AFP interview when the events of 1 February 2014 were raised. The course adopted by the Crown prosecutor was legitimate having regard to the appellant himself raising, in his examination-in-chief, the issue of why he sought to obtain legal advice at the point in the AFP interview when the date of 1 February 2014 was mentioned.
95 It is plain that the appellant's defence counsel led evidence of the appellant's explanation in examination-in-chief as part of a deliberate forensic strategy. In order to advance the appellant's credibility, the appellant was portrayed to the jury, from the outset of the trial, as being completely candid about his life and the circumstances of the consignment of the motorcycle fuel tank. In effect, it was put to the jury that he had nothing to hide and that was, in part, illustrated by his cooperation with the AFP agents in both voluntarily accompanying them to their offices and being interviewed. The part of the AFP interview in which the appellant resorted to legal advice created something of a dilemma for the appellant. On the one hand, he had, as I have said, agreed to cooperate with the AFP agents; but on the other hand, him resorting to legal advice might have been viewed in a practical sense by the jury as being inconsistent with the defence case concept of complete candour. A decision was made by defence counsel to explain the decision to obtain legal advice. In the context of a very strong Crown case, this was an objectively reasonable course for defence counsel to have adopted.
96 Defence counsel was plainly conscious of the right to silence. As senior counsel pointed out to this court, defence counsel referred to it in his cross-examination of Federal Agent Willert and in his closing address. Federal Agent Willert did not deny the existence of the right. The point of the cross-examination, and of defence counsel's closing submission to the jury, was to both further the case concept of complete candour and neutralise the inconsistencies in the appellant's testimony identified by the Crown prosecutor.
97 In my opinion, there was no perceptible risk that the jury would have misused the 'No comment' answers to infer a consciousness of guilt or to find that the appellant's defence was a recent invention. No miscarriage of justice has been established by reason of the failure of the learned trial judge to give the direction sought. Although not decisive of my analysis of ground 1, I note that competent and very experienced defence counsel did not seek a direction of the type described in this ground. It may reasonably be inferred that defence counsel resolved that, in the circumstances, such a direction would have conferred no practical benefit on the appellant and may have emphasised the 'No comment' answers, thus cutting across the defence case concept of complete candour.
98 Ground 1 has not been made out.
Proposed ground 2
99 Perhaps fortunately for the appellant, the Crown did not allege that the $125,700 in cash found in the appellant's safety deposit box was the proceeds of selling illicit drugs. Instead, the Crown relied upon a generalised allegation that the money had been 'illegally obtained'.
The appellant's submissions
100 The appellant submitted that, given the generalised nature of the allegation, the evidence that the money was 'illegally obtained' was evidence only relevant to the appellant's bad character and, as such, was inadmissible. Despite defence counsel's failure to object, it was said that the admission of the evidence constituted a miscarriage of justice.
Disposition of proposed ground 2
101 In my opinion, the evidence of the money in the safety deposit box was admissible. First, it was relevant to show that the appellant had not been entirely candid with the Western Australian Police officers during the WAPOL search because, when asked about his assets, he failed to refer to the money. Second, while evidence of an accused's bad character is generally inadmissible, it may be admissible where an accused puts his character in issue: MJS v The State of Western Australia [2011] WASCA 112 [144] (Mazza J). Evidence of bad character is not restricted to evidence of prior convictions. Conduct other than convictions may be admissible: MJS [145] (Mazza J).
102 As I have said, from defence counsel's opening address and onwards, the appellant ran a case portraying himself as a completely candid man who, despite his addiction to heroin, was someone who could be believed. In other words, he put his character in issue. The evidence of the money in the safety deposit box was capable of rebutting that portrayal.
103 I would not give leave to appeal in respect of proposed ground 2.
The proviso
104 Had I been required to consider the proviso, I would not have invoked it if ground 1 had been made out. However, I would have invoked it if proposed ground 2 only had been made out. My reasons for these conclusions are as follows.
105 Section 30(3) of the Criminal Appeals Act provides that this court must allow an appeal against conviction by an offender if in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c) there was a miscarriage of justice.
106 However, s 30(4) provides that, despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that 'no substantial miscarriage of justice has occurred'.
107 The meaning and effect of these sections has been discussed in many cases, but the leading authority on the proviso remains, in my view, Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. As this court described in Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197 [61], consideration of the proviso requires consideration of two matters: outcome and process. Bearing in mind that there is no rigid formula defining the scope of the process aspect, it is recognised that some process errors are of such a nature that the application of the proviso is excluded. In other words, where the process aspect is engaged, the proviso cannot be invoked even if the appellate court is satisfied beyond reasonable doubt of the accused's guilt. The process aspect determined the result in such cases as AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 (failure to give reasons on an important subject in a judge alone trial); Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 (unbalanced summing up); Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 (jury distracted by the judge falling asleep from time to time) and Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 (case run on mistaken assumption as to legal basis of liability): see Zanon v The State of Western Australia [2016] WASCA 91 [164] (McLure P). In my view, ground 1 - which alleged a failure to direct on an incident to the right to silence - is an error of the type that, if ground 1 had been made out, would have engaged the process aspect of the proviso.
108 This takes me to proposed ground 2. If proposed ground 2 had been made out, it could only have engaged the outcome aspect of the proviso. As to this, it is useful to repeat what was said in Hughes:
Weiss, a case in which prejudicial inadmissible evidence was adduced at trial by the prosecution, is authority for the following propositions which address the 'outcome' aspect of the proviso. First, the appellate court must itself decide whether a substantial miscarriage of justice has occurred. Second, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. In particular, the task is not to be undertaken by attempting to predict what a jury, whether the jury at trial or some hypothetical future jury, would or might do. Third, the standard of proof of criminal guilt is beyond reasonable doubt [35], [39].
In particular, the appellate court must make its own independent assessment of the evidence adduced at trial (and any evidentiary material not disclosed) and determine whether, making due allowance for the natural limitations that exist in an appellate court proceeding, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty [41].
Generally, the appellate court's task must be undertaken on the whole of the record of the trial, including the fact that the jury returned a guilty verdict. In that event, the issue is whether the error in question would, or at least should, have had no significance in determining the verdict that was returned by the trial jury [43]. Where the error or miscarriage arises from the absence of evidentiary material relevant to the charge at trial, the question is whether the additional material would, or at least should, have no effect on the verdict that was returned by the trial jury: White [193]. If the answer is uncertain or in the negative, the proviso cannot apply [63] - [65].
109 I have considered the entire trial record. It has been substantially summarised in these reasons. As I have already observed, the Crown case against the appellant was very strong. The appellant was, at the relevant time, a heroin addict and had a long history of dependence on the drug. He was in Chiang Mai for a sufficiently long period of time to both source the drug and to make or arrange for the necessary modification to the motorcycle fuel tank he purchased. It was beyond dispute that he consigned the motorcycle fuel tank from Chiang Mai to his address in South Hedland in Western Australia. The appellant's alternative case theory - that someone (or some persons) employed at DHL was (were) the true importers of the drug - is fanciful. The activities of DHL's employees once the package arrived in Perth were such to make it highly likely that any such importation would be detected and captured on CCTV. Furthermore, it is too much of a coincidence that an employee (or employees) of DHL, who presumably has no knowledge of the appellant, would purportedly consign heroin to him, an addicted heroin user.
110 I am satisfied beyond reasonable doubt that the appellant's denials as to his involvement in secreting the heroin in the motorcycle fuel tank were untruthful and had to be rejected. I will not repeat what I have already said about the implausibility of his alternative case theory. There are additional factors which impact adversely on the appellant's credibility, including:
(a) the inconsistencies in his evidence identified by the Crown prosecutor in her closing address; and
(b) the implausibility of his explanation for his failure to declare the money in the safety deposit box to the Australian Taxation Office, namely, that he did not have time and that his accountant was in Broome.
111 I have considered the appellant's testimony to the effect that he was a wealthy man and had no financial need to import heroin into Australia; that he did so using his own name and address; that he ran a risk of execution if he was caught with the drug in Thailand; and that he ran the risk of forfeiture of his property in Australia. None of these arguments, either by themselves or in combination, give rise to a reasonable doubt as to his guilt, bearing in mind, of course, that the appellant bears no onus of proof.
112 It is clear that the appellant had, on prior occasions, imported motorcycle parts into Australia by courier service to his home address from Thailand without incident and that he may well have regarded that method of disguising the importation of heroin into Australia as being secure and therefore unlikely to result in his detection either in Thailand or Australia. While the appellant may not have needed the money to be derived from the sale of heroin, no doubt the anticipated profits were handsome, and the appellant may well have thought that they justified the risks associated with the commission of the offence. Although forfeiture of assets is a risk that may have been on the appellant's mind, this risk may well have been outweighed by his assessment of the degree of the risk and the amount of the profits to be made. It is this court's experience that some who import illicit drugs into Australia do not have any financial need to do so and take the risk of detection with the intention of making large profits.
113 With respect to the money found in the safety deposit box, the Crown case was not that it came from previous drug sales. Insofar as it may have been used by the jury as bad character evidence, there was already ample admissible bad character evidence, given by the appellant himself, before the jury.
114 In my opinion, the evidence very clearly demonstrated, beyond reasonable doubt, the appellant's guilt. On my own assessment of the evidence adduced at trial, and making allowance for the natural limitations that exist in the appellate process, I am satisfied that the appellant was guilty of the offence charged. In my opinion, the error in proposed ground 2, assuming it had been made out, would, or at least should, have had no significance in determining the verdict that was returned by the jury.
Conclusion and orders
115 Ground 1 and proposed ground 2 of the appeal have not been made out. If ground 2 only had been made out, there would have been no substantial miscarriage of justice. The appeal must be dismissed.
116 The orders that I would make are as follows:
1. Leave to appeal on proposed ground 2 is refused.
2. The appeal is dismissed.
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