Evans v The Queen

[1999] WASCA 252

EVANS -v- R [1999] WASCA 252

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 252
Court:	COURT OF CRIMINAL APPEAL	Published:	12/11/1999
Case No:	CCA:91/1999	Heard:	17 AUGUST 1999
Coram:	MALCOLM CJ ANDERSON J WHITE J	Delivered:	17/08/99
No of pages:	30	Judgment Part:	1 of 1
Result:	Appeal against conviction and application for leave to appeal against sentence dismissed
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Parties:	MOHAMED IGSAAN EVANS THE QUEEN
Catchwords:	Criminal law Appeal and new trial Appeal against conviction Whether evidence of cash and note in accused's car admissible to support charge of possession of drugs with intent to sell or supply Relevant to rebut innocent explanation Appeal dismissed Criminal law Directions to jury Onus of proof regarding circumstantial evidence Directions read as a whole reveal no misdirection or inadequacy Criminal law Appeal and new trial Sentencing Fresh evidence sought to be led of rehabilitation demonstrated by business success Not exceptional circumstances Sentence not excessive Application for leave to appeal dismissed
Legislation:	Misuse of Drugs Act 1981 (WA) s 11(a)
Case References:	A Child v Andrews (1995) 12 WAR 552 Anderson (1997) 92 A Crim R 348 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Darwell v The Queen, unreported; CCA SCt of WA; Library No 970220; 15 May 1997 Harriman v The Queen (1989) 167 CLR 590 HG v The Queen [1999] HCA 2; (1999) 73 ALJR 281 Krakouer v The Queen [1998] HCA 43; (1998) 73 ALJR 1229 Markovina v R (1996) 16 WAR 354 McGhee (1993) 68 A Crim R 220 Peacock v The King (1911) 13 CLR 619 Plomp v The Queen (1963) 110 CLR 234 R v GP (1997) 18 WAR 196 R v Liddington (1997) 18 WAR 394 R v Lobell [1957] 1 All ER 734 R v Periera [1986] 1 Qd R 211 R v Rostom [1966] 2 VR 82 Shepherd v The Queen (1990) 170 CLR 573 Sultana (1982) 74 A Crim R 27 Sultana (1992) 74 A Crim R 27 Vasich (1998) 99 A Crim R 262 R v Sobolewski, unreported; CCA NSW File No 60502/97; 17 June 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EVANS -v- R [1999] WASCA 252 CORAM : MALCOLM CJ

ANDERSON J
WHITE J

HEARD : 17 AUGUST 1999 DELIVERED : 17 AUGUST 1999 PUBLISHED : 12 NOVEMBER 1999 FILE NO/S : CCA 91 of 1999

CCA 92 of 1999

BETWEEN : MOHAMED IGSAAN EVANS

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal and new trial - Appeal against conviction - Whether evidence of cash and note in accused's car admissible to support charge of possession of drugs with intent to sell or supply - Relevant to rebut innocent explanation - Appeal dismissed

Criminal law - Directions to jury - Onus of proof regarding circumstantial evidence - Directions read as a whole reveal no misdirection or inadequacy

Criminal law - Appeal and new trial - Sentencing - Fresh evidence sought to be led of rehabilitation demonstrated by business success - Not exceptional


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circumstances - Sentence not excessive - Application for leave to appeal dismissed

Legislation:

Misuse of Drugs Act1981 (WA) s 11(a)

Result:

Appeal against conviction and application for leave to appeal against sentence dismissed

Representation:

Counsel:

Appellant : Mr D Grace QC
Respondent : Mr R E Cock QC & Mr R G Wilson

Solicitors:

Appellant : Pryles & Defteros
Respondent : State Director of Public Prosecutions

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

A Child v Andrews (1995) 12 WAR 552
Anderson (1997) 92 A Crim R 348
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Darwell v The Queen, unreported; CCA SCt of WA; Library No 970220; 15 May 1997
Harriman v The Queen (1989) 167 CLR 590
HG v The Queen [1999] HCA 2; (1999) 73 ALJR 281
Krakouer v The Queen [1998] HCA 43; (1998) 73 ALJR 1229
Markovina v R (1996) 16 WAR 354
McGhee (1993) 68 A Crim R 220
Peacock v The King (1911) 13 CLR 619
Plomp v The Queen (1963) 110 CLR 234
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Lobell [1957] 1 All ER 734
R v Periera [1986] 1 Qd R 211


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R v Rostom [1966] 2 VR 82
Shepherd v The Queen (1990) 170 CLR 573
Sultana (1994) 74 A Crim R 27
Vasich (1998) 99 A Crim R 262

Case(s) also cited:

R v Sobolewski, unreported; CCA NSW File No 60502/97; 17 June 1998

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1 MALCOLM CJ: This is an appeal against conviction and an application for leave to appeal against sentence. On 14 May 1999, the appellant was convicted after trial of one count of possession of a quantity of 3,4 Methylenedioxy-n alpha - Dimethylphenylethylamine (MDMA) with intent to sell or supply it to another. MDMA is also commonly known as Ecstasy. The drug was in the form of 38 tablets and three capsules. The appellant was sentenced to imprisonment for a term of 2 years and 6 months. An order was made that he be eligible for parole. On 25 June 1999, the appellant was granted bail pending his appeal against conviction. At the conclusion of the argument of the appeal against conviction the Court was unanimously of the opinion that the appeal against conviction should be dismissed and so ordered. It was then indicated that the reasons for that decision would be published later. Also, at the conclusion of the argument on the application for leave to appeal against sentence, the Court was unanimously of the opinion that the application should be dismissed and so ordered. It was indicated that the reasons for that decision would be published later. These are my reasons for joining in the making of those orders.

Appeal against Conviction

2 The appellant's notice of appeal contained five grounds. By a notice dated 23 July 1999, the appellant gave notice of a proposed application to seek to add a further ground 6 based on fresh evidence to be given by one Lindsay Christopher Smart. This application was abandoned at the commencement of the hearing. The appellant also abandoned grounds 2 and 5 which were deleted by way of amendment. The remaining grounds were grounds 1, 3 and 4 which were as follows:

"1. The learned trial Judge erred at law or alternatively, in the exercise of his discretion by admitting evidence of $895.00 incash which was in the Appellant's possession at the time of his apprehension, such error of law giving rise to a substantial miscarriage of justice.

Particulars
1.1 The learned trial Judge erred by admitting evidence of the $895.00 which was in the Appellant's possession at the time of his apprehension, when such evidence was irrelevant to the charge on the Indictment, or alternatively

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had a prejudicial effect which outweighed its probative value.

1.2 Alternatively, the trial Judge erred in failing to give a strongly worded warning."

"3. The learned trial Judge erred at law or alternatively, in the exercise of his discretion by admitting evidence of the Commercial Cleaning Supplies 'With Compliments' Note, such error of law giving rise to a substantial miscarriage of justice.

Particulars
3.1 The learned trial Judge erred in admitting evidence of the Commercial Cleaning Supplies 'With Compliments' Note, when such evidence was irrelevant to the charge on the indictment or alternatively had a prejudicial effect which outweighed its probative value.

3.2 Alternatively, the trial judge erred in failing to give a strongly worded warning.


4. The Learned Trial Judge misdirected the jury on the law of evidence as it relates to inferences, such misdirection giving rise to a substantial miscarriage of justice.

Particulars
4.1 The learned trial Judge misdirected the jury by directing them that if they were satisfied that 'the only rational inference available was that the money and the note, or the note by itself, showed that the accused was involved in other drug transactions' this could be considered in relation to the charge on the indictment."

Grounds 1 and 3

3 Grounds 1 and 3 may conveniently be considered together. The Crown case at the trial was that at about 11.30pm on 14 May 1999, police officers on patrol in a police car saw a gold Mercedes motor vehicle parked outside a nightclub in Perth. There were three people standing at

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the rear of the vehicle. The police vehicle did a U-turn and the police officer saw the Mercedes moving off. The Mercedes was stopped. The police officers spoke to the appellant who was the driver and sole occupant of the vehicle. Detective Boult searched the vehicle and found a brown "bumbag" under the front passenger seat. A snap-lock bag was found inside the bumbag which contained 38 tablets, later found to be MDMA. The bag also contained some papers, including a business card of one Len Pipicello with an address at Railway Parade written on it. The address was investigated, but said to be of no interest to the police. The appellant was asked to empty his pockets. Three white tablets were found in one of the appellant's pockets, together with a sum of $895 in cash.

4 The appellant was then taken to a police station, where he participated in a video-recorded interview. During the course of the interview, the appellant mentioned that some damage had been done to the Mercedes vehicle early in the afternoon of that day. After that, a search was made of the appellant's house at Alexander Heights. A Holden Barina hire car, located at the house, was searched. The car was currently under hire to the appellant. A note was found in the glove box which stated:

"Shaan $800 for e-mails. I still have 20 of the caps which I can either try to move this weekend or give back to you. Let me know."

5 Analysis of the 38 tablets showed that they contained 18.6 grams of MDMA, representing an MDMA content of approximately 19 per cent. The three capsules were identified as containing 0.21 grams of MDMA, representing an MDMA content of approximately 68 per cent and a minor content of MDE.

6 The appellant is also known by the name of "Shaan". The appellant's explanation for the note was that "e-mails" was referring to airconditioners and "caps" was a reference to baseball caps, as distinct from tablets or capsules. In the course of his evidence, the appellant referred to the three capsules as "caps". As to the reference to $800 "e-mails" the appellant said that his brother had just started up a factory and they were on the lookout for airconditioners for the factory. The appellant knew a personal friend who ran a company called WA Cleaning Supplies who had contacts in the airconditioning market. The $800 was to pay for "e-mails" which were the preferred airconditioning units that he wanted and there were two used units there. As to the reference to the "caps", the appellant's explanation was:

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"Well, Ishmael who's my brother who runs the factory at the time was making up baseball type caps with a Techno logo on the front of it which he sold to everybody when, like - I mean, there was a bit of a fad then. It was something all the nightclub kids were buying and the guy of course who ran the same company WA Commercial Cleaning Supplies was a DJ at DC's nightclub and I gave him the caps to - I gave him a hundred caps which I got off Ish to get rid of."

7 The appellant agreed that when the police officers showed him the contents of the snap-lock bag, namely, the tablets, he said, "Okay. They're Ecstasy". In his evidence-in-chief at the trial the appellant confirmed that he made this statement . He said he recognised the tablets because:

"You see them everywhere in clubs. They're common round all the clubs."

8 He denied that the tablets were his. He denied that he knew that they were there. He said he had not seen the bag before.

9 He admitted that he had three capsules in his pocket. He said they had been given to him by a friend and that he understood them to be Rohypnol, which he thought was a sleeping tablet. The appellant said:

" … I had asked somebody for some sleeping tablets and one of the guys there gave me three of those caps."

10 He said he was shocked when he found out that the tablets and capsules contained Ecstasy. Part of the explanation given by the appellant for the cash which he had in his possession was that it represented compensation for damage caused to the Mercedes in an incident earlier that day in the afternoon. The appellant said that his brother, Ishmael, was supposed to make some suits for a friend of the appellant called Yanni and had been paid a deposit of $500 about a month previously. The appellant then described what had happened on the afternoon of 21 October 1997 as follows:

"The afternoon when we had been out together having a drink Yanni reversed into my car and knocked the grille and I was basically pretty scared to take the car back home to Dad because he was going to go ballistic and Yanni didn't offer to pay me for it and at the same time he was complaining that Ish [the appellant's brother] hadn't made the suits and he wanted his

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money back and he said, 'Well, if you want you can take the $500 back off Ish and cover the grille,' and that worked out fine and it just so happened that we all met up at The Bog probably about 40 minutes before the police - 30 minutes before the police pulled me over, and Ish was supposed to give Yanni the money. He just gave it directly to me so that sort of pacified me before taking the car home."

11 The day of the week on which he got arrested was Tuesday, the day after his dole money was paid to him.

12 When first interviewed by the police at the roadside, the appellant told police that the $500 was the repayment of a loan. It was in the course of the video-recorded interview that the appellant said that the $500 was paid to him for damage that Yanni had caused to his car.

13 The appellant identified the author of the note as a friend named Chris who was also a Disc Jockey at DC's nightclub. The note was described by the appellant as "a quote between two friends". He said that Chris:

" … had gone out working for the day and he said he would leave the price for the two units at reception. I drove by, picked the note up and left and that was in the envelope - $500."

14 That last reference is somewhat puzzling: if the document was a quote, there would be no reason to put any money in the envelope with the "with compliments" slip.

15 On the night in question, the appellant and his brother were in the Mercedes car which was being driven to Northbridge by the appellant's brother, Ishmael. They were accompanied by a woman named Desiree, who was sitting in the front passenger seat. A Ms Early was sitting in the back seat of the car with the appellant. As they were getting out of the car at the nightclub, Desiree asked if she could leave her bag in the car. Ms Early saw her lean into the car before they went into the nightclub and noticed that she did not carry anything into the nightclub. Ms Early was a friend of Ishmael and had known the appellant's family for some three to four years.

16 During the course of the video-recorded interview, the following questions and answers were recorded in relation to the 38 tablets found in the Mercedes:

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"All right. Have you got any explanation how those came to be in this brown bag under the front passenger seat of the vehicle you were in?---No, officer."

17 The following also appears:

"Is there anybody else that has been in that car who may have put them there?---I would prefer not to comment on the subject of a bag at the moment just so that I can see clearly … ."

18 The appellant's voice trailed off at that point and no more was recorded.

19 Following the completion of the interview, the appellant was charged. In his summing up, the learned Judge rightly directed the jury that they were entitled to act on the certificate of analysis that the 38 tablets and the three capsules contained MDMA.

20 So far as possession is concerned, the learned trial Judge directed the jury about possession in terms which are not the subject of any complaint. The direction included the following:

"The Crown must prove the accused person knew the substance; that is, the tablets or capsules were as the case may be in the car or in his pocket. The Crown must prove that in each case he was aware that such contained a prohibited drug of some kind and that the accused person had intention to possess that parcel of the drug in each case and had control over that parcel.

An intention to possess, to control the car, would ordinarily involve the possession of what was in it of course so in some cases aspects of this definition can be live issue but here, I think, really the issue for you is in relation to the 38 tablets. Was the accused person aware that there were 38 tablets of a drug in the car? If you were satisfied as to that, then I think it would follow really from the way in which the case has been fought, that you can be satisfied that he was in possession of the 38 tablets. In relation to the three capsules the principal issue is was the accused person aware that those three capsules contained a prohibited drug as opposed to Rohypnol? It's not suggested in this trial that Rohypnol is a prohibited drug. Was he aware that they did not contain Rohypnol but in fact contained a prohibited drug?

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If you were satisfied that he had that knowledge when the police officers stopped his car, then I think it would follow that you would be satisfied that he was in possession of the three capsules. If you were not satisfied that he knew it was a prohibited drug, it would follow that you would not be satisfied as to his possession."

21 The verdict of the jury makes it plain that they were satisfied of this element.

22 So far as the intention to sell or supply was concerned, the learned trial Judge said:

"The third element is, members of the jury - and I have already mentioned this to you - the Crown must satisfy you that the accused person intended to sell or supply the MDMA or some part of it. On proof of possession of more than 2 grams, which would be the case for the 38 tablets but not for the three capsules, then if one looked at the two items separately, that would be enough to sustain a finding of proof beyond reasonable doubt - it would be a matter for you - but the law says that that deems the possession to be with intent to sell or supply unless the contrary is proved by the accused person.

The accused person does not suggest that he had, as I have already said to you, possession for his own purposes so that's not really a live issue here. You must be satisfied before you could convict the accused person that he had possession with intent to sell or supply the MDMA or some part of it but I think having regard again to the way the case has been fought and the absence on the part of senior counsel to any reference to it, that if you were satisfied as to the first two elements, that in relation to the 38 MDMA tablets the statute would deem him to be in possession for that purpose and there's no evidence to any contrary purpose so you wouldn't have any difficulty at all with that. In relation to the three capsules, given the absence of any evidence - it's entirely a matter for you - but you might well think that you could also be satisfied with the three capsules - in possession with intent, if you were satisfied as to the first two elements."

23 No complaint is made about any of these directions in the grounds of appeal. Counsel for the appellant, however, contended that the direction

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regarding an intention to sell or supply the MDMA or some part of it involved a misdirection which "infects both sets of substances". In respect of the 38 tablets, it was accepted that if the jury were satisfied beyond a reasonable doubt that the appellant was in possession of the 38 tablets, he was necessarily in possession for the purposes of sale or supply.

24 So far as the three capsules were concerned, counsel for the appellant took the point that the learned Judge was incorrect and misdirected the jury when his Honour said:

"In relation to the three capsules, given the absence of any evidence - it's entirely a matter for you - but you might well think that you could also be satisfied with the three capsules - in possession with intent, if you were satisfied as to the first two elements."

25 It was objected that the direction overlooked the evidence of the appellant that the three capsules were for his own use. This point was not the subject of a ground of appeal. The appellant's evidence was that he thought that the capsules were Rohypnol and that he had obtained them as sleeping tablets for insomnia. In my opinion, the jury, by their verdict, clearly rejected that evidence and must have concluded that the necessary elements had been proved beyond reasonable doubt. It was submitted, however, that the learned Judge misdirected the jury when his Honour said that in relation to the three capsules, given the absence of any evidence, the jury might well think they could also be satisfied that they were in possession with intent, if they were satisfied as to the first two elements, that is, absent any consideration of the 38 capsules. This finding would involve rejection of the appellant's explanation that the three capsules were for his own use and acceptance of the argument that they were possessed for sale or supply to another. True it is that this does not sit happily with the proposition that the appellant may have been found not guilty of the possession of the 38 tablets with intent to sell or supply. To this extent there may have been a problem created because there was only one count of possession with intent which was contained in the indictment in respect of which the tablets and the capsules were separate particulars, rather than two separate substantive counts.

26 Although there was a single offence charged, there were two sets of particulars and the jury were asked to give separate consideration to the two sets of particulars and to say whether their verdict of guilty applied to both sets of particulars. The adoption of that course was calculated to

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make it clear whether, if the verdict was guilty, that related to the total quantity or only to one or other of the two sets of particulars. A further reason for putting the particulars separately was that there were different defences raised with respect to each quantity. If, in the end, the jury were satisfied beyond a reasonable doubt that he was in possession of both quantities of the drug, the deeming provision regarding intent to sell or supply would apply to both quantities. In my opinion, the verdict of the jury in answer to the questions put to them made it clear that the jury were satisfied that both quantities of the drug were in his possession with intent to sell or supply.

27 It is in this context that grounds 1 and 3, concerning the admission of evidence of the $895 in cash found in the appellant's possession at the time of his arrest and the Commercial Cleaning Supplies "With Compliments" note, the subject of grounds 1 and 3, fall to be considered.

28 The evidence of the $895 and the "With Compliments" note was relied upon by the Crown as relevant to the issue whether the appellant had an intent to sell or supply at the time that the drugs were located in his car and on his person.

29 So far as the $895 and the "With Compliments" slip were concerned, the learned Judge directed the jury as follows:

"You have heard evidence, members of the jury, not just of what was found in the car in terms of prohibited drugs but also evidence about the $895 which the accused person had in a pocket somewhere and which he produced.

You have seen the video where that is discussed. You have heard his evidence where that is discussed and you have also heard evidence and you have seen tendered in evidence the note found in the hire car. You must be satisfied of course that that was a note intended for the accused person and known of by him and there is no dispute as to that so that you will not have any difficulty I think in relation to that.

Now, the law says that evidence which tends to rebut an innocent explanation can be led by the Crown in a criminal case because it is, as a matter of logic, evidence which a reasonable person would want to know of when one came to judge an issue. So the Crown leads that evidence and alleges that the accused person had been engaging very recently, in terms of 21 October 1997, in drug transactions of some kind and in

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effect what the Crown says is, 'Look, if we make good that allegation then you should reject the accused person's defence that he was not in possession of this drug and that he has an innocent explanation.'

Now, in relation to the evidence of the money and the note in the hire car if, on the whole of the evidence, you are satisfied that the accused person's explanation ought to be rejected and the only rational inference available was that the money and the note, or the note by itself, showed that the accused person was involved in other drug transactions, you would be entitled to consider that when you came to consider whether or not you were satisfied that the accused person happened to find himself in this car with 38 ecstasy tablets under the seat without knowing they were there or happened to find himself with three ecstasy capsules in his pocket without knowing they were ecstasy capsules.

However, members of the jury, you cannot and must not proceed by saying, 'If we are satisfied the accused person was involved in some other drug transaction or offence, he therefore must be guilty of the offence here.' That is a impermissible method of proceeding and you cannot approach the matter in that way. Now, in relation to the answers given by the accused person in the course of the video record of interview which you have been taken to, you will recall that in relation to a number of things the accused person evinced a desire not to make an affirmative, or a negative for that matter, response.

For example, on page 11 of the transcript that has been provided, he was asked, 'Yeah. I've got - a brown money belt, is it? What do you call this thing? It goes around your waist. Can you tell me whose this is? and the answer was, you will remember, 'I would prefer not to on the record', and he was asked, 'Right. Can you tell me it belongs to your father?' 'No, I can't,' etcetera. Now, a person in the course of a statement can, without saying, 'Yes, I committed the offence', reveal consciously - or perhaps more frequently unconsciously - a consciousness of guilt, that although an answer can be not an affirmative admission, it can, when looked at, amount to an acknowledgment of guilt.

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The prosecution put forward those questions and answers - more pertinently answers - that I have just alluded to, together I think with one or two others, as revealing that. It is a matter for you, members of the jury, but it seems to me that although you are entitled to have regard to the answers that the accused person made when he was asked about these things, as part of the relevant circumstances to be considered along with all the other evidence in the case, I do not think you could be satisfied that those answers amounted to an acknowledgment, conscious or otherwise, of guilt."

30 It was submitted that the evidence of both the $895 and the note was irrelevant to the charge on the indictment or, alternatively, had a prejudicial effect which outweighed its probative value and should have been excluded as a matter of law. It was submitted that, had the money and the note not been found, the amount of MDMA of itself would have been sufficient to have required the appellant to establish on the balance of probabilities that it was possessed, not for the purpose of supply to another person, in the event that the jury were first satisfied that he was in possession of the substances, that is, that he had the requisite knowledge: Misuse of Drugs Act1981 (WA) s 11(a); and Krakouer v The Queen [1998] HCA 43; (1998) 73 ALJR 1229 at [55] per McHugh J at [55]. The point is that s 11(a) of the Act only deems a person to have the relevant intent when that person "has in his possession" the prescribed quantity of the drug. Possession of a drug is a precondition to the operation of s 11(a).

31 At the trial, the purpose of possession was not a fact in issue. The appellant's defence was that he was unaware of the existence of the bumbag in his car and the contents of it, with the consequence that he was not in possession. However, the case against the appellant was that the appellant was in possession and that such possession was with intent to sell or supply. Hence, although purpose or intention was not a relevant fact in issue on the defence case, because of the denial of knowledge of the presence of the drug in the car, it was relevant and, in my view, admissible as part of the Crown case. It follows that the Crown was entitled to lead evidence of the cash both to support the Crown case that the appellant was in possession of the drugs and to rebut any defence that the appellant was in possession of the drugs for his own use: Sultana (1994) 74 A Crim R 27 at 29 per Gleeson CJ and at 36 - 37 per Sully J. The evidence of the note was admissible for the same reason. Likewise, the evidence of the cash and the note was admissible as being relevant to rebut an innocent association between the appellant and the drugs in the

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same way as between two people: cf Harriman v The Queen (1989) 167 CLR 590; Markovina v R (1996) 16 WAR 354 at 363 per Malcolm CJ.

32 It was against this background that it was submitted that the evidence of the possession of the $895 was insufficiently relevant to justify its admission. It is trite to say that evidence is relevant to a fact in issue if it proves, or renders probable, the existence of that fact. In this case, it was submitted that the money had no connection or nexus with either of the quantities of drugs in any way. In support of this submission counsel for the appellant relied upon the decision of the Northern Territory Court of Criminal Appeal in Lewis (1989) 46 A Crim R 365 in which it was held by the majority (Martin and Angel JJ) that evidence of $2750 in cash on premises occupied by the appellant was not relevant to the issue whether the appellant was in possession of cannabis with intent to sell or supply. It was held that the evidence was relevant to past sales of cannabis, but any inference of past dealing in cannabis was not relevant to the accused's intention with respect to the cannabis remaining in his possession, hence the evidence was inadmissible: see per Martin J (as he then was) at 372 - 373; and per Angel J at 374 - 375. Rice J at 367 - 368 dissented, saying at 367:

"In my opinion, the jury is entitled to look at all the surrounding circumstances from which it is entitled to deduce, once possession of cannabis is proved beyond reasonable doubt, what the appellant's purpose was in having that cannabis in his possession. It is legitimate for the jury, in determining the issue of purpose, to look, for instance, at the circumstances surrounding the discovery of a sizeable sum of cash in the appellant's possession at the time of the discovery of the cannabis."

33 A similar approach to that of Rice J was taken by the Court of Criminal Appeal of New South Wales in Sultana (supra) in which the appellant was charged with supplying heroin. When police searched the appellant's premises they found various items of a kind commonly used by heroin suppliers, including resealable plastic bags, firearms and a large amount of cash on the premises. Gleeson CJ said at 28 -29:

"Each of the items in question was perfectly capable of being used for an innocent purpose, but that does not determine the issue.

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Evidence of this kind is frequently received on the basis that the Crown is entitled, in a case such as the present, to show that the accused was in possession of the implements or accoutrements of trade of a drug dealer. This, no doubt, is why there was no objection to most of the items, including the large sum of cash. Sully J has referred to two cases in which similar evidence has been said in this Court to be admissible.

Where the issue is whether a person was found to be in possession of heroin, and whether he or she possessed it for supply, the fact that the person is currently in the business of a drug-dealer is a fact relevant to the issues in the case. It is not mere evidence of propensity to commit crime, or bad character: cf Harriman (1989) 167 CLR 590; 43 A Crim R 221; Thompson and Wran (1968) 117 CLR 313 at 316-317. If, for some reason, in a civil or criminal case there were an issue as to whether a man was found in possession … of clothing material with an intention of cutting it, it would ordinarily be of relevance to show that the man was carrying on the business of a tailor. That might be shown by evidence then, when asked his occupation, he said he was a tailor. It might also be relevant to prove that he owned a tapemeasure, a pair of tailor's scissors, a quantity of samples of cloth, and some books showing a collection of clothing designs. Evidence that tends to show that a person is in the business of dealing in heroin also tends to show a propensity towards crime, but in a case such as the present it is admissible on the former account, not the latter. Moreover, subject to discretionary considerations to be mentioned below, the fact that it bears the latter character does not detract from its relevance or render it inadmissible."

Handley JA agreed with Gleeson CJ.

34 In McGhee (1993) 68 A Crim R 220, among a number of items which tended to show that the applicant was in possession of drugs with intent to sell or supply, was a wallet containing $900 in cash and a packet of amphetamine and various other items. Objection was only taken to the admissibility of the money in the wallet. Reliance was placed in support of the objection on the decision in Lewis (supra) where Cox J said at 221 - 222:

"The police (according to the witness statements) found amphetamine here in commercial quantities. There was also the sort of gear that is commonly associated with drug dealing -

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scales, a supply of unused small plastic bags and so on. The discovery of a large amount of cash on the premises as well will generally be legitimate evidence to go to the jury to assist a Crown case that the person concerned was running a business. Often there will be supporting evidence that the accused did not appear to have any other business and here, I am told, the accused admitted that he was unemployed. It is true that he admits to dealing in cannabis but that, of course, does not exclude the possibility that he was also dealing in amphetamines.

If the accused was running a drug business at the time of the raid then it would be reasonable in the circumstances, in the absence of any plausible alternative explanation, to regard the $900 cash, or at least a substantial part of it, as his working capital, with some of it available as a cash float for expected sales. Moreover, the cash itself in all the circumstances is evidence tending to prove the existence of an ongoing business. That was the view that I took in the rather similar case of Polain (1989) 52 SASR 526. However, it is no doubt likely on that hypothesis that the money was also the proceeds of past dealings. In my opinion, that does not make the evidence any the less relevant and admissible in this case."

35 Cox J went on at 222 to review the judgments in Lewis and said:

"I must say, with respect, that I find the reasoning and conclusion of Rice J generally persuasive."

36 The specific directions in the present case given to the jury regarding the cash and the note were as follows:

"You have heard evidence, members of the jury, not just of what was found in the car in terms of prohibited drugs but also evidence about the $895 which the accused person had in a pocket somewhere and which he produced.

You have seen the video where that is discussed. You have heard his evidence where that is discussed and you have also heard evidence and you have seen tendered in evidence the note found in the hire car. You must be satisfied of course that that was a note intended for the accused person and known of by him and there is no dispute as to that so you will not have any difficulty I think in relation to that.

(Page 18)

Now, the law says that evidence which tends to rebut an innocent explanation can be led by the Crown in a criminal case because it is, as a matter of logic, evidence which a reasonable person would want to know of when one came to judge an issue. So the Crown leads that evidence and alleges that the accused person had been engaging very recently, in terms of 21 October 1997, in drug transactions of some kind and in effect what the Crown says is, 'Look, if we make good that allegation then you should reject the accused person's defence that he was not in possession of this drug and that he has an innocent explanation.'

Now, in relation to the evidence of the money and the note in the hire car, if, on the whole of the evidence, you are satisfied that the accused person's explanation ought to be rejected and the only rational inference available was that that money and the note, or the note by itself, showed that the accused person was involved in other drug transactions, you would be entitled to consider that when you came to consider whether or not you were satisfied that the accused person happened to find himself in this car with 38 Ecstasy tablets under the seat without knowing they were there or happened to find himself with three Ecstasy capsules in his pocket without knowing they were Ecstasy capsules."

37 The learned Judge also gave the jury a clear warning that they must not proceed by saying that if they were satisfied that the accused was involved in some other drug transaction or offence, therefore he must be guilty of the present offence.

38 In my opinion, in the circumstances of this case, the evidence of the $895 and of the note was relevant and admissible. It was not a case in which its prejudicial effect outweighed its probative value. It follows that grounds 1 and 3 have not been made out.

Ground 4

39 As has been seen, the particulars of ground 4 asserted that the learned Judge misdirected the jury by directing them that if they were satisfied that the only rational inference available was that the money and the note, or the note itself, showed that the accused was involved in drug transactions, this could be considered in relation to the charge on the indictment.

(Page 19)

40 The learned Judge directed the jury that:

"… plainly in order for you to be satisfied that the accused person is guilty of the offences charged, you would have to be satisfied that his evidence ought to be rejected, in other words, if at the end of the day you are left in doubt as to whether or not he was telling the truth or might be telling the truth, then it would follow that the Crown had not satisfied you beyond reasonable doubt that he was in possession of either the capsules knowing they contained a prohibited drug or in possession of the 38 tablets knowing that they were in the car and contained a prohibited drug.

Although there was some suggestion to the contrary, I think on the evidence you would also have to be satisfied that the evidence of Ishmael Evans ought to be rejected … because as you will recall, he gave evidence about the $500 being handed over to the accused person for the car damage, that he was looking for airconditioners for his business, that he was providing caps for a person named Chris at the nightclub and that the accused person was involved in relation certainly to the airconditioners and I will leave the other aspect to your recollection."

41 The learned Judge went on to specifically tell the jury that the evidence of both the appellant and Ishmael Evans would have to be rejected before the jury could be satisfied beyond a reasonable doubt. His Honour went on to say:

"If you rejected that evidence, then of course the question would be whether or not the Crown had satisfied you on the evidence beyond reasonable doubt that the accused person was guilty. You would then of course have to consider the evidence of Christine Early as to what she said occurred with a person named Desiree and the car and you have to decide whether or not the only inference that could be drawn rationally from the evidence in the light of what her explanation was, was that the accused person was aware that the tablets containing the prohibited drug were in the car.

If you rejected that evidence, then plainly you would then look at the evidence and … before you considered the evidence in relation to the money and the note, be satisfied that that related

(Page 20)

to other drug dealings. If you weren't satisfied as to that, you would have to put that to one side. If you were satisfied as to that, then you could look at that evidence in the way that I have explained to you and then you would have to ask whether or not the only rational inference was in the light of the whole of the evidence, that the accused person had the requisite knowledge. That's in relation to the 38 tablets.

Your approach of course in relation to the three capsules involves also a consideration of the evidence of the accused person but the evidence of those other witnesses is not directly relevant to that aspect although generally relevant of course when you come to consider the accused person's evidence and whether you accept it or whether you do not reject it or whether you do reject it."

42 It was the first part of this passage that was the subject of ground 4. It was submitted on behalf of the appellant that the directions so given did not adequately alert the jury that, before they could find that the evidence of the note and the money indicated prior drug dealings, they would have to reject the evidence called on behalf of the appellant beyond reasonable doubt, because that evidence raised a hypothesis consistent with innocence. In this connection, no objection or point was taken of any kind about the summing up at the trial where the appellant was represented by experienced and competent counsel. In the absence of any obvious miscarriage of justice, courts have been reluctant to allow matters not complained of at trial to be raised on appeal, although the failure to take a point is not necessarily fatal to the success of an appeal. However, very strong reasons should be advanced why a matter should be raised on appeal for the first time: A Child v Andrews (1995) 12 WAR 552 at 556 - 559 per Steytler J; and HG v The Queen [1999] HCA 2 at [81]; (1999) 73 ALJR 281 at [293] per Gaudron J.

43 This direction repeated a direction given at an earlier stage in the learned Judge's summing up regarding inferences, namely:

"You are entitled, however, to reason from the facts as you find them to be so as to infer the existence of some further fact; that is, you can draw a conclusion. You can draw what the logicians might call an inference from the facts as you find them to be. The rule in a criminal trial is that before you draw an inference or conclusion which is adverse to the accused person you must be satisfied, having regard to the facts as you find them to be,

(Page 21)

that that is the only inference or conclusion which is reasonably open, having regard to those facts."

44 There was a further direction to the same effect. It was submitted that the learned Judge should have told the jury that before they could draw an inference or conclusion which was adverse to the accused, they must be satisfied beyond reasonable doubt that any reasonable hypothesis consistent with innocence was excluded beyond reasonable doubt. However, the learned Judge had earlier directed the jury about the standard of proof as follows:

"Now, the standard of proof is a high standard, members of the jury. It's proof beyond reasonable doubt. The Crown must prove each element, that's each essential component, of the offence beyond a reasonable doubt. You should accept those words, members of the jury, as bearing their ordinary commonsense meaning and should accept that it's a high standard of proof and if I speak to you of the Crown's obligation to satisfy you as to some matter then that's a reference to satisfaction beyond a reasonable doubt."

45 It was accepted by counsel for the appellant that such a direction was given, but it was submitted that the learned Judge did not direct the jury "with the force of his authority" that in order to be satisfied beyond reasonable doubt of the guilt of the accused, the jury must be satisfied beyond reasonable doubt that any reasonable hypothesis consistent with innocence could be excluded. It was submitted that the earlier direction given and the later direction to which I have referred regarding inferences was deficient because it did not make it clear that the jury would have to be satisfied beyond reasonable doubt that any reasonable hypothesis consistent with innocence could be excluded. It was submitted that the formulation adopted by his Honour invited the jury to make a choice between competing inferences. It was submitted that the process of reasoning involved inviting the jury to adopt the approach of choosing between two different versions of events rather than being satisfied beyond reasonable doubt on the Crown case. In particular, counsel drew attention to the following passage in the summing up:

"I have already said to you there's no onus on the accused person to prove anything in the course of this trial so any suggestion that there was an onus on the accused person to arrange witnesses or find witnesses, would not be - is not a correct statement.

(Page 22)

At the end of the day of course one doesn't look at the accused person's explanation or that of his witnesses by asking whether there are serious doubts about that evidence. The question is whether or not the evidence of the accused person or any of his witnesses must be rejected in whole or in part because if it's not rejected, the onus of proof and the standard of proof mean that you must regard the statement as being a statement of possible fact and hence one that you must operate as though it is a correct statement."

46 In this passage, which I very much doubt would have been properly understood by the jury, his Honour seems to be suggesting that any possible explanation raised by the accused must be regarded as a possibility, namely, an hypothesis which would have to be rejected by the jury before they could find the appellant guilty. That interpretation is the consequence of other directions given that guilt was the only rational inference. In the relevant passages the learned Judge was dealing with evidence rather than inferences. The question posed by his Honour was whether or not the evidence of the accused person or any of his witnesses must be rejected in whole or in part. If it was not rejected, then the effect of the onus of proof and the standard of proof meant that the jury must, in effect, treat it as being true or at least raising a doubt. The direction followed from the discussion about onus and the absence of any onus on the accused. In my opinion, when read in the context of the summing up as a whole, I do not consider that there was a misdirection calculated to lead the jury into error or cause a substantial miscarriage of justice or indeed any miscarriage of justice.

47 For a jury to bring in a verdict of guilty based on circumstantial evidence, it is necessary not only that guilt should be a reasonable inference, but the only rational inference that the circumstances would enable them to draw: Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; and Shepherd v The Queen (1990) 170 CLR 573. In Shepherd at 578 Dawson J referred to:

"… the customary direction that, where the jury relied on circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances … Whilst a direction of that kind is customarily given in cases turning on circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt."

(Page 23)

48 Counsel for the appellant particularly relied upon the judgment of Mason CJ in Shepherd at 576. There the former Chief Justice referred to a passage in the joint judgment of Gibbs CJ and himself in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 536 which had led to the suggestion that in cases based on circumstantial evidence, juries must be directed that they cannot use a fact as a basis for inferring guilt unless that fact was proved beyond reasonable doubt. It was made clear at 575 that this was not the case. However, the jury should be directed that they must be satisfied beyond reasonable doubt of "an intermediate fact as an indispensable basis for an inference of guilt". In my opinion, the statement to which counsel referred does not require a direction from the jury to the effect contended for by counsel for the appellant. If there is any reasonable hypothesis consistent with innocence the accused must be acquitted: see R v Periera [1986] 1 Qd R 211 at 216 - 217. In R v Lobell [1957] 1 All ER 734 Goddard LCJ said in the context of self-defence in a criminal case that:

"If an issue relating to self-defence is to be left to the jury there must be some evidence from which a jury would be entitled to find that issue in favour of the accused, and, ordinarily, no doubt, such evidence would be given by the defence. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus on him. The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them. If, on a consideration of all the evidence, the jury are left in doubt whether the killing or wounding may not have been in self-defence the proper verdict would be not guilty. A convenient way of directing the jury is to tell them that the burden of establishing guilt is on the prosecution but that they must also consider the evidence for the defence which may have one of three results: it may convince them of the innocence of the accused, or it may cause them to doubt, in which case the defendant is entitled to an acquittal, or it may, and sometimes does, strengthen the case for the prosecution. It is, perhaps, a fine distinction to say that before a jury can find a particular issue in favour of an accused person he must give some evidence upon which it can be found but, nonetheless, the onus remains on the prosecution. What it really amounts to is that if, in the result, the jury are left in doubt where the truth lies the verdict should be not guilty …"

49 In my view ground 4 has not been made out.
(Page 24)

Application for Leave to Appeal against Sentence

50 The learned Judge sentenced the applicant to imprisonment for two and a half years for the possession of the MDMA with intent to sell or supply it to another. The appellant sought leave to appeal against that sentence on the following grounds:

"1. That the sentence imposed was manifestly excessive in all the circumstances of the Applicant and of the offence.

Particulars

Failure to give any or sufficient weight to:

1. The personal circumstances of the Applicant

2. The lack of any relevant prior convictions on the part of the Applicant.

3. Prospects of rehabilitation.

4. The quantity and purity of the drug involved.

5. The court's inherent prerogative of mercy.


2. The learned sentencing judge erred in the exercise of his discretion in that he failed to give any or sufficient weight to the above factors in relation to suspending the term of imprisonment."

51 At the hearing, counsel for the appellant sought leave to add a further ground of which notice had been given on 12 August 1999 as follows:

"As a result of fresh or new evidence obtained since the Applicant was sentenced in this matter, the proper significance of the Applicant's rehabilitation has been demonstrated by his performance on bail pending appeal."

52 The application was opposed by the Crown. The learned Judge found that the reference to "caps" in the note was a reference to capsules of drugs and the reference to "$800" and "e-mails" were a reference to a payment for the drug Ecstasy (or MDMA). The tablets were worth between $1500 and $1600. This together with the $895 in cash and the "With Compliments" slip was the basis of a finding that the appellant was involved at that time in sales of drugs including sales in the nightclub. The learned Judge was clearly satisfied that the appellant was in

(Page 25)

possession of the drugs with intent to sell or supply. In reaching these conclusions his Honour clearly did no more than give effect to the verdicts of the jury.

53 As to the appellant's personal circumstances, the learned Judge said:

"You are aged 36 years. You grew up in South Africa. After coming to Western Australia you worked as a car salesman and apparently from what senior counsel has said to me today, very successfully. You were married and by that marriage there have been two children who are now aged 14 years and 7 years. It would seem there were difficulties in the marriage which broke up in 1997 and in fact a couple of months prior to the events of 21 October 1997.

You were receiving counselling, I am told, by a psychologist at the time. Your marriage did in fact terminate at the time of its breakdown and you now enjoy a form of dual custody, although that is, I think, no longer the correct terminology in the matrimonial jurisdiction, which involves you having custody - involves you having the care of the children for a half day on a regular basis and every second weekend. You have now established a business known as Kool Kidz retailing clothes manufactured by your brother.

Senior counsel has submitted on your behalf that you were in effect a person who was travelling well through life and whose life underwent turmoil as a result of your marriage breaking up. In that regard, the record which is apparently admitted, apart from traffic matters, details no offences until 1996 when you were convicted of common assault and possession of a prohibited drug and it is said - and the next matter of significance being your conviction in this court on 16 October 1998 for threats to injure in respect of which you were sentenced to 12 months' imprisonment, that sentence being suspended for 2 years.

That conviction followed a trial and I am provided with a transcript of the proceedings following the jury's verdict. It would appear, from what I'm told and from that transcript, that that offence was also an offence which occurred in about 1996 and it is said on your behalf at that time - in fact, this appears on

(Page 26)

page 209 of the transcript - that the marriage had collapsed at the end of 1996.

So what senior counsel submits to me today, Mr Evans, is that your offending in relation to that matter, and also the matters I have referred to in June 1996 or the convictions of June 1996, resulted from the turmoil your life underwent as a result of your marriage break-up and you have now reinstated your life and, in those circumstances, you ought be given a further chance."

54 The learned Judge expressly referred to s 6 of the Sentencing Act 1995 which provides that a sentence of imprisonment is not to be imposed unless no other penalty can be justified, having regard to the seriousness of the offence. He expressly mentioned that he had given consideration to the imposition of a sentence of imprisonment and the possibility of suspension. His Honour went on to say:

"It is the case that general deterrence is of course to the fore with offences of this kind and in your case of course you exercised your undoubted right to plead not guilty to this offence. However, it is the case that there is no indication of any remorse on your part, nor are the precise circumstances of course of the offence able to be ascertained by any free provision of information by you to the court. This drug MDMA, ecstasy as it's popularly known, is of course now to be regarded as being in the first rank of seriousness of drugs as a result of decisions made following receipt or (sic of) pharmacological evidence.

The quantity of drug in your custody on this particular night, although not vast, as (sic was) not insignificant and the circumstances were, as I have indicated, such that I am satisfied that you were a person apparently involved in sales to a person retailing to a nightclub and that I ought therefore regard your possession as being a possession for a supply or a sale of that kind.

Offences of this kind are of course extremely serious and the only instrument available to courts who are required to play a role in causing people to observe the law in the community, is to hand down sentences which will indicate that offending of this kind must be prevented from occurring, if possible.

(Page 27)

In my view, the seriousness of the offence is such that only a sentence of imprisonment to be immediately served would be appropriate and only a sentence to be immediately served can be justified having regard to the seriousness of the offence. I consider an appropriate term of imprisonment in all of the circumstances would be one of 2 years and 6 months' imprisonment and, in the absence of any reason why I should not, I direct that you be eligible for parole."

An order was made for the forfeiture of the money.

55 The appellant commenced to serve the sentence so imposed on 14 May 1999. He was released on bail on 25 June 1999. The reason for his release on bail was the notice of application to seek to add a further ground 6 to the grounds of appeal against conviction as follows:

"As a result of fresh or new evidence since the conviction in this matter, the jury's verdict of guilty is unsafe or unsatisfactory and have therefore given rise to a substantial miscarriage of justice.

Particulars

6.1 The Appellant is now in a position to call a new witness, namely Lindsay Christopher Smart, to give evidence in relation to the piece of paper that was located in the brown 'bum-bag' which was found in the Appellant's vehicle. Mr Smart will give evidence that he wrote his address and telephone number on the piece of paper and gave it to a girl called Desiree."

56 In the result this ground was not pursued at the hearing. As a consequence, the appellant was returned to custody following the dismissal of his appeal against conviction on 17 August 1999.

57 Ground 3 of the grounds of appeal against sentence was argued first, namely that fresh evidence, it admitted, demonstrated rehabilitation. The basis upon which fresh or new evidence may be admitted on an application for leave to appeal against sentence has been considered in Anderson (1997) 92 A Crim R 348 at 349 - 350 per Malcolm CJ; at 351 - 353 per Murray J and at 357 - 363 per Steytler J; and Vasich (1998) 99 A Crim R 262 at 270 - 272 per Heenan J (with whom Kennedy and Pidgeon JJ agreed). In particular, in Anderson at 350 I said:

"As a matter of logic and justice the principles to be applied should be those which would apply to the admission of fresh or

(Page 28)

new evidence on an appeal against conviction, particularly where, in the light of subsequent events, the sentence imposed may result in injustice, even where on the facts originally presented there was no error in the exercise of the sentencing discretion. The power conferred by s 697 of the Criminal Code enables the Court of Criminal Appeal to reconsider evidence whenever it is 'thought necessary or expedient in the interests of justice'. This power is subject to a proviso to the effect that sentences may not be increased 'by reason of or in consideration of any evidence that was not given at the trial'. As Steytler J rightly points out, it is implicit in the proviso that a sentence might be reduced by reason of or in consideration of evidence that was not given in the court below. It is plain that the power should be used only to rectify a miscarriage of justice and that, save in the most exceptional cases, any question of the review of a sentence in the light of subsequent events or changed circumstances which go beyond casting new light in the facts as they were before the sentencing judge should be a matter for the Executive."

58 As demonstrated by the various authorities considered in the cases to which I have referred, in most of the cases a relevant consideration has been the impact of imprisonment upon the state of health of the offender. The power, however, has also been exercised where an offender who had been sentenced to imprisonment for the importation of heroin and then had given evidence for the prosecution in an unrelated murder, had been harassed and threatened by other prisoners as a consequence and had to be placed in protective custody. In that case the prisoner was granted leave to appeal against sentence and permitted to lead fresh evidence concerning his co-operation with the prosecution and of the threats and harassment he had suffered in gaol: R v Rostom [1966] 2 VR 82. Each of the cases has been held to fall into an exceptional category.

59 In my opinion this is not such a case. In his sentencing remarks, the learned sentencing Judge mentioned the appellant's marital breakdown and its impact upon his employment and the custody of his children. It was submitted, however, that the learned Judge did not give any indication that he had taken any of these personal factors into account in sentencing. In my opinion, the proper inference is that those matters were specifically mentioned by the learned Judge in his sentencing remarks because they were regarded as relevant. The matters personal to the appellant were expressly taken into account by the learned Judge who gave consideration to the suspension of a term of imprisonment. This was

(Page 29)

accepted by counsel for the appellant but it was submitted that it had not been given sufficient weight. While there was no express reference to the prospects of the appellant's rehabilitation, it may be safely assumed that this was necessarily a matter taken into account when the learned Judge gave consideration to the suspension of the sentence. In R v GP (1997) 18 WAR 196 and R v Liddington (1997) 18 WAR 394, it was held that, while there is no comprehensive list of specific criterial factors to be taken into account in deciding whether to suspend a period of imprisonment and the relative importance of such factors in any given case will necessarily vary, one of the main purposes, if not the primary purpose of suspending the sentence is rehabilitative or reformative, although there may be some other sufficient reason for suspending a sentence. In my opinion, there is nothing which has been put before the Court which would bring this case into the exceptional category of cases which would make the evidence sought to be relied upon by the appellant admissible or justify any interference with the sentence imposed. The appellant is the owner and manager of a retail shop selling children's clothing. At the time he was imprisoned the shop had been operating since May 1998 and had one employee, being a sales assistant. The applicant has two children aged 14 and 7. Following the appellant's separation and divorce from his former wife, the Family Court made orders granting the parties joint guardianship of the children. The children are in the care of the appellant or his parents from the end of each school day in term time until his ex-wife collects them. There are numerous other days when the appellant or his parents have the care of the children.

60 Following the appellant's imprisonment on 14 May 1999 his father has taken control of the management of the shop and undertaken the appellant's guardianship duties with respect to the children. His father is aged 62 and in ill health and suffers a chronic hernia problem which requires surgery. As a result he has not been able to manage the business adequately. The appellant says that since his release from custody he has re-established the business which is now operating at a profit. Shortly after he was imprisoned he was informed that his ex-wife was seeking new orders with respect to guardianship of the children. Since his release from custody he has maintained his parental responsibilities. The Family Court proceedings initiated following his imprisonment have been adjourned pending the outcome of his appeal against conviction and sentence. In my opinion, none of these matters taken individually or collectively constitute exceptional circumstances of the kind which in previous cases have justified the admissibility of evidence of matters following the imposition of a sentence.
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61 Grounds 1 and 2 contend that the sentence imposed was manifestly excessive and further that the learned Judge erred in the exercise of his discretion in failing to give sufficient weight to a number of factors which are set out in the grounds. It is clear that the learned Judge expressly referred to the personal circumstances of the applicant, the lack of any relevant prior convictions and the quantity and purity of the drug involved. These are all referred to in particulars 1 to 4 of ground 1. While the Court's inherent prerogative of mercy referred to in ground 5 was not specifically mentioned, every experienced Judge is conscious of the Court's inherent prerogative of mercy.

62 In my opinion, it has not been demonstrated that the learned Judge failed to give any or any sufficient weight to the factors set out in the particulars of ground 1 in relation to suspending the term of imprisonment. It has not been shown that the learned sentencing Judge failed properly to exercise his discretion.

63 Having regard to the increasing prevalence of the use of MDMA or Ecstasy, which is one of the drugs in the amphetamines group, and taking into account the increasing prevalence of the use of amphetamines generally, the courts have tended to firm up the sentences for the sale or supply of such drugs or their possession with intent to sell or supply. Amphetamines are now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs and are to be regarded in the same category as heroin and cocaine: Darwell v The Queen, unreported; CCA SCt of WA; Library No 970220; 15 May 1997 per Malcolm CJ at 10 - 11.

64 These are my reasons for joining in the refusal of the application for leave to appeal against sentence.

65 ANDERSON J: In my opinion, the evidence that the appellant was in possession of $895 in cash at the time of his apprehension was admissible on the basis explained by Gleeson CJ and Sully J in Sultana (1994) 74 A Crim R 27 at 29 and 36 - 37. As to the other grounds of appeal, my reasons for joining in the decision of the Court to dismiss them are fully explained in the judgment of Malcolm CJ which I have read in draft. There is nothing I can usefully add to those reasons.

66 WHITE J: I have read the reasons to be published by the Hon the Chief Justice. I agree with those reasons and have nothing further to add.