Fenn v The State of Western Australia
[2020] WASCA 134
•26 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FENN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 134
CORAM: BUSS P
MURPHY JA
MAZZA JA
HEARD: 1 OCTOBER 2019
DELIVERED : 26 AUGUST 2020
FILE NO/S: CACR 205 of 2018
BETWEEN: BRYAN GEORGE FENN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 2080 of 2017
Catchwords:
Criminal law - Drug offences - Possession of methylamphetamine with intent to sell or supply to another - Appeal against conviction - Whether guilty verdict is unreasonable or unsupported by the evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | A G Elliott & H Glenister |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Cathal Smith Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dean v Legal Practice Board [2016] WASCA 63
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Olive [2011] WASCA 25
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
This is an appeal against conviction.
The appellant and Mr Craig Josef Rodziewicz were charged on indictment in the District Court with four offences, all of which were alleged to have occurred on 12 October 2016, at Caversham. Count 1 alleged that the appellant and Mr Rodziewicz had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. This count concerned 386 g of methylamphetamine which police found in a pantry at a house situated at 8 Fiano Cross, Caversham (the house). Count 2 alleged that Mr Rodziewicz had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. This count concerned 15.5 g of methylamphetamine found in a cutlery drawer in the kitchen of the house. Count 3 alleged that Mr Rodziewicz was in possession of a sum of money ($8,250) which was then reasonably suspected to have been unlawfully obtained. Count 4 alleged that the appellant was in possession of a sum of money ($4,130) which was then reasonably suspected to have been unlawfully obtained. Counts 1 and 2 are contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). Counts 3 and 4 are contrary to s 417(1) of the Criminal Code (WA) (Code).
The appellant and Mr Rodziewicz were tried before Stevenson DCJ and a jury between 25 and 28 September 2018. On arraignment, Mr Rodziewicz pleaded not guilty to counts 1 and 3, but guilty to count 2. The appellant pleaded not guilty to counts 1 and 4.[1] On 28 September 2018, the jury found the appellant and Mr Rodziewicz guilty of count 1.[2] The jury also found Mr Rodziewicz guilty of count 3.[3] The jury found the appellant not guilty of count 4.[4]
[1] ts 16 - 17.
[2] ts 340.
[3] ts 340.
[4] ts 341.
On 1 October 2018, Mr Rodziewicz was sentenced to a total effective sentence of 6 years 6 months' imprisonment with eligibility for parole. The sentence was backdated to commence on 28 September 2018.[5] The appellant was sentenced on count 1 to 6 years' imprisonment, with eligibility for parole, backdated to commence on 28 September 2018.[6]
[5] ts 372 - 373.
[6] ts 371, 373.
The appellant appeals to this court on one ground, being that the verdict on count 1 was unreasonable or cannot be supported on the evidence: s 30(3)(a) of the Criminal Appeals Act 2004 (WA). The question of whether leave to appeal should be granted was referred to the hearing of the appeal.[7]
[7] Order 19 March 2019 Mazza JA.
Overview of the State's case at trial
The State's case as opened by the prosecutor was as follows. On the morning of 12 October 2016, police officers executed a search warrant at the house.[8] The house was occupied by four people, being the appellant, Mr Rodziewicz and a couple, Mr Michael Daniels and Ms Polly Daniels.[9] The appellant and Mr Rodziewicz were joint lessees of the house.[10]
[8] ts 33.
[9] ts 34.
[10] ts 33 - 34.
The search was video recorded. In a cutlery drawer in the kitchen, police discovered a clipseal bag containing 15.5 g of methylamphetamine (count 2).[11] A search of the kitchen pantry revealed a brown paper bag which contained a number of vacuum‑sealed bags. Within those vacuum-sealed bags were a number of clipseal bags, which contained, in total, 386 g of methylamphetamine (count 1).[12] A DNA analysis of the brown paper bag revealed a mixed profile which was consistent with having come from four people. There was a very high statistical probability that one of those four people was Mr Rodziewicz.[13] Mr Rodziewicz' fingerprints were found on the outside surface of the brown paper bag.[14]
[11] ts 34.
[12] ts 34.
[13] ts 35.
[14] ts 35.
In relation to count 3, the investigating officers found $8,250 in cash in Mr Rodziewicz' bedroom. In relation to count 4, the investigating officers found a total of $4,130 in cash; $1,130 in the appellant's wallet and $3,000 on the bedside table in the appellant's bedroom.[15] Also in the bedside table, police found a piece of paper that the prosecution alleged was a 'tick list', that is, a record of amounts of money and people to whom drugs have been sold on credit.[16] The piece of paper had two of the appellant's fingerprints on it.[17]
[15] ts 35.
[16] ts 35.
[17] ts 35 - 36.
The State's case, based on a chemical analysis undertaken by Ms Jessica Murdock, a chemist employed by the Chemistry Centre of Western Australia, was that the drugs discovered in the cutlery drawer and in the kitchen pantry were likely to have been manufactured from the same precursor and under similar reaction conditions. They may have originated from the same synthesis batch.[18]
[18] ts 36.
Police also located a number of items in the kitchen alleged to be indicia of dealing in methylamphetamine, being:
(a)a set of electronic scales with traces of methylamphetamine on the surface;[19]
(b)a second set of electronic scales in a box in the pantry; and
(c)two separate quantities of MSM, a common cutting agent used to dilute high‑purity methylamphetamine to a lower purity for sale.[20]
[19] ts 36.
[20] ts 36 - 37.
Although not explicitly stated in the State opening, it is clear from the terms of count 1 that the State alleged that the appellant and Mr Rodziewicz were in joint possession of the 386 g of methylamphetamine found in the kitchen pantry. In relation to counts 3 and 4, the State alleged that the sums of cash found on each of the appellant and Mr Rodziewicz were the proceeds of drug sales.[21]
[21] ts 37.
Overview of the appellant's case at trial
The appellant's case at trial was that, in respect of counts 1 and 4, the jury could not be satisfied that the only reasonable inference open on the evidence was of guilt. Defence counsel asserted that the State's case was, in substance, based only on the proposition that the appellant lived in the same house as Mr Rodziewicz, and that the tick list recorded 'drug sales and drug debts'.[22] Defence counsel asserted that the jury could not reach the conclusion that the list was in fact a record of transactions of that kind.[23]
[22] ts 41.
[23] ts 41 - 42.
With respect to count 4, defence counsel foreshadowed that evidence would be adduced on behalf of the appellant which would show that the cash was obtained from legitimate sources.[24]
[24] ts 41.
The evidence adduced at trial
The State adduced evidence from Detective Senior Constable Matthew Whelan, the principal investigating officer; Detective First Class Constable Anthony Garcia, who was the exhibits officer in the search conducted on 12 October 2016; Detective Sergeant Roy Morrish, who, in addition to overseeing the search on 12 October 2016, also gave expert testimony concerning the manner in which methylamphetamine is used and sold, its value and the common indicia of methylamphetamine dealing; Dr Fiona Baxter, a forensic scientist employed with PathWest Laboratory Medicine WA, who gave evidence concerning the DNA analysis of various items recovered from the house by police; Ms Murdock, who carried out an analysis of the drugs that were recovered from the house and gave evidence as to similarities between the drugs found in the cutlery drawer and in the brown paper bag in the pantry; and Senior Constable Wayne Pugh, a forensic investigation officer and fingerprint expert who examined fingerprints obtained from items recovered from the house.
The appellant and Mr Rodziewicz each testified in their own defence. The appellant also adduced evidence from Mr William Van Grootel.
The State tendered various exhibits, the most significant of which was an edited DVD recording of the police search of the house (exhibit 1) and the alleged tick list (exhibit 3). The appellant also tendered an ANZ Bank withdrawal receipt for $9,000 (exhibit 14) and a copy of a cheque for $9,000 (exhibit 15). Exhibits 14 and 15 were relevant to count 4 on the indictment and record a bank transaction made by Mr Van Grootel.
The relevant evidence is summarised as follows.
Detective First Class Constable Whelan
Detective Whelan was the investigating officer in the case.[25]
[25] ts 43.
On the morning of 12 October 2016, Detective Whelan arrested the appellant at a traffic stop, and escorted him back to the house.[26] At about 8.00 am, police officers, accompanied by the appellant, entered the house. There they located Mr Rodziewicz and Mr and Ms Daniels.[27] Police conducted a search of the house, which was video‑recorded. The various items that were seized were recorded by Detective Garcia onto an exhibits log.[28] The edited DVD of the search was played to the jury and tendered through Detective Whelan as exhibit 1.[29] A redacted version of the exhibit log was tendered through Detective Whelan as exhibit 2.[30]
[26] ts 43.
[27] ts 44.
[28] ts 45.
[29] ts 48.
[30] ts 49.
Detective Whelan coordinated the forensic examination of various items seized during the search. The alleged tick list was specifically identified by Detective Whelan and tendered through him as exhibit 3.[31]
[31] ts 50.
In cross‑examination by counsel for Mr Rodziewicz, Detective Whelan agreed that:
(a)Mr Rodziewicz readily admitted to possession of the 15.5 g of methylamphetamine located in the cutlery drawer;[32]
(b)at the time he executed the search warrant, he was unaware of a man by the name of Mr Antonio Pele, but subsequently became aware of him and the fact that he had been charged with possession of 10 kg of methylamphetamine with intent to sell or supply it to another;[33]
(c)seven latent fingerprints from the brown paper bag were identified as belonging to Mr Pele;[34] and
(d)DNA samples taken from the outside top half and inside top half of the brown paper bag revealed that, as well as Mr Rodziewicz, Mr Pele was a contributor to those samples.[35]
[32] ts 51.
[33] ts 52.
[34] ts 54.
[35] ts 55.
In cross‑examination by counsel for the appellant, Detective Whelan agreed that:
(a)no fingerprints or DNA belonging to the appellant were found on the bag that contained the 15.5 g of methylamphetamine found in the cutlery drawer, on any of the relevant items found in the kitchen such as the vacuum sealer,[36] or on the bags which contained the 386 g of methylamphetamine the subject of count 1;[37]
(b)quantities of methylamphetamine were found in Mr Daniels' room and he was subsequently charged and convicted of two counts of possession of a prohibited drug;
(c)the appellant engaged in a substantial trade in motor vehicles;[38] and
(d)there was no evidence of drug dealing found by the police on the appellant's mobile telephone or Samsung tablet.[39]
Detective First Class Constable Garcia
[36] ts 73.
[37] ts 72.
[38] ts 78.
[39] ts 81.
Detective Garcia recorded onto an exhibits log the items that were seized during the search of the house on 12 October 2016 and the location of those items. Relevantly, it recorded the following:
(a)$1,130 in cash was found in the appellant's wallet and a further $3,000 in cash was found in the appellant's bedside table.
(b)A clipseal bag containing 15.5 g of methylamphetamine was found in a cutlery drawer.
(c)A set of digital scales was found on the kitchen bench and a set of electronic scales was found in the kitchen cupboard.
(d)In the brown paper bag found in the kitchen pantry, a total of five clipseal bags containing methylamphetamine were found.
(e)A vacuum‑sealing machine, a roll of vacuum sealer, three boxes of clipseal bags, a box of disposable gloves and a quantity of MSM were found in the kitchen pantry.
(f)A further quantity of MSM was found in a kitchen cupboard.
(g)In a wardrobe in a bedroom occupied by Mr and Ms Daniels, police found a clipseal bag containing 1.76 g of methylamphetamine.
(h)The alleged tick list was found on the appellant's bedside table.
(i)Clipseal bags and a vacuum‑sealed bag were found in a recycling bin.
The abovementioned items were photographed and recorded in the search video.
Detective Sergeant Morrish
In examination‑in‑chief, Detective Morrish testified that he had been a police officer for 28 years and a detective for the last 16 years. During that time he said that he has 'gained an immense knowledge in relation to illicit drugs, distribution of illicit drugs and persons involved in the illicit distribution of drugs'.[40] He has also acquired knowledge through various avenues about the historical and current prices for illicit drugs, including methylamphetamine.[41]
[40] ts 114.
[41] ts 114 - 115.
With respect to methylamphetamine, Detective Morrish said that the drug is ordinarily sold in varying weights from 0.1 g (known as a point) to an ounce (which weighs about 28 g).[42] Detective Morrish described how the purity of methylamphetamine may be diluted or cut by using an agent such as MSM.[43]
[42] ts 115.
[43] ts 116.
Detective Morrish testified that in September/October 2016, 0.1 g of methylamphetamine was sold for between $50 and $100; 1 g was sold for between $300 and $400; 3.5 g was sold for between $800 and $1,000; and 1 oz of methylamphetamine was sold for between $4,500 and $6,000.[44]
[44] ts 116.
Detective Morrish testified that he was present during the search of the house on 12 October 2016.[45] He found, among other things, the brown paper bag and the vacuum‑sealing machine in the kitchen pantry.
[45] ts 117.
Detective Morrish testified to the effect that electronic scales, vacuum seal bags and tick lists were common indicia of drug dealing.[46]
[46] ts 125 - 127.
Detective Morrish was asked by the prosecutor to comment on the alleged tick list found in the appellant's bedroom. His testimony concerning it was as follows:[47]
[47] ts 126 - 127.
PERRELLA, MR: Have you seen that before
MORRISH, R.M.: Yes, I have.
PERRELLA, MR: That was seized during the search that we're dealing with today, is that right?
MORRISH, R.M.: Yes.
PERRELLA, MR: Your Honour, if that can be placed on the document camera. I'm going to ask the witness some questions about it. Detective, in your experience, are you able to comment upon the significance if any of this document that was found?
MORRISH, R.M.: It's similar to what we often see as the records that people keep of moneys owed. From my point of view it's similar to what we call - what we refer to as a tick list. There may be other reasons for those amounts shown there - - -
PERRELLA, MR: Sure?
MORRISH, R.M.: - - - but it would - - -
PERRELLA, MR: We'll just focus on your experience?
MORRISH, R.M.: Sure.
PERRELLA, MR: This is consistent with the document that you've - that's colloquially known amongst the police as a tick list?
MORRISH, R.M.: Tick list, yeah.
PERRELLA, MR: Which I think you've just told us is amounts of money owed by people?
MORRISH, R.M.: Yeah.
PERRELLA, MR: Like credit?
MORRISH, R.M.: And - and those amounts go up or down as more of the goods are exchanged or change hands, as part of that account's settled.
PERRELLA, MR: That - that would be depicted by crossing out amounts and changing amounts, that sort of thing?
MORRISH, R.M.: That's what we generally see.
PERRELLA, MR: Now, we have just gone through the typical weights that methylamphetamine is sold in?
MORRISH, R.M.: Mm hmm.
PERRELLA, MR: And typical prices - - -
MORRISH, R.M.: Yeah.
PERRELLA, MR: - - - based on your experience and intelligence that they are sold for. Are you able to comment at all about the amounts - or the numbers that we see next to the names where starting with, 'Dan 6,500'?
MORRISH, R.M.: It may well be the price of an ounce of meth at that time. As I said, it's within - close to the range that we're looking at.
PERRELLA, MR: And any other figures that you wish to comment on? If you're unable to, that's fine?
MORRISH, R.M.: I do believe the - the second amount down, 3,250, half of the first one, it's subject to all those prices for drugs fall within a range, and even then you get the one that's way outside either side of it. And we tend to preclude those from when we're doing these charts. To me, that's what it would appear to be but there may be another explanation.
PERRELLA, MR: Certainly. Thank you. That can be taken down.
ELLIOTT, MR: Sorry, I missed perhaps the last part of that sentence. I heard, 'Other explanation', but I didn't hear the few words that were before that
MORRISH, R.M.: Sorry. What I said is, to me that's what it appeared to be but there may be another explanation.
Detective Morrish observed that a closed‑circuit television system had been installed at the house with a live feed to a monitor on top of the fridge in the kitchen.[48] The closed‑circuit television system was connected to a number of cameras outside the house which surveilled the corner of the property and the approaches to the front door.[49] Detective Morrish testified that, notwithstanding potentially legitimate purposes for installing closed‑circuit television systems, his experience revealed that they are commonly used by people involved in the distribution of illicit drugs installed to provide forewarning of the arrival of police or others engaged in the business of drug dealing.[50]
[48] ts 128.
[49] ts 128.
[50] ts 128.
In cross‑examination by defence counsel for the appellant, Detective Morrish accepted that, generally speaking, people involved in the drug trade are not very honourable.[51]
[51] ts 135.
Defence counsel asked Detective Morrish about the alleged tick list. Detective Morrish confirmed that a figure of $6,500 would fall within the range of an ounce of methylamphetamine. However, he conceded that there may be another explanation for that entry on the document.[52] Detective Morrish went on to say:[53]
[The alleged tick list is] consistent with what we see as lists of money and amounts people will find at premises involved in the distribution of illicit drugs. As I said, there may be another explanation for it. It's consistent with what we see.
Dr Baxter
[52] ts 137.
[53] ts 138.
Dr Baxter examined a number of items seized by the police at the house on 12 October 2016 for the presence of DNA. She said that from the inside top half of the brown paper bag found in the kitchen pantry she recovered a mixed DNA profile assumed to have come from four individuals.[54] Mr Rodziewicz and Mr Pele could not be excluded as possible contributors to this mixed DNA profile.[55] Other items were examined and either no DNA was detected or insufficient DNA was recovered to permit profiling.[56] Dr Baxter testified that the absence of recoverable DNA from an item does not exclude the possibility of someone having touched or made contact with it.[57] In cross‑examination, Dr Baxter agreed that in respect of the mixed DNA profile found on the inside of the brown paper bag, a statistical analysis favoured the exclusion of the appellant as a contributor to that profile.[58]
Ms Murdock
[54] ts 155.
[55] ts 156.
[56] ts 158.
[57] ts 158 -159.
[58] ts 160 -161.
Ms Murdock testified that she had analysed the composition of the methylamphetamine found in the kitchen drawer and the pantry. She noted that the samples she analysed all possessed a similar physical appearance and purity.[59] Ms Murdock also said that the samples possessed the same synthetic impurities in a similar relative quantity, indicating that they were all likely to have been manufactured from the same precursor and under similar reaction conditions. She said that the samples may have originated from the same synthesis batch.[60]
Senior Constable Pugh
[59] ts 167 - 168.
[60] ts 167 - 168.
Senior Constable Pugh testified that:
(a)A fingerprint belonging to Mr Rodziewicz was recovered from the exterior of the paper bag found in the pantry.[61]
(b)Seven fingerprints belonging to Mr Pele were found on the exterior of the same brown paper bag.[62]
(c)Other fingerprints found on the brown paper bag did not belong to either Mr Rodziewicz or the appellant.[63]
Mr Rodziewicz
[61] ts 178.
[62] ts 181 - 182.
[63] ts 183.
In his examination‑in‑chief, Mr Rodziewicz testified that:
(a)The $8,250 seized by police during the search of the house, which was the subject of count 3, had been withdrawn from his bank account and was not the proceeds of any illegal activities, such as illicit drug sales.[64] He had won the $8,250 gambling online.[65]
(b)The 15.5 g of methylamphetamine found in the cutlery drawer belonged to him.[66]
(c)He obtained the 15.5 g of methylamphetamine from Mr Pele.[67]
(d)He met Mr Pele once through an introduction by Mr Daniels.[68]
(e)The 386 g of methylamphetamine found in the pantry did not belong to him and he had not seen it prior to the police search on 12 October 2016.[69]
(f)He used the vacuum‑sealing machine and the vacuum‑sealer rolls to seal food and biltong.[70]
(g)He used methylamphetamine approximately once a fortnight, and he supplied or sold small quantities of the drug to friends and acquaintances.[71]
(h)The digital scales found on the kitchen bench were not his.[72]
[64] ts 191.
[65] ts 190 - 101.
[66] ts 191 - 192.
[67] ts 192.
[68] ts 192.
[69] ts 192 - 193.
[70] ts 193.
[71] ts 194.
[72] ts 194.
Counsel for the appellant did not cross‑examine Mr Rodziewicz.[73]
[73] ts 195.
Under cross‑examination by the prosecutor, Mr Rodziewicz denied that:
(a)the methylamphetamine found in the cutlery drawer had been taken from methylamphetamine contained in the brown paper bag;[74]
(b)he and the appellant were jointly withdrawing for sale methylamphetamine from the brown paper bag;[75]
(c)he and the appellant had sealed the methylampehtamine in the cryovac bags;[76]
(d)the closed‑circuit television system was located at the top of the fridge to enable him to see if anyone was approaching the property as he measured out drugs for sale;[77] and
(e)the appellant was selling methylamphetamine from the house.[78]
[74] ts 202.
[75] ts 202.
[76] ts 202.
[77] ts 204.
[78] ts 206.
Mr Rodziewicz agreed that he and the appellant were joint lessees of the house.[79]
The appellant
[79] ts 205.
In examination-in-chief the appellant testified as follows:
(a)He, Mr Rodziewicz and Mr Daniels knew each other through school and other friends.[80]
(b)He regularly bought cars with Mr Van Grootel, fixed them and then sold them.[81]
(c)On the morning of 12 October 2016, he was on his way to a car auction when he was arrested by the police. The appellant testified that he had $1,130 in his wallet for the purpose of buying a car.[82] This sum and the $3,000 the police located in his bedroom were his share of the proceeds of a Falcon XC vehicle that he and Mr Van Grootel had sold together. The appellant said that he and Mr Van Grootel withdrew $9,000 from Mr Van Grootel's bank account on 11 October 2016.[83] The appellant said that he and Mr Van Grootel divided this sum equally. The appellant said that, on his way home from the bank, he spent a little of the $4,500 he received on shopping.[84]
(d)He stated that he was not aware of the presence of the 15.5 g of methylamphetamine in the cutlery drawer or the set of scales on the kitchen bench.[85] The appellant said he had no knowledge of the methylamphetamine contained in the brown paper bag in the pantry.[86]
(e)With respect to the alleged tick list, the appellant said, in effect, that it recorded loans of money he had made to various people. The appellant explained that he had loaned money 'to lots of people over the years' who were in need.[87] The appellant explained that when the money is repaid, he receives a flat rate of $500 as 'interest' for the loan.[88]
(f)He denied that the document was in fact a tick list which recorded drug transactions. The appellant said that he had never in his life bought or sold drugs and that he did not use drugs.[89]
(g)He was directed to the entry on the alleged tick list stating, 'Dan 6,500'. The appellant testified that that figure represented a combination of personal monetary loans he had made to 'Dan'.[90] With respect to the entry of 'Brendan', the appellant was unable to remember what the money was for. He said he thought that 'Brendan' was behind on his house payments.[91]
(h)He agreed that, when police spoke to him on the morning of 12 October 2016, he untruthfully said that he did not know what the alleged tick list was.[92]
(i)He said that, when he was speaking to the police, references he made to 'my old boy' and 'my dad' were to Mr Van Grootel and not to his natural father. The appellant said that he did not have a relationship with his natural father.[93]
(j)He denied knowledge of the methylamphetamine found in the kitchen area and denied that the $4,130 discovered by the police was the proceeds of unlawful activity.[94]
[80] ts 211.
[81] ts 214 - 215.
[82] ts 215.
[83] ts 216.
[84] ts 218.
[85] ts 218 - 219.
[86] ts 219.
[87] ts 219.
[88] ts 222.
[89] ts 220.
[90] ts 221.
[91] ts 221.
[92] ts 219 - 220.
[93] ts 222 - 223.
[94] ts 223 - 224.
Counsel for Mr Rodziewicz did not cross-examine the appellant.[95]
[95] ts 223.
Under cross‑examination by the prosecutor, the appellant:
(1)denied that the cash found by the police in the appellant's bedroom drawer was the proceeds of selling drugs;[96]
(2)admitted that the handwriting on the alleged tick list was his;[97]
(3)denied that the alleged tick list recorded drug purchases on credit;
(4)said the 'Dan' referred to in the alleged tick list was a person named Daniel Hill;
(5)said that when questioned by police during the search on 12 October 2016 as to Dan's identity, he answered, 'I don't know. No comment on that one, man. I don't know what it is';[98]
(6)admitted that he told police, in the same interview, that he did not know what the alleged tick list was, denied that it was his and denied that his handwriting was on the piece of paper;[99] and
(7)agreed that he and Mr Rodziewicz were joint tenants of the house they occupied.[100]
Mr Van Grootel
[96] ts 224.
[97] ts 225.
[98] ts 226.
[99] ts 226 - 227.
[100] ts 231.
Mr Van Grootel testified that he had known the appellant since the appellant's birth.[101] Mr Van Grootel testified that he had a motor vehicle dealer's licence which he allowed the appellant to use. He said that the appellant had used the licence 'for years now' and that the appellant bought and sold cars with the licence.[102] Mr Van Grootel explained that the money 'goes through my books, but I let [the appellant] have the profit just so he has an income'.[103]
[101] ts 234.
[102] ts 224.
[103] ts 234.
Mr Van Grootel explained that, over the years, he had given the appellant approximately $20,000 or $30,000, and that he had also lent money to the appellant.[104]
[104] ts 235.
Mr Van Grootel testified that the appellant sold a vehicle and that they had made about $9,000 on the transaction.[105] He explained that he had drawn a cash cheque from one of his business accounts in that sum on 11 October 2016 and that it was cashed on that day.[106]
[105] ts 235 - 236.
[106] ts 238.
In cross‑examination by the prosecutor, Mr Van Grootel said that he had been to the bank on numerous occasions with the appellant in relation to the sale of vehicles.[107] He said that he recalled the transaction on 11 October 2016 because 'a huge amount of profit' had been made on the transaction.[108]
[107] ts 241.
[108] ts 242.
Exhibit 1: DVD of search dated 12 October 2016
We have viewed exhibit 1 with the aid of a transcript which was available to the parties at trial.
We note the following:
(1)When Detective Whelan asked the appellant if he wished to declare any large amounts of cash, the appellant told him that he thought he had 'four grand in [his] room' and some money in his wallet. The appellant said, 'I've got a receipt that I got off my old boy yesterday in the cupboard there for six grand'. The appellant went on to tell Detective Whelan that he had 'resold a car yesterday'.[109]
[109] Search ts 7.
(2)The appellant told police that they would find the cash in the top drawer of a set of drawers in his room.[110]
[110] Search ts 9.
(3)The police removed a total of $1,130 in cash from the appellant's wallet.[111]
(4)The contents of the top drawer of the set of drawers in the appellant's bedroom contained a quantity of cash which was seized.[112]
(5)At about 8.30 am, police discovered the package of methylamphetamine in the cutlery drawer. The appellant denied having seen the package before or any knowledge of it.[113] It is evident that the package was found in the top drawer of built‑in drawers in an island bench in the kitchen, underneath a cutlery tray.
(6)Detective Whelan showed the appellant a set of electronic scales concealed in a CD case on the kitchen stovetop bench. The appellant denied that the scales were his and denied operating them. He told Detective Whelan that the scales were 'always on the bench', and that he had seen and moved them, but did not know what they were.[114]
(7)At about 9.05 am, Detective Morrish located a brown paper bag in the kitchen pantry, the contents of which were removed in the presence of the appellant and Mr and Ms Daniels. Police also removed from the pantry a vacuum‑sealing machine and plastic vacuum bags.[115]
(8)At 9.54 am, police removed other items from the pantry including clipseal bags, a set of gloves, a bag of MSM, the CCTV system and a second set of electronic scales.[116]
(9)The appellant told Detective Whelan that he and Mr Rodziewicz held the lease over the house. When asked about his employment by Detective Whelan, the appellant said he had just started a business, and that he had also been 'doing work for my old boy three days a week'. The appellant said he was earning 'fuck all', about $480 per week, half of which the appellant spent on rent.[117]
(10)Sometime after 10.30 am, Detective Whelan questioned the appellant about the alleged tick list. The list itself was found in the same drawer in the appellant's bedroom as the cash. Initially, the appellant told Detective Whelan that the alleged tick list was not his.[118] A short time later he told one of the police officers that he had touched the document,[119] but denied that it was in his handwriting.[120]
The alleged tick list
[111] Search ts 11 - 12.
[112] Search ts 13.
[113] Search ts 17 - 18.
[114] Search ts 19 - 20.
[115] Search ts 32 - 34.
[116] Search ts 58.
[117] Search ts 36 - 37.
[118] Search ts 65.
[119] Search ts 67 - 68.
[120] Search ts 68.
Below is a copy of the alleged tick list found by police in the appellant's bedside table.
The trial judge's summing up
The appellant takes no issue with the trial judge's directions to the jury in his summing up.[121] In particular, the appellant takes no issue as to his Honour's directions concerning the element of possession or the proper approach to circumstantial evidence to be taken by the jury.
[121] Appeal ts 2.
The trial judge directed the jury that the real issue to be decided in respect of count 1 was whether the State had proved beyond reasonable doubt that the appellant solely or jointly possessed the 356 g of methylamphetamine found in the paper bag in the pantry, including whether the State had proved beyond reasonable doubt that the appellant had knowledge of the methylamphetamine.[122]
[122] ts 296 - 297.
The appellant's submissions in support of the ground of appeal
The appellant submitted that the three main items of evidence which implicated the appellant were:
(a)his occupation of the dwelling;
(b)the alleged tick list; and
(c)his possession of the $4,130 in cash.[123]
As a result of the appellant's acquittal on count 4, the appellant's possession of the $4,130 in cash was no longer a relevant consideration. The appellant submitted that a reasonable inference open on the remaining evidence consistent with his innocence was that Mr Rodziewicz was in exclusive possession of the drugs.[124]
[123] WAB 8.
[124] WAB 8, 16.
Counsel for the appellant acknowledged that the alleged tick list was an important piece of evidence against the appellant. Counsel submitted that the alleged tick list 'could very easily relate to some lawful activity such as loans of money or sales of legitimate goods'.[125] Accordingly, the tick list could not reasonably have assisted the prosecution case. In oral submissions, counsel for the appellant submitted that, in addition to the possibility that the tick list recorded loans of money or sales of legitimate goods, it could also merely represent a record of past drug transactions unconnected with the drugs found in the pantry.[126]
[125] WAB 16.
[126] Appeal ts 7.
Counsel for the appellant emphasised that, in relation to the methylamphetamine the subject of count 1, there was no forensic evidence which showed that the appellant physically possessed the drugs, in contrast to the DNA and fingerprint evidence which showed that Mr Rodziewicz had physical possession of the drugs.[127]
[127] Appeal ts 10.
Counsel for the appellant submitted that the presence of the common indicia of drug dealing at the house was insufficient to sustain the appellant's conviction. In particular, counsel submitted that insofar as possession involved proof of knowledge of the drugs, the facts and circumstances of his possession and occupation of the house and his property in the form of the alleged tick list were insufficient to justify a finding that he had knowledge of the drugs in the kitchen pantry.[128]
[128] Appeal ts 22 - 24.
Counsel for the appellant emphasised that, having regard to the evidence, the verdict of guilty against the appellant on count 1 was unreasonable or cannot be supported because the evidence implicating the appellant in the offence was not sufficient to exclude the reasonable possibility that Mr Rodziewicz had sole possession of the 386 g of methylamphetamine or to prove beyond reasonable doubt that the appellant jointly possessed the drugs with Mr Rodziewicz.
The State's submissions
Counsel for the State submitted that it was well open to the jury to be satisfied beyond reasonable doubt that the only reasonable inference to be drawn from the evidence was that the appellant had knowledge of and jointly possessed the drugs the subject of count 1.[129]
[129] Appeal ts 26.
With respect to the alleged tick list, counsel submitted that it was open to the jury to reject the appellant's evidence that it merely recorded legitimate loans the appellant had made to acquaintances, and to be satisfied that it was, in effect, a record of sales of illicit drugs on credit which showed that the appellant was engaged in selling drugs in substantial quantities.[130] So understood, the alleged tick list was a powerful piece of circumstantial evidence against the appellant which, combined with the other circumstantial evidence admissible against him, proved to the criminal standard that the appellant had knowledge of and jointly possessed the methylamphetamine in the pantry.[131]
[130] Appeal ts 28.
[131] Appeal ts 27 - 28.
Counsel submitted that the argument put on behalf of the appellant that the alleged tick list was a record of non‑drug‑related transactions was speculative.
Relevant legal principles
The general principles applicable to the ground that a verdict of guilty should be set aside because it is unreasonable or cannot be supported by the evidence, pursuant to s 30(3)(a) of the Criminal Appeals Act, are well settled. They were conveniently summarised in Wells v The State of Western Australia:[132]
[132] Wells v The State of Western Australia [2017] WASCA 27 [13] - [14].
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.[133]
The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in The Queen v Baden‑Clay[134] as follows:
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[133] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 - 495; Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439, 450; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [13]; The State of Western Australia v Olive [2011] WASCA 25 [39] - [43]; Dean v Legal Practice Board [2016] WASCA 63 [130]; R v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 [65] ‑ [66].
[134] R v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 [46] ‑ [47].
Disposition
The decisive question for the jury to decide was whether the State had proved beyond reasonable doubt that the appellant solely or jointly possessed the methylamphetamine found in the pantry of the house.
Section 3(1) of the MDA provides that, in the Act, unless the contrary intention appears, 'to possess' includes 'to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb "to possess" have correlative meanings'.
Where an accused is charged, as a principal offender under s 7(a) of the Code, with possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA, and putting to one side for the moment the issue of the knowledge of the accused, the State must prove beyond reasonable doubt that:
(a)the accused had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;
(b)at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) of the MDA;
(c)the substance or thing was, in fact, a 'prohibited drug' as defined in s 3(1) read with s 4 of the MDA; and
(d)(unless the presumption in s 11(a) of the MDA applies), the accused intended to sell or supply to another at least some of the substance or thing.
As to the issue of the knowledge of the accused, the State must prove beyond reasonable doubt that:
(a)the accused had at least an awareness of or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing; and
(b)the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was, in fact, 'a drug' within the ordinary and natural meaning of that term.
See Sgarlata v The State of Western Australia;[135] La Bianca v The State of Western Australia.[136]
[135] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [181] ‑ [182], [192], [202], [211].
[136] La Bianca v The State of Western Australia [2019] WASCA 105 [28].
Possession of a prohibited drug, for the purposes of s 6(1)(a) of the MDA, need not be solely by or exclusive to one accused. Two or more accused can jointly possess a prohibited drug at the same time, even though only one accused has the drug in his or her actual physical possession at the relevant time. Also, two or more accused can jointly possess a prohibited drug at the same time even though none of the accused has actual physical possession of the drug at the relevant time.
Much of the evidence adduced at trial was undisputed, including the following:
(1)The appellant and Mr Rodziewicz had lived in the house for about a year.[137]
[137] Appeal ts 2.
(2)The appellant and Mr Rodziewicz were joint lessees of the house.[138]
(3)The appellant and Mr Rodziewicz had known each other since their schooldays.[139]
(4)Present in plain view in the kitchen area of the house were a number of the common indicia of drug dealing, including a vacuum‑sealing machine, vacuum‑sealing rolls, clipseal bags, FMSN electronic scales and the monitor which was linked to the CCTV system installed at the premises.[140]
(5)The methylamphetamine the subject of count 1 was in a number of clipseal bags which were contained in a paper bag in the pantry. While the paper bag was not in plain view, it was by no means hidden and could be easily accessed by anyone in the pantry.[141]
(6)While there was forensic evidence which linked Mr Rodziewicz (and others) to the brown paper bag, there was no forensic evidence which linked the appellant to the bag or its contents.
(7)The police found the alleged tick list in the appellant's bedroom on his bedside table. The entries were in the appellant's handwriting, and the figures recorded on it referred to money.[142]
(8)In or around October 2016, the price of methylamphetamine for 0.1 g varied between $50 and $100, 1 g sold for between $300 and $400, 3.5 g sold for between $800 and $1,000, and 1 oz of methylamphetamine sold for between $4,500 and $6,000. Tick lists, which show amounts owed for drug sales conducted on credit, are one of the common indicia of drug dealing, along with such things as electronic scales, vacuum‑sealing equipment, CCTV surveillance systems and cash.
(9)The police found the appellant in possession of $4,130 in cash.
(10)The alleged tick list was consistent with documents often found in the possession of drug dealers as records of moneys owed for drug sales.
(11)The appellant lied to police during the video‑recorded search of the house when he denied knowledge of the alleged tick list, denied that it was his document and denied that his handwriting was on the piece of paper.
[138] Appeal ts 30.
[139] Appeal ts 3.
[140] Appeal ts 3.
[141] Appeal ts 3.
[142] Appeal ts 15.
The question of whether the alleged tick list in fact recorded drug sales conducted by the appellant on credit was an important factual issue for the jury to determine. The question was not left to the jury on the basis that it was an indispensable link in the prosecution case, nor was it argued by the appellant that it should have been left to the jury on this basis.[143] Notwithstanding, it was a plainly important point. As counsel for the appellant conceded in this court, if it was open to the jury to be satisfied that the document was in fact a tick list recording drug transactions on credit, the appellant's ground of appeal would be significantly weakened.[144]
[143] Appeal ts 17.
[144] Appeal ts 7.
The alleged tick list sets out a number of names and figures. As we earlier observed, it is accepted that the figures refer to money. Given the evidence of Detective Morrish as to the price of methylamphetamine in or about October 2016, the figures approximate the price of methylamphetamine in varying quantities of up to approximately 2 oz for the entry designated 'Brendon', 0.5 oz for the entry designated 'Casey', approximately 0.5 oz for the entry designated 'Warick' and quantities up to approximately 1 oz for the entry designated 'Dan'.
At trial, the appellant testified to the effect that the sums of money set out in the alleged tick list related to legitimate cash loans the appellant gave to 'people in need'. The appellant testified that he provided the loans on a no interest basis, but charged a flat fee for each loan of $500. He said that the loans had no term and that the person to whom the money was advanced could repay it 'when they can'.[145] Such arrangements are objectively both unusual and unlikely.
[145] ts 222.
Under cross‑examination, the appellant was unable to explain how he kept track of moneys that were repaid to him.[146] In examination‑in‑chief, he conceded that he lied to the police when he said that he did not know what the alleged tick list was and claimed that it was not his. While the State's case was not that these were Edwards lies,[147] that is, lies told out of consciousness of guilt, they were plainly capable of adversely affecting the credibility of the appellant's sworn testimony. The implausibility of the appellant's testimony regarding the loan arrangement and the lies the appellant admittedly told to the police, which were capable of adversely affecting the credit of his sworn testimony, lead us to the conclusion that it was well open to the jury to reject the appellant's claims made under oath that the alleged tick list was a record of legitimate loans given to friends in need.
[146] ts 225.
[147] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
In this court, although not at first instance, it was suggested that the entries on the alleged tick list recorded car sales conducted by the appellant.
While it is true that evidence was adduced at trial to the effect that the appellant, from time to time, sold cars using Mr Van Grootel's motor dealer's licence, the appellant did not give evidence that the amounts on the tick list related in any way to car sales.[148] Given that the appellant sought to explain the $4,130 in cash the subject of count 4 in this way, it may well be inferred that, if the alleged tick list referred to car sales, the appellant would have said so at first instance. The suggestion that the tick list was a record of car sales is completely unsupported by the evidence and is no more than speculation.
[148] Appeal ts 25 - 26.
In our opinion, it was well open to the jury, on the evidence, to conclude that the alleged tick list was a record of drug transactions relating to significant quantities of illicit drugs conducted by the appellant on credit.
As we have already pointed out, at trial, the State's circumstantial case against the appellant relied, in part, upon the appellant's possession of $4,130 in cash. The possession of this sum was the subject of count 4, which was the subject of a verdict of not guilty. The appellant is entitled to the full effect of this verdict. We have had no regard to the appellant's possession of the $4,130 in cash in deciding whether the ground of appeal has been made out. Although the point was not argued by the appellant, there is no inconsistency between the jury's acquittal on count 4 and its conviction on count 1. The verdicts may easily be reconciled. The appellant's evidence concerning the source of the $4,130 in cash was, in large measure, confirmed by the virtually unchallenged evidence of Mr Van Grootel referred to earlier in these reasons.
We now turn to the evidence of the appellant and Mr Rodziewicz. Each denied, on oath, that he had any knowledge of the methylamphetamine found in the pantry. They did not run a 'cut‑throat' defence. Counsel for the appellant observed that the case against Mr Rodziewicz was very strong and was certainly stronger than the State's case against his client.[149] This much may be accepted. The case against Mr Rodziewicz was stronger than the case against the appellant, having regard to Mr Rodziewicz' admission that he possessed the 15.5 g of methylamphetamine found in the kitchen drawer and the forensic evidence which directly linked him to the brown paper bag in which the methylamphetamine the subject of count 1 was stored. Counsel for the appellant submitted that this strengthened the hypothesis that the drugs the subject of count 1 were solely possessed by Mr Rodziewicz.[150]
[149] Appeal ts 2.
[150] Appeal ts 2.
We do not accept this submission. While the case against Mr Rodziewicz was stronger than the case against the appellant on the question of possession, this does not reasonably or logically lead to a conclusion that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant had actual knowledge that the methylamphetamine was in the pantry and that the appellant and Mr Rodziewicz had joint control of the drugs or joint dominion over the drugs. A jury acting reasonably was entitled to be satisfied beyond reasonable doubt that the appellant and Mr Rodziewicz were in joint possession of the methylamphetamine in the pantry, albeit that the case against Mr Rodziewicz was stronger than the case against the appellant.
In our opinion, the case against the appellant on count 1 was compelling, having regard to the combination of the following facts and circumstances.
The appellant and Mr Rodziewicz were friends of long standing, they had joint legal possession of the house under a lease, and had lived at the house for about a year. The presence of some of the common indicia of drug dealing, namely the vacuum‑sealing machine, the vacuum‑seal roll, the clipseal bags, the digital scales and the CCTV in the kitchen, a communal area of the house under their effective control as lessees, indicated that drug dealing was being openly conducted in the house. The drugs the subject of count 1 were found in the pantry, another communal area of the house. From these facts, and from the matters referred to in [80] ‑ [81] below, it was open to the jury to infer that the appellant (and not just Mr Rodziewicz) had knowledge of the drugs in the pantry. Of course, knowledge of the presence of the drugs in the pantry is a necessary but not, by itself, a sufficient factor to establish the appellant's guilt.
The jury were entitled to find that the alleged tick list in the appellant's handwriting found on his bedside table was his document, and that it showed that he personally had been dealing in drugs in substantial quantities up to 2 oz. The jury, who had the advantage of seeing and hearing the appellant give evidence, by its verdict, plainly rejected the appellant's denial that he had knowledge of the drugs the subject of count 1. They were entitled to do so, having regard to the lies he told the police and his implausible explanation of the entries on the alleged tick list. Having done so, the jury would have put to one side the appellant's denial and his exculpatory statements in relation to the alleged tick list.
Counsel for the appellant submitted that even if the alleged tick list related to drug transactions conducted personally by the appellant, the transactions were only evidence of past drug dealing and did not establish any connection with the drugs in the pantry.[151] This submission cannot be accepted. It is contrary to the appellant's evidence. Moreover, tick lists are not merely a record of past transactions. They are a record of sums outstanding and show a present and ongoing connection with drug dealing.
[151] Appeal ts 7.
In the circumstances referred to in the three preceding paragraphs, it was also open to the jury to infer beyond reasonable doubt that (1) the drugs in the pantry were in fact under the control or dominion of the appellant, jointly with Mr Rodziewicz, (2) that the appellant had an intention to control or exercise dominion over the drugs in the pantry, and (3) that the appellant intended to sell or supply the drugs or some part of them. There was no dispute that the drugs in the pantry were a 'prohibited drug' as defined in s 3(1) of the MDA read with s 4 of the MDA.
In our opinion, having regard to all the evidence, it was well open to the jury to be satisfied that the only reasonable inference to be drawn from the facts was that the appellant had knowledge of the methylamphetamine found in the pantry and that he was in joint possession of it. It was open to the jury to be satisfied that no other reasonable inference consistent with the appellant's innocence was open on the evidence and, in particular, that Mr Rodziewicz solely possessed the drugs. The trial record does not require the conclusion that the jury must have entertained a reasonable doubt about the appellant's guilt. The verdict of guilty was not unreasonable. It was supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. It would not be dangerous, in the circumstances, to permit the verdict of guilty to stand. There is no reasonable possibility that the appellant was innocent of the offence for which he was convicted. The ground of appeal has not been made out. The appeal must be dismissed.
Orders
The orders that we would make are as follows:
(1)Leave to appeal is granted.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
26 AUGUST 2020
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