Finch v R

[2016] NSWCCA 133

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Finch v R [2016] NSWCCA 133

Hearing dates:

2 May 2016

Date of orders:

13 July 2016

Decision date:

13 July 2016

Before:

Payne JA at [1]; McCallum J at [235]; Davies J at [236]

Decision:

1) Leave to appeal granted on Grounds 1-10 under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW);

 

2) Leave to appeal refused on Grounds 1, 2, 3, 4 and 5 under r 4 of the Criminal Appeal Rules;

 

3) Grounds 6-10 of the Notice of Appeal dismissed;

 

4) Within 14 days the parties exchange with one another and file written submissions of no greater length than 10 pages each with the Registrar of the Court of Criminal Appeal on the subject of whether:

 

a) having regard to these reasons, leave should be granted to amend the notice of appeal to include Proposed Ground 11; and

 b) if leave under paragraph 4(a) of these orders were granted, what orders the Court should make and whether it would be necessary or desirable to receive any further evidence or to conduct any further oral hearing of the matter.

Catchwords:

CRIMINAL LAW – appeal – conviction – deemed supply of prohibited drugs pursuant to s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) – whether evidence concerning drugs not the subject of the charges should have been admitted – whether evidence of police officer as to method of consumption of LSD in cardboard form should have been admitted – whether misdirection that the cardboard and liquid containing LSD should be included in the overall weight of the LSD pursuant to s 4 of the Act – whether primary judge erred in failing to direct the jury to determine whether appellant was in possession of drugs found in different locations or packages separately – whether primary judge erred in not leaving to the jury alternative charges – whether appellant was unable to receive a fair trial without Crown witness and informant being called to give evidence – whether verdict unreasonable or unsupported by the evidence – whether defence counsel at trial incompetent – forensic decisions of counsel

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Appeal Rules (NSW), r 4
Criminal Code (Cth), s 312.1
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 25, 29, Schedule 1
Evidence Act 1995 (NSW), ss 55, 78, 79, 137, 144

Cases Cited:

Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
Alkhair v R [2016] NSWCCA 4
Alliston v R [2011] NSWCCA 281; 217 A Crim R 323
Director of Public Prosecutions v Brooks [1974] AC 862
Dyers v The Queen [2002] HCA 45; 210 CLR 285
Finch v R [2014] NSWCCA 278
He Kaw Teh v R (1985) 157 CLR 523
James v The Queen [2014] HCA 6; 253 CLR 475
Krishna v DPP [2007] NSWCCA 318; 178 A Crim R 220
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Morris v The Queen (1987) 163 CLR 454
Pratten v R [2014] NSWCCA 117
R v Apostilides [1984] HCA 38; 154 CLR 563
R v Birks (1990) 19 NSWLR 677
R v Carey (1990) 20 NSWLR 292
R v Dunn (1986) 32 A Crim R 203
R v Lau (1998) 105 A Crim R 167
R v R2 (1990) 19 NSWLR 513
R v SH [2014] NSWCCA 218; 88 NSWLR 1
Rasic v R [2009] NSWCCA 202
RWB v R [2010] NSWCCA 147; 202 A Crim R 209
Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132
SKA v The Queen [2011] HCA 13; 243 CLR 400
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Whitehorn v The Queen [1983] HCA 42; 152 CLR 657

Category:

Principal judgment

Parties:

Appellant: Stephen John Finch
Respondent: Regina

Representation:

Counsel:
Appellant: Self represented
Crown: V Lydiard

  Solicitors:
Appellant: Self represented
Crown: Solicitor for Public Prosecutions

File Number(s):

2010/291599

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 February 2013

Before:

Berman SC DCJ

File Number(s):

2010/291599

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was convicted on the following counts:

(1) supply of not less than a large commercial quantity of a prohibited drug, namely lysergide (LSD), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act); and

(2) supply of a prohibited drug, namely methylamphetamine, contrary to s 25(1) of the DMT Act.

The LSD was found in both cardboard and liquid form.

The appellant appealed his conviction. His grounds of appeal raised the following issues:

(1) whether evidence concerning cannabis found at the appellant’s premises should have been admitted in circumstances where the appellant was not charged with a cannabis offence (Ground 1);

(2) whether evidence of a police officer as to the method of consumption of LSD in cardboard form should have been admitted (Ground 2);

(3) whether the trial judge erred in directing the jury that the liquid and cardboard containing LSD should be included in the overall weight of the LSD pursuant to s 4 of the DMT Act (Admixtures) (Ground 3);

(4) whether the primary judge erred in failing to direct the jury to determine whether the appellant was in possession of drugs found in different packages separately (Grounds 4 and 5);

(5) whether the primary judge erred in not leaving to the jury alternative charges of “commercial quantity” or “supply simpliciter” (Grounds 7 and 8);

(6) whether the appellant was unable to receive a fair trial without a Crown witness and informant being called to give evidence (Ground 9); and

(7) whether the verdict was unreasonable or unsupported by the evidence (Grounds 6 and 10).

Held (Payne JA, McCallum and Davies JJ agreeing):

(1) The evidence concerning cannabis was admitted without objection as part of a forensic strategy pursued by trial counsel, which strategy was objectively open to him: [101].

(2) Trial counsel did not object to the police officer’s evidence: [109]. Even if counsel had objected, the appellant would still have faced conviction on the same charge for the large commercial quantity of LSD represented by the liquid form of the drug: [112].

(3) LSD diluted in liquid clearly falls within s 4 of the DMT Act: [127]-[132]. In circumstances where the police officer’s evidence (that cardboard impregnated with LSD is ingested) was admitted, the cardboard also falls within s 4 of the DMT Act: [133]-[144].

R v R2 (1990) 19 NSWLR 513; R v SH [2014] NSWCCA 218; 88 NSWLR 1; Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132.

(4) No misdirection occurred because neither of the relevant packages contained less than a large commercial quantity of prohibited drugs. The ground of appeal was based upon an incorrect factual premise: [155]-[157].

Alliston v R [2011] NSWCCA 281; 217 A Crim R 323.

(5) The primary judge was correct not to leave alternative charges to the jury in circumstances where a) there was no individual package of LSD weighing less than the large commercial quantity: [163]; and b) the charge of supply simpliciter did not reflect the real issues in the case or the way the case was conducted and would jeopardise the appellant’s chances of acquittal: [164]-[172].

James v The Queen [2014] HCA 6; 253 CLR 475.

(6) Trial counsel embraced the forensic advantages flowing from the informant’s absence. That course was objectively open to him: [191]-[199].

Dyers v The Queen [2002] HCA 45; 210 CLR 285; Pratten v R [2014] NSWCCA 117.

(7) Having regard to all the evidence, the verdict was not unreasonable or not supported by the evidence: [205]-[227].

M v The Queen (1994) 181 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400; TKWJ v The Queen [2002] HCA 46; 212 CLR 124.

Judgment

1. PAYNE JA: On 4 February 2013 Mr Finch was arraigned in the District Court at Newcastle on an indictment containing the following three counts:

1. supply of not less than a large commercial quantity of a prohibited drug, namely lysergide (LSD), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act);

2. supply of a prohibited drug, namely methylamphetamine, contrary to s 25(1) of the DMT Act; and

3. supply of a prohibited drug, namely amphetamine, contrary to s 25(1) of the DMT Act.

2. Although questions of leave under s 5 of the Criminal Appeal Act 1912 (NSW) and Rule 4 of the Criminal Appeal Rules arise in this case Mr Finch will be referred to in these reasons as “the appellant”.

3. The appellant pleaded not guilty in respect of all three charges. His case in respect of the methylamphetamine and the LSD was that the drugs belonged to a person referred to in the evidence as “CJ” and he always intended to return the drugs to CJ.

4. Pseudonym orders and orders relating to the identity of CJ were made by the primary judge as follows:

1. the true identity of the Crown witness is to be permanently supressed pursuant to s 7 of the Court Suppression and Non-Publication Orders Act2010 (NSW), together with any evidence, submission, discussion, document or information that might facilitate identification of the true identity of the witness; and

2. the publication of the true identity of the Crown witness is to be permanently restricted pursuant to s 7 of the same Act to the pseudonym “CJ”.

5. No application was made to vary or discharge those orders on this appeal.

6. In relation to the LSD, the appellant denied that he knowingly possessed the drug, but admitted that he was aware that he possessed the relevant quantity of methylamphetamine. In relation to both the LSD and methylamphetamine counts, the central plank of the appellant’s case centred upon the “Carey” defence – a reference to R v Carey (1990) 20 NSWLR 292.

7. A summary of the Carey defence was provided in Alliston v R [2011] NSWCCA 281; 217 A Crim R 323 at [19] and [28] (per McClellan CJ at CL):

The decision of this Court in Carey concerned the circumstance where a person has drugs under their physical control but always intends to return them to the owner or the person reasonably believed to be the owner. If the accused establishes the necessary intention an offence contrary to s 25 cannot be established. In these circumstances the accused will not have the relevant drug(s) in "his or her possession for supply". Supply as defined in s 29 of the Act does not "include the mere return of the drugs to their owner or to the person reasonably believed to be the owner" (Hunt J at p 294).

...

Before a "Carey defence" can be sustained, it is necessary for the party raising it to demonstrate that the evidence is capable of proving that the accused's possession of the drugs was merely momentary or transient and that the accused intended to return the drugs to their owner (R v EAS (unreported) NSWCCA 26 July 1990; R v Tuckey (1991) 57 A Crim R 468; R v Frazer [2002] NSWCCA 59). Analogies have in the past been drawn to the concept of bailment (R v Blair [2005] NSWCCA 78).

8. The fact that prohibited drugs were located by the police at the appellant’s premises on 1 September 2010 was uncontroversial at trial:

1. so far as the methylamphetamine was concerned, the appellant accepted that he was in possession of the methylamphetamine and the only issue was whether he had persuaded the jury on the balance of probabilities (pursuant to Carey) that the drugs were within his control simply for the purpose of returning them to the true owner, CJ. Specifically, the appellant accepted in relation to the methylamphetamine that he “suspected that the same was prohibited drugs”;

2. so far as the LSD was concerned, it was the appellant’s case that the drugs were physically within his house and that the third party, CJ, had provided the drugs to him. However, the appellant did not know that what he had been given was a prohibited drug, and he intended to return the items in which the LSD was contained to CJ within a short period of time.

9. In relation to the methylamphetamine count, the appellant was found guilty and sentenced to imprisonment for a fixed term of two years dating from 25 November 2012.

10. In relation to the LSD count, the appellant was found guilty and sentenced to imprisonment for eight years with a non-parole period of five years dating from 25 November 2013.

11. In relation to the third count (amphetamine), the appellant was found not guilty on the basis that he had been prescribed the drug.

12. The sentence imposed, in total, was nine years with a non-parole period of six years.

13. On 24 November 2014 an appeal on sentence brought by the appellant was dismissed by a Court comprising R A Hulme J (Simpson and Adams JJ agreeing): Finch v R [2014] NSWCCA 278.

14. Mr Finch now appeals against his conviction. No submission was made by the Crown that this earlier exercise of appellate rights in 2014 affected the appellant’s rights in relation to this conviction appeal.

The evidence at the trial

15. As the appellant seeks to set aside the guilty verdict on counts one and two in the indictment as unreasonable or not supported having regard to the evidence, the Court is required, upon the whole of the evidence, to form a view about whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: SKA v The Queen [2011] HCA 13; 243 CLR 400.

16. Accordingly, the relevant facts are set out in much greater detail than would otherwise have been the case in order that ultimately, the Court’s independent assessment of the evidence, both as to its sufficiency and its quality, can properly be understood.

The search of Mr Finch’s property

17. On 1 September 2010 a number of police officers executed a search warrant at the appellant’s home in Pindimar. The officers present were Detective Sergeant Wheatley, Senior Constable Smith, Sergeant Farmer, Detective Hopkins, Senior Constable Woods and Constable Coyle.

18. The police found a number of prohibited drugs in the course of the search. Those items were analysed and, although the analyst’s certificate was not in evidence, DS Wheatley was allowed to give evidence as to its contents without objection. The Crown summarised this evidence in a table tendered by consent as Exhibit 27. It is convenient to reproduce the table here:

Location number	Location	Description of item	Nature of drug	Weight of drug
1	Office table – one white and green plastic container containing bags	11 bags	Cannabis leaf	22.4 g
2	Behind book shelf	Plastic container containing pinkish crystal substance	Methylamphetamine	18.6 g
3	Backpack	Glad snap bag containing four sheets of perforated cardboard within white envelope	LSD	7.9 g
“	42 white tablets in bottle with name “Stephen Finch”	Contained amphetamine	8.46 g
4	Drawer in coffee table	Canon lens case	Cannabis leaf	0.5 g
“	Film canister containing two small resealable bags, one of which with pink crystal substance	Methylamphetamine	1.26 g
“	Film canister	Cannabis leaf	1.7 g
“	Plastic resealable bag	Cannabis leaf	3.1 g
“	Extra Mints tin containing four small resealable bags, two of cannabis resin and one with single tab	- Cannabis resin; and - One LSD tab	N/a
“	Piece of cellophane	Cannabis leaf	0.8 g
5	Bulla Creamy Classic ice cream container in laundry	Container with three resealable bags containing white tablets and two small plastic ampoules	- Methyl-amphetamine (tablets); and - LSD	- 47 g - 3.5 g
“	Glad bag containing sheets of perforated cardboard	LSD	26.5 g
“	Simpsons tin containing a number of clear plastic bags with tabs therein	LSD	5.78 g
“	Two plastic bags each containing ampoules	LSD	63.6 g
“	Yellow container with white tablets in clear plastic bags	Methylamphetamine	52.8 g
“	Pink crystalline substance within clear plastic container	Methylamphetamine	19.2 g
6	Bedroom bedside table	Clear container	Methylamphetamine (residue)	0.37 g
“	Plastic bag	Cannabis	11.2 g

19. The execution of the search warrant was videotaped by the police. On that videotape the police recorded the various locations where it was alleged that various prohibited drugs were found on the premises (as set out in Exhibit 27 reproduced above). The police recorded the questions that the appellant was asked about those things and recorded the answers that he gave. An edited version of that video recording was played to the jury at the trial. That evidence is summarised below.

Items found at Location 1 - Office table

20. At the start of the search SC Smith asked the appellant whether there was anything in the house that he wished to declare. The appellant first replied “No” but subsequently admitted that there was marijuana in a small green container. He said he owned the container, which was located in the office table. The container contained 22.4 g of cannabis.

Items found at Location 2 - behind bookshelf

21. Police found a container behind the bookshelf containing 18.6 g of methylamphetamine.

22. The appellant gave evidence at the trial that the container was one of the items which belonged to CJ, who had brought it with him on the night of 31 August 2010 to the appellant’s house.

23. During the search, the appellant told the police that the container contained amphetamine, but that he did not know who owned it. He said he knew someone who had left it there, and that he thought it was left there by accident. Later during the search, he said that the methylamphetamine belonged to CJ.

24. At the trial, the appellant said he knew or presumed that the substance in the container was “speed” because it was the same substance that CJ had offered him a few weeks prior. The appellant said he agreed to take the container (and the envelope found in the backpack which is discussed below) from CJ on the night of 31 August 2010 in order to get CJ to leave his home.

25. The appellant said that CJ had asked him to take the container (together with the envelope) to Ayres Rock Roadhouse at 2.30 pm the following day (earlier in the day of the execution of the search warrant). The Ayres Rock Roadhouse was a 10 minute drive from the appellant’s home. The arrangement was that CJ would call the appellant when he was 20 minutes away. A man named Scott Oakley, who was also present at the appellant’s home that night, gave evidence at the trial to the same effect. The appellant said CJ “wore me down”, and he agreed to the arrangement in order to get CJ to leave his home.

26. The appellant said that he never delivered the container (or the envelope) to the Ayres Rock Roadhouse because he never received the call from CJ.

27. The container was sitting on the appellant’s coffee table when the police arrived. The appellant heard the police arrive. He also had security cameras at his home and saw the police on a security monitor in his office. He ran and “tried to hide the container, what I thought was speed, behind a bookcase”. He said he did this because “it was a bad look”.

28. The methylamphetamine was contained in a small plastic container. Two other identical containers were found in other places in the appellant’s home, also containing methylamphetamine.

29. At the trial, the appellant was cross examined about the presence of the identical containers throughout his house. He described the containers as salad dressing containers. He said he had purchased those kinds of containers in packets of eight. However, he denied that the containers containing methylamphetamine belonged to him. He said that the containers were common and he could “see those containers everywhere ... They sell them at every Coles, every Bi-Lo”.

Items found at Location 3 – a Backpack

30. During the search, the appellant said that he thought the backpack belonged to him. He said he had lent it to CJ, who brought it with him on the night of 31 August 2010. When asked at the trial whether he knew the contents of the backpack the appellant said “half-half”.

31. The backpack contained four sheets of perforated cardboard in a white envelope. The cardboard weighed 7.9 g and was impregnated with LSD. During the search the appellant said that the cardboard was “some pictures”. It was put to him that the perforated cardboard contained LSD and the appellant said, “Maybe”.

30. The appellant and Mr Oakley both gave evidence at the trial that the envelope was sitting on the coffee table when they returned to the appellant’s office after leaving CJ alone for 15 minutes. Like the container of methylamphetamine, CJ had asked the appellant to deliver the envelope to the Ayres Rock Roadhouse at 2.30 pm the following day.

31. At the trial, the appellant said he was unfamiliar with LSD but that CJ had given him a piece of cardboard six months before. On that occasion the appellant did not try the cardboard, and forgot about it. The appellant did not recognise the cardboard in the white envelope to be the same as the cardboard CJ had given him before, because it was a different colour. He said he did not think about what might have been contained in the envelope because he was happy that CJ would not be coming back to his house. The appellant gave evidence that he had put the envelope into the backpack.

32. The backpack also contained two containers of pills. One of the containers had the appellant’s name on it. It contained 8.46 g of amphetamine. DS Wheatley said that the analysis indicated that the pills were dextroamphetamine. The defence tendered a prescription in the appellant’s name for dextroamphetamine, as well as a medical report which indicated that the appellant had, in the past, been prescribed dextroamphetamine for attention deficit hyperactivity disorder. This was the subject of the third count on the indictment, upon which the appellant was acquitted. The appellant also gave evidence that there was a container of Valium in the backpack, and that the Valium belonged to him.

Items found at Location 4 - Coffee table drawer

35. The police found a film canister in a drawer in the appellant’s coffee table. It contained 1.7 g of cannabis. The appellant said he did not know it was there and that he was “not really sure” what it was.

36. The police also found an Extra Mints tin in the drawer. The tin contained cannabis resin and one cardboard tab containing LSD. The appellant identified the cannabis resin as “hash” but did not identify the single LSD tab. When asked “Would that be LSD” the appellant said “I think so ... I’m not quite sure where that came from”. He also said he was not aware of the contents of the tin. The appellant gave evidence that the tin had been in his coffee table drawer for approximately three months.

Items found at Location 5 - Ice cream container in laundry

37. Police searched the appellant’s laundry and found a Bulla ice cream container which contained a number of other items.

38. At the trial, the appellant gave evidence that CJ had arrived at his house on the evening of 31 August 2010 and emptied the contents of a cardboard box onto the coffee table in the office. The appellant said that he observed various bags and containers on the table, including a bag of what looked like foreign currency, pills that he thought contained ecstasy, small resealable bags known as “deal bags”, and straws. Mr Oakley gave evidence that the items on the table were “a handful of containers” and “a couple of sandwich bags”.

39. The appellant described CJ’s cardboard box as “ratty tatty”. Mr Oakley also said that CJ complained that his box was damaged. The appellant gave evidence that CJ asked him for a container that he could put the items into.

40. The appellant told CJ to take one of his ice cream containers. He said the containers usually contained audio fittings which he used for his business. The appellant was an audio technician. Mr Oakley gave evidence that the appellant told CJ to take “one of the ice cream containers that the speaker bits and pieces are in”.

41. The appellant gave evidence that CJ asked if he could hide the container in the appellant’s home. Mr Oakley said that CJ said “I can’t take this with me. I can’t go home. They’re looking for me”.

42. After initially refusing, the appellant consented to CJ hiding the container “out the back somewhere, preferably well over the back fence”. CJ agreed to return at some point in the future to pick it up. Mr Oakley’s evidence was that CJ asked to “leave some stuff with” the appellant, and that the appellant “wasn’t happy about that”.

43. The appellant said he did not know that CJ had left the ice cream container in the laundry. He did not ask CJ where he left the ice cream container.

44. The appellant said that the contents of the ice cream container belonged to CJ, and that he did not know for a fact what anything in the container was. It was put to the appellant that the fact that he had asked CJ to hide the container was an indication of what he thought was inside it. The appellant said “nothing would have surprised me”. He was asked whether he had any suspicions about what the container was likely to contain. He said:

I had seen CJ with things and he offered me different things over the course of time that I knew him, but I’d never seen anything in amounts that big before.

45. In the ice cream container a smaller white container containing three resealable bags and two ampoules was found. During the search, the appellant told police that he did not know the ice cream container was there, but that he could tell what was in it.

46. Two of the resealable bags contained tablets and one contained powder or crushed tablets. Together these bags contained 47 g of methylamphetamine.

47. During the search, the appellant first told police that he did not know what was in the bags. He then told police “That would be some ecstasy pills” and that he thought the powder was crushed ecstasy pills.

48. At the trial, the appellant gave evidence that the pills belonged to CJ. He said that after CJ had tipped the contents of the cardboard box onto the table he had observed what he thought were ecstasy pills.

49. The white container found within the ice cream container also contained two ampoules. The liquid in the ampoules, including the LSD, weighed 3.5 g. The appellant said that he thought the ampoules contained mouthwash.

50. The ice cream container also contained a transparent plastic bag containing sheets of perforated cardboard impregnated with LSD. The cardboard, including the LSD, weighed 26.5 g. The appellant’s left thumbprint was found to be on that plastic bag. The appellant gave evidence at the trial that CJ had brought the plastic bag to his house. The appellant thought the bag contained foreign currency, and he picked it up to feel its thickness and look at it more closely.

51. DS Wheatley gave evidence that the street value of all the cardboard LSD tabs found at the appellant’s home, being 4,870 tabs (the majority of which were found in the ice cream container), was roughly $73,000.

52. The ice cream container also contained ampoules in two transparent plastic bags. The ampoules contained 63.6 g of liquid which included LSD. The weight of the ampoules was excluded from the calculation of the weight of the liquid.

53. The appellant gave evidence at the trial that the ampoules appeared to be mouthwash, and he did not know what was really inside them. He first said that he did not actually see those ampoules (that is, the ones in the transparent plastic bags) when CJ tipped the contents of the cardboard box onto the table, but that they “could have been underneath”. He later gave evidence that he definitely saw a few of the ampoules.

54. The police also found a white straw, with a red line down the middle, in the ice cream container. The straw was similar to a straw that was found in the backpack. The appellant gave evidence that “back in my early trucking driving days when I was in that industry, [I had] seen people using similar things to snort powders”.

55. The police also found in the ice cream container the business card of Matthew Bain, an acoustics technician who was a business acquaintance of the appellant.

Items found at Location 6 - Bedroom

56. The police searched the appellant’s bedroom and found 0.37 g of methylamphetamine and 11.2 g of cannabis. The appellant said that the methylamphetamine was a gift from CJ prior to the night of 31 August 2010.

57. Police also found a note on which the following was written: “Hey Finchey, called into your place B4 I picked boys up at FOOTY. I saw Andy, needed $30 for fuel and food. I’ll pay $200 Thursday. Thanks, XO”.

Other Items located in the search

58. Police found a number of pieces of paper and notebooks in the appellant’s office during the search. Names and numbers were written on these papers. On one of the pieces of paper was written “1 g”. On another was written “1/8 ball”. DS Wheatley said that the term “eight ball” was an expression he had come across when investigating drug matters, and that it signified one-eighth of an ounce of a substance.

59. The appellant gave evidence that the papers referred to hours worked or quotes that he had given. He denied that any of the entries or documents related to the sale of any drug referred to in the indictment. He said that the reference to a “1/8 ball” was a reference to an eight ball of speed he had purchased from CJ, and that he owed CJ for it.

60. The police also searched the appellant’s roof and found a small set of scales and a number of clear plastic resealable bags. The appellant said that he was not aware that the scales or the bags were in the roof. He could not say whether he had put them there or not.

The evidence concerning “CJ” and the events leading up to the search

61. It is convenient now to summarise the evidence given, principally by the appellant and corroborated by Mr Oakley, concerning CJ and the events leading to the search on 1 September 2010.

62. CJ was an acquaintance of the appellant’s. On 27 August 2010 CJ was charged with drug offences after police found cannabis plants and dried cannabis on his premises. He was taken into custody but granted bail. After the date of the search but before the date of the appellant’s trial, he was convicted.

63. On 1 September 2010 (the day the police executed a search warrant upon the appellant’s property) CJ was on bail. He attended a police station and provided police with information about the appellant. DS Wheatley agreed that as a consequence of information provided to the police by CJ the police went to the accused’s premises on 1 September 2010. The jury was told that at CJ’s sentencing the police provided what is colloquially described as a letter of comfort which resulted in CJ receiving a discount on sentence, according to the magistrate, of some 45 to 50 per cent of what he would have otherwise received.

64. CJ was not mentioned in the original police brief served on the accused. DS Wheatley said the first party to “publicly” mention CJ’s name was the defence.

65. CJ provided a statement to police dated 1 September 2010. That statement was made available to the defence. In that statement CJ said that the cannabis that was found on his property belonged to the appellant; that the appellant had sold CJ cannabis; that the appellant had “ice”, ecstasy and LSD on his premises; that some of these drugs were hidden; and that the appellant had a firearm for use in his “drug business”. CJ made a subsequent statement dated 8 June 2012 in which he denied that the prohibited drugs found at the appellant’s house belonged to him. That statement was also made available to the defence.

66. A subpoena to attend to give evidence was issued requiring CJ to give evidence at the trial. SC Smith gave evidence that he made four attempts to serve CJ with that subpoena. He said that CJ’s property was a rural property, that he could have climbed over the gate, but did not. He also made various attempts to contact him on his mobile phone (he did not have a landline number for CJ).

67. No application was made by counsel appearing for the appellant for a temporary or permanent stay of the proceedings to attempt to ensure CJ’s attendance to give evidence. No complaint regarding CJ’s absence was made by the appellant’s counsel to the jury and no application for any specific direction regarding CJ’s absence was made to the primary judge.

68. The appellant gave evidence that he had known CJ since 2008 and that they had a friendly relationship. CJ had stayed at his home on four or five occasions. The longest he had stayed was three nights.

69. The appellant said that CJ supplied him with drugs. He said that in September 2010 he was using cannabis daily and methylamphetamine approximately once a week, and that he obtained these drugs from CJ.

70. The appellant said that he had attended CJ’s home three weeks before 1 September 2010. CJ had offered him methylamphetamine on the end of a knife, which he accepted. He and CJ had shared some cannabis provided by CJ. Mr Oakley was also present on that occasion, and he gave evidence that he saw cannabis and “speed” at CJ’s home.

71. The appellant said that CJ had been at his home in Pindimar from 10 pm on 31 August until 3 am on 1 September. Mr Oakley was also there. Mr Oakley and the appellant both said that Mr Oakley was helping the appellant prepare his tax return.

72. The appellant said that when CJ arrived he was “fairly worked up”. The appellant also described CJ as “unstable”. Mr Oakley described CJ as “frantic”.

73. The appellant gave evidence that CJ said that he had just been released from gaol and had driven to the appellant’s house at approximately 200 km per hour. He said police had raided his house, taken away his cannabis and shot his dog. He said that if his dog died he would “shoot those coppers”, and that he had a rifle hidden under the chassis rails of his car. Mr Oakley’s evidence was consistent with the appellant’s evidence.

74. The appellant gave evidence that CJ said he was scared that the police were looking for him and asked to stay at the appellant’s home. CJ accused him of telling the police about his cannabis, and asked the appellant if he was wearing a wire. Mr Oakley said that CJ said to the appellant “I was dobbed in by the cops. Was it you? It must have been you”.

75. As described at paragraphs [30] and [38]-[39] above, the appellant and Mr Oakley both gave evidence that CJ had arrived with a cardboard box and a backpack. He emptied the cardboard box onto the coffee table in the appellant’s office. Mr Oakley also gave evidence at the trial that CJ had arrived with a cardboard box and “knapsack”, and that he emptied the box onto the appellant’s coffee table.

76. The appellant and Mr Oakley then went to the living room to print some documents relating to the appellant’s taxation return, because that is where the appellant’s computer was located. They were gone for approximately 15 minutes. When they returned, there were three items on the coffee table:

1. a small salad dressing container (the container containing methylamphetamine that the appellant was trying to hide behind the bookshelf at the time the police executed the search warrant);

2. a white envelope (found during the search in the backpack); and

3. a Bulla ice cream container (found during the search in the laundry).

77. The appellant and CJ had a conversation about the items on the table. As a result of that conversation CJ left all three items at the appellant’s house. The appellant gave evidence that they arranged that the appellant would deliver the small container and the envelope to the Ayres Rock Roadhouse the following day. CJ would return at some unspecified point in the future to collect the Bulla ice cream container. Mr Oakley said that, at that stage, he and the appellant left CJ alone again. CJ left between 3 and 3.30 am on the morning of 1 September 2010.

Other evidence at trial

78. Other than the police evidence described at length above and the evidence of the appellant and Mr Oakley summarised above, the remaining evidence was in a narrow compass.

79. Mr Holston, a friend of the appellant, gave evidence that the appellant had never supplied him with any kind of drug, but that CJ had offered him drugs twice. The first time was at the Karuah pub, where CJ offered him cannabis. Mr Holston went back to CJ’s home, where CJ offered him white powder and a sheet of cardboard, which CJ said was “trips”, which Mr Holston thought was “an acid trip”. At that time, CJ did not discuss payment. The second time was at the pub, but Mr Holston simply said “No”.

80. Mr Hunter also gave evidence. His nickname was Muff or Muffman (because he worked with exhausts and mufflers). The word Muff appeared in the appellant’s papers which were in evidence. Mr Hunter said that he had done work for the appellant in 2010 or 2011. He said he did not render a bill for his work, but rather wrote it down on a piece of paper which he gave to the appellant. He said the appellant owed him $1,100 or $1,200, and that he did not owe the appellant any money.

Grounds of appeal

81. The appellant relies upon the following grounds of appeal:

1. Ground 1: The video evidence concerning cannabis should not have been shown to the jury;

2. Ground 2: The evidence given by Detective Sergeant Wheatley should not have been admitted;

3. Ground 3: Neither the cardboard nor the liquid containing the LSD should have been included in the overall weight of the LSD;

4. Ground 4: The primary judge erred by not directing the jury to first determine what drugs were in the appellant’s possession;

5. Ground 5: The primary judge erred by directing the jury to include the drugs found in the backpack and the ice cream container together;

6. Ground 6: The verdict was unreasonable or could not be supported having regard to the evidence;

7. Ground 7: The primary judge erred by removing the alternative charge of “commercial quantity”;

8. Ground 8: The primary judge erred by not having the alternate charge of “supply simpliciter”;

9. Ground 9: The appellant was unable to receive a fair trial without the police informant being there to give evidence; and

10. Ground 10: The issues mentioned above “tainted” the appellant’s trial resulting in a miscarriage of justice.

82. The appellant also identified two grounds of appeal related to his sentence, but those grounds were abandoned prior to the hearing of this appeal.

83. At the hearing of this appeal the appellant sought leave to raise a further ground concerning the alleged incompetence of defence counsel at trial. Leave is required for the appellant to rely upon a further ground of appeal. The issue of whether leave should be granted is addressed below. This further ground of appeal is referred to as proposed Ground 11.

84. At the outset, the Crown took the point that leave was required for each ground of appeal pursuant to s 5 of the Criminal Appeal Act which provides:

1) A person convicted on indictment may appeal under this Act to the court:

(a) against the person’s conviction on any ground which involves a question of law alone, and

(b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, ...

85. The grounds of appeal in the present case do not involve a question of law alone. In particular, the question of whether a verdict is unreasonable is not a question of law alone: Rasic v R [2009] NSWCCA 202 per Johnson J (Basten JA and R S Hulme J agreeing); Krishna v DPP [2007] NSWCCA 318; 178 A Crim R 220. The appellant must be treated as an applicant for leave to appeal against conviction under s 5(1)(b) of the Criminal Appeal Act: RWB v R [2010] NSWCCA 147; 202 A Crim R 209.

86. The decision about whether leave to appeal ought to be granted involves an assessment of whether the ground relied upon is reasonably arguable. Having regard to the fact that the issues raised in the grounds of appeal warrant consideration by the Court, in my view it is appropriate that there be a grant of leave to appeal in this case. This does not mean, of course, that with respect to those grounds where the appellant raises matters that were not raised at trial leave will also be granted following consideration of Rule 4 of the Criminal Appeal Rules.

85. The Crown submits that leave should be refused under Rule 4 of the Criminal Appeal Rules to Grounds 1, 2, 3, 4 and 5. This is a matter to be determined when addressing those specific grounds.

Statutory framework

88. Before considering the grounds of appeal it is necessary to set out the statutory framework that applies in the present case.

89. Section 25 of the DMT Act relevantly provides:

25 Supply of prohibited drugs

(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.

...

(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.

90. Section 29 of the DMT Act relevantly provides:

29 Traffickable quantity - possession taken to be for supply

A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless:

(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or

(b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner.

91. Pursuant to Schedule 1 of the DMT Act:

1. a traffickable quantity of LSD was 0.003 g;

2. a large commercial quantity of LSD was 2 g; and

3. a traffickable quantity of methylamphetamine was 3 g.

92. “Possession” requires that the person has physical custody or control of the prohibited drug: Director of Public Prosecutions v Brooks [1974] AC 862. Furthermore, the person must have knowledge of the existence of the drug in his custody or control: He Kaw Teh v R (1985) 157 CLR 523. It is sufficient for the prosecution to prove that the accused believed that there was a significant or real chance that there was a prohibited drug in his or her possession: R v Lau (1998) 105 A Crim R 167. However, it is not necessary to prove that the accused knew that he or she possessed a particular prohibited drug: R v Dunn (1986) 32 A Crim R 203. The Crown bore the onus of proving these matters beyond reasonable doubt in relation to both the LSD and the methylamphetamine charges.

93. In relation to the LSD charge, the Crown also bore the onus of proving beyond reasonable doubt that the appellant knew or believed that the amount of LSD in his possession was not less than a large commercial quantity, or that he was aware that there was a significant or real chance that it was not less than a large commercial quantity.

Ground 1: The video evidence concerning cannabis should not have been shown to the jury

94. At the outset of the trial, an edited portion of the video evidence of the execution of the search warrant at the appellant’s residence was played to the jury. That edited portion of the video contained references concerning the appellant’s cannabis possession.

95. The appellant submits that video evidence concerning cannabis should not have been shown to the jury since he was not charged with an offence related to cannabis. He submits that the video evidence relating to cannabis did not satisfy the relevance test contained in s 55 of the Evidence Act 1995 (NSW) because it could not rationally affect the jury’s “decision making process” with respect to the methylamphetamine and LSD charges. He further submits that the probative value of the evidence is outweighed by the danger of unfair prejudice, such that the primary judge should have refused to admit it pursuant to s 137 of the Evidence Act.

96. Counsel for the appellant at the trial made a forensic decision that the video containing references to evidence concerning the appellant’s cannabis possession should be shown to the jury. An objective examination of the course adopted by counsel for the defence reveals that it was open to conclude that the evidence was useful in constructing the defence case. Counsel said, in terms, that the cannabis was important to establishing the appellant’s link to CJ (because the cannabis was supplied by CJ) and that is the reason he did not object to the evidence. Counsel referred to the appellant’s cannabis use in his opening address to the jury.

97. It is clear that there were other aspects of the video evidence that defence counsel did object to, which resulted in an editing process that is referred to numerous times in the transcript. Defence counsel had ample opportunity to object to the video evidence relating to the cannabis, but made a forensic decision not to do so.

98. At the time the video evidence concerning the cannabis was shown the jury, the primary judge pointed out that there was no charge relating to cannabis. However, he directed the jury that there was “[o]bviously ... some relevance” to the video evidence the jury was being shown (and the attending evidence of DS Wheatley regarding the quantity and packaging of the cannabis).

99. In evidence, the appellant also admitted to previously supplying small amounts of cannabis. The primary judge also directed the jury that they were not entitled to draw adverse inferences from that admission for the purposes of determining the methylamphetamine and LSD charges.

100. Rule 4 of the Criminal Appeal Rules provides:

No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

101. This is a clear case where the relevant video evidence was admitted in evidence as part of a deliberate forensic strategy being pursued by counsel for the appellant, which strategy was objectively open to him. No objection was taken to the evidence because it was an important step in the appellant being able ultimately to submit to the jury that the appellant and CJ had a sufficiently close connection which explained why the appellant would allow CJ to store methylamphetamine and LSD at the appellant’s premises for a brief period, without necessarily implicating the appellant in the possession or supply of those drugs.

102. In those circumstances, leave to appeal should be refused under Rule 4 of the Criminal Appeal Rules in relation to Ground 1.

Ground 2: The evidence given by Detective Sergeant Wheatley should not have been admitted

103. This ground of appeal was expressed to apply to all of DS Wheatley’s evidence. However, the appellant’s written submissions addressed only the admissibility of DS Wheatley’s evidence as to the method of consumption of cardboard impregnated with LSD.

104. The Crown called DS Wheatley to give evidence on day two of the trial. A voir dire occurred before the jury heard DS Wheatley’s evidence. It is apparent from the transcript of the voir dire that the witness was called to supplement a written statement dated 23 April 2012. That statement was provided to the primary judge. Another statement, dated 2 September 2010, became Exhibit 1 on the voir dire.

105. In his statement of 23 April 2012 DS Wheatley expressed an opinion that the street value of each of the cardboard squares of LSD (being a discrete dosage unit) was $15. A “discrete dosage unit” is a term which has a specific statutory definition. It is not clear whether DS Wheatley was using the term in its statutory sense, or simply to mean a unit manufactured for consumption. DS Wheatley also expressed an opinion that a discrete dosage unit of the liquid form of the drug was also $15. The purpose of the voir dire was to establish whether DS Wheatley possessed sufficient expertise to express opinions regarding the “street value” of the drugs. Defence counsel submitted that “there’s nothing in [DS Wheatley’s] statement that suggests he has had any dealings with LSD”.

106. In relation to the issue of expertise, DS Wheatley gave the following evidence (on the voir dire):

1. a discrete dosage unit of liquid LSD is “usually .002 mil”;

2. LSD is “usually already impregnated in the card”;

3. he had been involved in approximately 50 LSD cases over the course of his 22 year career (later, in the presence of the jury, he said he had been involved in 20 LSD cases in his 24 year career);

4. his expertise in relation to the value and method of manufacture of discrete dosage units was derived from evaluating intelligence reports and interviewing and debriefing users and suppliers;

5. he had never charged anyone for manufacturing LSD;

6. it had been explained to him (by users and suppliers of the drug) that liquid LSD is sprayed rather than dropped onto the cardboard;

7. the normal purity for liquid LSD was 0.2 per cent. This, he said, was based on his experience with other charges, and on an analyst’s certificate;

8. he had been involved in “probably two, two or three” cases involving liquid LSD; and

9. he was extrapolating from his knowledge derived from cases involving cardboard impregnated with LSD and using that as the basis for his knowledge relating to liquid LSD.

107. At the conclusion of the voir dire, defence counsel said “I concede ... [t]hat he has some experience” in relation to the LSD applied to cardboard. The primary judge ruled that DS Wheatley could provide opinion evidence as to the value of the cardboard LSD, but not as to the value of the liquid LSD.

108. The following exchange subsequently took place in the presence of the jury:

Q: Does lysergide have a common name?

A: Yeah it does. LSD.

Q: Those sheets – or sheet containing perforated cardboard. Is that right?

A: That’s correct.

Q: How big is each individual unit, if I could use that expression?

A: Very small. 5 mil by 5 mil.

Q: So we have got cardboard and that contains, apparently, LSD. How does that work? What is the configuration of it or how is it—

A: The drug is impregnated into the cardboard. So to use it, you swallow the cardboard piece [emphasis added].

109. No objection was taken to that evidence and no complaint was made by counsel for the appellant at the trial about it.

110. In this Court, the appellant submits that DS Wheatley should not have been permitted to give evidence as to how LSD (in cardboard form) is consumed. He submits that only a forensic toxicologist would be so qualified.

111. The context in which this evidence was given, and the failure of the appellant’s counsel to object to it, is important. The appellant faced a single charge of supplying not less than a large commercial quantity of LSD. The quantity of LSD in liquid form found at his premises alone was sufficient to amount to a large commercial quantity.

112. Assuming that a successful objection was taken to DS Wheatley’s evidence about the consumption of LSD via cardboard tabs, and that the Court concluded that the cardboard impregnated with LSD was not sufficient to amount to a large commercial quantity (which argument is addressed in dealing with Ground 4 below), the appellant would still have faced conviction on the same charge for the large commercial quantity of LSD represented by the liquid ampoules of the drug found at his house.

113. In circumstances where the appellant’s case at trial was that he had no knowledge of the existence of the LSD found at his house at all, and his principal answer to the charges was a defence based on Carey, objectively, a forensic choice was available to counsel not to challenge DS Wheatley’s evidence about the method of consumption of the cardboard tabs. This was because, regardless of the outcome of that objection and any subsequent ruling about the cardboard tabs impregnated with LSD, the appellant would still have faced conviction on the same charge.

114. If this was a case where objection to the evidence had been taken, difficult questions of admissibility of the evidence would arise. The present evidence was not evidence of something DS Wheatley had seen, heard or perceived (although there may perhaps be cases where a police officer could give evidence of the consumption of LSD in cardboard form as a result of direct observation).

115. The evidence may have been admissible under either ss 78 or 79 of the Evidence Act, but formidable hurdles would have needed to be overcome. This evidence was not a matter admissible under s 144 of the Evidence Act. These questions were not explored by either party at the trial or on the appeal, no doubt because of the forensic choice made by counsel for the defence, which was objectively open to him. Any definitive answer to these questions should await a case where the issue arises squarely.

116. For these reasons, leave to appeal should be refused under Rule 4 of the Criminal Appeal Rules in relation to Ground 2.

Ground 3: Neither the cardboard nor the liquid containing the LSD should have been included in the overall weight of the LSD

117. This ground of appeal addresses whether the primary judge erred in directing the jury that both the cardboard tabs impregnated with LSD and the liquid containing LSD fell within s 4 of the DMT Act. That section provides:

4 Admixtures

In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug.

118. Section 3 provides an inclusive definition of the word "substance":

“substance” includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers.

119. After DS Wheatley gave evidence that cardboard LSD was swallowed, the following exchange took place in the absence of the jury:

HIS HONOUR: ... I’ll have to tell the jury about the admixture provisions, which as far as I can work out incorporate the LSD on the cardboard.

PICKIN: I was wondering about that and whether or not that was—

HIS HONOUR: It says “a substance that contains a prohibited drug”. Substance, cardboard, contains a prohibited drug, LSD.

PICKIN: Given that the officer said it was swallowed, which surprised me because I thought it was just sucked and spat out, but given that he said that and I didn’t challenge if, it seems that probably is an admixture [emphasis added].

120. The primary judge directed the jury that it was not necessary for the purposes of deciding if a large commercial quantity of LSD was engaged to determine the purity of the active drug in either the cardboard or the liquid form:

You look at the cardboard squares and you presume that was entirely [LSD]. You look at the liquid in the vials and you treat that as though it was all [LSD].

121. No application was made by counsel for the defendant for any re-direction.

122. The appellant submits that:

Because the liquid is intended to be evaporated before the use of the [LSD], and because the cardboard is not intended to be swallowed neither the cardboard, nor the liquid that the [LSD] is diluted into should be considered as admixture [sic] for the purpose of [s 4 of the DMT Act].

123. Dealing firstly with the question of the liquid containing LSD. The appellant submitted that the liquid with which the LSD was mixed was not a “substance” containing LSD because, it was asserted, a user would intend that the liquid would be dried or evaporated from the cardboard as part of the process of impregnating the cardboard with LSD.

124. DS Wheatley gave evidence (on the voir dire but not before the jury) the liquid is "dripped" onto cardboard or that it was "sprayed" onto the cardboard. There was no evidence concerning evaporation or the extent to which the cardboard would absorb the liquid.

125. Counsel for the appellant at the trial did not explore this issue or make any complaint about the trial judge’s direction.

126. Even if it were assumed, for the purposes of argument, that the appellant’s suggestion about the method of using liquid LSD is correct, a large commercial quantity of LSD was engaged and it was unnecessary to determine the purity of the active drug in the liquid form it was found in.

127. This is because the text of s 4 of the DMT Act (read together with s 3) makes clear that LSD diluted in a liquid is either a “preparation”, an “admixture” or an “other substance” and thus a prohibited drug since “a reference to a prohibited drug includes a reference to any preparation, admixture … or other substance containing any proportion of the prohibited drug”.

128. The clear legislative policy of s 4 is that the purity of a prohibited drug is irrelevant, including for the purposes of the “traffickable” and “large commercial” thresholds contained in DMT Act.

129. This may be contrasted with the position in relation to drug offences under s 312.1(a) of the Criminal Code (Cth), pursuant to which the quantity of the pure form of the controlled drug may be calculated.

130. In R v R2 (1990) 19 NSWLR 513 at 517 Gleeson CJ said (Smart and McInerney JJ agreeing):

In the second reading speech upon the introduction of the Drug Misuse and Trafficking Act, s 4 was explained in the following manner (New South Wales Parliamentary Debates, 26 November 1985, 10613 at 10616):

“Another problem which is overcome in the Bill is the question of mixtures of drugs, such as heroin, with other non-prohibited substances. Drugs which have been ‘cut down’ or mixed with other substances are treated for all purposes and provisions under the Bill, as if the drug was pure. This is important when the amounts which are set out in the Schedule to the Bill are considered.”

I answer the question in the case stated as follows:

“Q. Does s 4 of the Drug Misuse and Trafficking Act 1985 as amended apply to every provision of the Act including both the definition of traffickable quantity contained in s 3 and the deeming provision contained in s 29?

A. Yes.”

131. The appellant’s submission strains the ordinary meaning of the words used in s 4. To accept the appellant’s submission would be to incorporate into s 4 an additional requirement that a “preparation”, an “admixture” or a “substance” containing a prohibited drug needs to be ingested in the form that it is found before s 4 can apply. If, for example, a particular prohibited drug must be heated or distilled before it can be ingested, s 4 would nevertheless apply, including for the purposes of the “traffickable” and “large commercial” thresholds contained in DMT Act to the drug in its unheated or undistilled (and thus less pure) form.

132. Having determined that the liquid LSD falls within the ambit of s 4 of the DMT Act, there was sufficient LSD in liquid form to support count one in the indictment - 63.6 grams – well over the threshold for a large commercial quantity of LSD.

133. Turning then to the cardboard squares, leave should be refused to the appellant to take a different course to the forensic decision made by his counsel about the ingestion of the cardboard tabs, which course was objectively open to him.

134. In circumstances where that evidence about the ingestion of the cardboard tabs by end users was admitted, without objection, cardboard impregnated with LSD is clearly a “preparation” or an “other substance” within the meaning of s 4. That is, having regard to the evidence that users take the drug by ingesting the cardboard impregnated with LSD, it is clear that the cardboard is an “other substance containing any proportion of the prohibited drug” and the weight of the cardboard is to be included in calculating the relevant weight for the purposes of the “traffickable” and “large commercial” thresholds contained in DMT Act.

135. Before leaving this topic, something should be said about the way the matter was addressed in submissions in this Court, which each focussed on the legal effect of s 4 on the assumption that the evidence of how LSD is taken by a user was different to the evidence in this case; that is that LSD in this form is ingested by placing a cardboard tab under the tongue and, once the LSD had been ingested, spitting the cardboard out.

131. In these circumstances, it was submitted that the cardboard tab was analogous to a syringe or other delivery mechanism and could not be taken into account in calculating the weight of an “admixture” as defined.

132. The Court was taken to a District Court decision in which the evidence about ingesting LSD was as I have described immediately above (i.e. placing the tab under the tongue and spitting the cardboard out). In that case the view was expressed that:

It seems to me as a matter of statutory construction that it cannot be said that the prohibited drug which is within the cardboard square that the paper is contemplated within the legislation to be a substance containing any proportion of the prohibited drug [sic]:

R v SH, Jeffreys DCJ, 2 June 2014.

138. On appeal, in R v SH [2014] NSWCCA 218; 88 NSWLR 1 at [28]-[31] Macfarlan JA said that the critical question was:

... whether cardboard containing an unascertained proportion of a prohibited drug listed in Schedule 1 to the Act embedded within its fibres is capable of being a "substance" within the meaning of s 4 of the Act.

...

The answer to that question would involve consideration, inter alia, of whether the cardboard in fact "contain[ed]" any lysergide (see s 4 of the Act) ...

It would also involve consideration of the respondent's argument that the Crown had not proved that the cardboard was any more than a container or other vehicle to facilitate use of the drug and that it was not therefore itself a "substance" within the meaning of s 4. In support of this submission, he contended there was no evidence before the trial judge that the cardboard squares were designed to be swallowed, the only relevant evidence on this topic ("Usually the tab is placed inside the mouth, either on or under the tongue") suggesting that they were not. The effect of the argument was that if the cardboard was simply intended to be put in the user's mouth until the lysergide was withdrawn and then to be discarded, the cardboard served no different function than a container or syringe from which the user extracted a drug.

139. Because in that case the Crown did not identify a pure question of law, Macfarlan JA expressed no final view on whether cardboard impregnated with LSD was a “substance” within the meaning of s 4 of the DMT Act.

140. At the hearing of this appeal, on the assumption that DS Wheatley’s evidence as to the method of consumption of cardboard LSD was inadmissible, the Crown submitted that the cardboard impregnated with LSD is nevertheless a preparation within the meaning of s 3.

141. Like Macfarlan JA in R v SH, I would prefer to express a view about this issue in a case where it is squarely raised. In my view the present is not such a case.

142. On the evidence here, the cardboard was designed to be swallowed and, accordingly, the cardboard impregnated with LSD was ingested by a user. The cardboard was not analogous to a container or syringe from which the user extracted a drug. A much closer analogy would be the non drug content of a film coating or a gelatin capsule used in the production of lawful drugs in the way described by the Full Federal Court in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132. That film coating or gelatin capsule is an integral part of the ingestion by the user of the drug. In the same way here, the cardboard impregnated with LSD was an integral part of the ingestion by the user of the drug and thus a “preparation” or a “substance” within the meaning of s 4.

143. As noted at the outset, counsel appearing for the appellant at the trial made no complaint about the admission of the evidence or the trial judge’s direction to the jury on this subject.

144. In these circumstances, and having regard to the failure of counsel to seek any ruling or re-direction about this issue, leave to appeal should be refused in relation to Ground 3 under Rule 4 of the Criminal Appeal Rules.

Ground 4: The primary judge erred by not directing the jury to first determine what drugs were in the appellant’s possession

Ground 5: The primary judge erred by directing the jury to include the drugs found in the backpack and the ice cream container together

145. Grounds 4 and 5 are grouped together as they raise the same or very similar issues.

146. Under Ground 4, the appellant submits that the primary judge should have directed the jury to determine the question of possession by reference to each individual packet or location separately.

147. Under Ground 5, the appellant submits that the primary judge erred in failing to direct the jury to determine separately whether the appellant was in possession of:

1. the drugs in the backpack; and

2. the drugs in the ice cream container.

148. The appellant relies upon Alliston in support of these grounds.

149. The trial judge directed the jury that:

... the Crown does not have to prove the accused knew about both the cardboard square and the vials. It is enough for this count, members of the jury, if you were satisfied beyond reasonable doubt he possessed the cardboard or the vials or both.

150. In relation to possession, the primary judge said, in summary, that the concept of possession has three elements:

1. The first is that the appellant “knew the cardboard or the vials were in his house”;

2. The second is that he “knew that they contained a prohibited drug”, but that he did not have to know which drug precisely; and

3. The third is that he “was able to exercise control over the cardboard or the vials”.

151. In relation to the third element his Honour directed the jury that:

... a person can have control over something, even if they do not own it or they are just minding it for a friend ... the accused can still have control over those bits of cardboard and those vials even if he did not own them, even if they did belong to CJ.

152. In relation to possession of the cardboard tabs impregnated with LSD the primary judge said:

Now, in this case the accused says he knew about the cardboard squares in the bag and he touched them, picked it up. So he is certainly able to exercise control over it, but he says he thought they were foreign currency. Now, if that is reasonably possible, then the Crown has not proved that the accused was in possession of the cardboard squares. To be more precise, the Crown has not proved that he was in possession of the lysergide in the cardboard because the Crown has not proved beyond reasonable doubt that the accused knew that the cardboard contained a prohibited drug.

153. In relation to possession of the liquid containing LSD the primary judge said:

... the accused said he saw one or two of them [the ampoules] but he said he did not know they contained a drug ... if that is reasonably possible, then the Crown has not proved beyond reasonable doubt the accused was in possession of the lysergide in the vials because the Crown has not proved beyond reasonable doubt the accused knew that the vials contained a prohibited drug.

154. The primary judge reminded the jury that the appellant denied that he was in possession of the liquid or cardboard LSD.

155. Under each of Grounds 4 and 5, the appellant submits that this constituted a misdirection because, so the argument proceeds, if he was not found to have been in possession of the ice cream container (on the basis of the Carey defence) he would not have possessed a traffickable quantity of LSD and could therefore not be deemed to have supplied LSD pursuant to s 29 of the DMT Act.

156. The factual premise upon which this submission is based is incorrect. The quantity of LSD in the backpack (7.9 g), on its own, was well above the “large commercial quantity” threshold of 2 g.

157. Under Ground 5, each of the two containers (the backpack and ice cream container) contained sufficient LSD to constitute a large commercial quantity. The appellant points to Alliston, but that was a case in which neither package alone was sufficient to constitute a large commercial quantity. Therefore that authority has limited application in the present circumstances.

158. In the present case, no application was made by counsel for the appellant for a re-direction or further direction on the issue whether framed as it is now under Ground 4 or Ground 5. Counsel cannot be criticised for this as the appellant’s submissions on this point are based on an incorrect factual premise.

159. For these reasons, leave to appeal in relation to Grounds 4 and 5 should be refused under Rule 4 of the Criminal Appeal Rules.

Ground 7: The primary judge erred by removing the alternative charge of “commercial quantity”

Ground 8: The primary judge erred by not having the alternate charge of “supply simpliciter”

160. I have grouped Grounds 7 and 8 together as they seem to me to raise very similar issues.

161. At trial, the primary judge and counsel had a number of discussions about whether the jury should be directed to consider alternative charges to supply of a large commercial quantity of LSD. The primary judge delivered an ex tempore judgment on the fifth day of the trial in which his Honour usefully summarised those discussions:

The accused faces a number of charges, but I need only focus on count 1 at the present point in time. That is an allegation that he supplied a large commercial quantity of lysergide which has been more often described as LSD during this trial. The Crown mentioned to the jury, in his opening, that there “might”, and I emphasise the word “might”, be alternatives that they need to consider. He did not tell the jury what they were. He did not tell the jury in what circumstances those would come up. The matter was left there.

...

Yesterday I raised with the lawyers at the conclusion of the evidence whether, on the evidence, the jury could find the accused not guilty on the large commercial supply matter but guilty of a lesser offence, such as commercial supply or supply simpliciter. I suggested that as the evidence had unfolded, I could not see a version of the facts which the jury might find, which would lead to that outcome.

...

However, yesterday I was persuaded by the lawyers that I should leave the alternatives to the jury. I then went and redrafted the question trail [to be left with the jury]. It was emailed to the lawyers overnight and we had some further discussions about it this morning. Given that history I was somewhat surprised that neither Mr Crown nor Mr Pickin, mentioned the possibility of alternatives to count 1 in their addresses to the jury. One might have thought that having told me that such verdicts were open, they might have given some guidance to the jury as to the circumstances in which those verdicts would be returned.

I raised this issue at the conclusion of the addresses at the departure of the jury. Both the Crown and Mr Pickin continued to ask me to leave at least one alternative, that of supply simpliciter. Mr Crown explains that his position is based on this possibility, that the jury might find that it was a reasonable possibility that the accused was unaware that he had more than two grams of the substance containing LSD in his possession. If so, the Crown legally and accurately points out that that could mean that the jury could nevertheless convict him of supply simpliciter.

The Crown says it is more appropriate that in that circumstance, than [sic] the accused be convicted of supply rather than entirely acquitted. I can understand the Crown’s position, even if I do not really accept that it is open on the facts.

Mr Pickin also says that I should leave supply simpliciter as an alternative. This I find more difficult to understand. I would have thought that it was in his client’s interest to not have the alternative left. If the jury found the accused not guilty of supplying a large commercial quantity then his client would then face no alternative charge on count 1. To put matters bluntly, the presence of an alternative [to] count 1 makes it more likely that Mr Finch will be convicted of something rather than nothing. But Mr Pickin does ask me to leave the alternative.

I am not going to do what the Crown and Mr Pickin asked me for these reasons. It is not for a judge for the first time, to tell a jury that there are alternatives to a count when the jury has been entirely unassisted by any submissions in final address by the Crown or counsel for the accused, as to the circumstances in which alternatives could arise.

Another reason I am not going to do it is, as I keep saying, I do not consider that it is really open on the evidence for the jury to reason as the Crown say they might, that is “the accused was in possession of the LSD”: He knew he was in possession of the LSD; but he did not realise that he had more than two grams of that substance.

I think that if I were to leave the alternative to the jury, it would not be in Mr Finch’s interests. ...

162. Dealing first with Ground 7, the appellant submits that the primary judge erred in not leaving the “commercial quantity” alternative. He makes this submission:

If the Learned Trial Judge had directed the jury about the drugs, LSD cardboard and LSD liquid in particular, being in two separate places and to whether they thought that the accused had knowledge of both places the commercial quantity [charge] could well have been used.

163. The appellant’s submission is based on the false factual premise identified in relation to Grounds 5 and 6 above. The evidence as to the weight of each discrete package of drugs had been admitted (and was contained in a table which was tendered by consent and became Exhibit 27). According to that evidence there was no individual package of LSD which weighed less than 0.5 g. Therefore there was no evidentiary basis for the jury to find that the appellant possessed a commercial quantity rather than a large commercial quantity of LSD.

164. Dealing then with Ground 8, so far as the alternative charge of “supply simpliciter” is concerned, the appellant’s complaint in respect of this ground is that both parties asked the primary judge to leave the alternative charge of supply simpliciter.

165. The High Court has set out the test for whether an alternative verdict should be left for the jury in James v The Queen [2014] HCA 6; 253 CLR 475 as follows:

1. the duty to leave an alternative verdict will depend on the real issues in the case and the forensic choices of counsel;

2. the forensic choices of counsel are not determinative and on occasion the judge’s duty to secure a fair trial will require that an alternative verdict be left despite defence counsel’s objection;

3. alternatively, the judge may refrain from leaving an alternative verdict if to do so would jeopardise the appellant’s chances of acquittal.

166. In relation to both grounds, the primary judge was correctly of the view that leaving an alternative charge would not reflect the real issues in the case or the way the case was conducted. As he said:

... neither Mr Crown nor Mr Pickin, mentioned the possibility of alternatives to count 1 [i.e. deemed supply of a large commercial quantity] in their addresses to the jury. One might have thought that having told me that such verdicts were open, they might have given some guidance to the jury as to the circumstances in which those verdicts would be returned.

167. Further, the primary judge’s clearly expressed and correct conclusion was that leaving either alternative charge to the jury would jeopardise the appellant’s chances of acquittal.

168. The real issue in the case was the appellant’s Carey defence. That case depended on the jury accepting that the appellant had demonstrated that his possession of the drugs was merely momentary or transient and that he intended to return the drugs to CJ.

169. The obvious forensic risk for the appellant in leaving either alternative charge is that it would distract the jury from what the appellant’s counsel was submitting was a simple decision they needed to make that would result in the appellant’s complete acquittal.

170. As the primary judge said:

To put matters bluntly, the presence of an alternative [to] count 1 makes it more likely that Mr Finch will be convicted of something rather than nothing.

171. Accordingly, the primary judge was correct not to leave either alternative charge to the jury.

172. Grounds 7 and 8 should be dismissed.

Ground 9: The appellant was unable to receive a fair trial without the police informant being there to give evidence

173. The appellant submits that the Crown had a duty to call CJ as a witness and that he was unable to receive a fair trial without CJ giving evidence.

174. In Dyers v The Queen [2002] HCA 45; 210 CLR 285, Gaudron and Hayne JJ said at [11]:

... a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one" (emphasis added).  That requires the prosecution to call all available material witnesses unless there is some good reason not to do so.  The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person [footnotes omitted].

175. In Pratten v R [2014] NSWCCA 117 this Court set out the relevant principles (at [144]-[145]):

It is for the Crown prosecutor to determine the witnesses that the Crown will call in proof of guilt, subject at all times to the overriding principle that the Crown case must be presented according to the procedures and standards of a fair trial so as to accord fairness to the accused: see Whitehorn v The Queen[1983] HCA 42; 152 CLR 657 at 664 where Deane J observed:

"Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point."

The Crown's failure to call a witness who was able to give relevant and admissible evidence concerning the central facts and events upon which the prosecution is based may be productive of such unfairness that, when viewed objectively in the context of the trial as a whole, results in a substantial miscarriage of justice: R v Apostilides[1984] HCA 38; 154 CLR 563 at 575, 577-578 (per curiam). Consideration of the questions whether a witness should have been called and whether the failure to call that witness has occasioned a miscarriage of justice can be determined only by reference to what is shown to be the significance of the witness' evidence to the issues at trial, the witness' credibility and reliability and any explanation of the Crown for not calling the witness: Whitehorn at 666.

176. The appellant submits that CJ’s absence from the trial “deprived me ... of a fair trial and resulted in a miscarriage of justice”. That is because the evidence that CJ would have been able to provide went directly to a central issue at trial, being the availability of the Carey defence.

177. The appellant further submits that CJ was not “unavailable” for the purposes of the Evidence Act because not all reasonable steps had been taken to locate him. The issue of whether a witness is unavailable is relevant for the purposes of hearsay evidence only. Those principles are not engaged presently.

178. This is a case where the Crown attempted to call CJ as a witness and provided an explanation for its failure to do so. In considering whether the appellant was able to receive a fair trial without CJ giving evidence a number of matters are relevant.

179. First, it was uncontroversial that CJ had alerted the police to the existence of drugs at the appellant’s house. For his cooperation, CJ received a discounted sentence with respect to various other drug charges. This clearly made him a relevant witness and the Crown understood that he should be called to give evidence. A subpoena was obtained to secure his attendance.

176. Second, the police had made attempts to serve CJ with the subpoena to attend the trial to give evidence. SC Smith gave evidence that he made a number of attempts to contact CJ on his mobile phone and four attempts to serve CJ at his residence. He was unable to serve CJ because the premises had a locked security gate. He said he could have gone over the gate “but the property is a rural property”, so he did not. The locked gate and the failure to answer a mobile telephone do not provide an entirely satisfactory explanation for the failure to serve the subpoena upon CJ, however no complaint was made at the trial about the failure to serve the subpoena.

177. Third, as a result of CJ’s cooperation with the police, the Commissioner of Police sought, and obtained, various suppression and non-publication orders with respect to the identity and identifying details of CJ at the trial. In seeking those orders a delegate of the Commissioner of Police provided an “open affidavit” which stated the following:

It is understood that the accused intends to conduct a defence in reliance upon the decision in R v Carey (1990) 50 A Crim R 163, by asserting that the witness, in order to obtain a benefit for himself, placed drugs in the accused’s residence and then informed police of the existence and location of the drugs.

Having been alerted to the accused’s proposed defence, the Director of Public Prosecutions requested and obtained a statement from the witness to the effect that the witness did not place any drugs in the premises of the accused.

A copy of the statement of the witness and other documents have been served on the accused’s solicitor ….

182. Fourth, it is clear that in the statements provided to the police CJ denied leaving any drugs at the appellant’s home. The appellant, in his written submissions, states that CJ’s statements were “submitted to the court” on day two of the trial. However, the transcript of the trial and the summing up makes clear that no such statement was tendered.

183. No statement by CJ was provided to this Court prior to the hearing of this appeal. The Crown acknowledged that the Court ought to be able to review for itself CJ’s statement in order to determine whether the appellant was able to receive a fair trial without CJ giving evidence. Both statements made by CJ were provided to this Court following the hearing of this appeal. Each contain no exculpatory material or any other material that would lead to the conclusion that the appellant was not able to receive a fair trial without CJ giving evidence.

184. Fifth, CJ was one of three people present at the appellant’s home on the night of 31 August 2010. The other two were the appellant and Mr Oakley. The appellant and Mr Oakley gave evidence that CJ brought various items to the appellant’s home and arranged, with the appellant, that he would retrieve those items at a later point in time, by meeting the appellant at the Ayres Rock Roadhouse and by returning at some later time to collect the items in the ice cream container. It is undoubtedly correct that the jury was deprived of the benefit of observing CJ being cross-examined on his version of events and contrasting that evidence with that provided by the appellant and Mr Oakley.

185. Sixth, it was objectively open to defence counsel to approach CJ’s absence on the basis that it afforded the appellant a forensic advantage in establishing the Carey defence. The appellant bore the onus of proving the facts underlying the Carey defence on the balance of probabilities. In his final address to the jury, defence counsel said:

It is clear and we have adduced evidence from two of them [the appellant and Mr Oakley], you’ve had the opportunity to scrutinise them and you would accept on balance their evidence. There would be no reason, no good reason to reject their evidence and ultimately when you consider that the individual CJ has not been called by a Crown witness [sic] you would be left comfortably with the proposition that the defence have made out the case in relation to the possession with intent to return to the owner, as opposed to sale.

186. This passage clearly indicates that the appellant’s counsel considered that, as a consequence of CJ’s absence, the appellant was in a stronger position to establish the Carey defence, which was the central question in the case, and would have remained the central issue even if CJ had given evidence. It was objectively open to him to form that view.

187. Seventh, defence counsel made no application for the trial to be stayed or adjourned due to the unavailability of CJ. This supports the conclusion that CJ’s absence afforded the appellant a forensic advantage in establishing the Carey defence.

188. Returning to the tests established in cases such as Apostilides and Whitehorn (referred to in the extract from Pratten above), the significance of the failure of the Crown to call CJ to give evidence is to be determined by reference to what is shown to be the significance of his evidence to the issues at trial, his credibility and reliability and any explanation of the Crown for not calling the witness.

189. There is little evidence about CJ’s reliability and credibility. The primary judge directed the jury that:

The law is that where someone assists the authorities by giving them information about things they say they know, that you can get a reduction on your sentence for doing that. ...

So that's the law. Of course what you've got to consider is whether that provides an incentive for sometimes people to come along and say things that aren't true. Quite clearly there's an incentive for people that are charged with crimes to make up false information about other people so that they can get a discount. That's one of the matters that you would no doubt be thinking about as you consider this case. Was there an incentive for CJ to do something which may have falsely led to Mr Finch being prosecuted, just so CJ could get a reduction on his sentence?

190. While the sufficiency of the explanation of the police for the failure to serve a subpoena on CJ may be doubted, this was not the subject of complaint at the trial.

191. In all the circumstances, defence counsel made a forensic decision to embrace the absence of CJ. He plainly took the view that CJ’s absence gave him a forensic advantage in establishing the Carey defence. That conclusion was objectively open to him.

192. Concerning the significance of his evidence to the issues at trial, it is clear from CJ’s statements that he would say that the appellant was a significant drug dealer and that he, CJ, was a customer not a supplier of the appellant. Unless CJ’s evidence was totally discredited and, in effect, the jury concluded that the opposite of what he had to say was true, the appellant had a powerful reason, if he could, to conduct the case without CJ giving evidence.

193. It may be, of course, that CJ would have been destroyed in cross-examination and admitted that the drugs belonged to him.

194. In this case, of itself, even that admission would not necessarily have led to an acquittal. To achieve an acquittal the appellant would also have had to hope that the jury would fail to be satisfied the appellant knew that he had prohibited drugs at his premises (in the case of the LSD) or establish that his possession of the LSD and methylamphetamine was transitory.

195. CJ’s evidence was unlikely to assist him in achieving either aim. From defence counsel’s point of view at the trial, whilst it was conceivable that all of these favourable matters may have been able to be established in cross-examination of CJ, it was equally possible that the cross-examination of CJ would prove to be a forensic disaster for the appellant.

196. If CJ told the jury the things contained in his two police statements (or gave even a part of that evidence), it could amount to very significant evidence tending to show the appellant was guilty of counts one and two on the indictment.

197. It was objectively open to defence counsel, in the situation he found himself, to conclude that the far less dangerous course was to proceed in the trial without taking steps (by seeking an adjournment or making a stay application) to secure the attendance of CJ to give evidence.

198. Given the quantity of drugs found at the appellant’s house and the central role of the Carey defence in attempting to secure an acquittal for his client, defence counsel plainly decided that the preferable course was to call the appellant and Mr Oakley and submit to the jury (as he did) that the only direct evidence before them of the events on the evening of 31 August was that given by the defence. That course was objectively open to him.

199. In these circumstances, the submission that the appellant was unable to receive a fair trial without CJ giving evidence should be rejected, and Ground 9 should be dismissed.

Ground 6: The verdict was unreasonable or could not be supported having regard to the evidence

Ground 10: The issues mentioned above “tainted” the appellant’s trial resulting in a miscarriage of justice

200. These grounds are addressed together and last because it is clear that this Court must review all of the evidence before the trial court in order to form a proper conclusion.

201. The applicable principles are set out in SKA v The Queen:

1. In applications of this nature the Court is asked whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ);

2. The test stated in M v The Queen is not materially different (although different in form) to the statutory test contained in s 6(1) of the Criminal Appeal Act. That test is whether the verdict is “unreasonable” or “cannot be supported, having regard to the evidence”: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [58].

(The appellant relies upon s 6(1) with respect to ground 10. Therefore, Grounds 6 and 10 are relevantly identical.)

3. The Court is to make an “an independent assessment of the evidence, both as to its sufficiency and its quality": Morris v The Queen (1987) 163 CLR 454 at 473. Furthermore:

In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' [footnotes omitted].

4. M v The Queen at 492-493 (per Mason CJ, Deane, Dawson and Toohey JJ).

5. The jury has an advantage over a court of criminal appeal in having heard and seen the witnesses at trial. If that advantage is capable of resolving a doubt experienced by an appeal court, the court may conclude that no miscarriage of justice occurred. But if the doubt cannot be explained that way, a miscarriage has occurred: M v The Queen at 493.

202. In determining if there has been a miscarriage of justice, a decision by counsel for the defence to take or refrain from taking a particular course at the trial needs to be examined to determine if it has or could have resulted in a forensic advantage. That is an objective test. The forensic advantage must be weighed in comparison to any defect or irregularity found in the trial: TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [8]-[16]; [26]-[28]; [32]-[33] and [107]-[109].

203. Having reviewed the whole of the evidence, which is described in detail above, I have come to the conclusion that the verdict was not unreasonable and can be supported having regard to the evidence. Further, the issues about which the appellant makes complaint did not “taint” the appellant’s trial resulting in a miscarriage of justice.

204. On the whole of the evidence, the jury was entitled to reach the view that it did on both counts one and two in the indictment (count three is not presently relevant as the appellant was acquitted).

205. In addressing the question of whether the verdict was unreasonable or could not be supported having regard to the evidence, the first significant matter was the quantity of prohibited drugs found in various places, hidden all over the appellant’s house.

206. The appellant admitted that he possessed the methylamphetamine the subject of count two, the only issue being the Carey defence.

207. So far as the LSD the subject of count one was concerned, there was a large commercial quantity found in the appellant’s own backpack, interspersed with his own medication.

208. The jury was entitled to conclude that he was knowingly in possession of the LSD contained in that backpack. This was on the basis of all of the evidence, including his own evidence that;

1. he was "half-half" aware of the contents of the backpack;

2. "maybe" the envelope in the backpack contained LSD; and

3. he himself put the plastic bag containing the LSD into that backpack.

209. So far as the other large commercial quantity of LSD was concerned (found in the ice cream container hidden in the laundry), the appellant’s fingerprint was found on the plastic bag which contained it and the container also had in it a card belonging to a business associate of the appellant. This was another significant matter, from which the jury was entitled to conclude that he was knowingly in possession of LSD.

210. The second significant matter was the conduct of the appellant at the time the police arrived to search the premises and in the conduct of that search.

211. When the police arrived the appellant was attempting to hide a container of methylamphetamine behind a bookcase, as “it was a bad look”.

212. Further, a quantity of methylamphetamine was found in the appellant’s bedroom and a tab of LSD was found in the drawer of the desk in the study where the appellant worked. During the search, the ice cream container was found hidden in the laundry. It contained a large commercial quantity of LSD and a commercial quantity of methylamphetamine.

213. The scales and drug paraphernalia found hidden in the appellant’s ceiling were also significant matters. The notes found in the appellant’s handwriting were clearly capable of referring to drug sales and the jury was entitled also to take those notes into account in finding the appellant guilty. Those matters, and the presence of a surveillance camera at the appellant’s premises, were all matters the jury was entitled to take into account in finding the appellant guilty of counts one and two.

214. When the jury came to consider the Carey defence, the appellant’s explanation for how it was that the ice cream container came to be hidden in his laundry was frankly incredible. Accepting, for present purposes, the appellant’s evidence that he agreed with CJ to take the backpack to the Ayres Rock roadhouse at 2.30 pm the next day, no explanation was given as to why LSD and methylamphetamine in even greater quantities came to be hidden in the laundry. The appellant’s evidence was that no agreement had been made to collect those drugs the next day, despite the fact that he was aware that the container had within it, at least, pills that he thought contained ecstasy, small resealable bags known as “deal bags”, and a straw. The appellant gave evidence that CJ said of this container, “I can’t take this with me. I can’t go home. They’re looking for me”. The jury was entitled to regard as significant the fact that, despite knowing all of these matters, and the fact that CJ had hidden the container somewhere on his property, the appellant could provide no reasonable or sensible explanation for the ice cream container found in his laundry, including, of course, the appellant’s fingerprint found on the plastic bag which contained a large commercial quantity of LSD.

215. The third significant matter was the inherent improbability of key features of the appellant’s version of events upon which the Carey defence rested. The appellant’s case was that when CJ was arrested and the police found only a relatively minor amount of cannabis, so anxious was CJ to get a discounted sentence that he took prohibited drugs (the cardboard tabs of LSD alone having a street value over $73,000) to the appellant’s house.

216. The appellant permitted CJ, in the middle of the night, to hide those drugs at various separate locations throughout his house. He did so having placed his fingerprint on a plastic bag containing a large commercial quantity of LSD. The appellant gave evidence that he permitted CJ, who he described as “fairly worked up” and “unstable”, to roam unattended in his house with a large quantity of what he knew was prohibited drugs between 1 am and 3 am.

217. The appellant’s principal explanation for doing so was that he needed to print documents in another room with Mr Oakley as those documents were important to completing his taxation return.

218. Further, the appellant gave evidence that he made an agreement with CJ to return the backpack containing a large quantity of prohibited drugs to him at 2.30 pm the following day. Yet, when CJ did not contact him that day, the appellant did nothing to contact CJ or dispose of those drugs. The jury were entitled to reject the evidence led in relation to the Carey defence.

219. The fourth significant matter was the absence of CJ as a witness. As set out in addressing Ground 9 above, given the central plank of the appellant’s case was a Carey defence, the critical question is whether the decision of defence counsel to refrain from insisting that the trial be adjourned until CJ’s attendance to give evidence could be secured, could have resulted in a forensic advantage which must be weighed in comparison to any defect or irregularity found in the trial.

220. In this case, objectively determined, defence counsel could take the view that the appellant was in a stronger position to establish the Carey defence, which was the central question in the case, if CJ was not called to give evidence. Even assuming that the sufficiency of the explanation of the police for failing to serve the subpoena on CJ to secure his attendance at the trial were rejected, and that this gave rise to an irregularity in the trial, when weighed against the forensic advantage to the appellant of CJ’s absence, there was no miscarriage of justice.

221. The fifth significant matter was the evidence concerning the LSD, both in liquid and cardboard form. As set out in addressing Grounds 2 and 3 above, there were legitimate forensic choices to be made about these issues and the forensic choices made by defence counsel were objectively open to him. The verdicts were not unreasonable or against the weight of the evidence.

222. The appellant’s best chance of securing an acquittal was the jury accepting his Carey defence. Even if successful objection was taken to the admission of the evidence of the weight of the cardboard being taken into account in addressing the “large commercial quantity” threshold, the appellant could still have been convicted of possession of a large commercial quantity of LSD represented by the LSD in liquid form.

223. On this topic, the other principal point that the appellant made in oral submissions to this Court should be rejected. At the end of the third day of the trial, after the conclusion of the accused’s examination in chief, the primary judge said to defence counsel in the absence of the jury:

“... all I want you to think about is whether consistent with who bears the onus of proving what you’re happy that there has been no evidence at all about the vials of LSD and think about that overnight ...” [emphasis added].

The appellant submitted that this was evidence favourable to him, and that the primary judge was indicating that there was “no evidence” from the police about the quantity of the LSD in the vials.

224. However, what the primary judge was saying in this passage was that the appellant’s examination in chief had finished and the appellant had not given any evidence about the vials which evidence was critical to his Carey defence.

224. The primary judge was, properly and fairly, alerting defence counsel to the fact that he had missed the opportunity to elicit a statement from the defendant about the vials. This was made clear when defence counsel returned to this issue and led a statement from the appellant designed to address the matter the primary judge had raised.

225. The sixth significant matter is the careful and fair summing up of the primary judge. Other than the specific complaints which have been addressed above in relation to the other grounds of appeal, no further complaint was made about that summing up. Considering those complaints about the summing up together, as well as separately, there was no miscarriage of justice in the present case.

226. For these reasons, the verdict was not unreasonable and was supported by the evidence. Further, none of the issues about which the appellant makes complaint “tainted” the appellant’s trial resulting in a miscarriage of justice. Grounds 6 and 10 of the Notice of Appeal should be dismissed.

Proposed Ground 11: Incompetence of defence counsel

228. At the hearing of this appeal the appellant sought leave to add a further ground of appeal. The Court ruled that it would entertain further submissions about this application after delivery of its principal reasons.

229. By Proposed Ground 11 the appellant seeks to contend that his trial counsel was incompetent in two respects:

1. he was often late;

2. he “didn’t seem to be aware about the laws concerning LSD”, which I understood to mean he did not object to the evidence of DS Wheatley concerning the method of consumption of cardboard LSD or make the submission concerning liquid LSD referred to in addressing Ground 3 above.

230. The seminal case with respect to incompetence of counsel is R v Birks (1990) 19 NSWLR 677 in which Gleeson CJ said at 685:

As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.

231. In Alkhair v R [2016] NSWCCA 4 Macfarlan JA (Rothman J and Bellew J agreeing) comprehensively summarised the applicable principles with respect to incompetence of counsel. His Honour conducted an extensive review of the cases decided by this Court since Birks, and concluded (at [31]):

1. To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel’s conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial.

2. Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf.

3. Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant’s legal representatives’ reasoning at trial or to evidence as to communications between the appellant and those representatives.

4. The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open.

232. Rational forensic decisions or strategies of trial counsel, determined objectively, do not give rise to a miscarriage of justice: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 at [34] (per Basten JA) and [56] (per Adams J).

233. Having regard to the ruling made at the hearing, each party should be given leave to file and serve, within 14 days, written submissions addressing the issue of whether leave to add an additional Ground 11 should be granted, and whether, if leave is granted, there is any need for a further oral hearing.

Conclusion and orders

234. For the foregoing reasons the following orders should be made:

1. Leave to appeal granted on Grounds 1-10 under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW);

2. Leave to appeal refused on Grounds 1, 2, 3, 4 and 5 under r 4 of the Criminal Appeal Rules;

3. Grounds 6-10 of the Notice of Appeal dismissed;

4. Within 14 days the parties exchange with one another and file written submissions of no greater length than 10 pages each with the Registrar of the Court of Criminal Appeal on the subject of whether:

1. having regard to these reasons, leave should be granted to amend the notice of appeal to include Proposed Ground 11; and

2. if leave under paragraph 4(a) of these orders were granted, what orders the Court should make and whether it would be necessary or desirable to receive any further evidence or to conduct any further oral hearing of the matter.

235. McCALLUM J: I have read in draft the judgments of Payne JA and Davies J.  I agree with the orders proposed by Payne JA, for the reasons his Honour has stated.  Initially, I also had the concern expressed by Davies J as to the absence of CJ at the trial.  However, my assessment of the evidence has brought me to the conclusion reached by Payne JA and Davies J that the decision not to pursue CJ’s attendance at trial was a forensic decision and probably a sound one.

236. DAVIES J: I have read in draft the judgment of Payne JA. I agree with his Honour’s reasons and the orders which he proposes. Because Grounds 6 and 10 raise the matter of an unreasonable verdict and a miscarriage of justice it is necessary for me to add some brief remarks of my own.

237. I am satisfied from my own assessment of the evidence that the Crown case was a strong one subject to the appellant establishing his Carey defence. The locations of the drugs at the appellant’s house made that task a difficult one. Although I was initially concerned about the failure of CJ to give evidence at the trial because his absence might have been a disadvantage to the appellant, I am now persuaded that the evidence that CJ would have given ([65] above) together with what must be regarded as a forensic decision by the Appellant’s counsel not to seek an adjournment until CJ was brought to Court make it likely that CJ’s evidence would have been a significant disadvantage to the appellant. That is the more so when the jury clearly did not accept the evidence of Mr Oakley who corroborated the appellant’s evidence and was subject to very little challenge in cross-examination.

238. For the reasons given by Payne JA there was no miscarriage of justice nor was there the absence of a fair trial by reason of CJ not being called to give evidence. In those circumstances it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

Amendments

13 July 2016 - para [201](2) - formatting change

Decision last updated: 13 July 2016