Gibbs v The State of Western Australia
[2018] WASCA 68
•11 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GIBBS -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 68
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 18 JANUARY 2018
DELIVERED : 11 MAY 2018
FILE NO/S: CACR 200 of 2017
BETWEEN: MATTHEW JAMES GIBBS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SCHOOMBEE DCJ
File Number : IND 1602 of 2016
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of selling or supplying a prohibited drug - Circumstantial evidence case - Whether the jury's verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Result:
Leave to appeal granted on ground 1
Leave to appeal refused on grounds 2 and 3
Appellant's application for leave to adduce additional evidence in the appeal dismissed
Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered
Category: B
Representation:
Counsel:
| Appellant | : | Mr A J Robson |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
BUSS P:
This is an appeal against conviction.
The appellant and Coby Jack Holland were each charged on indictment with one offence.
Count 1 alleged that on 13 January 2016, at Sinagra, Mr Holland sold or supplied a prohibited drug, namely cannabis, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
Count 2 alleged that on the same date, at Gnangara, the appellant sold or supplied a prohibited drug, namely cannabis, to another, contrary to s 6(1)(c) of the MD Act.
Both the appellant and Mr Holland pleaded not guilty.
On 21 June 2017, after a seven day joint trial in the District Court before Schoombee DCJ and a jury, both the appellant and Mr Holland were convicted as charged.
I would allow the appeal on the ground that, in my opinion, the verdict of guilty on which the conviction is based is unreasonable or cannot be supported having regard to the evidence. The judgment of conviction should be set aside and a judgment of acquittal entered. My reasons are as follows.
Overview of the State's case at the trial
The prosecutor told the jury, in his opening address, that each of Mr Holland and the appellant had been charged with a single drug offence. Mr Holland was charged that on 13 January 2016, at Sinagra, he sold or supplied cannabis to another, namely to the appellant. The appellant was charged that on 13 January 2016, at Gnangara, he sold or supplied cannabis to another, namely to Adam Falconer. The prosecutor said that each of Mr Holland and the appellant 'supplied the same blue cooler bag in which [there] was a quantity of cannabis' (ts 182).
The State's case was that:
(a)on 13 January 2016, Mr Holland delivered to the appellant, at the appellant's home in Sinagra, a blue cooler bag containing cannabis; and
(b)later on 13 January 2016, the appellant delivered to Mr Falconer, in the carpark at D'Uva's Deli in Gnangara, the same blue cooler bag containing cannabis.
The prosecutor told the jury, in his opening address, that the State's case against Mr Holland and the appellant was circumstantial. It was 'a case involving inferences' (ts 191). The prosecutor submitted that upon the evidence that the State would adduce 'the only reasonable inference you can draw … is that [Mr Holland and then the appellant was] in possession of that cannabis in that blue cooler bag, and that they supplied it to others' (ts 192).
The prosecutor also told the jury in his opening address, in essence, that the State's circumstantial evidence case was based on the following facts and circumstances:
(a)At the material time, the appellant lived with his partner, Laura Monaghan, in Sinagra.
(b)At the material time, Mr Holland lived in Yangebup.
(c)Yangebup is a southern Perth suburb near Cockburn. Sinagra is a northern Perth suburb near Wanneroo.
(d)Neither the appellant nor Ms Monaghan was a close friend of Mr Holland. Mr Holland had been referred to the appellant and Ms Monaghan by Tissell Davies, who was friendly with both the appellant and Mr Holland.
(e)Between 5 and 13 January 2016, police were monitoring the telephone calls and text messages of the appellant and Ms Monaghan.
(f)Between 5 and 13 January 2016, covert police operatives were conducting surveillance and taking covert photographs of the appellant and Ms Monaghan, including at the appellant's home.
(g)At about 10.55 am on 13 January 2016, Mr Holland arrived at the appellant's home in Sinagra. Mr Holland 'walked in with a blue cooler bag over his shoulder and walked out without that blue cooler bag'. Mr Holland was at the appellant's home 'for a very short time, perhaps a minute' (ts 182).
(h)Mr Holland went to the appellant's home for the purpose of delivering about 1 kg of cannabis to the appellant.
(i)The State relied on evidence of intercepted telephone conversations between the appellant and Mr Davies 'a day or two before [13 January 2016]' which, according to the prosecutor, supported 'an inference … that they were arranging this delivery' (ts 183).
(j)At about 11.51 am on 13 January 2016 (that is, about 55 minutes after Mr Holland departed from the appellant's home without the blue cooler bag), the appellant telephoned Mr Falconer. The appellant asked Mr Falconer whether he had a lunch break and, if so, how long it was. Mr Falconer said it was half an hour. According to the prosecutor, the conversation between the appellant and Mr Falconer was conducted in code. For example, references in the conversation to 'clothes' were in fact to 'cannabis'.
(k)At about 3.54 pm on 13 January 2016, the appellant and Ms Monaghan left the appellant's house in the appellant's black Holden Commodore vehicle. Shortly before their departure, the appellant had been in contact with Mr Falconer and had arranged to meet him in Ashby Street near Badgerup Road. The appellant drove his black Holden Commodore vehicle to the agreed destination and parked next to Mr Falconer's vehicle. They had a brief conversation without alighting from their vehicles.
(l)The appellant and Mr Falconer then drove their vehicles for a few kilometres to the carpark at a delicatessen called D'Uva's Deli. Covert police operatives saw Mr Falconer alight from his vehicle in the carpark and walk towards the appellant's vehicle. Ms Monaghan alighted from the appellant's vehicle and went into D'Uva's Deli. She had previously ordered, by telephone, some sandwiches from D'Uva's Deli. She went into the delicatessen to collect them. While she was in the delicatessen, Mr Falconer got into the appellant's vehicle. Mr Falconer then alighted from the appellant's vehicle and returned to his own vehicle. Mr Falconer again went back to the appellant's vehicle and then returned to his own vehicle. Mr Falconer drove away. Shortly afterwards, the appellant and Ms Monaghan drove away. Both the appellant's vehicle and Mr Falconer's vehicle departed from D'Uva's Deli at about 4.00 pm on 13 January 2016. They had been parked outside the delicatessen for a few minutes.
(m)Mr Falconer travelled to his home in Landsdale. He arrived at about 4.15 pm on 13 January 2016. Mr Falconer alighted from his vehicle and walked into his house. As he went into his house, a covert police operative saw him carrying an object, namely a blue cooler bag, which the State alleged was the same blue cooler bag that had been delivered by Mr Holland to the appellant's home earlier that day.
(n)At about 6.05 pm on 13 January 2016, Mr Falconer drove from his home to the Alexander Heights Shopping Centre. He was stopped by police at the shopping centre and arrested. Police searched his vehicle and found two Glad snaplock bags. One contained 27.3 g of cannabis and the other 27.7 g of cannabis.
(o)After searching Mr Falconer's vehicle, police went to and searched his home. In the wardrobe of the main bedroom, police found a blue cooler bag which, on the State's case, was the same blue cooler bag that Mr Holland had delivered to the appellant's home earlier that day. The bag contained a total of 808 g of cannabis.
(p)The blue cooler bag and its contents were subject to forensic analysis. However, the analysis was neither inculpatory nor exculpatory of the appellant.
(q)At about 7.21 am on 16 February 2016, the appellant was riding his motorcycle in Wanneroo. He was stopped by police and arrested. Police then searched his home. Ms Monaghan was present. During the search police found $3,000 cash in a bedside table in the main bedroom.
(r)The appellant had previously been convicted on 16 July 2009, on his pleas of guilty, of one count of possessing cannabis with intent to sell or supply it to another; two counts of possessing methylamphetamine with intent to sell or supply it to another; one count of possessing MDMA with intent to sell or supply it to another; and one count of cultivating cannabis with intent to sell or supply it to another. The State relied on evidence of those previous convictions for the purpose of asserting that the appellant had a propensity to possess and supply cannabis.
Overview of the appellant's case at the trial
The appellant's defence counsel made an opening statement at the trial.
Defence counsel told the jury that none of Ms Monaghan, Mr Falconer and Mr Davies would be a witness at the trial.
Defence counsel said that it was apparent from covert photographs that:
(a)at about 10.55 am on 13 January 2016, Mr Holland had delivered a blue cooler bag to the appellant's home;
(b)at about 4.15 pm on 13 January 2016, Mr Falconer had alighted from his vehicle and walked into his house carrying an object, but the object was not a blue cooler bag; and
(c)at about 7.12 pm on 13 January 2016, when police searched Mr Falconer's home, the police found a blue cooler bag containing cannabis.
However, defence counsel submitted that there was no evidence that the appellant had passed or delivered a blue cooler bag to Mr Falconer.
The appellant elected not to give or adduce any evidence at the trial.
Also, Mr Holland elected not to give or adduce any evidence at the trial.
The propensity evidence adduced by the State at the trial
On 22 March 2017, Davis DCJ ruled at a pre‑trial hearing pursuant to s 98(2) of the Criminal Procedure Act 2004 (WA), and over the objection of defence counsel for the appellant, that the propensity evidence sought to be relied upon by the State, namely the facts and circumstances of the appellant's prior convictions for drug offences, was admissible under s 31A of the Evidence Act 1906 (WA).
At the trial, the prosecutor adduced the propensity evidence by reading aloud the facts and circumstances of the appellant's previous convictions:
[O]n 16 July 2009 at the District Court [in] Perth [the appellant] pleaded guilty to and was convicted of the following offences that occurred on 18 December 2008: one possess [sic] a prohibited drug, namely, cannabis, with intent to sell or supply it to another; one possess [sic] a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another; one possess [sic] a prohibited drug, namely, MDMA, with intent to sell or supply it to another; and one cultivate a prohibited plant, namely, cannabis, with intent to sell or supply cannabis to another.
The circumstances … are that police attended [the appellant's] house on 18 December 2008 in Kingsley and conducted a search of the property. Police found the following amounts of drugs: … two bags of cannabis with a combined weight of 55.1 grams in the freezer, as well as an additional 3.15 grams located in the house.
Also, 13.96 grams of methylamphetamine - this comprised 13 grams of methylamphetamine with a purity of 5 per cent which was located in several clipseal bags in a concealed drawer under the edge of the kitchen bench. The additional 0.96 grams of methylamphetamine was found on the laundry floor.
Also, 21.1 grams of [MDMA] - this comprised 74 green MDMA tablets with a purity of 22 per cent which were located in a clipseal bag in a green zip-up bag on the kitchen bench.
And five cannabis plants - these comprised two small potted plants which were in the lounge room and three plants inside a secreted chamber in a secure room adjacent to the patio.
These three plants were mature plants supported by a hydroponic system. Various chemicals were also located, along with water system devices and a book detailing the hydroponic system. [The appellant] stated this was his first crop and that he'd been set up for about a month and that he'd built the chamber in order to keep the cannabis concealed.
Also on 16 July 2009 in the District Court at Perth [the appellant] pleaded guilty and was convicted of a further count of possessing a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another.
The facts of that offence were that on 17 April 2009 the police stopped the accused in his vehicle on the driveway of his house in Kingsley after he had just driven home. Another person was in the passenger seat. Police searched [the appellant], as well as his vehicle and located a total of 25.44 grams of methylamphetamine.
This was made up in the following amounts: two clipseal bags containing 1.43 grams and 0.71 grams of methylamphetamine of unknown purity, a clipseal bag containing 13 grams of methylamphetamine at 22 per cent purity and a vacuum-sealed bag containing 10.3 grams of methylamphetamine at 34 per cent purity. These were located in a black container on top of the spare wheel in the vehicle which was located, that is, the spare was located, underneath its tray.
In relation to the offences involving cannabis, [the appellant's] plea was accepted on the basis that he was using some of the cannabis himself and sharing some with friends, that is, not on the basis that he was selling cannabis. In relation to the offences involving methylamphetamine and MDMA [the appellant] was sentenced on the basis that he intended to sell those drugs (ts 517 ‑ 518).
The trial judge's summary of the State's case in her summing up
The trial judge summarised the State's case, in her summing up, as follows:
(a)The State relied upon circumstantial evidence; in particular, the evidence of covert police operatives as to their surveillance, covert photographs, intercepted telephone calls, and evidence as to the search carried out by police at Mr Falconer's home including the discovery of the blue cooler bag containing a total of 808 g of cannabis.
(b)On 13 January 2016, Mr Holland was carrying a blue cooler bag when he arrived at the appellant's home in Sinagra. However, there was 'no witness who looked into the blue cooler bag that Mr Holland had in his hand when he arrived at [the appellant's] house and no witness [who] actually saw [the appellant] hand over a blue cooler bag to Mr Falconer' (ts 575).
(c)Covert police operative 636 gave evidence that he saw Mr Falconer carry from his car to his house the same blue cooler bag that covert police operative 636 had seen Mr Holland take to the appellant's house earlier that day.
(d)On the State's case, the jury could be satisfied beyond reasonable doubt that the cannabis found by the police in the blue cooler bag at Mr Falconer's house had been in the blue cooler bag which Mr Holland 'delivered to [the appellant's] house at about 11.00 am on 13 January 2016' (ts 575).
(e)On the State's case, 'the only reasonable inference [was] that [the appellant] knew that there was a prohibited drug in the blue cooler bag [which Mr Holland delivered to the appellant's house at about 11.00 am on 13 January 2016] and that [later the appellant had handed it] to Mr Falconer in [the] carpark at D'Uva's [Deli]' (ts 575).
The trial judge's summary of the appellant's case in her summing up
The trial judge summarised the appellant's case, in her summing up, as follows:
(a)The appellant's case was that he had no knowledge of the cannabis found by the police at Mr Falconer's home; in particular, he did not supply that cannabis.
(b)The covert police operatives did not see the appellant or Mr Falconer in possession of a blue cooler bag when the appellant met Mr Falconer in the carpark at D'Uva's Deli.
(c)There was no evidence as to what (if anything) was in the blue cooler bag taken by Mr Holland to the appellant's home.
(d)There was no evidence as to what happened subsequently to the blue cooler bag taken by Mr Holland to the appellant's home.
(e)The police did not search the appellant's home until 16 February 2016; that is, about one month after the police located the cannabis at Mr Falconer's home.
(f)The blue cooler bag taken by Mr Holland to the appellant's home and the blue cooler bag located by the police when they searched Mr Falconer's home was rectangular and soft. It was mainly blue in colour but had an area of grey on its top and a black strap.
(g)By contrast, the covert photographs of Mr Falconer showed that the object he carried from his car into his home was 'more like a hard cylindrical‑shaped container with a white top' (ts 594).
(h)Covert police operative 636 was mistaken when he said in evidence that he saw Mr Falconer carry from his car to his home the same blue cooler bag that covert police operative 636 had seen Mr Holland take to the appellant's home.
(i)The intercepted telephone calls were innocuous.
(j)The appellant had pleaded guilty in 2009 to the previous drug offences and this demonstrated that he was prepared to admit his guilt when he had offended. On this occasion, the appellant denied having had anything to do with the cannabis found at Mr Falconer's home.
The grounds of appeal
The appellant relies on three grounds of appeal.
Ground 1 alleges that the verdict of the jury was unreasonable and not supported by the evidence at trial.
Ground 2 alleges that additional evidence demonstrates that a miscarriage of justice has occurred.
Ground 3 alleges that Davis DCJ erred in law in ruling that the appellant's previous convictions were admissible as propensity evidence under s 31A of the Evidence Act.
On 19 November 2017, Mazza JA referred the appellant's application for leave to appeal and the appellant's application for leave to adduce additional evidence in the appeal to the hearing of the appeal.
Ground 1
By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
In M v The Queen,[1] Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
See also Jones v The Queen.[2]
[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.
[2] Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450 (Gaudron, McHugh & Gummow JJ).
In Libke v The Queen,[3] Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
See also Weiss v The Queen.[4]
[3] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.
[4] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[5]
[5] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court's task is not to consider, as a question of law, whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[6]
[6] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ); M (492 ‑ 493); SKA [20].
Rather, the appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
However, an appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[7] SKA [13].
[7] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).
In R v Baden‑Clay,[8] French CJ, Kiefel, Bell, Keane and Gordon JJ said that where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appellate court 'must always be whether the [appellate] court 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 494 ‑ 495. See also R v Hillier (2007) 228 CLR 618 at 630 [20] and the authorities cited) [66].
[8] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308.
Circumstantial evidence must not, of course, be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier.[9]
[9] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] (Gummow, Hayne & Crennan JJ).
In Baden‑Clay, their Honours made these observations in relation to determining whether, in a circumstantial evidence case, a reasonable inference consistent with the accused's innocence is open:
For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (Peacock v The King (1911) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133 CLR 82 at 104) (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (R v Hillier (2007) 228 CLR 618 at 637 [46] (footnote omitted)) (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (R v Hillier (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535) [47].
The State's case against the appellant at the trial relied upon circumstantial evidence, including the following:
(a)At about 12.45 pm on 5 January 2016, covert police operative 381 saw Mr Davies alight from a white Toyota Landcruiser truck and meet with the appellant in the front yard of the appellant's home. Mr Davies and the appellant walked out of view towards the house.
(b)At 2.09 pm on 5 January 2016, Ms Monaghan telephoned Mr Holland. She introduced herself as Laura and said she wanted to book her car in for a service on Thursday (7 January 2016). Mr Holland took details of her car (a Jeep Cherokee) and her address (the appellant's home in Sinagra). They agreed that Mr Holland would perform a basic service on the car and agreed on the time of 11.00 am. The conversation appeared to be between two people who did not know each other.
(c)At about 2.35 pm on 5 January 2016, the white Toyota Landcruiser truck departed from the appellant's home.
(d)At 5.29 pm on 7 January 2016, Ms Monaghan telephoned Mr Holland. She did not introduce herself. She merely said that she was at home now. Mr Holland said that he was 'down at the Ashby having a feed'. He said that as soon as he had finished he would 'pop in'. The conversation was informal in tone.
(e)At 6.39 pm on 11 January 2016, Mr Davies telephoned the appellant. The appellant asked Mr Davies what was going on today. Mr Davies said, 'probably tomorrow'. Immediately afterwards, the appellant telephoned Mr Falconer. The appellant said that he had just spoken to his mate and 'he reckons … tomorrow … his bike's not ready yet'.
(f)At 3.24 pm on 12 January 2016, the appellant telephoned Mr Davies. Mr Davies said, 'he's goin' to come lookin' for you later on'. The appellant asked what time and Mr Davies replied, 'before he's goin' to the cricket'. Mr Davies asked if the appellant's runner was there. The appellant said, 'I've just got a thing on tonight. That's all'. The appellant said he would get back to Mr Davies. Mr Davies replied that the appellant should 'swing straight by'.
(g)At 3.27 pm on 12 January 2016, the appellant telephoned Mr Davies again. The appellant said he did not know if he could 'make it there' and asked Mr Davies, 'what time do you reckon he could make it out to the mechanics by?'. The appellant added, 'do you reckon he could make it to - get the car to the mechanics by six?'. Mr Davies replied that he did not think so ‑ 'he's goin' to the … cricket' and he (that is, Mr Davies) was 'stranded'. Mr Davies added, 'but he will bring the car tomorrow'. The appellant said he would 'sort it out'. Mr Davies replied that 'one way or the other' he would hear from the appellant.
(h)At 3.46 pm on 12 January 2016, Mr Falconer telephoned the appellant. The appellant said, 'I just … spoke to him and he fuckin' - he wants me to go - or us to go there … but it's fuckin' miles away, man'. Mr Falconer suggested going first thing tomorrow because it would be too late tonight.
(i)At 10.30 am on 13 January 2016, Mr Holland telephoned Ms Monaghan. He said it was 'Coby from CBM'. He asked if Ms Monaghan was at home because he had a filter for her car that he needed to drop off. Ms Monaghan said she was at home. Mr Holland replied that he would be round in about 15 minutes.
(j)At about 10.55 am on 13 January 2016, covert police operative 636 saw Mr Holland alight from a green Holden Commodore sedan at the appellant's home. Mr Holland was carrying a blue cooler bag. He walked down the appellant's driveway 'towards the front door of the residence' and out of view. About one minute later, Mr Holland returned from the house towards his vehicle. He was not carrying the blue cooler bag. Mr Holland got into his green Holden Commodore sedan and drove away. Covert police operative 636 took photographs of Mr Holland as Mr Holland entered and departed from the appellant's property.
(k)At about 11.01 am on 13 January 2016, covert police operative 636 saw the appellant depart from the appellant's home on a bicycle. The appellant travelled to some bushland near Saponara Drive in Sinagra. He continued out of view. The appellant returned home at about 11.08 am.
(l)At 11.51 am on 13 January 2016, the appellant telephoned Mr Falconer. The appellant asked Mr Falconer if he had a lunch break and how long it was. Mr Falconer said it was half an hour. The appellant said, 'you wouldn't have time to run up here?'. Mr Falconer replied, 'Nah', but said he could 'catch up after work'. The appellant replied, 'we'll just do that'. Mr Falconer said, 'cause', um, you've still got, um, those clothes and that. My missus is at home if you want to drop them off'. The appellant did not accept that suggestion and Mr Falconer said, 'well, I'll just come and grab them after work, then'. The appellant said, 'do that'.
(m)At 3.41 pm on 13 January 2016, the appellant telephoned Mr Falconer. Mr Falconer said he was 'about five minutes from [the appellant's] house'. Mr Falconer said he was 'just off … Ashby Road'. The appellant said he knew Ashby Road and he would 'come … [p]ast there'.
(n)At about 3.54 pm on 13 January 2016, the appellant walked outside his home and got into a black Holden Commodore sedan. The appellant was with Ms Monaghan. The appellant drove to Ashby Street near Badgerup Road, where he parked next to a grey Holden Commodore sedan. The appellant and the person in the driver's seat of the grey Holden Commodore sedan (Mr Falconer) had a brief conversation, through open windows, without alighting from their vehicles.
(o)At 3.55 pm on 13 January 2016, Ms Monaghan telephoned D'Uva's Deli. She asked if they were still making rolls and was told that they only had sandwiches. Ms Monaghan placed an order for two sandwiches. She appeared to be speaking to someone in the background about the sandwich options. After she placed the order, the person at D'Uva's Deli said 'see you soon'.
(p)At about 4.01 pm on 13 January 2016, both the appellant's black Holden Commodore and the grey Holden Commodore sedan departed from Ashby Street and travelled to D'Uva's Deli. They arrived at about 4.02 pm. The cars were parked next to each other in the carpark. Mr Falconer alighted from the driver's seat of the grey Holden Commodore sedan. He walked to the front passenger side of the black Holden Commodore. Ms Monaghan alighted from the front passenger seat of the black Holden Commodore sedan and walked into the delicatessen. Mr Falconer then got into the front passenger seat of the black Holden Commodore sedan.
(q)At about 4.03 pm on 13 January 2016, Mr Falconer alighted from the front passenger seat of the black Holden Commodore sedan. He appeared to retrieve something from the driver's side of the grey Holden Commodore sedan before returning to the front passenger seat of the black Holden Commodore sedan.
(r)At about 4.05 pm on 13 January 2016, Ms Monaghan walked from the delicatessen towards the black Holden Commodore sedan. Mr Falconer alighted from the front passenger seat of that vehicle and returned to the grey Holden Commodore sedan.
(s)Both vehicles then drove away from the carpark of D'Uva's Deli.
(t)Mr Falconer travelled to his home in Landsdale. He arrived at about 4.15 pm on 13 January 2016. Mr Falconer alighted from his vehicle and walked into his house. As he went into the house, covert police operative 636 saw him carrying an object which the State alleged was the same blue cooler bag that had been delivered by Mr Holland to the appellant's home earlier that day.
(u)At about 6.05 pm on 13 January 2016, Mr Falconer departed from his home in a grey Volkswagen Golf car and drove to the Alexander Heights Shopping Centre. Mr Falconer was the sole occupant of the vehicle. He was stopped by police at the shopping centre and arrested. Police searched the car and located a bum bag. It contained two bags. One contained 27.3 g of cannabis and the other 27.7 g of cannabis. The bags were swabbed for DNA. Analysis of each bag returned the result 'insufficient for analysis'.
(v)After searching Mr Falconer's grey Volkswagen Golf car, police went to his home. At about 7.12 pm on 13 January 2016, police began searching Mr Falconer's home. In the wardrobe of the main bedroom, police found a blue cooler bag which, on the State's case, was the same blue cooler bag that Mr Holland had delivered to the appellant's home earlier that day. The bag contained a total of 808 g of cannabis.
(w)At 7.41 pm on 13 January 2016, the appellant telephoned Ms Monaghan. He told her 'Landsdale's getting raided'.
(x)At 9.38 pm on 13 January 2016, an unknown man telephoned the appellant. The unknown man told the appellant that 'they [had] raided … [and] they've arrested him … [f]or weed'. The unknown man added that 'they've arrested him down at Alexander Heights carpark' and that 'he had a pound of weed on him'.
(y)The blue cooler bag found at Mr Falconer's home and the contents of the bag were subject to forensic analysis. However, the analysis was neither inculpatory nor exculpatory of the appellant.
(z)At 7.21 am on 16 February 2016, the appellant was riding his motorcycle in Wanneroo. He was stopped by police and arrested. Police then searched his home. Ms Monaghan was present. During the search police found $3,000 cash in a bedside table in the main bedroom.
The State's case at the trial included oral evidence given by covert police operative 381, covert police operative 636, Detective Constable Kevin O'Shea, Detective Sergeant Warren Moore and Detective Senior Constable Richard Busby.
Police covert operative 381 gave evidence that on 5 January 2016 he saw Mr Davies alight from a vehicle and meet the appellant in the front yard of the appellant's home. Mr Davies and the appellant 'briefly spoke or engaged each other and then continued out of view towards the front of the residence' (14 June 2017: ts 6).
Police covert operative 636 gave evidence in examination‑in‑chief as follows:
(a)At about 10.55 am on 13 January 2016, covert police operative 636 saw a man (Mr Holland) alight from a green Holden Commodore sedan at the appellant's home. The man walked down the driveway of the appellant's home towards the front door of the residence. Covert police operative 636 did not see anyone else. The man was carrying a blue cooler bag. Once the man 'got … down the driveway [covert police operative 636's] observations were blocked by [motor vehicles]'. Covert police operative 636 saw the man again when the man departed from the appellant's home. The man was out of his sight for about 'a minute or two' (14 June 2017: ts 15 - 18).
(b)At about 4.00 pm on 13 January 2016, covert police operative 636 saw the appellant's black Holden Commodore parked on the side of Ashby Road next to a grey Holden Commodore. Covert police operative 636 saw that the appellant was in the driver's seat of the black Holden Commodore. The drivers' windows of the vehicles were aligned and it appeared that the appellant and the person sitting in the driver's seat of the grey Holden Commodore were having a conversation. Covert police operative 636 did not see anyone get out of the vehicles. After a minute or so the black Holden Commodore and the grey Holden Commodore departed from Ashby Street. Both vehicles turned right onto Badgerup Road and travelled south. Both arrived at and parked in the carpark of D'Uva's Deli (14 June 2017: ts 29 ‑ 30).
(c)At about 4.02 pm on 13 January 2016, covert police operative 636 observed the appellant's black Holden Commodore and the grey Holden Commodore when they were in the carpark at D'Uva's Deli. Covert police operative 636 described what he saw at D'Uva's Deli as follows:
Now, what did you see while you were there?‑‑‑I observed a male exit the grey Holden Commodore and identified that male as Adam Falconer. He was wearing a black T-shirt and I observed him approach the passenger side window of the black Holden Commodore. And he appeared to have a conversation through the window with the occupants of that vehicle. And I then observed a female exit the front passenger door of the black Holden Commodore and I identified that female as Laura [Monaghan]. And she walked from the vehicle into D'Uva's Deli and out of my view. I then observed Falconer enter the front passenger door of the black Holden Commodore. A short time later he exited the black Holden Commodore and went to the driver's side of the grey Holden Commodore where, to me, it appeared that he retrieved an item which I didn't see. But just the way that he exited the Commodore, walked to the grey Commodore and then briefly reached in to the driver's side and then returned to the black Commodore, it appeared to me that he retrieved an item.
So, could he have been retrieving or putting something in there or ‑ ‑ ‑ ?‑‑‑Either way, yeah, he could have retrieved an item or placed an item into the grey Commodore. And then he returned to the black Holden Commodore and again sat in the driver's seat. And after a short time he, again, exited the driver's seat - sorry, the front passenger seat of the black Commodore and [Monaghan] exited from the deli and she returned to the black Commodore. And Falconer entered the driver's seat of the grey Commodore (14 June 2017: ts 35).
(d)Covert police operative 636 said that the appellant's black Holden Commodore and Mr Falconer's grey Holden Commodore were in the carpark at D'Uva's Deli for about four or five minutes. The black Holden Commodore and the grey Holden Commodore then departed 'in convoy'.
(e)Covert police operative 636 followed Mr Falconer's grey Holden Commodore to Mr Falconer's home in Landsdale. Mr Falconer parked his vehicle on the front lawn. Covert police operative 636 then gave this evidence as to what he observed:
And what did you see?‑‑‑I saw Mr Falconer exit the driver's door of the vehicle.
Right?‑‑‑He was carrying a blue cooler bag.
Okay?‑‑‑He walked around the back of the vehicle, around the boot to the passenger side and then towards the residence …
And… when he got out of the car did he have the blue cooler bag with him?‑‑‑Yes, he was carrying a cooler bag in his hand.
Right. And where … did the cooler bag go? Did it go inside with him?‑‑‑Yes …(14 June 2017: ts 43 - 44).
(f)Covert police operative 636 did not see Mr Falconer again after he went into his residence (14 June 2017: ts 45).
Covert police operative 636 gave evidence in cross‑examination as follows:
(a)As to his observations at the appellant's home:
Officer, at 10.55 on the morning of 13 January, you saw a man approach [the appellant's] house?‑‑‑That's correct.
That man was carrying what you describe as a blue cooler bag?‑‑‑Correct.
You saw that man get to a point near the cars but not as far as the front door of the house?‑‑‑Correct.
You don't [know] what he did with the bag?‑‑‑No, I do not.
You don't know whether anyone met him at the door?‑‑‑I do not.
You don't know whether he just simply left it behind?‑‑‑I do not.
All you know is that about a minute later he walked back to his car and drove away?‑‑‑Correct (14 June 2017: ts 46).
(b)As to his observations at D'Uva's Deli:
And then that afternoon, you saw [the appellant's] car, where he was driving with [Ms Monaghan], stop at a particular location near a deli?---Yes.
At that point in time Mr Falconer's car was already in that location and stationary?‑‑‑Not at the deli, but earlier, yes.
Yes. A location near the deli?‑‑‑Yes, that's correct.
Yes. Neither [man] got out of the car?‑‑‑No, they did not.
Nor did [Ms Monaghan]?‑‑‑No.
They spoke briefly through windows?‑‑‑Correct.
And then they drove to the deli?‑‑‑ Yes.
When they got to the deli, [Ms Monaghan] got out of the vehicle and appeared to go inside the deli?‑‑‑That's correct.
You've then described the movements between the two men. But in short, [the appellant] stayed in the car the whole time?‑‑‑Yes, he did.
Mr Falconer got in and out of his car?‑‑‑Yes.
…
All right. So, can you have a look at the running sheet?‑‑‑Yes.
And can you go to your entry at 1603. And just to explain the context, you'll recall that you gave some evidence about what you saw Mr Falconer do when he left [the appellant's] car and went back to his car for the first time. Read to us, if you can, what you saw Mr Falconer do?‑‑‑
Falconer exited the front passenger seat of 1EHZ-514 and appeared to retrieve an unknown item from 1CTL-385 before returning and sitting in the front passenger seat of 1EHZ-514. And photographs obtained.
And who made that observation?‑‑‑I did.
Only you?‑‑‑Yes.
And is that accurate?‑‑‑I believe, yes.
All right. Then what happened is you've told us that Mr Falconer got back into [the appellant's] car?‑‑‑Yes.
All right. Could you see what Mr Falconer had got from the car?‑‑‑No, I could not.
All right. If Mr Falconer had got a wallet out of his car, would you expect to have been able to see that from where you were?‑‑‑No.
All right. Mr Falconer then stayed in the car for about two minutes?‑‑‑Yes.
All right. Got back into his car?‑‑‑Correct.
And you didn't see him carrying anything, did you?‑‑‑No, I did not (14 June 2017: ts 46 - 48).
(c)As to his observations at Mr Falconer's home:
And you followed Mr Falconer's car all the way back to his house?‑‑‑Correct.
And he got out?‑‑‑Yes.
And he was carrying a blue cooler bag as you've described it?‑‑‑Yes.
Was it actually a blue cooler bag, officer?‑‑‑That's what I believe it was, yes.
Have you looked carefully at the photo?‑‑‑I have, yes.
Okay. I'm going to get you to do that again in a moment. But let me just ask you this, have you ever seen those little mini drinks eskies … those mini sort of plastic hard eskies?‑‑‑Yes, I have.
Which had like a little drink thing at the bottle you can get drink from?‑‑‑Yes.
Right. And they're sort of a cylindrical shape?‑‑‑Yes, I do know those.
Okay. And then I want to say are you familiar with what a little sort of insulated, soft esky bag looks like?‑‑‑Yes.
All right. What I want to do is put the following two photographs up on the screen, if we can, side by side (14 June 2017: ts 48 ‑ 49).
(d)After defence counsel for the appellant put two photographs on the screen, the one on the left being the object which covert police operative 636 saw Mr Holland carrying when Mr Holland arrived at the appellant's home in the morning and the one on the right being the object he saw Mr Falconer carrying when Mr Falconer alighted from his vehicle at his home, the cross‑examination as to covert police operative 636's observations at Mr Falconer's home continued:
Okay. You've described the item on the right as a blue cooler bag?‑‑‑Yes.
And that's what you mean by a blue cooler bag, correct, the item on the right?‑‑‑Yes.
The item on the left you've also described that as a blue cooler bag?‑‑‑Yes.
And do you use that term to cover a multitude of different things?‑‑‑No, I do not.
Okay. So your description of the item Mr Falconer was carrying, however you might describe it, it's that item we can see there on the right, correct - - -?‑‑‑Yes.
‑ ‑ - which is blue and - - -?‑‑‑Yes.
- ‑ ‑ white?‑‑‑Yes, that's correct.
And there's no black shoulder strap, is there?‑‑‑Not that I can see in that image, no.
No, and there's no grey?‑‑‑ No, not that I can see.
And it's not a rectangular shape, is it?‑‑‑I couldn't say from that image.
…
- - - what you saw … Mr Falconer carrying looked like what we can see in that photo on the right … didn't it?‑‑‑Yes, it did.
And what you saw Mr Holland carrying that day looked like what we can see in the photo on the left?‑‑‑Yes, correct.
…
And just to be clear then the only time at which you saw Mr Falconer carrying anything that you would describe as a blue cooler bag was when you saw him … exit his car having left the deli and arrived back at home?‑‑‑That's correct. Yes.
And the thing that he was carrying was what we can see in that photograph?‑‑‑Yes, correct.
He wasn't carrying anything else, was he?‑‑‑Not that I could see (14 June 2017: ts 50 - 51).
Covert police operative 636 gave evidence in re‑examination that when he saw Mr Falconer alight from his vehicle at his Landsdale home and carry the object towards his residence, covert police operative 636 informed the investigating officer that the object was 'the same soft or cooler bag that [he had] earlier seen be delivered to [the appellant's] address' (14 June 2017: ts 57).
Detective O'Shea gave evidence in examination‑in‑chief that at about 4.00 pm on 13 January 2016 he and two other detectives were undertaking surveillance of Mr Falconer's home.
Detective O'Shea also gave evidence in examination‑in‑chief as follows:
(a)Detective O'Shea arrived in the vicinity of Mr Falconer's home, for the purpose of undertaking surveillance, at about 4.00 pm on 13 January 2016. He saw Mr Falconer's vehicle parked in the driveway of his home. Detective O'Shea did not see anyone get into or out of that vehicle. He remained there for about two hours. His task was 'to keep observations on the house and wait for anything to move' (ts 266 ‑ 267).
(b)Detective O'Shea saw a dark grey Volkswagen Golf car emerge from the garage. He followed the car to the Alexander Heights Shopping Centre. He stopped and searched the car at the Alexander Heights Shopping Centre and found two bags of cannabis concealed in a bum bag. Mr Falconer, who had been driving the Volkswagen Golf car, was arrested (ts 267 ‑ 268).
Detective O'Shea gave evidence in cross‑examination as follows:
(a)Detective O'Shea undertook surveillance of Mr Falconer's home commencing at about 4.00 pm on 13 January 2016 (ts 277).
(b)Detective O'Shea 'never once saw Mr Falconer come out of the house and go to [Mr Falconer's] car' during 'the two or so hours [Detective O'Shea was] waiting' (ts 283).
Detective O'Shea did not see Mr Falconer arrive at his home in his grey Holden Commodore. Accordingly, Detective O'Shea did not see Mr Falconer carry an object from the grey Holden Commodore into his house.
Detective Moore gave evidence in examination‑in‑chief that at about 4.00 pm on 13 January 2016 he and Detective Busby were undertaking surveillance of Mr Falconer's home (ts 245).
Detective Moore gave evidence in cross‑examination as follows:
(a)Detective Moore did not see Mr Falconer carry anything into his house (ts 252).
(b)Detective Moore did not 'have a look in Mr Falconer's car' while it was parked at Mr Falconer's home (ts 252).
(c)Detective Moore could not 'say for sure' whether 'there was anything in Mr Falconer's car … potentially having come from [Mr Falconer] meeting [the appellant and Ms Monaghan] at the deli' (ts 252).
(d)Mr Falconer remained in his home from about 4.00 pm to 6.00 pm on 13 January 2016 (ts 253).
Detective Busby gave evidence in cross‑examination that police did not search the appellant's home until 16 February 2016. That is, no search of the appellant's home was carried out between 13 January 2016 and 15 February 2016 (both dates inclusive) (ts 235).
The steps in the State's case that the appellant supplied to Mr Falconer the cannabis found by police in the blue cooler bag at Mr Falconer's home were as follows:
(a)At about 10.55 am on 13 January 2016, Mr Holland delivered a blue cooler bag containing cannabis to the appellant's home.
(b)At all material times, the appellant knew that the blue cooler bag delivered by Mr Holland to the appellant's home contained cannabis.
(c)The appellant put the same blue cooler bag containing cannabis, delivered earlier by Mr Holland, into the appellant's car. At about 3.54 pm on 13 January 2016, the appellant drove his car, with the blue cooler bag containing cannabis, to D'Uva's Deli.
(d)At about 4.03 pm on 13 January 2016, the appellant delivered the blue cooler bag containing cannabis to Mr Falconer in the carpark at D'Uva's Deli by permitting Mr Falconer to remove the blue cooler bag from the appellant's car.
(e)Mr Falconer put the blue cooler bag containing cannabis into his car in the carpark at D'Uva's Deli and drove from D'Uva's Deli to his home.
(f)At about 4.15 pm on 13 January 2016, Mr Falconer arrived at his home, alighted from his car and took the blue cooler bag containing cannabis into his home.
(g)At about 7.12 pm on 13 January 2016, police found the blue cooler bag containing cannabis in the wardrobe of the main bedroom of Mr Falconer's home.
The State ran its case at the trial on the basis that:
(a)the blue cooler bag containing cannabis found by police at Mr Falconer's home was the same blue cooler bag containing cannabis which Mr Holland delivered to the appellant's home earlier that day; and
(b)the appellant delivered the blue cooler bag containing cannabis to Mr Falconer in the carpark at D'Uva's Deli.
I am satisfied, after examining the trial record and weighing the whole of the evidence (in particular, after examining and weighing the evidence as to the chronology and content of the relevant events, including the chronology and content of the relevant telephone calls), that it was not reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on the count of selling or supplying cannabis to another, contrary to s 6(1)(c) of the MD Act. My reasoning is as follows.
First, at the hearing of the appeal, counsel for the State conceded (properly, in my opinion) that this court was not under a material disadvantage compared to the jury in examining the evidence relevant to the object that Mr Falconer took from his car and carried into his home upon returning from D'Uva's Deli (appeal ts 30). For example, the credibility of the critical State witnesses, namely covert police operative 381, covert police operative 636, Detective O'Shea, Detective Moore and Detective Busby, was not challenged at the trial. The reliability of covert police operative 636's observations in relation to the object he saw Mr Falconer carry from the grey Holden Commodore to his house was challenged, but his honesty was not put in issue.
Secondly, there was no evidence from any witness as to the contents of the blue cooler bag delivered by Mr Holland to the appellant's home when Mr Holland delivered it or while it remained on the appellant's property.
Thirdly, there was no evidence from any witness that the appellant had been seen delivering a blue cooler bag to Mr Falconer in the carpark at D'Uva's Deli or that Mr Falconer had been seen removing a blue cooler bag from the appellant's car in the carpark at D'Uva's Deli.
Fourthly, Mr Falconer was under surveillance by police from the time he left D'Uva's Deli up to the time he was arrested at the Alexander Heights Shopping Centre.
Fifthly, the evidence was that between Mr Falconer arriving at his home in the grey Holden Commodore sedan and Mr Falconer leaving his home in the grey Volkswagen Golf car Mr Falconer remained at home. He removed an object from the grey Holden Commodore sedan when he alighted upon arrival at his home and carried the object into his house, but he did not return to the sedan while he was at home. On the evidence, there was no opportunity for Mr Falconer to remove a blue cooler bag from the grey Holden Commodore sedan on some other occasion that afternoon than when he alighted upon arrival at his home.
Sixthly, I have examined the photographs that were tendered in evidence at the trial. My observations are as follows.
The covert photographs taken of the blue cooler bag delivered by Mr Holland to the appellant's home and the photographs of the blue cooler bag found by police at Mr Falconer's home indicate that the blue cooler bags are identical. Each blue cooler bag is rectangular in shape. It is mainly blue in colour but has an area of grey on its top and a black strap. The material used to construct the bags appears to be soft.
The covert photographs taken of Mr Falconer while he was walking from the grey Holden Commodore sedan into his home show him carrying an object. Although the photographs are, to some extent, blurred, it is plain, on my observation, that the object is not a blue cooler bag of the kind delivered by Mr Holland to the appellant's home or found by police at Mr Falconer's home. Rather, it is clear, on my observation, that Mr Falconer was carrying a large blue and white drink bottle. The base of the bottle is cylindrical in shape and blue in colour. The top of the bottle is white in colour. No part of the bottle is black or grey in colour. The bottle does not have a strap. The material used to construct the bottle appears to be firm.
Counsel for the State conceded (properly, in my opinion) that the covert photographs taken of Mr Falconer while he was walking from the grey Holden Commodore sedan into his home show that the object he was carrying was not a blue cooler bag but a 'blue cylindrical object with a white top' (appeal ts 28 ‑ 30).
Seventhly, it is true that covert police operative 636 said in evidence that he saw Mr Falconer carrying a blue cooler bag from the grey Holden Commodore sedan into his home. However, I consider that his evidence in that respect is unreliable having regard to the objective features of the object being carried by Mr Falconer as revealed by the covert photographs that were tendered in evidence. In my opinion, covert police operative 636 was mistaken in this aspect of his evidence. Covert police operative 636's evidence that he saw Mr Falconer carrying a blue cooler bag from the grey Holden Commodore sedan into his home could not reasonably have been relied upon by the jury.
Eighthly, it is not apparent from the covert photographs that Mr Falconer was carrying anything except a blue and white drink bottle while he was walking from the grey Holden Commodore sedan into his home.
Ninthly, when Mr Falconer was stopped and arrested at the Alexander Heights Shopping Centre, police located in the grey Volkswagen Golf car two bags of cannabis weighing in total 55 g. It was no part of the State's case that the appellant had supplied that cannabis to Mr Falconer. The State's case was that the one cooler bag containing the one quantity of cannabis was supplied by Mr Holland to the appellant and then by the appellant to Mr Falconer.
Tenthly, the probative force of the State's case was diminished by the failure of the police to search the appellant's home on 13 January 2016. As I have mentioned, the police did not search his home until 16 February 2016.
Eleventhly, there is no doubt that the intercepted telephone calls, in the context of the propensity evidence and the other evidence relied on by the State, were highly suspicious. It is highly likely that, viewed in the context I have mentioned, a significant part of the intercepted telephone calls involved communications (including to and by the appellant) in relation to illicit drug dealing.
However, the intercepted telephone calls, viewed in the context of the propensity evidence and the other evidence relied on by the State, do not establish that:
(a)the blue cooler bag containing cannabis found by police at Mr Falconer's home was the same blue cooler bag which Mr Holland had delivered to the appellant's home earlier that day;
(b)the blue cooler bag which Mr Holland delivered to the appellant's home contained the cannabis found by the police when they searched Mr Falconer's home; or
(c)the appellant delivered to Mr Falconer in the carpark at D'Uva's Deli the same blue cooler bag which Mr Holland delivered to the appellant's home that day (or, indeed, any blue cooler bag).
Twelfthly, it was not open to the jury, in the circumstances, to reason that the only reasonable inference open on the evidence relied on by the State, considered as a whole and not on a piecemeal basis, was that the appellant, by some unknown mechanism (for example, by the delivery to Mr Falconer in the carpark of D'Uva's Deli of the blue and white drink bottle), supplied the cannabis in question to Mr Falconer. The jury was precluded, by the trial judge's directions, from adopting that form of reasoning. Her Honour's directions reflected the manner in which the State had run its case; in particular, that:
(a)the blue cooler bag containing cannabis found by police at Mr Falconer's home was the same blue cooler bag containing cannabis which Mr Holland had delivered to the appellant's home earlier that day; and
(b)the appellant delivered the blue cooler bag containing cannabis to Mr Falconer in the carpark at D'Uva's Deli.
Thirteenthly, the view of the evidence which the jury must have taken in relation to the critical issues concerning the blue cooler bag delivered by Mr Holland to the appellant's home is not explicable by the jury's advantage in having seen and heard the witnesses.
A jury, acting reasonably, was precluded by the state of the evidence at trial from convicting the appellant. The trial record requires the conclusion that the jury, acting reasonably, must necessarily have entertained a doubt about the appellant's guilt. The verdict of guilty was unreasonable. It was not supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. On the basis of the manner in which the State ran its case at the trial, I have a reasonable doubt as to the appellant's guilt and as to the correctness of his conviction. I have arrived at those conclusions after paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the consideration that the jury has had the benefit of having seen and heard the witnesses.
Ground 1 has been made out.
Grounds 2 and 3
It is unnecessary, in the circumstances, to consider grounds 2 and 3.
Conclusion
I would grant leave to appeal on ground 1 and refuse leave to appeal on grounds 2 and 3. The appellant's application for leave to adduce additional evidence in the appeal should be dismissed.
The appeal should be allowed, the judgment of conviction set aside and a judgment of acquittal entered.
MAZZA JA:
I respectfully agree with Buss P and Mitchell JA that ground 1 of this appeal against conviction has been made out and that the appeal must be allowed. I agree with the reasons of both of their Honours. I wish to make the following additional observations.
The State's case at trial was run on a very narrow and specific basis. It was the State's case that, on the morning of 13 January 2016, Mr Holland supplied to the appellant a blue cooler bag which contained 808 g of cannabis. The blue cooler bag and the cannabis in it was then supplied by the appellant to Mr Falconer at D'Uva's Deli. Mr Falconer put the blue cooler bag in his grey Commodore vehicle and drove to his house in Lansdale, arriving there at approximately 4.15 pm. He then carried the blue cooler bag into his house where it remained until it was discovered by police in the wardrobe of Mr Falconer's bedroom. It was the State's case that the blue cooler bag of cannabis found at Mr Falconer's home was the same blue cooler bag of cannabis supplied to the appellant by Mr Holland.
Because the State's case was run in this fashion, it was necessary for the State to prove that, having met the appellant at D'Uva's Deli and been supplied with the blue cooler bag by the appellant, Mr Falconer drove to his home and then carried the blue cooler bag he had been given from his car and into his house.
The evidence adduced by the State established that, in the relevant time period, the only time Mr Falconer went from his motor vehicle to his home was shortly after his arrival there at about 4.15 pm on 13 January 2016. Thereafter, his home was under constant police surveillance until 6.05 pm when Mr Falconer left and drove to the Alexander Heights Shopping Centre. He was not seen to return to his car during this period. There is no evidence he (or anyone else) went to his car, retrieved a blue cooler bag and brought it into the house. Had these things occurred, it is highly unlikely they would not have been seen by the police.
The only evidence adduced by the State which was capable of proving that Mr Falconer had carried the blue cooler bag which contained the cannabis from his car and into his house at approximately 4.15 pm on 13 January 2016 came from the testimony of Police Operative 636 and the police surveillance photographs taken at the time: exhibit 11. Police Operative 636 testified that he saw Mr Falconer carrying a blue cooler bag and that it was the same bag he had seen delivered by Mr Holland to the appellant's house. I have viewed exhibit 11. While the surveillance photographs are, to some extent, blurry, it is clear that Mr Falconer is carrying a single item and that item is not a blue cooler bag. The item Mr Falconer is carrying is cylindrical in shape and predominantly blue in colour. It appears to be made of a hard, not soft, material. It also appears to have a small white tap towards the base. It is entirely consistent with being a hard, plastic, blue‑coloured drink bottle.
In oral argument, counsel for the respondent conceded that the surveillance photographs show Mr Falconer carrying an object from his vehicle which appeared different in shape and colour and with a different handle, to the object Police Operative 636 saw Mr Holland deliver to the appellant's house.[10] Counsel for the respondent also appeared to accept that if this court reached the conclusion that Police Operative 636's evidence was incorrect on this point, the verdict of guilty could not stand.[11]
[10] Appeal ts 28, 29 ‑ 30.
[11] Appeal ts 29 ‑ 30, 34.
To my mind, the surveillance photographs show that Police Operative 636's evidence that the object being carried by Mr Falconer as he left his car was the same blue cooler bag that he had seen earlier, was incorrect and could not reasonably have been relied upon by the jury.
Having come to this conclusion, and as no‑one was seen to leave Mr Falconer's house, go to his car and retrieve the blue cooler bag in the period from about 4.15 pm and 6.05 pm on 13 January 2016, the State could not prove that the appellant had supplied Mr Falconer with the blue cooler bag of cannabis at D'Uva's Deli as it alleged. This is because the State's case depended upon Mr Falconer taking the blue cooler bag he had allegedly been given by the appellant, from his car into his house. While the police found a blue cooler bag with cannabis in it in Mr Falconer's house, there was, in the end, no evidence that it was the same blue cooler bag said by the State to have been supplied by the appellant to Mr Falconer.
Much of the evidence that was adduced at trial against the appellant was highly suspicious, including, most notably, the intercepted telephone conversations. The intercepted telephone conversations indicate that the appellant, Mr Davies and Mr Falconer were involved in the cannabis trade. It may be that the blue cooler bag containing cannabis found at Mr Falconer's house was not the same one Mr Holland delivered to the appellant on 13 January 2016. It may also be that the appellant supplied to Mr Falconer, at D'Uva's Deli, the relatively small quantity of cannabis which police found on him at the Alexander Heights Shopping Centre. However, the State did not run its case on this basis and I make no conclusions as to this alternative scenario.
In the end, upon my examination of the trial record and given the way that the State ran its case, it was not open to the jury to find that the appellant supplied Mr Falconer at D'Uva's Deli with the blue cooler bag of cannabis found at Mr Falconer's house on 13 January 2016. The verdict of guilty was unreasonable and must be set aside. A verdict of acquittal should be entered.
I agree with Buss P that it is unnecessary to decide grounds 2 and 3. I agree with the orders he proposes.
MITCHELL JA:
The evidence led at trial, and the applicable legal principles, have been summarised by Buss P. For the following reasons, I agree that the appeal must be allowed.
The appellant was convicted of selling or supplying cannabis to Adam Falconer. The charge related to 808g of cannabis, which police located in a blue cooler bag in the wardrobe of the main bedroom of Mr Falconer's house in Lansdale. The State's case was that the appellant delivered the blue cooler bag containing the cannabis to Mr Falconer at the car park of D'Uva's Deli in Gnangara on 13 January 2016.
The State's case largely consisted of evidence given by covert surveillance operatives. At about 10.55am on 13 January 2016, Coby Holland was observed delivering to the appellant's house at Sinagra a blue cooler bag, of the same type as that subsequently located at Mr Falconer's house. Mr Falconer and the appellant were observed to meet and speak to each other from their cars on a road at about 4 pm
that afternoon. They then drove to D'Uva's Deli, arriving just after 4pm. The appellant's partner went in to collect sandwiches she had ordered. Mr Falconer was observed to get out of his grey Holden Commodore and sit in the appellant's car. Mr Falconer returned to his car as if to retrieve something before going back to the appellant's car. Mr Falconer then went back to his own car and drove home when the appellant's partner exited the Deli.
Mr Falconer was not observed to take a blue cooler bag from the appellant's car to his grey Commodore at D'Uva's Deli. However, having regard to the distance from which and circumstances in which he was observed, the evidence did not exclude the possibility that he had done so.
Mr Falconer was observed by police as he drove home and, at about 4.15pm, parked his grey Commodore at the front of his house. Mr Falconer was observed walking into his house, where he remained until about 6.05pm that evening. At that time, Mr Falconer drove away in another vehicle. Shortly thereafter, he was arrested at the Alexander Heights Shopping Centre. Police began a search of Mr Falconer's house at about 7.12pm that evening. The blue cooler bag and cannabis were located in the wardrobe of Mr Falconer's house at about 9.55pm.
The appellant was under police surveillance from the time when Mr Holland delivered a blue cooler bag to his house. The only opportunity which the appellant had to give that bag to Mr Falconer was in the car park of D'Uva's Deli. If he had done so, then Mr Falconer must have taken the blue cooler bag into his house after parking his grey Commodore at the front of his house. The grey Commodore was under close police surveillance from the time it was parked at the front of Mr Falconer's house to the time when Mr Falconer departed his house in another vehicle. Police did not observe Mr Falconer return to the grey Commodore after he parked the car at the front of his house. Mr Falconer therefore had no opportunity to take a blue cooler bag from the grey Commodore into his house other than immediately after parking the car at the front of his house.
Covert police operative 636 described Mr Falconer carrying a single object into his house after parking the grey Commodore. He thought that this object was a blue cooler bag of the same kind as he had previously observed being delivered to the appellant's house by Mr Holland. However, the photographic evidence tendered at trial shows that there is a single item being carried by Mr Falconer but that item was not a blue cooler bag. It rather appears to be a blue and white cylindrical drink container. The covert police officer must have been mistaken in what he thought he observed Mr Falconer to be carrying.
In my view, the evidence led at trial established that Mr Falconer carried a single item carried into his house from his grey Commodore and that single item was not the blue cooler bag subsequently located in his wardrobe. This means that the appellant could not have given Mr Falconer the blue cooler bag located in Mr Falconer's wardrobe at D'Uva's Deli. If he had done so, Mr Falconer would have been observed by police taking the bag from the grey Commodore into his home.
Further, there was no search of the appellant's house until over a month later. None of the covert operatives observed the appellant taking a blue cooler bag to his own car after its delivery by Mr Holland. There was no direct evidence that the bag delivered by Mr Holland did not remain at the appellant's house up to the time when the bag containing cannabis was located in Mr Falconer's wardrobe.
There was evidence of telephone calls which give rise to a suspicion that the appellant was involved in arranging the delivery of drugs. However, that evidence does not overcome the evidence that the grey Commodore was observed by police at all material times after the appellant met with Mr Falconer, and the only object which Mr Falconer took from the Commodore into his house was not the blue cooler bag.
Taken as a whole, the evidence at trial was inconsistent with the appellant having sold or supplied Mr Falconer with the 808g of cannabis located in the blue cooler bag in the manner alleged by the State. In my view, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant gave Mr Falconer that cannabis. The State's case that the appellant sold or supplied those drugs to Mr Falconer by doing so was not established. The different view which the jury took is not explicable by any advantage the jury enjoyed from having seen and heard the evidence. I am of the opinion that the verdict of guilty on which the appellant's conviction is based should be set aside because, having regard to the evidence, it is unreasonable and cannot be supported.
I agree with the orders proposed by Buss P.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS9 MAY 2018
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