Head v The State of Western Australia
[2020] WASCA 21
•28 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HEAD -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 21
CORAM: MAZZA JA
MITCHELL JA
VAUGHAN JA
HEARD: 7 FEBRUARY 2020
DELIVERED : 28 FEBRUARY 2020
FILE NO/S: CACR 64 of 2019
BETWEEN: DARRIN STUART HEAD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
File Number : BUN IND 177 of 2015
Catchwords:
Criminal law- Drug offences - Appeal against conviction - Where defence raised by the appellant's evidence was not left to the jury - Whether the appeal can be dismissed on the ground that no substantial miscarriage of justice has occurred
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(c), s 30(4)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2), s 6(3)(b), s 26(1)(a)
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
| Appellant | : | E Zillessen |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Head v Director of Public Prosecutions (WA) [2019] WASCA 157
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176
Quartermaine v The Queen (1980) 143 CLR 595
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
JUDGMENT OF THE COURT:
Introduction
Just after 5 am on 24 March 2015, police executed a search warrant at the appellant's Augusta residence. Members of the Tactical Response Group forced entry and used distraction devices in doing so. They gave evidence of having observed the appellant dropping packages of prohibited drugs into the toilet bowl of the ensuite bathroom. The appellant was apprehended by police officers in the ensuite bathroom. The police officers also gave evidence of tending to injuries the appellant's partner received to her foot as a result of the deployment of a distraction device in the bedroom. The appellant's partner gave evidence of being woken by the police entry, taking a few steps from the bed and suffering an injury as a distraction device detonated near her foot. She denied going into the ensuite bathroom after being injured, or having attempted to dispose of any drugs as police entered the house.
The appellant gave evidence at trial. The effect of his evidence was that he observed a plastic bag containing drugs near his front door when he and his partner returned home at about 2.30 - 3.00 am on 24 March 2015. He entered his house through the carport door and then saw the same plastic bag in the kitchen. He appreciated that the bag contained prohibited drugs, and did not want them in his house. The appellant intended to call a local police officer in the morning and ask him to come around. The appellant explained that he did not contact police at the time he located the bag because he expected the police would have waited until morning to collect it anyway. The appellant went to bed, after taking sleeping tablets, and put the tied up plastic bag of drugs at the end of the bed. The next thing the appellant remembered was waking up underneath the bed during the police raid, and being pulled out by a police officer. He denied attempting to dispose of the drugs in the toilet during the police raid.
At trial, the appellant's counsel suggested that police may have mistakenly identified the appellant as the person who attempted to dispose of the drugs in the toilet, when in fact it was his partner. An issue agitated at trial was whether there was any blood in the ensuite bathroom, in a context where there was evidence that the appellant was not bleeding but his partner was bleeding from the injury to her foot. The appellant said that he observed blood in the bathroom on returning to the residence after his arrest, and contended that blood was shown in photographs which were tendered in evidence. The police officers' evidence was to the general effect that they had not observed blood on the ensuite bathroom floor. The appellant's counsel relied on evidence of blood in the ensuite bathroom to support a submission that it was the appellant's partner, rather than the appellant, who entered the bathroom to attempt to dispose of the drugs.
The appellant was convicted after trial of:
(1)One count of attempting to wilfully destroy evidence, contrary to s 132 and s 552 of the Criminal Code.
(2)Two counts of possession of a prohibited drug (methylamphetamine and MDA) with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (Drugs Act).
(3)Two counts of possession of a prohibited drug (Dexamphetamine and MDMA), contrary to s 6(2) of the Drugs Act.
The appellant was acquitted of possession of the dexamphetamine and MDMA with intent to sell or supply it to another, and of possession of property ($4,350 cash) that was reasonably suspected of being unlawfully obtained.
The appellant was sentenced to a total effective sentence of 4 years' immediate imprisonment. This included a concurrent sentence of 12 months' immediate imprisonment in respect of the attempt to wilfully destroy evidence. The sentences were backdated to 19 September 2016 to take account of time spent in custody on remand. The court also made a drug trafficker declaration under s 32A of the Drugs Act.
The appellant now seeks to appeal against his convictions on two grounds. Ground 1 contends that there was a miscarriage of justice due to the trial judge failing to direct the jury on an available statutory defence to the drug charges, under s 6(3)(b) of the Drugs Act, which arose on the evidence. Ground 2 contends that:
There was a miscarriage of justice because the State stated to the jury there was no blood on the floor of the bathroom at the appellant's residence at the time of the search, and that the appellant's evidence on this point was a lie, when there was evidence which supported the appellant's evidence on this issue.
The appellant requires an extension of time in which to appeal, as his appeal notice was filed over 2 years after the time for appealing expired. His applications for an extension of time and for leave to appeal were referred to the hearing of the appeal.
For the following reasons, ground 1 is established. The failure to leave a defence raised by the evidence constitutes a substantial miscarriage of justice in the circumstances of this case. The appeal should be allowed to the extent that the convictions for the drug offences should be set aside and a new trial ordered in respect of those offences. Leave to appeal on ground 2 should be refused, and the appeal dismissed so far as it seeks to set aside the appellant's conviction for the attempt to wilfully destroy evidence.
Statutory context
Part II of the Drugs Act is entitled, 'Offences relating to prohibited drugs and prohibited plants'. Part II contains most, but not all, of the offence‑creating provisions in the Act.[1] The offences in pt II, namely, s 6, s 7, s 7A, s 7B and s 8B, target persons who engage in a broad range of conduct associated with prohibited drugs and prohibited plants.
[1] See, for example, offence‑creating provisions in pt IIIB, pt IV, pt 4A, pt V and pt VI of the Act.
Section 6 of the Act reads as follows:
6. Offences concerned with prohibited drugs generally
(1)A person commits a crime if the person -
(a)with intent to sell or supply it to another, has in his or her possession a prohibited drug; or
(b)manufactures or prepares a prohibited drug; or
(c)sells or supplies, or offers to sell or supply, a prohibited drug to another person.
(2)A person who has in his or her possession or uses a prohibited drug commits a simple offence.
(3)A person does not commit a crime under subsection (1) or a simple offence under subsection (2) by reason only of the person having in his or her possession a prohibited drug if the person proves that -
(a)he or she was authorised by or under this Act or the Medicines and Poisons Act 2014 to have possession of the drug; or
(b)he or she had possession of the drug only for the purpose of delivering it to a person authorised to possess the drug under this Act or the Medicines and Poisons Act 2014 and he or she took all reasonable steps to deliver the drug to the person; or
(c)he or she had possession of the drug for the purpose of analysing, examining or otherwise dealing with it for the purposes of this Act in his or her capacity as an analyst, botanist or other expert.
(4)A person does not commit a crime under subsection (1) by reason only that the person manufactures, prepares, sells or supplies a prohibited drug if the person proves that he or she was authorised to manufacture, prepare, sell or supply the drug under this Act or the Medicines and Poisons Act 2014.
(5)A person does not commit a simple offence under subsection (2) by reason only of using a prohibited drug if the person proves that he or she was a person authorised under this Act or the Medicines and Poisons Act 2014.
Section 6(1) is directed at any person who:
(1)has in his or her possession a prohibited drug with intent to sell or supply it to another (subparagraph (1)(a)); or
(2)manufactures or prepares a prohibited drug (subparagraph (1)(b)); or
(3)sells or supplies, or offers to sell or supply, a prohibited drug to another person (subparagraph (1)(c)).
Section 6(2) is directed at any person who has in their possession or who uses a prohibited drug.
Although the provisions of Chapter V of the Criminal Code relating to criminal responsibility at least generally apply to the Drugs Act,[2] unlawfulness is not an element of the offences in s 6(1) and (2) of the Drugs Act. The exceptions in subsections (3), (4) and (5) protect against the plainly undesirable consequence of criminalising the conduct of a person who may have a legitimate reason to be in possession of, or use, a prohibited drug or to manufacture, prepare, sell or supply a prohibited drug.
[2] Section 36 of the Code. It is unnecessary in this case to consider the interaction between s 31 of the Code and s 6 of the Drugs Act. There was no evidence that, in possessing the prohibited drugs, the appellant acted in the execution of the law or in obedience to the order of a competent authority which he was bound by law to obey, within the meaning of s 31 of the Code.
Section 6(3)(b) of the Act exempts from criminal liability a person who has possession of a prohibited drug only for the purpose of delivering it to an authorised person such as a police officer.
This exemption arises when the person is proved by the prosecution to be in possession of a prohibited drug beyond reasonable doubt. The meaning of the word 'possession' in s 6(3) should be construed consistently with the word 'possession' in s 6(1) and s 6(2).
On its proper construction, s 6(3)(b) of the Drugs Act requires an accused, whose possession of a prohibited drug has been established by the prosecution beyond reasonable doubt, to prove that:
(a)he or she had possession of the prohibited drug only, that is exclusively, for the purpose of delivering it to a person authorised to possess the drug under the Drugs Act or the Medicines and Poisons Act 2014 (WA); and
(b)he or she took all reasonable steps to deliver the prohibited drug to the person, that is, the person authorised under the Act or the Medicines and Poisons Act.
A police officer is authorised to seize and detain a prohibited drug under s 26(1)(a) of the Drugs Act.
The onus placed on an accused by s 6(3)(b) must be discharged by him or her on the balance of probabilities.
Ground 1: failure to leave a statutory defence
As noted above, ground 1 contends that there was a miscarriage of justice when the trial judge failed to direct the jury on a defence under s 6(3)(b) of the Drugs Act which arose on the evidence. For the reasons explained above, if the appellant was in possession of a prohibited drug it was a defence under s 6(3)(b) for him to prove that:
(1)he had possession of the prohibited drug only for the purposes of delivering it to a police officer; and
(2)he took all reasonable steps to deliver the prohibited drug to a police officer.
Miscarriage of justice
It is common ground that, if the jury accepted the appellant's evidence at trial that he found the bag of drugs at about 2.30 - 3.00 am and intended to give it to police in the morning, the evidence could have established a defence under s 6(3)(b) of the Drugs Act. It is also common ground that the defence under s 6(3)(b) was not referred to by either counsel or the trial judge during the course of the trial. The State correctly accepts that the failure of the trial judge's directions to leave a defence to the drug charges raised by the evidence constitutes a miscarriage of justice. The trial judge was bound to put to the jury every lawfully available defence open to the appellant on the evidence even if his trial counsel had not put the defence and even if counsel had expressly abandoned it.[3] The failure of the judge to correctly explain the relevant law to the jury constitutes a miscarriage of justice within the meaning of s 30(3)(c) of the Criminal Appeals Act.[4] This court is therefore required to allow the appeal unless it considers that no substantial miscarriage of justice has occurred under s 30(4) of the Criminal Appeals Act.
Whether there was no substantial miscarriage of justice on the basis that the substance of the defence was left for the jury's consideration
[3] Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176 [85] - [89], and cases there cited.
[4] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18], [27].
The State contends that no substantial miscarriage of justice has occurred. It does so on the basis that the overall effect of the trial judge's direction was that the State had to satisfy the jury, beyond reasonable doubt, that the appellant did not intend to deliver the prohibited drugs to police. The State submits that the overall effect of the trial judge's direction was that, if the jury accepted the appellant's evidence, they would acquit the appellant of the drug charges. The State says that the direction, taken as a whole, effectively and fairly instructed the jury as to the critical issues in the trial. The State says that the trial judge's direction was unduly favourable to the appellant, as it did not refer to him having the onus of proving the defence, or to the requirement that he took all reasonable steps to deliver the drugs to the police.
For the following reasons, we do not accept the State's submission that the overall effect of the trial judge's direction was that, if the jury accepted the appellant's evidence, they would acquit the appellant of the drug charges.
The trial judge's directions as to the drug charges identified four elements of each offence under s 6(1)(a) with which the appellant was charged:[5]
(1)Identity;
(2)The appellant had a substance in his possession;
(3)The substance was a prohibited drug;
(4)The appellant had the drug in his possession with intent to sell or supply it to another person.
The direction indicated that there was no issue as to identity or that the charged substances were prohibited drugs.
[5] Trial ts 486.
The trial judge gave orthodox general directions as to what was involved in possessing a prohibited drug,[6] and identified three requirements of the element of possession that the State had to prove:[7]
(1)The appellant was aware or believed that there was a significant or real chance that what was in the plastic bag was a prohibited drug.
(2)The appellant had control over the drug, which could mean either physical control or the ability to control the drug (ie control or dominion over it irrespective of where it was or who had it).
(3)The appellant intended to possess the drug at the time he had control of the drug.
[6] Trial ts 486 - 487.
[7] Trial ts 487 - 488.
The trial judge then observed:[8]
Now, in this case, [the appellant] has given evidence about his knowledge of the drugs. I've already read that out to you. He has also said he didn't intend to possess the drugs. He was intending to take the drugs to the police the next day. You can either accept or reject what he says in that regard when you are considering whether or not he possessed the drugs in counts 2 to 5. That's a matter for you, but if you rely on facts other than what he says his state of mind was, you would have to draw an inference from circumstantial evidence. So, like count 1, the State is relying on inferences to prove that [the appellant] knew of the existence of the drug in each count and he was exercising control over it and intended to possess it.
[8] Trial ts 488.
The trial judge summarised the State's submissions as to the circumstances on which it relied to support an inference that the appellant intended to possess the drugs.[9]
[9] Trial ts 488 - 489.
The trial judge also gave orthodox directions as to the element that the appellant must have intended to sell or supply the drugs in his possession, or any part of it, to another person. In doing so, her Honour directed that the word 'supply' includes 'to deliver, dispense, distribute, forward, furnish, make available, provide, return or send'.[10] She then directed the jury as to the presumption as to intention to sell or supply which arose if the jury were satisfied that the appellant possessed not less than 2 g of the relevant drugs.[11] Police evidence was that more than 2 g of each type of drug was found during the search of the appellant's residence. The trial judge observed:[12]
So the law effectively places upon [the appellant] the legal burden of proving, on the evidence as a whole, on the balance of probabilities, that he did not intend to sell or supply the drug.
Her Honour directed the jury that, using all of the evidence they had heard in the trial, they had to determine whether it was more probable than not that the appellant did not intend to sell or supply the drug.
[10] Trial ts 489.
[11] Trial ts 489 - 490.
[12] Trial ts 490.
Continuing with the question of possession with intent to sell or supply, the trial judge then summarised the defence position, and the issue for the jury's consideration, in the following terms:[13]
You do need to remember that the defence position is that [the appellant] did not possess the drugs. He didn't want them in the house. His intention was to go the following morning to the police with them and, therefore, he could not have had any intention to sell or supply.
Now, I've spoken about using the whole of the evidence. You must consider all of the evidence in considering whether or not [the appellant] possessed the drug with the intention to sell or supply. It may be you accept what [the appellant] has said in his evidence, which was he was intending to take these drugs to the police. That's a matter for you. If you do accept his evidence, you would find him not guilty of the charge in the indictment, but it is not just a question of whether or not you believe what he has said in his evidence.
You are not limited to what [the appellant] said in court. You should consider and you are entitled to consider all of the evidence, everyone's evidence, including [the appellant's] evidence and including the exhibits. So using the evidence you've heard for this trial, you will need to decide, on the whole of the evidence, whether it is more probable than not that the appellant did not intend to sell or supply the drug or any part of it. (emphasis added)
[13] Trial ts 490 - 491.
The trial judge directed the jury that if they were satisfied that the appellant did not possess any of the drugs with the intention that any part of it would be sold or supplied to another, they would find him not guilty of the charge in the indictment, but guilty of simple possession.[14]
[14] Trial ts 491.
After giving directions as to alternative verdicts, the trial judge summarised counsel's submissions on the drug charges. In the course of summarising the State's submissions, the trial judge said:[15]
On the issue of whether he intended to exercise control of them, and [the appellant's] suggestion that he intended to take the drugs to the police station, the State says you should reject [the appellant's] evidence. Whether or not you believe his evidence is a matter for you, but then the State submitted that even if you accepted his account, you could still find that he possessed the drugs simply on [the appellant's] own evidence. But the State says that you should reject his evidence. (emphasis added)
[15] Trial ts 492.
That statement occurred in a context where the prosecutor had previously informed the jury that anything he said about the law was subject to what the trial judge said and, if the prosecutor was wrong, the trial judge would correct him.[16] Here what was said by the prosecutor was not strictly wrong. The vice was that it was incomplete. The defence under s 6(3)(b) was not left to the jury. In this respect there was no correction.
[16] State closing trial ts 2.
The trial judge also noted the submission of the appellant's trial counsel that:[17]
[The appellant] did not know what was in the containers. He didn't have the requisite degree of knowledge that he had prohibited drugs in his possession. He made a decision to take the plastic bag to the police the next day. That was his stated intention. … [The appellant] did not intend to exercise control over the bag and did not intend to possess the contents of the bag for himself.
[17] Trial ts 493.
Applying the trial judge's direction, considered as a whole, the jury could have found that the appellant possessed the drugs on the basis that he intentionally had physical custody and control of what he knew were prohibited drugs. The trial judge did refer to submissions of the appellant's trial counsel to the effect that the appellant did not intend to possess the drugs (in the passages quoted at [25] and [32] above). However, her Honour never directed the jury that the appellant would not have been in possession of the drugs if he intended to give them to police. Such a direction would not have been legally accurate in any event.
The effect of the emphasised part of the passage quoted at [28] above is that, if the jury accepted the appellant's evidence that he intended to take the drugs to police, he should be found not guilty of the charged offence against s 6(1)(a) and guilty of simple possession. This direction related only to the intention element of the offence against s 6(1)(a) of the Drugs Act. It did not indicate that the appellant should be found not guilty of both possession with intent and simple possession if the jury accepted his evidence that he intended to take the drugs to police. It is not an answer to the appeal against the appellant's conviction of the simple possession offences.
Further, on the directions properly given by the trial judge, supply encompassed the delivery of the drugs to another person. An intention to deliver the drugs to a police officer would meet the definition of 'supply' given to the jury by the trial judge, and as that concept is defined in the Drugs Act. The combination of that general direction with the emphasised passage quoted at [28] above had the potential to confuse the jury in a context where there was no direction as to the defence under s 6(3)(b). The trial judge did not direct the jury that an intention to deliver the drugs to police would not be an intention to supply the drugs to another person for the purposes of the Act. Again, such a direction would have been legally inaccurate.
In our view, the trial judge's directions as to the concepts of possession and intention did not remedy the failure to leave the statutory defence to a charge under s 6 of the Drugs Act provided for by s 6(3)(b) of that Act. The directions, taken as a whole, did not properly leave for the jury's consideration a statutory defence which was squarely raised by the appellant's evidence. Therefore, we do not accept the State's contention that there was no substantial miscarriage of justice on the basis that the overall effect of the trial judge's direction was that, if the jury accepted the appellant's evidence that he intended to give the drugs to police, they would acquit the appellant of the drug charges.
The failure to leave the available defence constituted a substantial miscarriage of justice
At the hearing of the appeal the State did not contend that the 'proviso' in s 30(4) could be applied if its submission as to the overall effect of the trial judge's direction was rejected.[18] For the following reasons, appeal counsel was correct to accept that the proviso could not be applied in these circumstances.
[18] Appeal ts 39.
It is established that some errors may preclude a conclusion that there was no substantial miscarriage of justice, irrespective of the appellate court's view as to whether the evidence properly admitted at trial proved the appellant's guilt. That is, some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable.[19]
[19] Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689 [38]
An example of such a case is the decision of the High Court in Quartermaine v The Queen.[20] Quartermaine had been charged with an offence against s 283(2) of the Criminal Code (WA). The relevant elements of that offence were that, with intent to unlawfully kill another, Quartermaine did an act of such a nature as to be likely to endanger human life. The summing up was more appropriate for a different charge under s 283(1) of the Code, and the jury were not directed as to the element that the act must be of such a nature as to be likely to endanger human life. Gibbs J, delivering the majority judgment, said that the jury must be taken to have found that the appellant discharged a rifle, probably at the victim. His Honour noted that it was a short step to hold that Quartermaine did an act of such a nature as to be likely to endanger human life, and there was much to be said for the view that the jury could not reasonably have made any other finding.[21] In nevertheless holding that the proviso could not be applied, Gibbs J observed:[22]
The jury in the present case were never asked to consider whether the applicant committed an offence against s. 283(2) and did not find that the elements of an offence against that sub-section had been proved. When a jury has returned a verdict of guilty of a particular crime without having considered whether that crime was committed, the verdict cannot, in my opinion, be sustained by holding that the jury would or should have returned the same verdict if they had considered the proper questions. That would substitute trial by judge for trial by jury.
[20] Quartermaine v The Queen (1980) 143 CLR 595.
[21] Quartermaine (600)
[22] Quartermaine (601).
In Kalbasi v The State of Western Australia,[23] the plurality observed that the omission to direct on an element of liability as in Quartermaine may not amount to legal error, much less occasion a substantial miscarriage of justice, if proof of the element was not a live issue in the trial. The plurality emphasised that the question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred. In a trial where no issue arises as to proof of a particular element of the offence charged, and the accused through his or her counsel consents to the removal of that element from the jury's consideration, then it may be that no miscarriage of justice at all will have occurred because of that removal.[24]
[23] Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62.
[24] Kalbasi [55] - [58].
In Kalbasi, the trial judge erroneously directed the jury that Kalbasi bore the onus of proving that he did not intend to sell or supply the drugs which he had attempted to possess. This court had reasoned that proof beyond reasonable doubt that Kalbasi attempted to possess nearly 5 kg of 84% pure methylamphetamine compelled the conclusion that it was his intention to sell or supply it to another. The plurality found that approach was correct in a context where Kalbasi made a forensic choice to run the trial on the sole issue of whether the State had proved he had possession of the methylamphetamine, and did not advance a case that he may have been in possession of a lesser part with a view to purchase for his own use. In those circumstances, the misdirection in Kalbasi was not an error of a kind that precluded the application of the proviso by analogy with Quartermaine or with cases in which there has been a failure to leave a defence for the jury's consideration.[25]
[25] Kalbasi [59] - [60].
By contrast with Kalbasi, in the present case there was no forensic decision not to run a defence under s 6(3)(b) of the Drugs Act. To the contrary, the appellant's central argument was that he was not guilty of the drug offences because he intended to give the drugs to police at the first reasonable opportunity. Unfortunately, it appears that the appellant's trial counsel, like the prosecutor and the trial judge, overlooked the provisions of s 6(3)(b) of the Drugs Act. This meant that the appellant's defence was never advanced in the proper legal framework.
On the appellant's account, he was in control of what he knew were prohibited drugs from a time about 2 - 3 hours prior to the police raid, with the intent of supplying the drugs to another (namely delivering them to the local police). The defence raised by the appellant's evidence, and the only defence to the drug charges raised by that evidence, was the defence provided for by s 6(3)(b) of the Drugs Act. But that defence was not left for the jury's consideration. The failure to direct the jury as to the only defence raised by the appellant's evidence in relation to the drug charges constituted a fundamental defect in the trial. In our view, this case is analogous with Quartermaine, in that the jury were never asked to consider the proper question on which their verdicts on the drug charges turned. In these circumstances, the guilty verdicts on the drug charges cannot be sustained by this court opining that the jury would or should have returned the same verdicts if they had considered the proper question.
As the plurality recognised in Lane v The Queen:[26]
A misdirection that is apt to prevent the performance by the jury of its function, without more, will result in a substantial miscarriage of justice. The proviso is cast in terms which permit the appellate court to dismiss an appeal from a judgment of the court which gives effect to the verdict of the jury: the proviso does not permit the appellate court to exercise the function of the jury.
In this case, the failure of the directions to leave the only defence raised by the appellant's evidence to the jury prevented the proper performance by the jury of its function of considering whether the evidence established the commission of the drug offences. That amounts to a substantial miscarriage of justice in all the circumstances. That is so regardless of the apparent strength of the prosecution case, and irrespective of whether this court considers the evidence properly admitted at trial proved the appellant's guilt or made conviction inevitable. To determine the appeal by reference to this court's view as to whether the appellant's evidence could or should have been accepted or rejected would be to impermissibly substitute trial by appellate court for trial by jury.
[26] Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689 [48]; see also Gageler J at [53] - [54].
For the above reasons, ground 1 is established, and identifies an error which constitutes a substantial miscarriage of justice.
Ground 2: prosecutor's submission about appellant's lies
Ground 2 is without merit, and can be dealt with briefly.
The prosecutor's submission that the appellant was lying had a proper foundation in the evidence - of police officers who said that they did not see blood in the ensuite bathroom, of the appellant's partner who said she never went into the bathroom and of police to the effect that it was the appellant rather than his partner who went into the bathroom. The photographic evidence on which the appellant relies as to the presence of blood in the appeal is equivocal. It is not clear from the still photograph taken from the search video, on which the appellant relies, or the search video itself that what is depicted on the bathroom floor is necessarily blood. The questions of whether there was blood on the ensuite floor, and whether the appellant lied about the presence of blood, were factual issues for the jury to resolve. There was no miscarriage of justice in the prosecutor making a submission, which was based on the evidence, as to the findings which the jury should make as to those issues.
In oral submissions, the appellant's counsel also suggested that a miscarriage of justice arose by reference to the following manner in which the prosecutor cross-examined the appellant:[27]
Well, I would suggest to you that there was no blood on the floor at all?---Well, you weren't there.
No. I wasn't there. You're right. But what I've seen is the video record of the search. That shows the bathroom floor. It doesn't show any blood in there?---Well, where did the - where did the redness come from?
It came from the photograph, didn't it?---Yes. There was definitely blood on the floor. I'm a butcher slaughterman by trade. I know what blood looks like. (emphasis added)
[27] Trial ts 348.
There is no substance to the appellant's complaint that posing the question in terms of what the prosecutor had seen on the video gave rise to a miscarriage of justice. The video recording of the search was played to the jury, and was an exhibit which could be replayed in the jury room.[28] The jury could make their own assessment of what the video showed. The trial judge directed the jury, both at the beginning of the trial and in her charge, that questions posed by counsel and not adopted by the witness are not evidence.[29] The manner in which the questions were framed did not give rise to any real risk that the jury would determine the issue of whether there was blood on the bathroom floor, or whether the appellant had lied about the presence of blood, otherwise than by reference to their own assessment of the evidence.
[28] Trial ts 183 - 184.
[29] Trial ts 68, 425 - 426.
Ground 2 is not reasonably arguable. Leave to appeal on that ground should be refused.
Orders
The appeal was instituted well out of time, and the evidence filed in support of the application for an extension of time to appeal does not adequately explain the delay. However, ground 1 has been established and should lead to the appellant's convictions of the drug offences being set aside and a new trial ordered. While the appellant had been released from custody by the time the appeal was heard, his counsel did not suggest that it would be inappropriate for this court to order a new trial. An extension of the time in which to institute the appeal should be granted in order to avoid a miscarriage of justice.
However, the error in the direction on the drug counts does not impugn the conviction of attempting to wilfully destroy evidence. The orders made by this court should not interfere with the conviction or sentence for the latter offence. In our view, the sentence imposed for the offence of wilfully destroying evidence remains appropriate once the convictions for the drug offences are set aside. That concurrent sentence of 12 months' immediate imprisonment, backdated to 19 September 2016, has now been served in any event.
The order under s 32A of the Drugs Act, declaring the appellant to be a drug trafficker, was founded on the appellant's conviction of count 3 on the indictment, relating to the possession of 28.98 g of methylamphetamine with intent to sell or supply to another person. Once that conviction is set aside, the foundation of the drug trafficker declaration is removed. A consequential order should be made in the conviction appeal setting aside the drug trafficker declaration.
The question which then arises is whether the court should also make an order setting aside the declaration under s 30 of the Criminal Property Confiscation Act 2000 (WA), and a restitutionary order in relation to the land formerly held by the appellant. The prospect of such consequential orders being made was addressed by this court in Head v Director of Public Prosecutions (WA).[30] We would hear further submissions from the parties as to whether any further consequential orders are appropriate at this stage.
[30] Head v Director of Public Prosecutions (WA) [2019] WASCA 157.
Therefore, the following orders should be made in the appellant's appeal against conviction:
(1)The time for the appellant to commence the appeal is extended to 6 May 2019.
(2)Leave to appeal is granted on ground 1.
(3)Leave to appeal is refused on ground 2.
(4)The appeal is allowed to the extent that the appellant's convictions of the offences charged in counts 3 and 5 on District Court indictment BUN 177 of 2015, and his convictions of offences against s 6(2) of the Drugs Act as alternatives to counts 2 and 4 on that indictment, are set aside and a new trial is ordered on those offences.
(5)The appellant is to appear in the District Court of Western Australia at 10:00 am on 6 March 2020 in relation to the offences referred to in order 4.
(6)The appeal is otherwise dismissed.
We would hear from the parties as to whether any further consequential orders are appropriate at this stage, and the appropriate conditions of the appellant's bail.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell28 FEBRUARY 2020
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