Heaton v The State of Western Australia

[2008] WASCA 32

HEATON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 32

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 32
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:53/2007	Heard:	14 NOVEMBER 2007
Coram:	McLURE JA BUSS JA MILLER JA	Delivered:	21/02/08
No of pages:	21	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MICHAEL JOHN HEATON THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Sale of prohibited drug Misuse of Drugs Act 1981 (WA), s 6(1)(c) Circumstantial evidence Taped telephone calls between the appellant and the person who sold the drug Whether the appellant was guilty as a principal offender or only as an accessory after the fact Whether the only reasonable and rational inference was that the appellant was a party to a joint criminal enterprise and the drug was sold pursuant to or in furtherance of that enterprise
Legislation:	Criminal Appeals Act 2004 (WA), s 30(3) Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Case References:	Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 Jones v The Queen (1997) 191 CLR 439 Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309 M v The Queen (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Plomp v The Queen (1963) 110 CLR 234 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 Shepherd v The Queen (1990) 170 CLR 573 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HEATON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 32 CORAM : McLURE JA

BUSS JA
MILLER JA

HEARD : 14 NOVEMBER 2007 DELIVERED : 22 FEBRUARY 2008 FILE NO/S : CACR 53 of 2007 BETWEEN : MICHAEL JOHN HEATON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : O'SULLIVAN DCJ

File No : IND 1153 of 2004

Catchwords:

Criminal law - Appeal against conviction - Sale of prohibited drug - Misuse of Drugs Act 1981 (WA), s 6(1)(c) - Circumstantial evidence - Taped telephone calls between the appellant and the person who sold the drug - Whether the appellant was guilty as a principal offender or only as an accessory after the fact

(Page 2)

- Whether the only reasonable and rational inference was that the appellant was a party to a joint criminal enterprise and the drug was sold pursuant to or in furtherance of that enterprise

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)

Misuse of Drugs Act 1981 (WA), s 6(1)(c)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D Grace QC & Mr K J Bonomelli
Respondent : Mr B Fiannaca SC

Solicitors:

Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)

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

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Jones v The Queen (1997) 191 CLR 439
Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Plomp v The Queen (1963) 110 CLR 234
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
Shepherd v The Queen (1990) 170 CLR 573
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300


(Page 3)

1 McLURE JA: I agree with Buss JA.

2 BUSS JA: After a trial before O'Sullivan DCJ and a jury, the appellant was convicted on one count of selling a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act1981 (WA). He was sentenced to 3 years and 4 months' immediate imprisonment with eligibility for parole.

3 The appellant appeals to this court against his conviction. On 12 June 2007, Miller JA granted leave to appeal.

The ground of appeal

4 The sole ground of appeal is that the jury's verdict of guilty is unreasonable, or cannot be supported having regard to the evidence. The particulars to the ground assert:

It was not open to the jury to be satisfied of the appellant's guilt in respect of the offence charged, acting as a reasonable jury and reaching their verdict upon the evidence adduced by the State.

A brief overview of the trial

5 The appellant was charged on indictment with two co-accused, Trefor David Atkinson and Kevin Ross Smith. The charge relating to the appellant alleged that, between 29 November 2003 and 5 December 2003 at Rivervale and elsewhere in Western Australia, he and Smith sold methylamphetamine to another. Atkinson and Smith were also charged with conspiring, between 30 July 2003 and 10 December 2003, at Perth and Kalgoorlie to sell or supply methylamphetamine to another, and Smith was charged with four counts of selling or supplying methylamphetamine on specified dates to another, and with one count of possessing cannabis, on a specified date, with intent to sell or supply it to another.

6 On 8 March 2007, a jury was empanelled and the co-accused were arraigned. Smith pleaded guilty to the substantive offences of selling or supplying, and not guilty to the conspiracy. The appellant pleaded not guilty to the charge against him. Atkinson also pleaded not guilty.

7 On 12 March 2007, Atkinson pleaded guilty to two counts of inciting Smith to sell a prohibited substance to another. The conspiracy count was discontinued on that date. A new jury was empanelled, and the appellant's trial proceeded.

(Page 4)

8 The State's case against the appellant was that Smith and the appellant jointly sold the methylamphetamine; alternatively, the appellant aided or counselled or procured Smith to sell the drugs; alternatively, the appellant was an accessory after the fact to Smith's sale. The purchaser of the drugs was an undercover police officer who was referred to in the proceedings as 'Operative 69' or 'Adam'.

9 The State adduced evidence from Operative 69, four other undercover police officers (Operatives 15, 24, 37 and 68), David Markey (a telecommunications interception officer) and Steven Byleveld (the bar manager and licensee of the Manhattan Hotel in Victoria Park). The State relied primarily upon the evidence of Operative 69, telephone conversations recorded pursuant to warrants issued in respect of Smith and Atkinson, and conversations between Operative 69 and Smith (and one between Operative 69 and Byleveld) that had been recorded by way of a recording device, but not pursuant to any warrants. The conversations that were not recorded pursuant to any warrants were played to the jury, but transcripts of those conversations were excluded from the jury book as a result of an objection by the appellant's trial counsel. All of the recordings were admitted into evidence.

10 The appellant did not give evidence at the trial, and did not call any witnesses.

Evidence as to events on 30 November 2003

11 Operative 69 said in evidence that on 30 November 2003, Smith gave him 27.3 grams of methylamphetamine (of 14% purity) pursuant to an arrangement made earlier. The delivery of the drugs was arranged in the course of several telephone conversations on that date (ts 527 - 528, 544).

12 On 30 November 2003, during a telephone conversation at 3.57 pm, Smith told Operative 69 that he still had to 'go to the airport and pay for a ticket'. They arranged to meet in Victoria Park 'at the Harley's shop on the corner'.

13 On 30 November 2003, at 4.17 pm, undercover police officers saw Smith walking towards the Qantas domestic terminal at Perth airport. Smith returned to his motor vehicle at 4.35 pm. He was alone during the period of observation.

(Page 5)

14 On 30 November 2003, at 5.07 pm, Operative 69 told Smith that he was parked next to the 'Harley joint', and Smith said he would be (there in) 5 minutes.

15 Operative 69 gave evidence that he met with Smith shortly after the telephone conversation of 5.07 pm. They then drove to a disused service station and discussed the delivery of the methylamphetamine. Operative 69 informed Smith that he did not have any money, but Smith told him that he (Operative 69) would have to take the drugs, as he (Smith) did not know when he could provide any in the future. Operative 69 gave evidence that Smith told him 'a person he was going to introduce me to had already dropped the drugs off … He also said that he was still trying to organise an introduction with me and somebody else but no-one seems to be interested' (ts 526 - 528).

16 Operative 69 also gave evidence that he and Smith then went to the Great Eastern Highway Motor Lodge at Rivervale. Smith left his car and went away, and then returned and handed a package to Operative 69. According to Operative 69:

[Smith] said that … he hadn't had time to meet his mate and they weren't keen on meeting me anyway. He says he usually obtains his drugs from somebody but that person wasn't available and he ended up going to a higher person.

17 Further, Operative 69 gave evidence that Smith told him the price of the methylamphetamine was $5,500, but he would only charge Operative 69 $5,000 on this occasion. They made an arrangement under which Operative 69 was to telephone Smith later, and Smith would arrange for a girlfriend or his friend, Steve (Byleveld), who owned or managed the Manhattan Hotel, to collect the money. Smith told Operative 69 that Steve (Byleveld) was 'super straight'. Operative 69 and Smith left the Great Eastern Highway Motor Lodge separately at about 5.50 pm, with Operative 69 in possession of the methylamphetamine.

18 A recording of the supply of the drugs was played to the jury in the course of which Smith was heard to say, following the discussion about price, and preceding the discussion about how payment would be made later, that 'I know … they're expecting me tonight but I'll just ring them and say … I'll sort it out later. There's no drama there'. At the end of that conversation, Smith said 'I'll just ring them and say … we'll sort the money out later'.

(Page 6)

19 The meetings between Operative 69 and Smith were subject to surveillance by police officers.

20 On 30 November 2003, at 6.02 pm, Smith telephoned the appellant and asked if he could 'drop around for a minute'. The appellant agreed. Smith was then observed to arrive at the appellant's address at 6.03 pm (ts 528).

Evidence as to events on 2 December 2003

21 Operative 69 gave evidence that on 2 December 2003 he sent Smith a mobile telephone text message informing him that he would be able to pay for the methylamphetamine in the next few days.

Evidence as to events on 3 December 2003

22 On 3 December 2003, at 4.39 pm, Operative 69 telephoned Smith and informed him that he had the necessary money and could deliver it to the Manhattan Hotel ('that place you said') if Smith wanted him to. Smith said he would return Operative 69's call in 5 minutes (ts 529, 605 - 606).

23 Smith then telephoned the appellant at 4.40 pm and asked if he was in 'Vic Park'. The appellant said, 'Nah, I'm not'. Smith then asked the appellant if Steve (Byleveld) was 'there'. The appellant said Steve was not there. The following exchange then occurred between the appellant (MH) and Smith (KS):

MH Is he there?

KS Nah, but he just rang me; he's gone ahead there.

MH Well, tell him to give it, ask for Lisa.

KS Yep, she there?

MH And just, yeah, and just say; can yah give this to Steve to, to give to Kevin.

KS Okay.

MH And then later on, I'll go down there.

KS Yep.

MH No worries?

KS Okay.

MH No worries.

(Page 7)

KS Lisa.

MS Let, yeah, let me know once, once he's done it but.

KS I will.

Smith told the appellant it was a pity the appellant was not around, as he could not get the appellant to 'have a look at him'. The appellant replied, 'Yeah, I know; nah I'm not around'. The following exchange then occurred between the appellant (MH) and Smith (KS):

KS That's all right. Lisa?

MH No worries. Yeah.

24 As I have mentioned, Steven Byleveld was the bar manager and licensee of the Manhattan Hotel. He gave evidence that he knew the appellant, Atkinson and Smith from an earlier time when he worked in Kalgoorlie.

25 On 3 December 2003, at 4.44 pm, Smith telephoned Operative 69. The following exchange occurred between Smith (KS) and Operative 69 (A):

KS Yeah, well I just rang, Steve's not there, there's no problem…

A All right.

KS His sister, his sister's name's Lisa right…

A Right?

KS And he said just give it to her.

After a discussion concerning women, Smith told Operative 69:

I was talk just um, my other mate and he's not there, so … his sister Lisa … You just got to say it's for Kevin to give to Steve, (snigger) … or … if you wait till later tomorrow, my other mate will be around but I mean, at the moment he's not there'.

Operative 69 then told Smith he was 'chasing' another ounce of amphetamine, and 'just do it both at once, you know what I mean?' Smith replied:

Um, no, I, I don't think they'll do it … They're different, where the money's going, different to the other person, if you know what I mean? … Yeah, but um, I'll ring me mate still, my other mate's still at work … I just rang him then … he's not even home yet. … I'll ring him see if he can think of something.

(Page 8)

26 That evening, 3 December 2003, at 9.56 pm, Operative 69 again telephoned Smith and followed up on whether he had contacted the supplier. Smith said he could not contact him. Operative 69 proposed that if the supplier 'doesn't want to meet me or whatever … they could drop [it] off at the pub and when I drop your money off, I just pick it up then or something like that'. Smith said he was trying to work it out, and he would think of something. Later in the conversation, Smith said, 'I'm just trying to work out a way, becos [sic] like, other than him, there's nothing I can do other than him, if he says he can't do it, I can't do it'. Smith also said, 'Um, let's wait until I hear back from him. If I've the time to take a drive down myself, I can't fly out at the moment'. During this conversation, Smith was in Kalgoorlie and Operative 69 was in Perth. Operative 69 gave evidence that Smith was attempting to contact someone who could meet with Operative 69 in Perth for the purpose of supplying him with drugs instead of Operative 69 having to travel to Kalgoorlie (ts 610).

Evidence as to events on 4 December 2003

27 On 4 December 2003, at 1.14 pm, the appellant telephoned Smith. The appellant asked Smith, 'That bloke go down?' and Smith replied, 'Nah, he never. He's not going there now'. The appellant expressed audible anger at this news and said, 'Aw, fuck off'. There was a discussion about Smith telephoning the appellant from a telephone box because Smith could not talk on his telephone. The appellant told Smith that he (the appellant) could not talk on any telephone. The following exchange then occurred between the appellant (MH) and Smith (KS):

MH Was he going to go there today?

KS Yeah, yep, sometime later on he's gonna do it. Um, so the, even if I ring from the phone box to talk to you, you still can't talk?

MH Nah.

KS Hmm. (Cleared his throat to spit).

MH Ugh!

KS Yeah, he's trying to get me to organize another job for him.

MH Aw, fuck me.

KS Yeah.

MH Phooh!

(Page 9)

KS Too fuckin hard, being up here. I tried, told him that, I told him to get on the fucking train and come up here, huh!

MH Yeah, fucking fuck him.

28 On 4 December 2003, at 3.15 pm, Smith telephoned Operative 69 and said, 'I can't do a thing from up here'. At that time Smith was in Kalgoorlie and Operative 69 was in Perth.

29 On 4 December 2003, at 4.08 pm, Operative 69 telephoned Smith. Smith told Operative 69 that he had tried 'every avenue I could', but still 'no go'. Operative 69 asked Smith whether he wanted him to 'drop off (the money) … at that pub you were talking about before?' Smith said he would telephone 'to make sure Steve is there', and if anything changed he would call Operative 69 back. The time arranged for the 'drop off' was 'half hour' [sic: half five] (ts 534, 617).

30 On 4 December 2003, at 4.12 pm, Smith telephoned the appellant. The following exchange occurred between the appellant (MH) and Smith (KS):

KS How you going, Steve gonna be uh at the pub this arvo?

MH Yeah?

KS Yeah, cos this bloke reckons that (inaudible) half past five or anything, he's gonna, about then, he's gonna go down there.

MH All right, no worries. Have you rung Steve?

KS Nah. Uh, far out.

MH All right, don't worry about it.

KS Um, yeah, shall I ring him or not? (Then to an unidentified person who was with him, KS said: What's that?)

MH Um, nah, just um, long as he says, from Kevin Smith.

KS Yeah, okay.

MH No worries?

KS Yeah, no worries, I'll ring you back.

MH Okay.

Smith and the appellant had another conversation to similar effect at 4.39 pm (ts 534, 618).

(Page 10)

31 On 4 December 2003, at 4.42 pm, Smith telephoned Operative 69 and told him that 'about half five I said to him, and he said "yeah no worries"'. Smith told Operative 69 to ask for Steven, and leave the money in an envelope and say 'this is for Kevin'.

32 On 4 December 2003, at about 5.35 pm, Operative 69 attended the Manhattan Hotel and paid $5,000 cash in an envelope to Byleveld (ts 535 - 536). This money was passed to the appellant who was sitting in the bar with a woman. These events were subject to surveillance by undercover police officers, and were also video recorded. Operative 69 gave evidence that he saw the appellant pass the envelope to Atkinson, who entered the Hotel at about 5.49 pm.

33 Byleveld gave evidence that, on 4 December 2003, when he (Byleveld) was at the Manhattan Hotel, the appellant told him a mate of 'Smithie's' was dropping something off for 'Smithie' (ts 677). He did not say precisely what it was. Byleveld also gave evidence that on that date he received an envelope from a person who entered the bar at the Hotel, and he then passed the envelope to the appellant who was at the end of the bar (ts 677 - 678) .

34 On 4 December 2003, at 6.13 pm, Smith telephoned the appellant, and the appellant told him he was 'down there', and 'everything's sweet'. The appellant said he (the appellant) had had 'a look'. The appellant added that he (Operative 69) was 'not really having a good look around' (ts 536).

35 A few minutes later, at 6.17 pm, the appellant telephoned Smith. Smith answered and said, 'Yeah, I know what you gonna say'. The appellant said 'What?' Smith replied, 'It's five there' and the appellant responded with, 'Yeah'. Smith then said, 'That's all right, I'll tell you when I see yah', to which the appellant replied, 'All right. No worries'.

The appellant did not give or call evidence

36 As I have mentioned, the appellant did not give evidence at the trial. He did not call any witnesses. The State did not adduce in evidence any interview between the appellant and any police officers.

The nature of the State's case and related rulings by the learned trial judge

37 The indictment alleged, in relation to the count against the appellant, that the offence in question occurred between 29 November 2003 and 5 December 2003.

(Page 11)

38 The appellant's trial counsel submitted, during his closing address to the jury, that the relevant sale of methylamphetamine was concluded on 30 November 2003.

39 After hearing argument from counsel, the learned trial judge ruled, as a matter of law, that any sale of methylamphetamine established by the State occurred on 30 November 2003. Notwithstanding that ruling, his Honour directed the jury, in the course of his summing up of the State case, on the alternative bases I have mentioned. That is, according to the State, the appellant was a party to the sale of the methylamphetamine in question in that the sale was made pursuant to a joint criminal enterprise between Smith and the appellant; alternatively, the appellant aided or counselled or procured Smith's sale of the drugs; alternatively, the appellant was an accessory after the fact to Smith's sale.

The ground of appeal: verdicts which are unreasonable or cannot be supported having regard to the evidence: legal principles

40 By s 30(3) 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:

(a) 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;

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

(c) there was a miscarriage of justice.

41 In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the CriminalAppealAct1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that althoughthe phrase 'unsafe and unsatisfactory' does not appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence (492). Also see Jones vThe Queen(1997) 191 CLR 439, 450.

42 In M, McHugh J said that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction (523). In Jones, Gaudron, McHugh

(Page 12)

and Gummow JJ saidthat, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just (450).

43 In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that:

upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493).

In answering that question, their Honours said:

[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (493).

Their Honours explained the application of the test:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the 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 (494 - 495).

Also see Jones (450 - 451). The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones (452); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [25].

44 In Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
(Page 13)

[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, 69 ALJR 83). 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]. (emphasis in original)

Also see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

The ground of appeal: the appellant's submissions

45 Counsel for the appellant submitted that there was a complete absence of evidence implicating the appellant in any wrongdoing on or before 30 November 2003. There was a telephone call at 6.02 pm on 30 November 2003 which resulted in Smith attending at the appellant's house, but this occurred after the methylamphetamine had been given to Operative 69 and there was no evidence as to what occurred (including any conversations) between Smith and the appellant in the course of Smith attending at the appellant's house.

46 It was submitted, on behalf of the appellant, that the sale of the methylamphetamine was complete, as a matter of law, before 6.02 pm on 30 November 2003. The evidence of the conversations between the appellant and Smith on 3 and 4 December 2003 related to the appellant's collection of the money and, possibly (if the jury so found) to future sales of drugs, but did not establish any knowledge on the appellant's part of the sale to Operative 69 of the methylamphetamine in question before its occurrence. Also, the evidence did not establish the existence of an ongoing project between the appellant and Smith for the sale of drugs so as to enable the jury to infer, beyond reasonable doubt, that a joint criminal enterprise had been conceived before 30 November 2003 or that the relevant sale occurred pursuant to that enterprise.

47 According to the appellant's counsel, as there was no evidence as to what occurred at any meeting between the appellant and Smith on 30 November 2003 (after the sale had occurred), or any evidence as to any telephone calls or other communications between the appellant and Smith before the occurrence of the relevant sale, hypotheses consistent with the

(Page 14)

appellant's innocence could not be excluded beyond reasonable doubt. The jury ought to have so found.

48 In summary, it was submitted on behalf of the appellant that, in all the circumstances, the factual matrix established by the State's evidence was an insufficient basis for the jury's verdict of guilty. It was not open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt and, in consequence, a substantial miscarriage of justice has occurred.

49 Counsel for the appellant submitted that the proper verdict was guilty to being an accessory after the fact in respect of the relevant sale, and a concession to that effect was made on the appellant's behalf.

The merits of the ground of appeal

50 The State relied upon circumstantial evidence to prove its case against the appellant.

51 Direct evidence is evidence which, if accepted, tends to prove a fact in issue. Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred. See Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5] (Gleeson CJ).

52 The learned trial judge directed the jury in relation to the circumstantial nature of the State's case:

This is a case which has been described as a circumstantial case. The prosecution relies on circumstantial rather than direct evidence of the commission of the offence by the accused. Direct evidence is of course eyewitness evidence and there is none here which implicates the accused in the sense of pointing to him having himself participated in this alleged sale of drugs. Nobody has come along saying they saw the accused hand over the drugs or anything of that nature or say anything in dealing with Operative 69.

So it's not a direct evidence case for the most part, it's a circumstantial evidence case. The state says having regard to the circumstances of which you can be satisfied in the evidence you can draw an inference that the accused is guilty as charged. Just because a case is circumstantial doesn't mean it's weaker than the direct evidence though. You will appreciate you can have a very strong set of circumstances which point to the guilt of an accused. It's not a matter of weight, but it is important to recognise that a case is a circumstantial case because it affects the approach that you must take to the evidence and it affects it in this way: a circumstantial case is one which asserts that, having regard to circumstances as I have said, an inference of guilt can be drawn against the accused (ts 730).

(Page 15)

The appellant does not complain about that direction.

53 Where a jury relies upon circumstantial evidence, guilt should not only be a reasonable and rational inference, but should be the only reasonable and rational inference that could be drawn from the circumstances. See Plomp v The Queen (1963) 110 CLR 234, 243 (Dixon CJ); Shepherd v The Queen (1990) 170 CLR 573, 578 (Dawson J). Circumstantial evidence must not be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier [2007] HCA 13; (2007) 228 CLR 618, where Gummow, Hayne and Crennan JJ said:

The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances (See, eg, Martin v Osborne (1936)55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ). It is of critical importance to recognise, however, that 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 (Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J) [46].

54 The learned trial judge directed the jury in relation to proof of guilt based on inferences drawn from circumstantial evidence:

[I]n a criminal trial when proof of guilt must be established beyond reasonable doubt proof based on inference should only be accepted if it's the only reasonable inference open. If you find that there is an alternative inference, an inference consistent with the innocence of the accused, then no inference of guilt may be drawn against you. You may only infer that the accused is guilty as charged if you are satisfied on all the evidence here that it is the only reasonable inference to draw and you should then bear that in mind when assessing what inferences, what conclusions, can be drawn from the evidence and the facts as you find them in the light of the evidence (ts 731).

The appellant does not complain about that direction.

55 The learned trial judge directed the jury in relation to the State's case that the appellant was a party to a joint criminal enterprise with Smith, and that the methylamphetamine in question was sold pursuant to or in furtherance of that enterprise. His Honour also explained how the jury should approach the evidence of Smith and the circumstances in which the jury might take into account Smith's evidence in determining whether they
(Page 16)

were satisfied beyond reasonable doubt that the appellant was a party to the sale. His Honour said:

[A]s you know, in this trial you have heard evidence of things said and things done by persons other than the accused and in the absence of the accused.

Specifically I am referring here of course in particular to the evidence of what Kevin Smith said and did in the accused's absence, and in particular in dealing with Operative 69. He had telephone conversations with Operative 69, Kevin Smith did, and that evidence is in before you, and he had secretly taped face-to-face conversations with Operative 69, particularly in the carpark at the Great Eastern Motor Lodge, and that evidence is before you. Generally evidence of what is said by a person other than the accused and not in the presence of the accused is not admissible against an accused person at his trial because it's hearsay.

Just because somebody says or does something when the accused isn't there shouldn't as a general rule be regarded as relevant in deciding whether an accused is responsible and liable to be convicted in respect of a charge but there is an exception to that rule and it arises in this way: where the evidence of words spoken by others, or the conduct of others, supports the conclusion that the accused was a participant in a joint criminal enterprise and I have explained what I mean by that to you, an agreement or an understanding or an arrangement to commit a criminal offence; when the evidence supports the conclusion that the accused is a participant in a such a criminal enterprise then things said or done in pursuance of that enterprise can be taken into account by you as evidence against the accused.

That's how then you're able to approach the evidence of what Kevin Smith might have said to Operative 69 and what he might have done in respect of this matter. If you are satisfied that the accused was a participant in a joint criminal enterprise with Smith you may use what Smith said and did in the absence of the accused against him in deciding whether the accused is guilty as charged here, or otherwise guilty as an accessory after the fact.

The state says there was this joint criminal enterprise here. If you look at the - and listen to the evidence of the telephone calls, in particular for example if you look at what Mr Heaton himself says to Smith on the phone concerning arrangements for the collecting of money, the state asserts - the state submits you can be satisfied there was a joint criminal enterprise. If you are satisfied of that you can use what Smith says to Operative 69, as recorded, as a - in considering whether the accused is guilty as charged.

So it's in that way, members of the jury, that that kind of evidence which you have heard and seen in this case, evidence of things said and done by persons other than the accused and in the absence of the accused, is before you for your consideration (ts 731 - 734).

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The appellant does not complain about that direction.

56 The learned trial judge gave a direction, in response to a question from the jury, to the effect that it was unnecessary for the appellant to know in advance the identity of the purchaser of the methylamphetamine in question or the location and timing of the sale by Smith to Operative 69. His Honour said:

It is not necessary that you be satisfied as to the identity of the buyer, for example that it was Operative 69 in particular who was buying. It is not necessary that you be satisfied as to other particulars, such as for example where the sale was going to take place, in the carpark or in a car or outside the Great Eastern Lodge. But it is necessary that you be satisfied that the sale was, to the knowledge of the accused, going to take place in the sense that the accused knew that Smith had drugs and was proceeding to sell. Unless you are satisfied of that, then the accused cannot be convicted of the offence charged upon the basis that he was a participant in a joint criminal enterprise pursuant to which this particular offence was to be committed (ts 784).

The appellant does not complain about that direction.

57 I have examined the record of the appellant's trial. In particular, I have read the transcripts of the recorded telephone conversations and I have listened to all of the recorded conversations.

58 My examination of the trial record does not require the conclusion that the jury must have entertained a doubt as to whether the appellant was guilty as a principal offender; that is, as to whether he was a party to a joint criminal enterprise with Smith, or whether the methylamphetamine in question was sold pursuant to or in furtherance of that enterprise. I do not experience such a doubt. Further, my examination of the trial record does not require the conclusion that the jury must have entertained a doubt as to whether there was an inference, reasonably open on the evidence, consistent with the appellant not being a principal offender but merely an accessory after the fact. I do not experience such a doubt. The verdict of the jury was not unreasonable, and it is a verdict which is supported by the evidence.

59 The opinions I have just expressed are based upon the following:

(a) The overwhelming inference, from the content of each recorded conversation to which the appellant or Smith was a party, is that each of them was concerned that the conversation might be listened to or recorded. This is expressly apparent in the conversation on 4 December 2003, at 1.14 pm, in the course of

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which each of the appellant and Smith said he could not talk on the telephone or any telephone.

(b) Each recorded conversation between the appellant and Smith was conducted on the basis that the conversation might be listened to or recorded. They spoke in 'code', with the evident object of disguising the facts or disclosing as little information as possible.

(c) On 30 November 2003, at about 5.50 pm, Smith delivered the methylamphetamine in question to Operative 69. The drugs were sold on the basis that delivery would occur immediately, but payment would be deferred. Also, the drugs were sold on the basis that Operative 69 would receive a special price, with the normal price of $5,500 being discounted to $5,000.

(d) On 30 November 2003, at 6.02 pm (that is, about 12 minutes after Smith delivered the methylamphetamine to Operative 69), Smith telephoned the appellant and asked if he could 'drop around for a minute'. The appellant agreed to this request, and Smith arrived at the appellant's address at 6.03 pm.

(e) On 3 December 2003, at 4.40 pm, the appellant asked Smith if 'he' was there. The overwhelming inference, in context, is that 'he' referred to Operative 69 as the purchaser of the drugs (whether or not the appellant then knew the identity of the purchaser). Later in that conversation, the appellant instructed Smith to tell 'him' to ask for Lisa and give 'it' to her, and tell her to 'give this to Steve … to give to Kevin'. The overwhelming inference, in context, is that 'him' referred to Operative 69 (whether or not the appellant then knew of the identity of Operative 69 as the purchaser of the drugs), 'it' and 'this' referred to the purchase price of the drugs, 'Steve' referred to Byleveld and 'Kevin' referred to Smith.

(f) Also, during the conversation on 3 December 2003, at 4.40 pm, the appellant instructed Smith to let the appellant know 'once he's done it'. The overwhelming inference, in context, is that the appellant was instructing Smith to inform him once Operative 69 had delivered the purchase price for the drugs in accordance with the instructions the appellant had just given to Smith.

(g) Also, during the conversation on 3 December 2003, at 4.40 pm, the appellant agreed with Smith that it was a pity the appellant would not be able to 'have a look at him'. The overwhelming inference, in context, is that 'him' referred to Operative 69 and that it was a matter for regret that the appellant would be unable to make a visual assessment of Operative 69 when he delivered the

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purchase price for the drugs in accordance with the instructions the appellant had given to Smith.

(h) Also, at the end of their conversation on 3 December 2003, at 4.40 pm, Smith sought confirmation from the appellant of the appellant's instructions regarding the delivery of the purchase price for the drugs. This is the overwhelming inference, in context, from Smith's question, 'That's all right. Lisa?' and the appellant's reply, 'No worries. Yeah.'

(i) On 4 December 2003, at 1.14 pm, the appellant telephoned Smith and asked him, 'That bloke go down?'. The overwhelming inference, in context, is that 'that bloke' refers to Operative 69 and that 'go down' refers to Operative 69 paying the purchase price for the drugs in accordance with the instructions the appellant had previously given to Smith. When Smith told the appellant that the money had not yet been paid, the appellant expressed audible anger.

(j) Also, during the conversation on 4 December 2003, at 1.14 pm, Smith told the appellant that 'he's trying to get me to organise another job for him'. The overwhelming inference, in context, is that 'he's' referred to Operative 69 and that the organising of 'another job for him' referred to the sale to Operative 69 of more drugs. The appellant's response to Smith was, 'Yeah, fucking fuck him'. These words were uttered with some vehemence, and the overwhelming inference, in context, is that the appellant was stating there would be no further sale, at least for the time being.

(k) On 4 December 2003, at 4.12 pm, Smith telephoned the appellant and the appellant asked Smith whether he (Smith) had telephoned 'Steve'. The overwhelming inference, in context, is that 'Steve' referred to Byleveld. When Smith told the appellant he had not telephoned Byleveld, the appellant told Smith not to 'worry about it', and instructed Smith, in response to a question from Smith, not to ring Byleveld.

(l) On 4 December 2004, at 6.13 pm, Smith telephoned the appellant and the appellant said he (the appellant) had had 'a look' and added that he (Operative 69) was 'not really having a good look around'. The overwhelming inference, in context, is that the appellant had made a visual assessment of Operative 69 while Operative 69 was making payment for the drugs.

(m) On 4 December 2003, at 6.17 pm, the appellant telephoned Smith. Smith answered and said, in substance, that he knew what the

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appellant was going to say, and in response to the appellant's question as to what Smith thought the appellant was going to say, Smith replied 'It's five there', and the appellant responded with, 'Yeah'. The overwhelming inference, in context, is that the appellant had ascertained, no doubt by counting the money, that Operative 69 had paid $5,000 and that this was less than the amount which the appellant had expected. Smith then reassured the appellant that it was 'all right', and that he would explain the position to the appellant when they met.

(n) It is plain from the content and tone of the conversations between the appellant and Smith that there was an ongoing relationship between them in relation to drug dealings, Smith reported to the appellant, the appellant gave Smith instructions, and the appellant was more senior than Smith in the hierarchy. Although the sale of the drugs to Operative 69 occurred on 30 November 2003, it is apparent that Smith sold the drugs on behalf of a third party, and after the sale was made Smith was in regular contact with the appellant in connection with arrangements for payment by Operative 69. There is no evidence that Smith reported to or took instructions from any other person than the appellant. If the appellant's role in the transaction had been merely to collect the money from the sale of the methylamphetamine in question, he would have had no interest in making a visual assessment of Operative 69 in connection with possible future drug dealings, the appellant would not have counted the money which Operative 69 delivered at the Manhattan Hotel, and the appellant would not have been interested in why Operative 69 paid $5,000 and not a greater amount.

60 When all of the evidence (including the circumstantial evidence) is considered and weighed, the only rational inference reasonably open is that the appellant was guilty as a principal offender. In other words, the only reasonable and rational inference is that the appellant was a party to a joint criminal enterprise with Smith, and the methylamphetamine in question was sold pursuant to or in furtherance of that enterprise. The appellant has not established that the jury must have entertained a doubt as to whether there was an inference, reasonably open on the evidence, consistent with the appellant not being a principal offender, but merely an accessory after the fact.

Conclusion

61 I would dismiss the appeal.

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62 MILLER JA: I agree with Buss JA.