Jackson v The State of Western Australia - [2025] WASCA 33

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JACKSON -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 33
CORAM:   HALL JA
VANDONGEN JA
DALTON AJA

HEARD:   10 OCTOBER 2024
DELIVERED          :   6 MARCH 2025
FILE NO/S:   CACR 73 of 2023
BETWEEN:   TRENT PETER JACKSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 75 of 2023
BETWEEN: GUS RAYMOND CHETKOVICH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BARBAGALLO DCJ
File Number            :   IND 254 of 2021

Catchwords:

Criminal law - Appeals against conviction - Possession of methylamphetamine with intent to sell or supply - Whether trial judge erred in directions regarding how evidence of communications not involving the appellants could be used - Whether there was a denial of procedural fairness in respect of the directions given - Whether trial judge erred by permitting prosecution to argue that a mobile telephone was the appellant Jackson's telephone - Whether trial judge erred by failing to direct the jury that it was an indispensable link in the prosecution case that appellant Jackson brought scales and gloves - Whether the verdicts are unreasonable or unsupported by the evidence

Legislation:

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

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

CACR 73 of 2023

Counsel:

Appellant	:	J D Edwardson QC & F Merenda
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Holborn Lenhoff Massey
Respondent	:	Director of Public Prosecutions (WA)

CACR 75 of 2023

Counsel:

Appellant	:	D Renton SC & A Owen
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Tindall Gask Bentley Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Coughlan v The Queen [2020] HCA 15; (2020) 267 CLR 654
De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57
DLS v The State of Western Australia [2021] WASCA 197; (2021) 293 A Crim R 113
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Baden-Clay [2016] HCA 35; 258 CLR 308
Sandy v The State of Western Australia [2024] WASCA 109
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Sturniolo v The State of Western Australia [2023] WASCA 147

HALL JA:

I agree with Dalton AJA.
In my view, for the reasons her Honour gives, it was well open to the jury to reject the alternative hypothesis advanced at trial by the appellants that they were only present at the house where they were arrested to purchase a small quantity of drugs. On the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that each of the appellants was guilty of possessing the whole of the drugs found in the bedroom, from which they fled on the arrival of the police.
A different alternative inference has been proposed by Vandongen JA, namely that the appellants were present in the capacity of couriers for only part of the drugs. That is not an inference that was advanced at trial or on appeal. With respect, I am unable to accept that such an inference is reasonably open on the evidence. The fact that the appellants were wearing high‑visibility clothing and that there was police evidence that 'several established criminal networks have advised their couriers or runners to wear hi‑visibility work wear or clothing'[1] did not provide a sufficient evidential basis on which to draw an inference that the appellants were present only as couriers and only in respect of a part of the drugs. For an inference to be reasonable it must rest on something more than mere conjecture.[2]
[1] ts 987 - 989.
[2] R v Baden-Clay [2016] HCA 35; 258 CLR 308 [47].
The other grounds of appeal are without merit for the reasons given by Vandongen JA and Dalton AJA.
The following orders should be made:
Jackson: CACR 73 of 2023
1.Leave to appeal is refused in relation to all grounds.
2.The appeal is dismissed
Chetkovich: CACR 75 of 2023
1.Leave to appeal is refused in relation to all grounds.
2.The appeal is dismissed.

VANDONGEN JA:

In late May 2020, two interstate truck drivers left South Australia in a truck bound for Western Australia. Before the truck crossed into Western Australia, it pulled over at a truck stop. There, one of the drivers met with a man who handed him a black bag.
After collecting the bag, the truck drivers then made their way into Western Australia, where, in the early hours of 25 May 2020, they secured accommodation at a motel in Cannington. The black bag was taken from the truck and put inside their motel room. One of the truck drivers then arranged for the black bag to be collected.
The black bag was collected by a man driving a white Hyundai. The man walked from the Hyundai to the truck drivers' motel room carrying a green backpack. When the man left the motel room a short time later, he was no longer carrying a backpack. Instead, he had in his possession the black bag the truck drivers had collected earlier in South Australia. The man put the black bag into the white Hyundai and then drove to a house in Padbury (Padbury address). At about 9.45 am, the man got out of the Hyundai and carried the black bag into the garage at the front of that address, before driving away a short time later.
The police later searched the motel room occupied by the truck drivers. There they found a backpack that matched the backpack that the man driving the white Hyundai had in his possession earlier that day. In that backpack police found approximately $110,000 in cash.
Not long before the black bag was left at the Padbury address, Gus Raymond Chetkovich (Chetkovich) had arrived at the home of Trent Peter Jackson (Jackson), in Trigg. The two men then left Jackson's house in a taxi, before arriving at a service station located across the road from the Padbury address, at about 8.15 am.
When Chetkovich got out of the taxi, he was carrying a small black bag across his body and a drink bottle. Jackson was carrying what appeared to be a white shopping bag and a red‑coloured bag. Both men were wearing yellow‑coloured high‑visibility work shirts. They crossed the road and were let inside the house.

Approximately three hours after Chetkovich and Jackson arrived at the Padbury address, and had been let inside the house, police executed a search warrant at that location. When the police entered the house, police found Chetkovich and Jackson, as well as two other people: Stewart Ross McLachlan (McLachlan), who lived at the Padbury address, and a woman named Rana‑Tui Torbett (Torbett).
Jackson was arrested after he attempted to escape the house by breaking through a glass window of a bedroom at the front of the house. Chetkovich and McLachlan were arrested as they ran down a hallway leading from the same bedroom. Torbett was found lying on a couch in the living room.
When police searched the bedroom at the front of the Padbury address, they found the same black bag that had been delivered to the garage. However, police also found a second black bag in the same bedroom. There was a total of approximately 11.6 kg of methylamphetamine in both bags.
Chetkovich, Jackson and McLachlan were jointly charged on indictment with an offence of possession of a trafficable quantity of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (count 5). The State case against both appellants was circumstantial. The State alleged that the appellants, together with McLachlan, were in joint possession of all of the methylamphetamine that was inside the two bags found in the front bedroom of the Padbury address.
After trial in the District Court, the appellants were found guilty by the unanimous verdicts of a jury.
Jackson was also charged with having been in possession of $5,000 cash that was reasonably suspected to have been stolen, contrary to s 417(1) of the Criminal Code (WA) (Code) (count 6). However, the trial judge found that Jackson did not have a case to answer in respect of that charge and entered a judgment of acquittal.
The appellants now appeal against the judgments of conviction that were entered against each of them.

Grounds of appeal

Chetkovich relies on the following grounds of appeal:
1.The learned trial judge erred in law by denying the Appellant procedural fairness resulting in an unfair trial and miscarriage of justice.
2.The learned trial judge erred in law by directing the jury that the telephone downloads from [McLachlan's] phone were only admissible in the case against him having previously ruled they were admissible in the Appellant's case giving rise to a wrong decision on a question of law.
3.The verdict was unreasonable or cannot be supported having regard to the evidence. There must have been a reasonable doubt about the elements of possession and intent and thus the Appellant should have been acquitted of the charge of possession of a prohibited drug with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
At the hearing of the appeal, Chetkovich was granted leave to rely on a further ground of appeal, which is in the following terms:
There was a miscarriage of justice in that there was a failure of the trial judge to direct the jury as to how they could use exhibit D4.
Exhibit D4 was a record of some text messages that were found on a mobile telephone that was in McLachlan's possession when he was arrested, which was tendered as an exhibit by Jackson.
Jackson relies on the following grounds of appeal:
1.The trial judge erred in law by directing the jury that exhibits D2 ‑ D4 were inadmissible in the State's case against the appellant, having earlier ruled, correctly, that the evidence was admissible in the appellant's case and could be relied upon in his case.
2.The appellant was denied procedural fairness, in circumstances where the trial judge's directions removed evidence from the jury's consideration in his trial, without notice, after having ruled during the State's case that the evidence was admissible in the appellant's case.
Particulars
(a)the trial judge ruled, in response to the appellant's application to adduce evidence of text messages between [McLachlan], and his partner - which appeared to be concerned with the anticipated or desired supply of drugs in the immediate leadup to the alleged offending - that those messages were admissible in the appellant's case, as well as in the State's case against Mr Chetkovich: TS 806; Exhibit D2 - D4;
(b)during closing submissions, the appellant's counsel repeatedly referred to the importance of the text messages in the context of the State's case against the appellant: TS 1504 - 1505;
(c)likewise, other parties, including the prosecutor, made submissions in apparent reliance upon the trial judge's ruling that they were admissible in the case against the appellant and Mr Chetkovich; and
(d)the trial judge, without notifying the parties, directed the jury that the text messages were not admissible in the appellant's case: TS 1733.
3.The trial judge erred in law by permitting the State to argue that a Cyphr phone located in the bedroom of Mr McLachlan was the appellant's phone.
4.The trial judge erred in law by failing to direct the jury that in order to find the appellant guilty of count 5, it was necessary to find, beyond reasonable doubt, that the appellant had brought digital scales and disposable gloves to the home of Mr McLachlan, as had been alleged by the State at trial.
5.The verdict was unreasonable or was otherwise unsupported by the evidence.
Particulars
(a)The evidence was incapable of proving beyond reasonable doubt that the appellant had brought digital scales and disposable gloves to the property of Mr McLachlan, when he arrived there at approximately 8:18 am on 25 May 2020;
(b)The evidence was incapable of proving beyond reasonable doubt that the appellant knew of both the drugs on Mr McLachlan's bed and the drugs in the bag on the floor; and
(c)The evidence was incapable of proving beyond reasonable doubt that the appellant intentionally exercised control or dominion over all the drugs in McLachlan's bedroom for the purposes of preparing them for sale or supply.
Jackson was also granted leave to rely on a further ground of appeal, which is in identical terms to Chetkovich's additional ground of appeal.
In my view, leave to appeal should be granted in relation to Chetkovich's ground 3 and also in relation to Jackson's ground 5, and both appeals against conviction should be allowed on the basis of those grounds. For the following reasons, the jury's verdicts of guilty are, having regard to the evidence, unreasonable or cannot be supported. In those circumstances, the judgments of conviction must be set aside, and judgments of acquittal entered in their place.
Given that conclusion, it is convenient at this point to provide a summary of the evidence adduced at the appellants' trial.

The evidence adduced at the appellants' trial

As I have already noted, the appellants were jointly charged on indictment, together with McLachlan, with one count of possessing a trafficable quantity of a prohibited drug with intent to sell or supply it to another. However, the indictment also contained several other counts in which related offences were alleged to have been committed by other accused men. Specifically, the indictment included offences alleged to have been committed by the two truck drivers, as well as offences alleged to have been committed by two other men who were said to have been involved in delivering the black bag to the Padbury address.
By the time the jury came to consider their verdicts, the only count on the indictment that related to the appellants was count 5.
Because of the nature of the State case, much of the evidence adduced at the appellants' trial was not directly relevant to the charges faced by the appellants. Further, the State case against both appellants depended almost entirely on unchallenged evidence and upon inferences being drawn from facts the parties accepted had been established by that evidence. As trial counsel for both appellants said in their respective closing addresses to the jury, there was little dispute about the evidence.
Based on my assessment of the trial record, the following facts were established by the unchallenged evidence.

Undisputed facts established by the evidence

Early in the morning of 25 May 2020, the appellants left together from Jackson's house in Trigg in a taxi. Then, at about 8.15 am, the appellants arrived at a petrol station across the road from the Padbury address, before they were let inside that house a few minutes later.
Chetkovich was in possession of a black satchel or bag, and he had a clear drink bottle in his hand. Jackson also had possession of a bag that appeared to be a shopping bag, as well as another red-coloured bag.
At about 9.45 am, which was sometime after the appellants had gone inside the Padbury address, a white Hyundai pulled into the driveway of that address. A man then got out of the car and retrieved a black bag from inside the car. The man then walked towards the house and opened a garage door that was at the front of the house, before he then disappeared out of view. Approximately two minutes later, the same man came back out of the garage, closed the garage door, and then left in the Hyundai. He was no longer carrying a bag.
That black bag was later found to contain a large quantity of methylamphetamine.
Later that morning, at about 11.25 am, police executed a search warrant at the Padbury address. Police found that the garage door could not be opened from the outside and that it appeared to be locked. Police also found that the only people who were present at the house at the time were the appellants, McLachlan and Torbett.
Jackson was arrested on the ground outside a bedroom window at the front of the house. Jackson had jumped through the window in an unsuccessful attempt to evade apprehension and smashed the glass windowpane in the process. At the time, he was carrying a green and white coloured shopping bag. Later, police found that there was a second shopping bag inside that bag. This second bag was found to contain a set of electronic scales and a box of disposable gloves.
No DNA from either of the appellants was recovered from the scales or from the box of gloves. However, there was evidence that strongly supported the proposition that at some time, DNA from McLachlan had been deposited somewhere onto the box of gloves.
Chetkovich and McLachlan were both arrested inside the Padbury address. When police entered the property, they saw both men running down a hallway that led away from two bedrooms, including the bedroom Jackson had been in just before his own arrest.
McLachlan was found in possession of a mobile telephone. He provided the access code to the mobile telephone and photographs were then taken of several electronic messages found on that device. A number of those messages suggested that McLachlan was involved in the distribution of relatively small quantities of prohibited drugs.
Chetkovich was in possession of an encrypted mobile 'Cipher' device. Police were unable to gain access to anything stored on that device. The man who had earlier delivered the black bag to the Padbury address was also found in possession of a similar encrypted device when he was arrested later that day. However, police were also unable to gain access to the contents of that device.
Torbett was found lying on a couch in the living room. Police also seized a mobile telephone from her.
When police searched the front bedroom, they found the black bag that had been delivered to the Padbury address earlier that day. However, there was no evidence to explain how that bag came to be in the bedroom after it had been delivered.
Police found the black bag on the bedroom floor. Upon examination, this bag was found to contain a little over 6 kg of methylamphetamine. The methylamphetamine was packaged in several different ways. The purity of the methylamphetamine also varied greatly between the different packages.
In the bag were six boxes that appeared to contain children's toys. One of the boxes was labelled 'Kinetic Sand - Sandbox Set', while the other five were labelled 'Bath Bomb Factory'.
The 'Kinetic Sand' box was found to contain three separate vacuum sealed bags, each of which contained a quantity of methylamphetamine (89.4 g, 392 g and 173 g). The methylamphetamine was in purities that ranged from 68% to 78%, and it was all in the form of a white powder.
The methylamphetamine in the 'Bath Bomb Factory' boxes was noticeably different to that found in the 'Kinetic Sand' box. Each of the 'Bath Bomb Factory' boxes contained two vacuum sealed packages. Inside each of those vacuum sealed packages was a further vacuum sealed package, each of which in turn contained approximately 500 g of methylamphetamine. The purity of the methylamphetamine ranged between 15% and 17% and it took the form of a block of beige‑coloured powder that had been stamped with the letter 'C'. The investigating police officer gave evidence at the appellants' trial that methylamphetamine in such low purity could be described as 'crap gear'.
Apart from the methylamphetamine that was found inside the six toy boxes, a further vacuum sealed bag was also found loose in the black bag on the floor. Inside that vacuum sealed bag was a 'Hercules' brand clipseal bag, which in turn contained approximately 500 g of methylamphetamine that was 77% pure and took the form of white crystals.

In the same bedroom, police found a tallboy dresser. Sitting on top of that piece of furniture was a 600 mL bottle of water. A mixed DNA profile was later identified on that bottle and unchallenged expert evidence established that the DNA evidence was 20 million times more likely if Chetkovich was a contributor to that mixed profile.
An empty box labelled 'Bath Bomb Factory' was also found on the dresser, together with a black plastic container that was later found to have traces of methylamphetamine on its surfaces.
On the floor of the bedroom was a rubbish bin. There were several items in that bin, including an empty clipseal bag and a piece of plastic. The piece of plastic was consistent with vacuum seal plastic. Some of the plastic in the rubbish bin appeared consistent with plastic that was wrapped around the unopened toy boxes in the black bag on the floor.
In the rubbish bin, police also found a yellow coloured 'M&M' container. There were seven disposable gloves inside that container. Mixed DNA profiles were obtained from the surfaces[3] of two of those gloves, which were both greater than 100 billion times more likely if Chetkovich was a contributor to those profiles. A single source DNA profile was found on a third glove, which matched Chetkovich's DNA profile, and this DNA evidence was greater than 100 billion times more likely if he was the donor of that DNA.
[3] Given the nature of disposable gloves, it was not possible to know what were the outside and what were the inside surfaces of the glove at any particular time other than at the time the glove was examined.
A second black bag was found in the same bedroom. This bag, which was found on the bed, contained a total of about 5.5 kg of methylamphetamine in seven vacuum sealed packages that were loose in the bag.
Two of those vacuum sealed packages each contained another vacuum sealed package. Those packages in turn contained about 500 g of methylamphetamine each, which was 15% and 17% pure, respectively. This methylamphetamine was in amounts, composition, purity and form that was relevantly identical to the methylamphetamine that was in each of the 'Bath Bomb Factory' boxes. The only apparent difference was that, unlike the packages found in the 'Bath Bomb factory' boxes, there was only one vacuum sealed package for each quantity of methylamphetamine.
Four of the vacuum sealed packages found inside the black bag on the bed each contained a 'Hercules' brand clipseal bag. Each of those clipseal bags contained about 1 kg of methylamphetamine. The seventh vacuum sealed package contained a 'Glad Snap Lock Sandwich' bag, in which there was about 500 g of methylamphetamine. The purity of the methylamphetamine in those five bags ranged from 72% to 84%.
A vacuum sealer machine was also found in the black bag on the bed.
The two black bags and their contents were forensically examined. Swabs taken from those items were tested for the presence of DNA. However, DNA evidence did not inculpate or exculpate either of the appellants of the offence for which they were convicted.
A red backpack was also found in the front bedroom at the Padbury address. Inside that backpack police found various items, including a wallet that contained various cards in Jackson's name, and a total of $5,120 cash. Cash in the sum of $4,000 had been withdrawn from Jackson's bank account earlier on the morning of 25 May 2020, and before the appellants had arrived at the Padbury address.
A small multi-tool was found on the bed, with its blade open. This tool may have been used to cut open plastic seals employed to secure at least one of the black bags.
On the floor of the bedroom police found a single translucent or white‑coloured disposable glove. When the glove was later examined, a mixed DNA profile was found on a surface of the glove. The DNA evidence relating to that surface was 100 billion times more likely if McLachlan had contributed to the mixed profile. A single source DNA profile was also found on the glove's reverse surface. The DNA evidence relating to the reverse surface of the glove was 3.3 billion times more likely if McLachlan was the donor of the single source profile.
Police also found an encrypted device on the floor of the bedroom. The device was plugged in to a power socket and was in the process of being charged. Hearsay evidence was adduced that McLachlan had told police during the search of the Padbury address that he owned the charger and the cable that were connected to the device.
When swabs taken from the surface of the device were forensically examined, a mixed DNA profile was detected. The DNA evidence was greater than 100 billion times more likely if Jackson was a contributor to the mixed DNA profile.
Outside the broken bedroom window through which Jackson had jumped, police found a white shopping bag, which appeared to be consistent with the bag he had in his possession when he left his house in Trigg. Inside that bag was a further green coloured shopping bag which, in turn, contained a box of disposable gloves and a set of electronic scales.
The scales were capable of weighing between 0.1 g and 1 kg, and were therefore capable of weighing $5,000 worth of methylamphetamine.[4] Expert evidence was adduced that scales are sometimes used by both buyers and sellers of drugs.
[4] Expert evidence was adduced that in May 2020, $5,000 could purchase between 3 g and 6 g of methylamphetamine, depending on the circumstances: ts 1125.
The disposable gloves were of a similar appearance to the gloves found in the rubbish bin as well as the single glove found on the floor of the bedroom.
A forensic examination of the box of gloves detected a mixed DNA profile on a swab taken from the outside surfaces of the box. The DNA evidence was greater than 100 billion times more likely if McLachlan was a contributor to that mixed profile. While a mixed DNA profile was recovered from the scales, it was not suitable for further interpretation.
Police also searched the loungeroom at the Padbury address. There they found a black 'Hugo Boss' satchel bag. At the trial, Chetkovich did not dispute that he had brought this bag to the Padbury address. Inside the bag police found a clipseal bag containing dimethylsulphone, or 'MSM', a substance that is commonly used to cut or dilute methylamphetamine. The clipseal bag was later found to have a mixed DNA profile on its surfaces and the DNA evidence was greater than 100 billion times more likely if Chetkovich was a contributor to that profile.
Another black backpack was also found in the lounge room. Inside that backpack were several clipseal bags.
In the kitchen, police found three clipseal bags, each containing a white crystal substance. Police also found two glass smoking implements and some empty clipseal bags.
A floor plan of the Padbury address was tendered in evidence. That plan demonstrated that Jackson jumped through the window of the master bedroom, which was at the front of the house. Adjacent to the master bedroom was a further, smaller bedroom, as well as a bathroom and a laundry.
According to the floor plan, access could be made to the inside of the house via a door in the laundry. A person could enter the house from that doorway and make their way to the master bedroom without entering the living area.
While the search warrant was being executed at the Padbury address, police found a man by the name of 'Raven' sitting in a car across the road, who appeared to be watching the Padbury address. He was found to be in possession of some cash and a Cipher mobile telephone, the contents of which was wiped or deleted when police turned it on.
Having summarised what I consider were the facts incontrovertibly established by the evidence, it is now necessary to summarise the other relevant evidence that was adduced at the appellants' trial, commencing with the evidence of Rana-Tui Torbett, who was present at the Padbury address on the morning of 25 May 2020. Significant aspects of Torbett's evidence were in dispute.

Evidence of Rana-Tui Torbett

In May 2020, Torbett had known McLachlan for about two years. A few days before the search took place, McLachlan helped Torbett store her belongings while she looked for a place to stay. Torbett had recently moved out of her home, and her children had moved to live with their father.
Torbett said that on 24 May 2020, she went to the Padbury address to collect some belongings. McLachlan and a woman called 'Emma' were there at the time. In her evidence in chief, Torbett explained that after she arrived at the Padbury address, she and Emma went to the shops together to get some supplies for dinner, before then returning to the Padbury address. Torbett said that she stayed the night, sleeping on the couch in the loungeroom.
Torbett said that she woke the next morning to hear someone knocking at the door. When she got up to answer the door she found two men, both of whom were dressed in 'hi-vis'. The two men were the appellants.
One of the appellants asked Torbett if McLachlan was there. Torbett then went to McLachlan's bedroom and told him that his workmates had arrived. Torbett gave evidence that she said, 'Get up, you idiot. You've slept in'. Torbett did not go inside McLachlan's bedroom. When asked whether she saw anything on the floor of the bedroom, Torbett said that she did not.
After she had woken McLachlan, Torbett then went to the toilet, made herself a coffee in the kitchen, and went outside the house to have a cigarette. Torbett said that McLachlan got up and let the men into the house. The three men then all went into the kitchen. Torbett said that the men were on the other side of the kitchen bench. She said that she did not really take any notice of any talking between them.
Torbett said that about 15 minutes before the police arrived, the three men left the kitchen and headed towards McLachlan's bedroom. She said that she did not notice any of them carrying anything.
Torbett explained that when the police arrived, she saw McLachlan on the floor in the hallway, but she did not see either of the other two men.
Torbett gave evidence that the police took her to McLachlan's bedroom, where she was shown two black bags that were on the bed. Torbett said that she had not seen those bags before then. She also said that she had not seen those bags when she went to wake McLachlan earlier that morning.
According to Torbett, she was arrested and taken to a police station. She said that after providing a statement she was then released.
In cross‑examination by counsel for McLachlan, Torbett agreed that McLachlan allowed her to store her personal belongings at the Padbury address after she had to move out of her former home.
When she was asked if she remembered what time the two men arrived at the house to see McLachlan, Torbett said that it was about 8.00 am or 9.00 am, or perhaps even a bit earlier. She said that the three men were in the kitchen for as long as it took her to go to the toilet, to make a coffee, and to have one cigarette outside, and to then return inside to the living room area. She said that she then sat on a couch and looked for alternative accommodation on her mobile telephone.
Torbett agreed that her attention was occupied with dealing with her own issues and with trying to find a new home.
When she was asked whether it could have been up to 30 minutes after the men moved off in the direction of the bedroom before police came into the house, Torbett said, 'I honestly couldn't tell you, but I felt like it was about 15 minutes'.[5]
[5] ts 338.
Senior counsel representing Jackson then cross‑examined Torbett. In her evidence Torbett agreed that she used methylamphetamine, and that she had been convicted on several occasions of offences relating to the possession of that drug. She also agreed that she had been convicted of stealing. She accepted that she had smoked methylamphetamine in McLachlan's presence on 'a couple' of occasions. However, she denied that she had gone to the Padbury address on this occasion for that purpose.
Torbett was asked about the layout of the Padbury address. Relevantly, she agreed that it had a garage and that the garage was open to the backyard at the rear of the house.
Torbett agreed that she had a backpack with her at McLachlan's house, and that it contained multiple clipseal bags. She said that she would use clipseal bags for lots of things, including for holding methylamphetamine.
Torbett confirmed that when she arrived at the Padbury address on 24 May 2020, there was a woman there called Emma. She said that she did not know her as 'Emsy', and had not heard anyone else refer to her in that way. Torbett said that she and Emma went shopping together for some things for dinner.
Senior counsel put to Torbett that she had smoked methylamphetamine with Emma and McLachlan during the night before the police arrived at the house. However, Torbett said that while the other two were smoking that drug using a pipe, she snorted it on the kitchen bench.
Torbett initially claimed that she could not remember where the methylamphetamine came from. However, she then said that she and Emma obtained it when they went shopping. She explained that it was not very good quality methylamphetamine, but that it did not make her sick. Torbett said that she and Emma bought about 17 points of methylamphetamine (1.7 g), but she could not remember how much they paid for it. She explained that all three of them paid for the drugs, and that it was sold to them in a plastic clipseal bag.
Senior counsel suggested to Torbett that there was already some methylamphetamine in the house. However, Torbett said that she did not think so. Torbett also denied a suggestion that she was selling methylamphetamine from the Padbury address.
Torbett was cross‑examined about her evidence concerning the timing of various events on 25 May 2020. When it was suggested to her that she had previously told the police that she woke up at around 10.00 am, she agreed that it must have been around that time. When she was asked whether that is what she told the police, she said:[6]
I'm not too sure what I told them. It was a few years ago. I am a drug addict. I - I can't remember precisely, but it was early morning.
[6] ts 351.
When senior counsel asked Torbett to assume that the appellants arrived at the Padbury address at about 8.18 am, and that police executed the search warrant at 11.25 am, she disagreed, saying that '[i]t wasn't hours later'.[7]
[7] ts 351.
Torbett agreed that she made a cup of coffee, went outside for a cigarette, and then came back inside. She said that when she came back inside the house the three men were in the kitchen area. She then clarified her evidence by saying that it was after she had been lying down on the couch for about 15 minutes that the police came through the front door. Nevertheless, Torbett agreed with senior counsel's suggestion that there was quite a bit of time between 8.18 am and 11.25 am that (on the basis of her evidence) needed to be filled in.
Torbett said that when she was lying on the couch, she could see the men when they were in the kitchen, but she could not hear everything they were saying. She also said that she could not remember speaking with any of the men. Torbett said that she was not aware that anyone else had come to the house that morning.
Torbett agreed that when she saw the three men walk off towards McLachlan's bedroom, she could not be sure that is where they went. She accepted that they could also have gone to a different bedroom or the bathroom, although she also said that no one went to the toilet because she would have seen that from the living room.
Torbett also gave the following evidence under cross‑examination:[8]
[8] ts 358.
We can see that on the [floor] plan and we certainly can see that on the video, but what you're saying is you didn't see where they went?---They headed towards the bedroom.
You didn't see them actually go into the bedroom?---No.
And you claim that you never went into the bedroom yourself?---Yes.
And you say that when you opened the door to wake up [McLachlan], you didn't see anything?---No.
But you've told us also that you didn't see any of these men carrying anything at any time?---No.
All right. I want to come back a step. Between 8.18 am - - -?---Yes.
- - - which is when they arrive and 11.25 [am] which is when the police come crashing through the door, would you agree that [McLachlan] was moving in and out of the area that you were in from time-to-time?---I can't really say I took any notice.
All right?---I sort of had a fair bit on my plate and was sort of doing my own thing.
Well, let me put it another way. You're not suggesting for a minute, are you, that he remained at all relevant times between 8.18 [am] and shortly before when the police arrived in that kitchen area in the presence of those two men?---No. He went towards the room with them.
No, I know you say that just before the police arrived, but you're not suggesting that he stayed there the whole time in the kitchen, are you?‑‑‑I think he did. I'm not a hundred per cent sure like. Like I said, I had a whole lot of my own crap going on at that stage in my life.
Senior counsel put a series of questions to Torbett in which he suggested that she was involved in the drugs that were found in the black bags in McLachlan's bedroom. It was also suggested to Torbett that she and McLachlan had been attempting to sell some poor quality methylamphetamine to the appellants, who just wanted to spend $5,000. However, Torbett denied all of those suggestions.
Senior counsel then asked Torbett further questions about what occurred when she was inside the Padbury address. Torbett again explained that while she was lying on the couch using her mobile telephone to look for alternative accommodation, the three men were in the kitchen, talking. Torbett was unable to say whether McLachlan stayed in the kitchen for the whole time and agreed that he could have come and gone, and that she just could not remember because she was not paying attention. She said that she did not remember the men smoking methylamphetamine while they were in the kitchen, or that they spoke about the quality of methylamphetamine they were about to buy. Torbett also said that she 'never had a conversation with any of them about meth, full stop'.[9]
[9] ts 362.
When Torbett was cross‑examined further about her evidence that she and Emma had bought some methylamphetamine on 24 May 2020, she explained that it was a coincidence that she bumped into someone she knew at the shops, and that she had no prior intention to buy drugs.
Torbett was unwilling to name the person from whom she had bought the drugs and said that she did not remember how much the drugs cost her to buy. She also said that she had never bought an ounce of methylamphetamine.
Senior counsel showed Torbett part of a video taken of the police search at the Padbury address and asked her whether she knew anything about the various clipseal bags containing drugs that were found by police in some kitchen drawers. Torbett denied any prior knowledge of those bags.
Later in her cross‑examination, Torbett gave evidence that she had gone out with Emma from the Padbury address the previous evening to buy some marijuana, and that they had 'just ended up' going to the shops. She said that they did not buy any marijuana, but they managed to buy some methylamphetamine.
Senior counsel then put a further series of propositions to Torbett:[10]
[10] ts 376 - 377.
Can I suggest to you that the truth of the matter is you didn't need to leave that house to source meth because there was meth already in the house?---Then why did I go?
And can I suggest - well, we only have your word for it, don't we?---Yeah, I - we went to go to the shops and I bumped into someone I knew that had meth, so I got some.
And I suggest to you that you had meth in that house?---No.
And that you smoked - or you snorted and the others smoked it and it was a poor quality?---No.
And can I suggest to you that the three of you were discussing how you were going to move this poor quality meth?---No.
And can I suggest to you that you, together with Emma and together with Ms [sic] McLachlan, had that conversation and indeed that's what you were proposing to do the following day?---No.
And I'm suggesting to you that when these two men arrived in their yellow [high-]vis seeking to purchase meth, they wanted $5,000 worth of meth?---No.
And I'm suggesting to you the debate and the concern was that the meth that was on offer, initially at least, was of poor quality?---No.
And you and Mr McLachlan told them to wait?---No.
You deny all of that, do you?---Yes.

Torbett explained that she had enough money to buy those drugs, despite being homeless and unemployed at the time, because she had sold some of her belongings for about $3,000.
Torbett was cross‑examined about her criminal history. In summary, she agreed that she had been convicted of drug possession offences, including in relation to the possession of methylamphetamine. She agreed that she committed an offence at the Padbury address after she took over the lease from McLachlan. She agreed that a search warrant was executed at that address in 2021, and that during the search police found a small clipseal bag containing methylamphetamine in her possession.
Senior counsel concluded his cross‑examination of Torbett as follows:[11]
[11] ts 389 - 390.
On 25 May 2021 at about - sorry, on 20 May 2020 as at 11.16 am, in other words a few minutes before the police came through the front door, you were, can I suggest, seeking to sell poor quality methylamphetamine to the two men that were in yellow [high-]vis?---No, I wasn't.
And that had not been successful because of the - - -?---No, I was not selling nothing to anybody.
And you were engaged I suggest in dialogue with those men who were seeking to source $5,000 worth of methylamphetamine?---No.
The problem was that the methylamphetamine that was in the house was of poor quality when they arrived - - -?---No.
- - - but they were told to wait?---No.
You deny all of that?---Yes.
And you say that for - between 8.18 [am] and 11.20 [am], 8.18 [am] being the time that they arrived and 11.20 [am], you can't tell us anything about any conversation that took place by them to Mr McLachlan?---No, I can't.
Or Mr McLachlan to them?---No.
Or why they were there?---No.
What they were discussing?---No.
You can't explain how two bags might have ended up in Mr McLachlan's room - - -?---No.
- - - with large - you now know to contain large quantities of methylamphetamine?---No.
You know nothing about it?---No.
You knew nothing about a roller door being lifted and a bag being put on the other side of the roller door before it's placed down?---No.
Torbett was then cross‑examined by counsel for one of the other co‑accused. In that cross‑examination, Torbett explained that it was not possible to access the garage at the Padbury address from inside the house. She confirmed that once inside the house, a person could only access the garage from the front yard, or by going out the back door and then around to the back of the garage, which was open at the rear.
Torbett gave further evidence that before the police arrived, the only people at the house that she was aware of, apart from herself, was McLachlan and the appellants. She said that she did not hear anyone come in or see anyone go into the garage.
This completes my summary of Torbett's evidence. It is now necessary to refer to some other aspects of the evidence relied on by the State. In that regard, the State also relied on the evidence of several expert witnesses. I have already referred to some of that evidence earlier in these reasons. However, it is necessary to refer to relevant aspects of that evidence in more detail.

Expert evidence

DNA evidence

I have already referred to the various items that were found during the search at the Padbury address, and to the results of the forensic examinations that were carried out on those items, including the results of DNA analysis.
To explain the results of the DNA analysis to the jury, the State adduced evidence from a senior forensic scientist employed by PathWest, Bethany Dorcas Offereins.
Ms Offereins explained that DNA may be transferred directly to a surface by a person touching the surface or by transferring DNA to the surface in some other direct way. However, she said that DNA may also be transferred indirectly. For example, DNA may be transferred indirectly from a surface on which it has already been deposited, onto a different surface.
Ms Offereins also gave evidence about the various factors that may influence whether DNA is able to be recovered and analysed, and explained that it was not possible to determine from DNA analysis alone how, and for how long, DNA has been deposited on an item.
When Ms Offereins was asked about the disposable gloves that were found in the rubbish bin in the front bedroom at the Padbury address, she agreed that if gloves had been touching other gloves while in the bin, or while they were together in a police exhibit bag, there was the potential for DNA to be indirectly transferred between gloves.
Ms Offereins also gave evidence about the mobile telephone that was found charging on the floor of the front bedroom in which the drugs were found. Ms Offereins gave evidence that only one swab was used to obtain trace DNA from both the outside of the mobile telephone cover, as well as from the mobile telephone itself. Therefore, she was unable to say whether the DNA that was detected had originally been deposited on the mobile telephone cover or the mobile telephone itself.

Evidence of drug dealing activity

The State also relied on evidence of an expert nature given by experienced police officers.
Detective Sergeant Andrew Coen gave evidence that in carrying out numerous investigations into drug-related offences he had become familiar with the forms of communication used by people involved in that sort of activity. Detective Coen explained that he had seized encrypted mobile telephones while investigating drug-related offences, including 'Cipher' telephones. He said that these sorts of devices, which typically cost between $2,000 and $3,000,[12] are commonly used in the commission of drug-related offences to send encrypted messages that cannot be read by unintended recipients.
[12] Detective Coen also said that Cipher telephones also have an annual subscription fee of between $1,000 to $1,600: ts 1743.
The State also relied on expert evidence given by the investigating officer, Detective Senior Constable Lee Stanley Buchan. Based on his experience as a police officer in the investigation of drug‑related offences, Detective Buchan was permitted to give evidence about the appearance of methylamphetamine found in the two bags, and its purity.
Detective Buchan also explained that methylamphetamine can be diluted by the use of 'cutting' agents, including dimethyl sulfone or 'MSM', in order to increase the weight of the drug and, in turn, its profitability.
According to Detective Buchan the average purity of methylamphetamine seized in 2020 was 73%.
Detective Buchan gave evidence about the way in which methylamphetamine is commonly used. He said that it can be smoked in a glass smoking implement and also explained some of the slang that is used by drug users.
He also gave evidence about the value of methylamphetamine. According to Detective Buchan, the coronavirus pandemic affected the availability and therefore the price of methylamphetamine at the relevant time. Based on Detective Buchan's evidence, the methylamphetamine found in the bedroom at the Padbury address was worth between $256,000 and $410,000 per kg. In his view, a person would be able to purchase around 3.5 g of methylamphetamine for $5,000 at that time.
Evidence was also elicited from Detective Buchan about the things that are commonly found in the possession of people who are engaged in drug dealing, including plastic clipseal bags, electronic scales, vacuum sealers and mobile telephones. Detective Buchan explained that scales may be used by both drug buyers and sellers to weigh drugs to ensure that the correct weight is being sold, and that payment is almost always made using cash.
Detective Buchan also spoke about the fact that drug dealers often use multiple mobile telephones, and that it was common for them to have access to encrypted devices and applications, including dedicated encrypted communication devices such as 'Cipher'.
Detective Buchan agreed that Jackson was served with an order that he provide the PIN code for the Cipher device that was found charging on the bedroom floor. A video recording was made of the order being served. In that video, Jackson denied that the device was his. Jackson relied on his denial as evidence that he was never in possession of that device.
Detective Buchan was asked about his experience with the structure of established drug dealing networks. I will return to discuss that evidence later in these reasons.
Finally, before dealing with the appellants' grounds of appeal, it is necessary to summarise evidence that was adduced at the trial about certain text message communications that were found stored on the mobile telephone that was in McLachlan's possession when he was arrested.
Evidence was also adduced at the appellants' trial about certain electronic communications that were found on McLachlan's mobile telephone.

Evidence relating to McLachlan's mobile telephone

Senior Constable Jacob Henderson gave evidence that he downloaded the mobile telephone seized from McLachlan during the search, extracted some data from that device, and produced a report of that data. According to an extract from that report, which was tendered as exhibit P51, the mobile telephone contained over 3,350 SMS and MMS messages.
In cross‑examination by counsel for McLachlan and by senior counsel for Jackson, Constable Henderson was taken to several communications in exhibit P51 apparently exchanged between McLachlan and a person called 'Emsy' on 21, 24 and 25 May 2020. Some of those communications appeared to relate to prohibited drugs.
As will be seen, the trial judge made several rulings and gave directions about those communications, which are the subject of each of the appellants' grounds 1 and 2. Accordingly, I will deal with those messages, which were tendered as exhibits D3 and D4, in more detail later in these reasons.
In re‑examination, the State tendered several other text messages taken from the same mobile telephone (including two screenshots that were attached to text messages), which also appeared to relate to drug dealing activity.
Detective Buchan gave evidence later in the trial about some photographs that had been taken of the screen of McLachlan's mobile telephone. Several of those photographs depicted text messages that demonstrated that McLachlan was finding it difficult to obtain prohibited drugs during the coronavirus pandemic, and that that he was involved in some low-level drug dealing in the lead up to the execution of the search warrant.
In cross‑examination by McLachlan's counsel, Detective Buchan was asked about some of the text messages that were found on McLachlan's mobile telephone that had been sent shortly before police executed the search warrant at the Padbury address. Counsel drew Detective Buchan's attention to exhibit D3, and a series of text messages in that exhibit between McLachlan and 'Emsy' that appeared to relate to a 'roast'. Detective Buchan confirmed than an Emma Wright attended at the Padbury address during the search. He recalled that he spoke to her at the house, and that she had mentioned that she was cooking a roast. Later, in cross‑examination by senior counsel for Jackson, Detective Buchan gave evidence that Ms Wright had attended at the Padbury address at 12.49 pm and that she provided him with a contact telephone number that matched the number that had been exchanging text messages with McLachlan's mobile telephone under the contact name 'Emsy'.
Counsel for McLachlan then took Detective Buchan to exhibit D4, and a text message exchange that took place on 21 May 2020 between McLachlan and 'Emsy', in which the delivery of a package was being discussed. Detective Buchan agreed (after watching part of the video of the search at the Padbury address) that there was a 'FedEx' package on the kitchen bench at that time.
Detective Buchan also agreed with the proposition that from time‑to‑time, buyers may receive poor quality methylamphetamine. He accepted that in those circumstances it is possible for the buyer to seek to either obtain better product from the original dealer or to recoup their losses by attempting to on-sell the product themselves. Counsel for McLachlan then sought to link some of the text messages, in which there appeared to be discussion about selling some methylamphetamine, with drug use that had taken place the night before the search and the relatively small amount of methylamphetamine that was found in the kitchen drawers.
Counsel for McLachlan also cross‑examined Detective Buchan with a view to establishing that the conversations in some of the text messages were concerned with small quantities of methylamphetamine, by comparison with the large amounts that were found in the bedroom.
Having now summarised the relevant evidence adduced at the appellants' trial, it is now necessary to give consideration of the grounds of appeal. Given that I am of the view that both appeals should be allowed on the basis that the verdicts of guilty were, having regard to the evidence, unreasonable or cannot be supported, it is convenient to commence with those grounds, being Chetkovich's ground 3 and Jackson's ground 5.

Chetkovich's ground 3; Jackson's ground 5

Are the verdicts of guilty unreasonable or cannot be supported?

The applicable principles

The principles to be applied in the context of such a ground of appeal are settled. They have been summarised in the following manner.[13]
(1) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.
(5) The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6) A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(8) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
[13] Sturniolo v The State of Western Australia [2023] WASCA 147 [70].
The State case was circumstantial. As this court recently noted in Sandy v The State of Western Australia:[14]
Circumstantial evidence must not, of course, be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier [[2007] HCA 13; (2007) 228 CLR 618 [46], [48]]
In R v Baden‑Clay [[2016] HCA 35; (2016) 258 CLR 308 [47]] French CJ, Kiefel, Bell, Keane and Gordon JJ 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] HCA 66; (1911) 13 CLR 619, 661, quoted in Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 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] HCA 13; (2007) 228 CLR 618, 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] HCA 13; (2007) 228 CLR 618, 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, 535).'
[14] Sandy v The State of Western Australia [2024] WASCA 109 [68] - [69].
Before carrying out my assessment of the record of the appellants' trial, it is necessary to say something about the parties' respective cases, commencing with the State case.

The State case

The State prosecutor explained the nature of the State's case against each of the appellants in his opening address, in the following manner:
Coming onto count 5, that's Chetkovich, Jackson and McLachlan. That's a waste[?] of the two bags of methylamphetamine found in the house in Padbury. Here the prosecution says they had joint possession of the total of those two - the methylamphetamine in those two bags, and possession, you have to have knowledge, you have to exercise dominion or control and an intention to do so.
The prosecution says there's evidence that you can infer that knowledge or that possession from the evidence that you'll hear. For Jackson, he was in the front bedroom. He jumped out of the window to try to escape. The prosecution says you can use that to infer that he knew about the drugs in the bags.
Also, that he brought the (indistinct) bag containing disposal [sic] gloves and scales, either of which are used for the preparation of methylamphetamine with intent to sell or supply.
For Chetkovich, he came to the property and according to Ms Torbett, he was up in the front bedroom at the time police came to the front door. He brought to the premises a black man bag or satchel which included dimethyl sulfone, a cutting agent, a mixing agent for the preparation of methylamphetamine for sale.
He also had an encrypted phone which an officer will tell you that people dealing in prohibited drugs, they use encrypted phones. His DNA was also recorded on disposal [sic] gloves which were found in a container in a waste basket in the front bedroom.
For McLachlan, the prosecution relies on the fact that he rented that house, the drugs were in the bags in his bedroom, that he had a box of surgeon gloves in the house.
The prosecution case against all three is that you can infer they had joint possession, that all three of them had knowledge of the drugs, they had dominion or control over the drugs, they had access to them and they were intending to do so because they were intending to use the items that were at the house, the disposal [sic] gloves, and the disposable gloves that Jackson brought there plus the scales plus the mixing agent brought there by Chetkovich, that they were going to use those items - and it's joint possession - to prepare the drugs for sale or supply. (emphasis added)

It can be seen that the State case was that both appellants, together with McLachlan, had joint possession of all the methylamphetamine found in the two bags in the bedroom at the Padbury address.
Consistently with the way in which the prosecutor opened the State case, he told the jury in his closing address that the appellants were charged with an offence that related to both of the bags found in the bedroom at the Padbury address: one that was found on the bed, and the other that was found on the floor. The prosecutor further explained that it was the State case that the appellants were in joint possession of all of the drugs that were found inside those two bags.
When explaining that the State alleged that both the appellants and McLachlan were in possession of all of the drugs found in the bedroom, the prosecutor said that the State had to prove, for each appellant, that[15]
they had knowledge of the drugs, that they were going to exercise dominion and control over those drugs and they had an intention to do that.
[15] ts 1439.
The prosecutor outlined for the jury the circumstances the State relied on to prove that each of the appellants were in possession of the total quantity of methylamphetamine that was in both bags in the bedroom at the Padbury address.[16] In summary, the prosecutor referred to the following matters:
[16] There was no issue at the appellants' trial that if either of them were found to have been in possession of over 11.5 kg of methylamphetamine then they had an intention to sell or supply at least some of that amount.
(1)The appellants both left Jackson's home in Trigg together in a taxi and then went to the Padbury address, where they were let inside at about 8.18 am.
(2)When the appellants arrived at the Padbury address, Jackson had a red bag and a white bag in his possession and Chetkovich had a bag slung around his body.[17]
(3)Based on the evidence of Torbett, it should be inferred that about 15 minutes before police arrived at the Padbury address, the appellants and McLachlan together went to the bedroom in which the drugs were later found by police.
(4)When police arrived at the Padbury address, Jackson tried to avoid arrest. The prosecution relied on this conduct as evidence of consciousness of guilt.
(5)When police searched the bedroom, they found the two bags containing a very large quantity of methylamphetamine. Both bags were open, and their contents could be seen.
(6)Chetkovich was found in possession of items commonly associated with drug dealing, including a Cipher telephone, and approximately 100 g of MSM.
(7)It was highly likely that Chetkovich's DNA was on several disposable gloves that were found in a rubbish bin in the same bedroom in which the drugs were found. It was similarly highly likely that his DNA was on a drink bottle on a tallboy dresser in the same room. Adjacent to that drink bottle was an opened 'Bath Bomb Factory' box.
(8)Jackson was in possession of items associated with drug dealing, including a set of scales (that was able to weigh items up to 1 kg) and a box of disposable gloves, when he attempted to evade arrest. The prosecutor invited the jury to find that Jackson brought both those items with him to the Padbury address or, at the very least, that he brought the scales.
(9)Jackson was the only person at the Padbury address who was not found to have a mobile telephone in his physical possession. However, the prosecutor argued that it should be inferred that he either owned or at least had access to a Cipher telephone. This is because such a device was found charging on the bedroom floor when police arrived, and it was highly likely that Jackson's DNA was somewhere on the surface of the device or its cover.
[17] The prosecution also relied on evidence that suggested that Chetkovich was in possession of a plastic drink bottle.
The State also relied on the fact that both appellants were at the Padbury address when the bag that was later found on the floor of the bedroom was delivered through the garage door. There was also the fact that several parcels of drugs appeared to have been redistributed between the two black bags in the bedroom, and that this must have occurred after the black bag found on the floor had been delivered to the house.
The prosecutor sought to deal with what he anticipated would be said by the appellants' counsel in their respective closing addresses. In particular, he sought to deal with a contention that there was a reasonable alternative inference that the appellants went to the Padbury address for the sole purpose of buying $5,000 worth of methylamphetamine from McLachlan and/or Torbett, using the cash that Jackson had withdrawn from his bank earlier that morning and that was found by police in his backpack.
It is not necessary to dwell on the arguments the prosecutor deployed to deal with the appellants' respective cases. However, I note that the prosecutor put an argument to the jury in which he, in effect, accepted that the inference relied on by the appellants was open on the evidence, but contended that it was nevertheless still open to convict the appellants:
I suggest you can conclude that if they're suggesting they went down to get $5,000 [worth of methylamphetamine?], well, they could do both. They could be buying a small quantity of drugs, this is with Jackson and Chetkovich, and help him to prepare drugs for sale or supply.
At the conclusion of his address to the jury, the prosecutor submitted that the only inference that was available on the evidence was that both appellants were at the Padbury address for the purpose of being 'involved in preparing those drugs for sale or supply', although he accepted that they may not have intended to complete the preparation of the drugs on that one day.[18]
[18] ts 1452.
It may be seen, therefore, that in at least two respects the State case that the appellants committed an offence contrary to s 6(1)(a) of the Misuse of Drugs Act was very specific.
Firstly, the State alleged that the appellants had joint possession of all the methylamphetamine that was in the two bags found by police at the Padbury address.
It is not entirely clear why the State decided to assume the burden of proving that the appellants had possession of all of the methylamphetamine in the two bags. Nevertheless, the State was bound by the case it presented at trial. Counsel who represented the State at the hearing of the appeal properly accepted that because of the way in which the State had put its case at trial, it was required to prove beyond reasonable doubt that the appellants had possession of all of the methylamphetamine in both bags.
Secondly, the State case was that it should be inferred from all of the evidence that the appellants attended at the Padbury address for the purpose of preparing the drugs that were in the two bags, for sale or for supply.
This was a critical step in the reasoning underpinning the State case. The State case was that it should be inferred that the appellants were at the Padbury address for the purpose of preparing all of the drugs for sale or supply and, because that was their purpose, the appellants therefore had control over, and therefore possession of, all of those drugs.
The State's case was that the process of preparing the drugs for sale or supply had begun a little while before police had arrived at the Padbury address. In that regard, the State relied on evidence that one of the bags had been delivered to the garage at the Padbury address at around 9.45 am, a little while before the police arrived. The unchallenged evidence established that both appellants were inside the Padbury address when that bag was delivered. They were also inside the house when the bag was placed in the front bedroom.
However, the evidence did not permit a finding being made about when the other bag that was later found on the bed had made its way into the bedroom, when either bag had been opened, who opened the bags, or who was present when they were opened. Nevertheless, the State invited the jury to infer that the appellants had both been in the front bedroom with all the drugs a short time before the police arrived, and that both bags had been opened by that time. The State also relied on the fact that some of the drugs must have been unpacked and re‑distributed amongst the two bags, after the bag on the floor had been delivered, and that some disposable gloves had been used, at least by Chetkovich and McLachlan.
The State also relied on evidence that both appellants had arrived at the Padbury address in possession of items commonly associated with drug dealing activities. In relation to Chetkovich, the State established that he was in possession of a relatively small amount of a cutting agent and a Cipher telephone. In relation to Jackson, the State proved that when he jumped through the front bedroom window, he was in possession of a bag that contained a set of electronic scales and a box of disposable gloves. The State argued that he had been in possession of those same items when he arrived at the Padbury address. The State also relied on evidence that Jackson either owned or had access to a Cipher telephone. In particular, the State adduced evidence that there was such a device on the floor of the front bedroom which was found to have traces of a mixed DNA profile on its surfaces that was highly likely to contain Jackson's DNA. Jackson was also the only person at the Padbury address who was found not to have been in physical possession of an electronic communication device.
Finally, in its case against Jackson, the State relied on the fact that he had jumped through one of the bedroom windows, and broke the glass in the process, in what turned out to be an unsuccessful attempt to evade arrest. The State case was that what Jackson did was explicable only on the basis that he knew that he had committed the offence charged.
The trial judge summarised the State case to the jury in the following terms:[19]
So in this case the State's case in respect of count 5 is that Mr McLachlan, Mr Jackson and Mr Chetkovich are jointly charged, that they are in possession of 11.654 kilograms of methylamphetamine found by police in those two black duffel bags located in the front bedroom at [the Padbury address].
Remember one of the bags is on the floor and that's the one that's said to contain in excess of 6.1 kilograms of methylamphetamine and then the other bag is on the bed.
The State invites you to infer from a combination of all the evidence that the only rational, reasonable inference is that all three men were in possession of the 11.654 kilograms of methylamphetamine in those two black duffel bags located in the front bedroom of the house.
[19] ts 1878 - 1879.
Her Honour also identified, in what she said was a non‑exhaustive way, the evidence relied on by the State to prove that each appellant knew that there was a quantity of prohibited drugs in both black bags in the front bedroom, had control or dominion over the drugs and intended to have control or dominion over the drugs.[20] In that regard, her Honour's summary essentially reflected what had been put to the jury by the State prosecutor in his closing address.
[20] ts 1887 - 1891.
Importantly, her Honour also told the jury that they needed to be satisfied beyond reasonable doubt that the appellants were at the Padbury address for the purpose of preparing and repackaging the drugs for sale or supply:[21]
So you'll remember count 5, Mr McLachlan, Mr Jackson and Mr Chetkovich are charged jointly with count 5. And the State's case in respect of those three men is that they were in possession with intent to sell or supply 11.6 kilograms of the methylamphetamine in the two black bags and for the purposes of processing the drug, that is preparing and repackaging the drugs, for sale or supply.
So you need to be satisfied beyond reasonable doubt that's why they went to the house, that is Chetkovich and Jackson, to prepare and repackage the drugs for sale or supply. So possession with intent to sell or supply. And the purpose of them going there in respect of that was for the purpose of processing the drugs, preparing and repackaging them for sale or supply.
[21] ts 1903.
The State prosecutor did not raise any objection to that direction being given.

Jackson's case

Jackson chose not to give evidence at the trial.
In his closing address to the jury, senior counsel for Jackson argued that the State case that Jackson and Chetkovich went to the Padbury address to prepare the drugs in the two bags found in the bedroom for sale or supply was based on several unproven assumptions. Senior counsel argued that it was not open to find that Jackson knew of the drugs in the two bags, and that there was insufficient evidence to be satisfied of what he described as a 'critical plank' in the State case, that Jackson had brought the box of disposable gloves or the set of electronic scales with him when he went to the Padbury address.
Senior counsel also submitted that the presence of Jackson's DNA on the Cipher telephone that was found charging in the bedroom was an insufficient basis on which to conclude that it was his device. Senior counsel suggested that the jury would be unable to make any finding about where the DNA was deposited onto the device. He also noted that Jackson's DNA formed part of a mixture of DNA, and submitted that there was the potential for indirect transfer of DNA.
As to the suggestion that the jury should infer that Jackson did have possession of the Cipher device because everyone else who was at the Padbury address had a mobile telephone or Cipher device and he was the only one who had no device, senior counsel reminded the jury of evidence given by Detective Coen that it was not uncommon for drug dealers to have two mobile telephones, and said that it could equally have been somebody else's second device.[22]
[22] Counsel described this as evidence given by Detective Coen but it appears to have instead been given by Detective Buchan: ts 987.
Senior counsel pointed out that there was no evidence that any of the drugs found in the two bags had been removed and broken down into smaller amounts to be repackaged for on-sale or supply, and there was no evidence of the sort of equipment or other resources at the Padbury address that would be needed for that to take place. He also argued that the 100 g of MSM that was found in Chetkovich's bag in the living room at the Padbury address was irrelevant in the case against Jackson and that, in any event, it was wholly inadequate for the purpose of cutting or diluting the very large amount of methylamphetamine.
It was also argued that even if Jackson knew about the drugs in the bags, that would be an insufficient basis on which to find that he was in possession of all of those drugs, because the State were required to prove that he had exercised control over the drugs and he intended to exercise such control.
Senior counsel spent some time in his closing address to the jury dealing with the evidence of Torbett. However, the approach taken to Torbett on behalf of Jackson was not straightforward. In that regard, Jackson's defence relied on the jury accepting certain aspects of Torbett's evidence. For example, Jackson relied on Torbett's evidence that after he and Chetkovich arrived at the Padbury address, they remained with McLachlan in the kitchen, and that they moved towards the bedroom in which the drugs were later found only about 15 minutes before police arrived to execute a search warrant. Senior counsel for Jackson argued that his movements inside the Padbury address, as described by Torbett, were inconsistent with the State case that he was there to prepare the drugs that were later found in the two bags for sale or supply.
On the other hand, Jackson's defence involved a suggestion that Torbett, as well as possibly others who also had a connection to the Padbury address, had an involvement in drug dealing at that address. Senior counsel for Jackson argued that if Torbett (and/or others) was a drug dealer, this supported the defence case that Jackson attended at the Padbury address to buy a small amount of methylamphetamine and further, that it was Torbett (and/or others) and not Jackson who had sole possession of the large amount of methylamphetamine in the two bags.
However, under cross‑examination Torbett denied that she had been dealing in drugs from the Padbury address, or that the appellants attended at that address to buy drugs from her or anyone else that she was aware of, and she also denied that she knew anything of the drugs in the two bags until after the police had attended. Accordingly, senior counsel was forced to give reasons why, in his submissions to the jury, Torbett should be regarded as an unsatisfactory witness.
It was also argued that the jury could not exclude, as a reasonable possibility, that Jackson grabbed the bag containing the disposable gloves and the scales and jumped out of the bedroom window in a moment of panic because he wanted to avoid being falsely implicated in anything to do with prohibited drugs.
In her directions to the jury, the trial judge summarised Jackson's case in the following way:[23]
Mr Jackson's case is that there has - that he has no knowledge that the 11.6 kilograms of methylamphetamine was in Mr McLachlan's bedroom. Even if he did have knowledge that the drugs were in the house he had no ability to exercise control over the drugs and didn't exercise control over the drugs. He didn't live at the house. His case is that you can't exclude the possibility that he was at the house to purchase $5,000 worth of methylamphetamine.
[23] ts 1879.
It may be noted that, consistent with the case put by Jackson, the only other inference consistent with innocence that was brought to the jury's attention was the possibility that Jackson's only purpose in being at the Padbury address was to purchase a small amount of methylamphetamine.

Chetkovich's case

Chetkovich also did not give evidence at his trial. As might be expected, his defence was closely aligned with the case relied on by Jackson. Without criticising him in any way, Chetkovich's counsel appeared content to ride on the coat‑tails of Jackson's defence.
In a nutshell, Chetkovich's defence was that the jury should not be satisfied that the only reasonable inference based on all the evidence was that he had possession of the methylamphetamine in the two black bags found in the bedroom at the Padbury address.
Chetkovich's trial counsel argued that the State case that he was at the Padbury address to prepare the drugs for sale or for supply could not be accepted because the evidence demonstrated that no such preparation had taken place, despite the period of time he was at that address. Counsel expressly accepted that Chetkovich had a connection with prohibited drugs, but contended that a reasonable, or 'probable', inference was that Chetkovich was only at the Padbury address to buy a small quantity of methylamphetamine with Jackson.
The trial judge summarised Chetkovich's case in almost identical terms to her summary of Jackson's case.[24]
[24] ts 1891.
Having summarised the basis on which the State put its case at trial, and having identified the way in which the appellants argued that an inference of guilt should not be drawn, it is now necessary to undertake an independent assessment of the sufficiency and quality of the evidence, and to then determine whether, in all the circumstances, it would be dangerous to permit the verdicts to stand.

Consideration of the grounds of appeal

It is necessary for me to independently examine the record of the appellants' trial to determine whether, by reason of inconsistencies, discrepancies or any other inadequacies, I am satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to the guilt of both appellants.

It is not suggested that the direction contended for by the appellants was required in order to explain to the jury the law it was to apply in determining the issues at the appellants' trial. The appellants also did not argue that a particular warning was required as a matter of law. Instead, the appellants' contention appears to boil down to a proposition that some form of direction was required to avoid a perceptible risk of a miscarriage of justice arising from the particular circumstances of this case.[38]
[38] DLS v The State of Western Australia [2021] WASCA 197; (2021) 293 A Crim R 113 [83], citing Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86.
In my view, the appellants' contention should be rejected. There was no perceptible risk that the jury may have failed to appreciate that it was open to them to have regard to the text messages in exhibit D4, notwithstanding the impugned direction that is the subject of the appellants' respective grounds 1 and 2.
As I have already explained, the trial judge meticulously summarised the appellants' arguments about the text messages for the jury. Faced with that summary, it would have been illogical and irrational for the jury to fail to understand that it was open to them to use those text messages in the way contended for by the appellants, in determining whether the State had proved its case against either appellant.
It is unsurprising that neither of the appellants' experienced trial counsel raised any concerns with the trial judge about a risk that the jury might fail to take the text messages into account.
These grounds have no reasonable prospect of succeeding. Leave to appeal in respect of these grounds should therefore be refused

Jackson's ground 3

The Cipher telephone on the bedroom floor

By this ground, Jackson argues that the trial judge made an error of law by permitting the State, over objection, to allege that the Cipher telephone found by police on the floor of the front bedroom at the Padbury address, which was plugged into a power socket and was charging, was Jackson's device.
As I have already explained, a forensic examination revealed that a mixed DNA profile had been deposited somewhere on the surfaces of the Cipher telephone and/or on its cover. There was no issue at the trial that Jackson's DNA formed part of that mixture. However, based on evidence given by the forensic scientist, Ms Offereins, there was no way of knowing when or where Jackson's DNA had been deposited on the device. Further, the possibility that it had been deposited other than by means of a direct transfer from Jackson's body could not be excluded.
After the close of evidence, and in answer to a query from the trial judge, the prosecutor confirmed that it was the State case that it should be inferred that it was Jackson's Cipher telephone or that it was a device to which he had access. The obvious purpose of inviting the jury to draw those inferences was to persuade the jury that Jackson was engaged in drug dealing, and that his involvement in that activity extended beyond dealing in small quantities. Those findings would have logically affected the jury's assessment of the probabilities of Jackson having been in joint possession of the large quantity of drugs in the two bags in the front bedroom.
No issue was taken with this aspect of the State case at that stage of the trial. However, the following day, and shortly before the State prosecutor was about to commence his closing address, junior counsel for Jackson submitted that the prosecutor should not be permitted to argue in his closing address that it was Jackson's Cipher telephone, or that he at least had access to it, as the prosecutor had previously foreshadowed. Junior counsel argued, in effect, that the evidence was not capable of supporting the inference on which the State sought to rely.
The trial judge rejected junior counsel's argument. Her Honour ruled that it was open to the State to rely on the evidence of the Cipher telephone for the purposes the State prosecutor had previously indicated. The State prosecutor then made submissions in his closing address that were consistent with that ruling.
The written and oral submissions made in support of this ground do not refer to any established rule of law that prohibited the State from inviting the jury to draw the inference upon which it sought to rely, or which obliged the trial judge to warn the jury against drawing that inference. Accordingly, although this ground is expressed in terms that suggest that the trial judge erred in law, it appears that Jackson in fact contends that the State prosecutor's closing address occasioned a miscarriage of justice.
Before considering that contention it is necessary to note that senior counsel for Jackson did not object to evidence about the Cipher telephone being adduced at his trial. There was also no objection to any evidence of the forensic examination that was carried out on that device, including the statistical analysis concerning Jackson's contribution to the mixed DNA found on the device. Further, senior counsel for Jackson did not challenge the expert evidence given about Cipher telephones to the effect that they form part of the tools in trade of people engaged in drug dealing activities.
At the hearing of the appeal, senior counsel accepted that evidence about the Cipher telephone was relevant. In that regard, senior counsel acknowledged that '[t]he fact that an encrypted device was found was obviously relevant and admissible, for it, like other items, ha[s] a common usage by people who are in the business of selling drugs'.[39]
[39] Appeal ts 28.
When senior counsel was asked about the relevance of the evidence that tended to establish that Jackson's DNA had been deposited somewhere on the surfaces of the device or its cover, senior counsel accepted, in effect, that this evidence did show that there was a connection between Jackson and the device.[40]
[40] Appeal ts 28.
Against this background, it is difficult to see why it should be concluded that a miscarriage of justice occurred because the State were permitted to argue that it was Jackson's Cipher telephone, or that it was a device to which he had access. It is particularly difficult to understand how that conclusion could be reached in circumstances in which senior counsel also submitted at the hearing of the appeal that:[41]
First, there was no issue that the appellant was in Mr McLachlan's room, albeit briefly, before the execution of the search warrant. Secondly, there was never an issue before about the appellant attending at McLachlan's address for anything other than a drug-related purpose, and it was certainly open to the jury to conclude that he himself was a drug dealer. (emphasis added)
[41] Appeal ts 28.
The high point of the submissions made in support of this ground was that there was no evidence to connect Jackson to the Cipher telephone, other than the DNA evidence. It was submitted that the cross‑examination of Ms Offereins established that because of the way in which the Cipher telephone had been forensically examined, it was not possible to know whether Jackson's DNA had been deposited on the surfaces of the device itself, or on the surfaces of its cover. Further, it was submitted that Ms Offereins' evidence also established that the possibility that Jackson's DNA had been deposited onto the device by secondary transfer could not be excluded.
However, none of those submissions engage with the fundamental question of whether there was a miscarriage of justice caused by the State's invitation to the jury to draw inferences about Jackson's connection to that device. In that regard, Jackson does not identify any error or irregularity at his trial that amounted to a miscarriage of justice. Jackson also does not identify any basis on which it should be concluded that there was a danger that the jury might engage in an impermissible path of reasoning, or that the jury were required to be warned that the evidence was of a type that required particular care to be taken in undertaking its assessment.[42] Instead, and properly understood, Jackson's submissions amount to no more than an argument about the weight of the evidence and about the strength of the inferences to be drawn from it as part of the State case. Those were matters that were for the jury to resolve.[43]
[42] Azzopardi [49] (Gaudron, Gummow, Kirby & Hayne JJ).
[43] Azzopardi [49] (Gaudron, Gummow, Kirby & Hayne JJ).
In circumstances in which the evidence relating to the Cipher telephone was plainly relevant, and where it was not objected to (for example, on the basis that its prejudicial effect outweighed its probative value), there was no occasion for the trial judge to make any rulings that precluded the State from relying on the inferences it ultimately invited the jury to draw based on that evidence.
It was well open to the jury to infer that the Cipher telephone found on the floor of the bedroom belonged to Jackson or that he at least had access to it. As senior counsel accepted, it was otherwise open to the jury to conclude that Jackson was a drug dealer. Further, there was unchallenged expert evidence about the connection between encrypted messaging devices and drug dealing activities. Accordingly, the evidence that Jackson's DNA was found on the Cipher telephone, his evident proximity to the device in the moments before his arrest, and the fact that he was the only person at the Padbury address who was not found in physical possession of a mobile telephone tended to prove that it was his device, or that he at least had access to it.
The trial judge's decision to allow the State to invite the jury to infer that the Cipher telephone was either Jackson's device or that it was a device to which he had access did not occasion a miscarriage of justice. It follows that this ground has no reasonable prospect of succeeding. Leave to appeal in respect of this ground should be refused.

Orders

I would make the following orders:

Jackson: CACR 73 of 2023

1.Leave to appeal is refused in relation to grounds 1, 2, 3, 4 and 6.
2.Leave to appeal is granted in relation to ground 5.
3.The appeal is allowed.
4.The verdict of guilty for count 5 on indictment IND 254 of 2021 is quashed in relation to Trent Peter Jackson, the judgment of conviction for that count is set aside, and a judgement of acquittal is substituted.

Chetkovich: CACR 75 of 2023

1.Leave to appeal is refused in relation to grounds 1, 2, and 4.
2.Leave to appeal is granted in relation to ground 3.
3.The appeal is allowed.
4.The verdict of guilty for count 5 on indictment IND 254 of 2021 is quashed in relation to Gus Raymond Chetkovich, the judgment of conviction for that count is set aside, and a judgement of acquittal is substituted.

DALTON AJA:

Vandongen JA sets out the facts of this matter and the grounds of appeal.

Unreasonable verdict ground, Jackson and Chetkovich

The case was a circumstantial one, and much of the evidence from police and the scientists who gave evidence about DNA testing was not, and could not have been, contested. However, what the jury made of the evidence was not uncontroversial, as appears from my discussion below. Further, as Vandongen JA notes, there were significant questions as to the credibility and reliability of Torbett's evidence. It was a matter for the jury how much of her evidence they accepted, and what weight they gave any evidence they did accept.
It is the jury which is the constitutional trier of fact in a criminal case. The role of a court of appeal when a verdict is said to be unreasonable is as set out in Pell v The Queen:[44]
At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing 'the unreasonableness ground' was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:
'whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'
The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:
'But the question for an appellate court is whether 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.'
As their Honours observed, to say that a jury 'must have had a doubt' is another way of saying that it was 'not necessarily open' to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M. (footnotes omitted) (original emphasis)
[44] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [43] - [45].
It is not the role of an appellate court to draw inferences or make findings of fact. The only role of an appellate court is to consider the verdict of the jury in accordance with the above tests. In my view, in both cases before this court, it was open to the jury to be satisfied of guilt beyond reasonable doubt on the evidence at trial. There is no basis to conclude that they must, as distinct from might, have entertained a doubt about either appellant's guilt.
Chetkovich arrived at Jackson's house at 7.29 am on 25 May 2020. At 8.08 am they both left in a taxi which deposited them at a petrol station across the road from McLachlan's house. They entered that house at 8.18 am through the front door. The police executed a search warrant at the house at 11.25 am, just over three hours later. Despite the time which had passed since the appellants entered the house, the three men were, on the evidence, only at a preliminary stage of, or embarking upon, physical dealings with the drugs found in McLachlan's bedroom.[45] This timing issue made the State case more difficult than it might have been. It led to the case being fought, both below and on appeal, on the issue of whether the appellants had intentionally exercised dominion or control over the 11.6 kg of drug in the house sufficiently to be said to be in possession of it.[46]
[45] In respect of the three hour delay, the jury had evidence of text messages from McLachlan to his girlfriend, Emma Wright, which suggested that the appellants and McLachlan were waiting for someone they called Bono. The jury may also have had regard to police evidence that there was very little cutting agent on the premises (certainly insufficient to deal with 11.6 kg of drug) and that although there was a machine to vacuum seal packages, there was no evidence that plastic, or plastic bags were found in quantities sufficient to deal with 11.6 kg of drug.
[46] Section 11(a) of the Misuse of Drugs Act 1981 (WA) deems that possession of 11.6 kg of methylamphetamine carries with it an intent to sell or supply unless the accused person proves to the contrary.
The evidence was that the appellants were undertaking activity together. Chetkovich had visited Jackson's house and together they had taken a taxi to McLachlan's house. The men arrived at McLachlan's house together and were admitted.
The jury was well entitled to reject Torbett's evidence that after the appellants arrived they and McLachlan sat in the kitchen until about 15 minutes before the search warrant was executed. She was a drug‑user with a history of dishonesty. On her account, she was not paying attention to the three men because she was occupied making searches on her phone for accommodation; she was homeless. She said she was in the loungeroom, not in the same room as the three men. Her evidence as to the time the appellants were in the house before the police arrived was inaccurate. Her evidence generally was vague and unhelpful.
At 9.45 am. a drug courier arrived at McLachlan's house and carried a black duffle bag into McLachlan's garage through the roller door which was unlocked at that point in time. One of the four occupants of the house moved that bag into McLachlan's bedroom and locked the garage door: the bag was in the bedroom when police entered, and the roller door was locked by that time. Because this duffle bag had distinctive silver markings, it is possible to identify it as the bag which was on the floor of McLachlan's bedroom when police entered.
Chetkovich had an encrypted Cyphr phone. The evidence was that Cyphr phones were used by those involved in the drug trade.
Jackson had no phone on his person, or in his backpack. However, a Cyphr phone with Jackson's DNA on it was found on charge in McLachlan's bedroom. The charger and charging cord belonged to McLachlan, by his own admission. McLachlan did not admit to ownership of the phone. He had possession of another phone which he allowed police to access. He had used that phone in the days before the search warrant was executed, and during the three hours the appellants were at his home. Jackson's DNA was found on the Cyphr phone connected to McLachlan's charger. On this evidence a jury acting properly and reasonably could infer that the Cyphr phone on McLachlan's charger in McLachlan's bedroom was Jackson's Cyphr phone. That the DNA swab was indiscriminate as to the phone itself and its cover, could not matter to the drawing of this inference. That Jackson's DNA was part of a mixed DNA sample[47] on the phone was also no barrier to the jury drawing the inference that it was Jackson's phone on charge in McLachlan's bedroom.
[47] The other contributors could not be identified.
When Jackson arrived at the house he carried a white Woolworths plastic shopping bag and a red backpack. When police began to execute the search warrant, Jackson jumped through a glass windowpane from McLachlan's bedroom to the outside of the house. He did so while holding a white Woolworths shopping bag. Inside that was a green Woolworths shopping bag, a box of gloves and a set of scales capable of weighing objects from 0.5 g to 1 kg. Remaining in McLachlan's bedroom was a red backpack which contained $5,000 in cash and a wallet containing Jackson's driver's licence and credit card. The jury was well entitled to think this was Jackson's red backpack. Jackson had withdrawn $4,000 in cash from three separate ATMs before Chetkovich arrived at his home that morning. There was an inference properly available that the money in the red backpack was that $4,000 together with some other money.
When the police began to execute the search warrant, McLachlan and Chetkovich ran out of the hallway which led to McLachlan's bedroom.
In the bedroom was a water bottle with Chetkovich's DNA on it, sitting on top of a tallboy. The CCTV of Chetkovich's arrival at the home showed him carrying a water bottle. In McLachlan's bedroom were three disposable gloves with Chetkovich's DNA on them. They were in a rubbish bin in McLachlan's bedroom. There was another glove on the floor of the bedroom which had McLachlan's DNA on it. McLachlan's DNA was also found on the box of gloves which Jackson had carried from the bedroom while trying to flee.
The above evidence was sufficient for the jury to conclude that both the appellants, together with McLachlan, were in McLachlan's bedroom at the time the police executed the search warrant. From the fact that the phone, which the jury might infer belonged to Jackson, was on charge, it could be inferred either that Jackson had been in the bedroom for some time; was expecting to remain in the bedroom for some time, or had free access to the bedroom.
Both black duffle bags containing drugs were in McLachlan's bedroom when police entered the bedroom. Both bags were open. In the bag on the bed were six quantities of white powder containing methylamphetamine in Hercules clipseal bags and one Glad clipseal bag containing half the quantity of white powder found in each of the Hercules bags. Also in the bag on the bed was a cryovaced pack containing two beige bricks of substance containing methylamphetamine. These bricks were stamped with the letter 'C'. The packing of this particular pair of bricks was a single (not double) layer of cryovac plastic.

The black duffle bag on the floor contained six cardboard boxes: five cardboard bath bomb boxes and one cardboard kinetic sand (child's toy) box. Each of the cardboard boxes in the duffle bag was wrapped in light plastic shrinkwrap (not cryovac plastic). Each contained a double layer of cryovaced plastic around two beige bricks containing methylamphetamine and marked with the letter 'C'. The black duffle bag on the floor also contained two bags of white powder in Hercules brand clipseal bags, not in the main body of the duffle bag, but in a side pocket.
The overall weight and the drug purity of the beige bricks was consistent whether the bricks were found in the floor bag or the bed bag, and was different from the overall weight and drug purity of the packs of white powder. The overall weight and purity of the white powder was consistent whether the white powder was found in the floor bag or the bed bag.
On the tallboy was an opened empty bath bomb cardboard box. In the bin in McLachlan's bedroom was thin plastic wrap consistent with the wrap on the outside of the bath bomb boxes and one opened envelope of wrap consistent with the cryovac plastic forming the outer layer to the sets of beige bricks.
That evidence enabled a jury acting rationally and properly to conclude that someone had opened both duffle bags of drugs and examined the contents of both duffle bags, including by opening one of the cardboard boxes contained in the floor bag and removing one layer of cryovac wrapping from the beige bricks contained therein. Because the floor bag had not arrived at McLachlan's house until after the appellants arrived, the jury could safely infer that physical dealing with the drugs occurred while the appellants were in the house.
As already described, McLachlan's DNA was found on the box of gloves in the Woolworths bag carried by Jackson when he jumped through the bedroom window. It was also found on a single disposable glove located on the floor of McLachlan's bedroom. Chetkovich's DNA was on three gloves located in the rubbish bin in McLachlan's bedroom. The gloves found in the bin in McLachlan's bedroom, and on the floor of McLachlan's bedroom, were consistent with the gloves in the box found in the Woolworths bag carried by Jackson when he jumped through the window. There were no other gloves found at the house.
Also in McLachlan's bedroom when police entered it was a vacuum sealing machine. From the fact that Jackson carried the gloves and scales through the window when he attempted to flee from police, the jury could safely infer that the scales and gloves were in the bedroom immediately prior to police entering it.
On the basis of this evidence it was reasonably open to the jury to infer that the physical dealing with the drugs took place in McLachlan's bedroom and involved both McLachlan and Chetkovich wearing gloves to touch the parcels of drugs which were contained in both the black duffle bags. There was evidence from which the jury could properly infer that Jackson had been in the bedroom, and put his phone on charge there. While there was no DNA evidence against Jackson connecting him to use of gloves as there was against McLachlan and Chetkovich, there was sufficient evidence from which the jury could infer that all three men had exercised sufficient control and domain over all the drugs to amount to possession of them. That is, from all the evidence I have discussed, it seems to me that it was open to the jury acting reasonably and properly to be convinced beyond reasonable doubt that the appellants knew of the contents of both black duffle bags; knew that the contents was drugs and had, together with McLachlan, embarked upon a physical dealing with those drugs which amounted to exercising control and dominion over the drugs sufficient to amount to possession of them.
There was evidence that Chetkovich brought a small bag to McLachlan's house which contained 101 g of cutting agent. That bag was found in the loungeroom when police entered the house. The amount of cutting agent in it was plainly inadequate to use in preparing 11.6 kg of drug for sale or supply. My view is that evidence was not capable of supporting the State case, but that the jury did not need that evidence to reach a verdict of guilty in relation to the appellants.
The State relied on Jackson's flight through the glass windowpane as an indicator of guilt of the offence charged. To use the evidence in this way, the jury would have to be satisfied that Jackson was not fleeing because he was guilty of some other offence, or was simply acting in a panic because of the police presence. My view is that in the context of all the other evidence just discussed, it was open to the jury to regard Jackson's flight as supportive of the State case on the offence charged. However, even if the flight were to be regarded as too ambiguous to support the State case, my view is that the State had proved sufficient evidence for the jury to be satisfied of Jackson's guilt beyond reasonable doubt without the evidence of flight.
On appeal, and at trial, it was argued that the jury was unable to exclude a reasonable hypothesis consistent with the innocence of the appellants on the charges which they faced. It was said, and it may be accepted, that there were messages on McLachlan's phone which showed that he, his girlfriend, Emma Wright, and Torbett, were drug users and were perhaps involved in selling drugs, or assisting others to sell drugs. Further, that on the same day the police executed the search warrant, they, or someone associated with them, had some poor quality drug for sale. There was a small quantity of poor quality methylamphetamine in the kitchen of the house, and also in the beige bricks contained in McLachlan's bedroom.
Jackson had withdrawn $4,000 from his bank account on the morning the police executed the warrant, and took that, along with other money (in total $5,000) to McLachlan's house. The police evidence was that when this offending took place in 2020, the price of methylamphetamine in Western Australia was very high, and $5,000 was likely to purchase around 3.5 g of methylamphetamine. Thus, it was argued, there was a reasonable hypothesis that the appellants were at the house as buyers of a relatively small amount of methylamphetamine.
It was open to the jury to find that this alternative hypothesis was not reasonably open on all the evidence. It was not consistent with the appellants waiting three hours at the house. Jackson had cash, and there was poor quality, as well as good quality methylamphetamine at the house. If the purpose of the appellants' visit to the house was to buy a small amount of drug, they could have done so in a matter of minutes.
The appellants' hypothesis is also not consistent with the appellants having been allowed into McLachlan's bedroom. McLachlan and Torbett were alone in the house. The jury might have thought it was completely unrealistic to think that McLachlan would allow two men to see the amount of drug he had in the bedroom if they had simply come to purchase a very small amount of drug. The alternative hypothesis is inconsistent with the idea that the appellants were in McLachlan's bedroom, not on a fleeting basis, but for a longer time which would enable a phone to be charged. Likewise, it was open to the jury to find it most unrealistic that a buyer of 3.5 g of drug would be allowed to handle the large packets of drugs located in the black duffle bags.
For completeness, I note that there was no challenge on appeal to the trial judge's ruling about the use the prosecution could make of the fact that the appellants were wearing high visibility clothing when they attended McLachlan's house (Detective Buchan's evidence). The parties were not heard about this matter; it is in my view minor in the context of all the evidence in the case, and it is not the role of this court to speculate about matters well beyond the evidence.
So far as the appellants seek leave to appeal on the basis that the jury's verdict was unreasonable, they must fail.

Jackson's appeal grounds 1 and 2 and Chetkovich's appeal grounds 1 and 2

These grounds were related. It was said that the trial judge erred in directing the jury that exhibits D2 - D4 were inadmissible in the State's case against the appellants. It was said that the trial judge had earlier ruled to the contrary; having made her earlier ruling, the trial judge departed from it without allowing the appellants to be heard. These arguments do not bear scrutiny.
The appellants conceded on appeal that the ground of appeal only related to exhibit D4. That was a transcript showing text messages between McLachlan and his girlfriend, Emma Wright. The messages revealed that both were engaged in drug taking and, perhaps with Torbett, perhaps with others, may have been involved in selling drugs.
The messages were capable of being weakly inculpatory against McLachlan, and the trial judge gave the jury a conventional direction that they could only be used against McLachlan. That ruling was correct and in the appellants' favour. It did not bear upon whether the jury could use the text messages as supporting the appellants' defences.
On the appellants' case theory, the messages offered some support to a hypothesis consistent with innocence accounting for their presence at McLachlan's house (see above). The appellants wished to rely upon the messages in this respect. That was difficult from an evidential point of view, because so far as the appellants were concerned, the messages were hearsay. No one took this point at the trial, and counsel for Jackson tendered exhibit D4 through a police witness. That having been achieved, counsel for Jackson[48] and for Chetkovich[49] addressed the jury about the text messages to the effect that the messages supported their alternative hypothesis consistent with innocence of the charged offences. The trial judge expressly summarised this part of the defence case for the jury's consideration as part of her summing up.
[48] ts 1498.
[49] ts 1460.
The direction to the jury to use the text messages only against McLachlan was given early in the summing up. There were numerous adjournments between then and when the jury was asked to consider its verdict. At each, the trial judge invited all counsel to make any submissions they may have about the summing up to that point. Counsel for the appellants did not raise this matter.
The judge did not depart from a ruling about the appellants' reliance on D4. There was no need for her to further hear from counsel for the appellants. There was no risk that the jury might have understood the part of the summing up telling the jury to use the text messages only against McLachlan as a direction to disregard one of the supports to the defence theory of a hypothesis consistent with innocence. The appellants have no arguable prospect of success on these grounds. Accordingly, I would refuse leave in relation to them.

Jackson's appeal ground 3

This ground of appeal was that the trial judge erred in allowing the State to ask the jury to find that the Cyphr phone found on charge in McLachlan's bedroom belonged to Jackson. For the reasons explained above, that conclusion was well available on the evidence at trial. No error is demonstrated and I would not give leave in relation to this ground.

Jackson's appeal ground 4 and Jackson's and Chetkovich's additional grounds

The State case at trial was that the box of disposable gloves and the scales, which were found in the white Woolworths shopping bag which Jackson carried through the windowpane whilst fleeing police, had been contained in the white Woolworths bag which he brought to the house at 8.18 am. It was conceded by counsel for Jackson on the appeal that the jury were entitled to find that the white Woolworths shopping bag which Jackson left with, was the same bag he arrived with.[50] However, it was argued on appeal that the trial judge ought to have directed the jury that they needed to be satisfied beyond reasonable doubt that the box of gloves and scales were in the bag Jackson brought to the house at 8.18 am before they could convict the appellants.
[50] Appeal ts 34.
It was not necessary for the jury to conclude that Jackson brought the scales and gloves to McLachlan's house before they could be reasonably satisfied of his guilt. In an attempt to illustrate that, my reasoning as to the unreasonable verdict ground (above) makes no mention of, and places no reliance upon, Jackson having done so. If the jury did infer that the scales and gloves were in the bag when Jackson arrived at the house, the case against both appellants was strengthened. However, if they did not so conclude, the evidence led by the State still supported a conclusion of guilt against both appellants beyond reasonable doubt. In those circumstances, a factual finding that the scales and gloves were in the bag when Jackson arrived at the house at 8.18 am that morning was not 'an indispensable intermediate step in the reasoning process towards an inference of guilt' within the meaning of Shepherd v The Queen.[51]
[51]Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 585 (Dawson J).
In summing up the trial judge told the jury that they needed[52]
to be satisfied that's why [the appellants] went to the house, … to package and repackage drugs for sale or supply. Possession with intent to sell or supply. And the purpose of them going there in respect of that was for the purpose of processing the drugs, preparing and repackaging them for sale or supply.
[52] ts 1903.
The direction was correct and sufficient. There was no need for a Shepherd direction about the State's contention that Jackson arrived carrying gloves and scales. There is nothing in this ground of appeal. I would refuse leave in relation to it.

Disposition

This court should dismiss both appellants' applications for leave to appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Associate to the Honourable Justice Hall
6 MARCH 2025