Jackson v The State of Western Australia
[2018] WASCA 84
•28 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JACKSON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 84
CORAM: MARTIN CJ
MAZZA JA
BEECH JA
HEARD: 16 MAY 2018
DELIVERED : 28 MAY 2018
FILE NO/S: CACR 210 of 2017
BETWEEN: TIMOTHY RUSSELL JACKSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 1665 of 2016
Catchwords:
Criminal law - Appeals - Inconsistent verdicts - Whether verdicts able to be reconciled - Whether verdict of guilty supported by the evidence
Legislation:
Nil
Result:
Leave to appeal on all grounds refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | Patti Chong Lawyer |
| Respondent | : | Director of Public Prosecutions for Western Australia |
Case(s) referred to in decision(s):
DPJB v The State of Western Australia [2010] WASCA 12
McKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
Introduction
The appellant appeals against his conviction of an offence of possessing methylamphetamine with intent to sell or supply. He was convicted following a trial at which he was acquitted of two other charges: having ready access to both a dangerous weapon and a prohibited drug; and being in possession of an unlicensed firearm in circumstances of aggravation.
He appeals against his conviction on two grounds. First, he asserts that his conviction is inconsistent with his acquittal on the charge of being in possession of an unlicensed firearm. Secondly, he asserts that the verdict is unreasonable and cannot be supported by the evidence.
For the reasons that follow, in our view both grounds of appeal are without merit. We would refuse leave to appeal in respect of each ground and dismiss the appeal.
Charges
The appellant was charged on an indictment containing three charges:
(1)On 17 November 2015 at Helena Valley he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(2)On the same date and at the same place, without lawful excuse he had ready access simultaneously to both a dangerous weapon, namely a .22 calibre Winchester Magnum Rimfire bolt action repeating rifle (the Rifle), and a prohibited drug, namely methylamphetamine, when not authorised under that Act to be in possession of that drug.
(3)On the same date and at the same place, he was in possession of a firearm, namely the Rifle, while not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so.
It was and is common ground that the jury would convict on count 2 if, but only if, they were satisfied of guilt on both counts 1 and 3. Nothing more need be said about count 2.
The parties' cases at trial
It was not in dispute that, on 17 November 2015, the appellant was pulled over by police, driving a black Holden Commodore. He was the only person in the car. In the back seat of the car was a storage container. Among the items in the storage container were electronic scales, a Blackberry mobile phone, a plastic container with 2.32 kg of methylamphetamine, the Rifle the subject of counts 2 and 3, another plastic tub containing Xylitol (a common cutting agent), a number of clipseal bags and other paraphernalia associated with a drug operation.[1]
[1] ts 44 - 50, 386.
The State case was that the appellant was in possession of the methylamphetamine and in possession of the Rifle.[2]
[2] ts 44 ‑ 45, 55.
In opening, the prosecutor said to the jury that if they found the appellant was in possession of the methylamphetamine the subject of count 1, then the State would be submitting to the jury that he must also have been in possession of the Rifle that was in the storage tub, saying that 'one goes hand in hand with the other'.[3]
[3] ts 55.
The defence case was that the appellant was not in possession of the drugs or the Rifle.[4] The defence pointed to the appellant's comments to the police that the car was not his, but belonged to someone by the name of Sonny May.
[4] ts 56 ‑ 59.
The evidence at trial
On 17 November 2015, Senior Constable Forde and Constable Squire pulled over a black Holden Commodore being driven by the appellant.[5] When asked to produce his driver's licence, the appellant produced the bottom portion of a licence which did not reveal any photograph or other details identifying the driver.[6]
[5] ts 86 ‑ 88.
[6] ts 89, 116.
The appellant told the police officers that the vehicle was not his, it belonged to a man called Sonny. The appellant said he was doing repairs on the car for Sonny, but did not give any further details in relation to Sonny, such as his last name or his address.[7]
[7] ts 89.
Senior Constable Forde said that the appellant appeared nervous and was sweating profusely, even though it was quite a mild day.[8] In cross‑examination, he accepted that it is not uncommon for people to be nervous when they are stopped by police.[9]
[8] ts 89.
[9] ts 104.
Senior Constable Forde asked the appellant to get out of the car to allow them to conduct a search.[10] He asked the appellant whether the appellant consented to a search of the car, to which the appellant replied, in effect, 'I don't know, it's not my car'.[11]
[10] ts 90.
[11] ts 90, 106, 122.
When the appellant was asked whether there was anything he would like to declare before the search occurred, the appellant took some small clipseal bags out of his pocket, saying they were for nuts and bolts.[12] Senior Constable Forde agreed, in cross‑examination, that the clipseal bags the appellant produced were of the same kind as the clipseal bag containing nuts and bolts which was later found in the car.[13]
[12] ts 91; exhibit 2.
[13] ts 110; MFI 4.
In the back of the car there was a large rectangular plastic tub behind the driver's seat.[14] Inside the plastic tub in the back seat, Senior Constable Forde found two boxes containing a substance he thought to be amphetamine, a set of scales with white powder on them and a clipseal bag containing white powder.[15]
[14] ts 90, 93.
[15] ts 93.
Detectives became involved. Detective Truong was responsible for managing and recording the items seized in the course of the search.
The search was recorded on DVD, which was played to the jury.[16]
[16] ts 138 ‑ 140; exhibit 6.
The items retrieved from the plastic tub included: [17]
(a)two plastic Tupperware containers containing a crystal substance;
(b)a clipseal bag containing powder;
(c)six clipseal bags containing white crystals;
(d)three clipseal bags containing square tablets;
(e)a clipseal bag containing trace white substance;
(f)two clipseal bags containing white substance;
(g)a cryovac machine;
(h)digital scales, a Samsung tablet and a firearm.
[17] ts 145 ‑ 153; exhibit 7.1.
The substances were subsequently analysed. One of the Tupperware containers contained 724 g of Xylitol with traces (.2%) of methylamphetamine.[18] The other contained 2.31 kg of methylamphetamine of 64% purity.[19] Some of the clipseal bags contained small amounts of methylamphetamine of 81% or 82% purity.[20] The total weight of the methylamphetamine found was 2.32 kg.[21] Other clipseal bags contained traces of dimethyl sulphone, known as MSM. Some of these bags had labels referring to MSM.[22] MSM is a cutting agent.[23]
[18] ts 147, 222; exhibits 7.1, 7.2.
[19] ts 147 ‑ 148; exhibits 7.1, 7.2.
[20] ts 148.
[21] ts 149; exhibit 7.1.
[22] ts 148, 150; exhibit 7.1.
[23] ts 220, 228.
The tub containing Xylitol had written on it, in black marker, the following, '700 Xylitol, 300 cook MSM, 200 straight MSM, 2.68 in box'.[24]
[24] ts 152; exhibit 8.9.
The other plastic tub had the numbers 2.68, written in black marker.[25]
[25] ts 152; exhibit 8.10.
Police were unable to download the contents of the three phones found in the car.[26]
[26] ts 154 ‑ 155.
The appellant's fingerprints were found on the underside of the Tupperware tub containing Xylitol, matching the appellant's right and left middle fingers.[27]
[27] ts 183.
Detective Sergeant Tighe gave evidence as to a number of matters pertaining to the drug trade. His expertise was not in issue.[28] Detective Tighe's evidence included the following;
(1)The 2.3 kg of methylamphetamine would, if sold in kilogram lots, be worth approximately $330,000. If sold in points (0.1 of a g), it was worth approximately $2.3 million.[29]
(2)MSM is a common cutting agent. Methylamphetamine sold on the streets is commonly packaged in clipseal bags.[30] The clipseal bags taken from the appellant's pocket were of a size to hold an 'eight ball', namely 3.5 g or less.[31]
(3)It is common for firearms to be located near or around those in the drug industry.[32]
(4)The Blackberry phone is commonly used by those in the drug industry, generally in the higher end or in the trusted person's level, rather than at street level. It is used because of the level of its encryption.[33]
(5)Having commented on all of the items found in the container in the back of the car driven by the appellant, he concluded that the contents of the storage tub was a 'mobile basic mixing facility'.[34]
(6)Those owning substantial quantities of drugs, referred to as principals, generally avoid the physical transportation of drugs from one location to another. Principals generally use a trusted person to move the drugs from one location to another, such person being described as a courier or conveyor.[35]
[28] ts 227.
[29] ts 230. Applying the values provided by Detective Tighe at ts 229, the judge, in his summary to the jury, calculated the value of the drugs, if sold per kilogram, as between $253,000 and $368,000.
[30] ts 228.
[31] ts 232.
[32] ts 232.
[33] ts 232 ‑ 233.
[34] ts 235.
[35] ts 243.
On 8 November 2015 (nine days before the subject of the charges), police performed a traffic stop on the same black Holden Commodore being driven by the appellant.[36]
[36] ts 249 ‑ 250.
In the course of the cross‑examination of Detective Constable Galbraith, the defence adduced evidence to the following effect:
(1)In September 2015, Sonny May and Louise Ashworth, his girlfriend, were stopped in the black Holden Commodore.[37]
(2)Both Sonny May and Louise Ashworth were the subject of drug‑related police inquiries in the period September 2015 to January 2016.[38]
(3)On 18 November 2015, Sonny May was arrested and, on 19 November 2015, released on bail, in relation to charges concerning 2 kg of methylamphetamine.[39]
[37] ts 267 ‑ 273.
[38] ts 267 ‑ 274.
[39] ts 274, 281.
The appellant elected not to give evidence.[40] The defence called four witnesses. The evidence of those witnesses was primarily directed to meeting an aspect of the State case at trial that was ultimately not pursued. It is not necessary to outline the evidence given by the witnesses called by the defence at trial.
[40] ts 286.
The summing up
As no ground of appeal complains of any aspect of the judge's summing up, it is not necessary to detail his Honour's remarks.
Towards the end of the trial, after the completion of the State case, the judge inquired of counsel as to whether there were any particular matters that should be considered for his Honour's preparation of the summing up. In the course of that, his Honour observed that it seemed to him that there was 'very limited, if any, scope for differing verdicts between the counts'.[41] His Honour observed that if possession of the methylamphetamine within the box in the rear seat is proved beyond reasonable doubt on count 1, it would tend to follow that possession of the firearm would also be proved. His Honour also observed that, conversely, that if possession of the methylamphetamine was not proved, it would follow that he would be expected, logically, to be acquitted of count 3, the firearm offence. His Honour invited counsel's response. The prosecutor expressed agreement, but with the caveat that it was a matter for the jury to decide, so that his Honour's observation would be a comment.[42] Defence counsel did not adopt a different position.[43]
[41] ts 288.
[42] ts 288.
[43] ts 289.
In the course of the introductory part of his Honour's summing up, the judge said as follows:[44]
You must look at each of the three counts separately and you must make a decision in relation to each count separately. Your verdict, in relation to each count, does not necessarily have to be the same. Although you know that the prosecution submit to you that if you were to find [the appellant] guilty of count 1 it would follow, they say, that you should find him guilty of count 3 because the rifle is in the same box as the drugs, and exactly the same arguments apply.
No contrary argument to that proposition is advanced by the defence. But similarly, if you found [the appellant] not guilty of count 1, there is no suggestion by the prosecution that in those circumstances he could still be guilty of count 3. So it may well be that your verdicts in respect of counts 1 and 3 will be the same one way or the other, but, I stress, that is a matter for you.
[44] ts 331 - 332.
His Honour also directed the jury that a finding of guilt on count 2 was dependent on findings of guilt on both counts 1 and 3.[45]
[45] ts 332. See also ts 329.
In the course of his remarks, the judge observed that, in his closing address, the prosecutor had spent most of the time talking about count 1 and that the reason for that was that the prosecution called upon precisely the same arguments that they made in respect of count 1 as they did in respect of count 3.[46]
[46] ts 333.
His Honour explained the meaning of 'possession' in a manner that is not challenged on appeal. Among other things, his Honour explained that it was necessary that the jury found that the appellant knew that there were drugs in the container in the back seat of the car.[47]
[47] ts 333 ‑ 334.
The judge also directed the jury that in order to prove possession of the Rifle, the prosecution must prove beyond reasonable doubt that the appellant knew the Rifle was in the back of the car.[48]
[48] ts 336.
It is not necessary to detail his Honour's comprehensive summary of the evidence and of the parties' respective cases.
The judge outlined that one part of the prosecution case was that the appellant's fingerprints were on one of the Tupperware containers and that there were links between the two Tupperware containers, the other of which contained 2.3 kg of methylamphetamine.[49] In that respect, his Honour referred to the markings on the two containers. The box containing the Xylitol, on which the appellant's fingerprints were present, had referred to 700 Xylitol and had written on it '2.68 in box'. The other Tupperware container, containing the methylamphetamine, had written on it '2.68'.[50]
[49] ts 346.
[50] ts 346 ‑ 347.
His Honour explained that the prosecution also pointed to the value of the drugs. Depending how assessed, the value was either in the region of $2 million or in the region of $250,000 ‑ 370,000.[51] The prosecution case was that it was inherently unlikely that drugs of such considerable value would be left in the car by the owner of the drugs without informing the person who was to transport the material of the presence of the drugs.[52]
[51] ts 348.
[52] ts 349.
The judge gave a conventional direction about the drawing of inferences. His Honour identified that the defence case identified an alternative rational explanation, namely that the appellant did not know about the drugs, did not know of the contents of the box on the back seat and did not intend to control any of its contents.[53]
[53] ts 357.
The jury returned verdicts of guilty on count 1 and of not guilty on counts 2 and 3.
Following the entry of judgments of conviction and acquittal, respectively, there was an exchange between counsel and the judge as to the factual basis on which the appellant should be sentenced. The judge observed that while the tenor of submissions made by the parties was that the same arguments applied to counts 1 and 3 and would lead to the same verdicts, ultimately that was a matter for the jury, and the judge so directed. His Honour observed that the effect of the jury's verdict was that the jury was satisfied beyond reasonable doubt that the appellant knew about the drugs in the container, but the jury had a reasonable doubt as to whether the appellant knew about the firearm.[54]
[54] ts 382.
As will be seen, we respectfully agree with his Honour's analysis of the jury's verdicts.
Grounds of appeal
The appellant relies on two grounds of appeal. Ground 1 asserts that a miscarriage of justice occurred when the jury returned a verdict of guilty on count 1 because it was not reasonably open to the jury to return different verdicts for counts 1 and 3, on the latter of which the jury acquitted.
Ground 2 is that the verdict of guilty on count 1 is, having regard to the evidence, unreasonable and cannot be supported.
The application for leave to appeal was referred to the hearing of the appeal.[55]
[55] Order of Mazza JA, 19 November 2017.
Appellant's submissions
In support of ground 1, the appellant submits as follows:
(1)Counts 1 and 3 both hinged on the prosecution proving the appellant had the methylamphetamine and the Rifle in his possession.[56]
(2)In substance, there is no difference between the position regarding the methylamphetamine and the Rifle. Both were located in the same box, on the back seat of the car that the appellant was driving and of which he was the sole occupant. Thus there is an inconsistency in a finding of guilty on count 1 and not guilty on count 3.[57]
(3)The additional corroborating evidence of the fingerprint on the container containing the Xylitol was not enough to corroborate the charge that the appellant was in possession of the methylamphetamine. That is because there was a reasonable inference, consistent with the appellant's innocence, that he had left his fingerprints on the container at a time when the container was empty or contained nothing of criminal interest.[58]
(4)The judge instructed the jury that the prosecution's case was that if the appellant was found not guilty, there was no suggestion he could still be guilty of count 3.[59] The appellant submits that the converse is also true.[60]
[56] Appellant's submissions [37].
[57] Appellant's submissions [34]; appeal ts 6, 8.
[58] Appellant's submissions [40].
[59] Appellant's submissions [22], [41], referring to ts 332.
[60] Appellant's submissions [22], [44].
The appellant's submissions on ground 2 were to the following effect:
(1)The evidence at trial provided a reasonable explanation for much of the circumstantial evidence that the State contended was indicative of guilt:
(a)the car did not belong to the appellant, but to Sonny May;
(b)the relationship between Sonny May and the appellant was not based on drugs, but involved the appellant, who was a mechanic, doing work on a car for Mr May;
(c)the doing of that work explained the appellant's earlier connection with the Holden Commodore when it was pulled over on 8 November 2017;
(d)the clipseal bags in the appellant's pocket were consistent with MFI 4, a single bag of bolts;
(e)there are other reasonable explanations for the appellant appearing to be nervous when pulled over by the police.
(2)It was not open for the jury to find, as the only reasonable inference, that the fingerprints found on the container could only have come about in circumstances where the appellant was aware of what was in the container.[61] While the evidence might have supported an inference that the appellant knew there was a prohibited drug in the container next to the Xylitol container, the evidence did not establish beyond reasonable doubt that the appellant had an intention to possess or exercise control over the drugs in that container.[62]
(3)An alternative reasonable inference, consistent with innocence, arose on the evidence.[63]
[61] Appellant's submissions [50].
[62] Appellant's submissions [52] ‑ [53].
[63] Appellant's submissions [54].
Ground 1: disposition: were the verdicts inconsistent?
The appellant alleges that the verdicts in this case were factually inconsistent. An appellant alleging factual inconsistency must satisfy the court that, as an exercise of fact‑finding, in logic and reasonableness, the verdicts cannot stand together, meaning that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion.[64] If there is a proper way by which the appellate court may reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense.[65] If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.[66]
[64] McKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366; DPJB v The State of Western Australia [2010] WASCA 12 [8], [77].
[65] McKenzie (367); DPJB [8], [78].
[66] McKenzie (367), DPJB [78].
Even where the appellate court is not persuaded that the verdicts may be reconciled in the sense we have explained, the verdicts are not necessarily inconsistent.[67] However, it is not necessary to develop that point because, for the reasons explained below, in our opinion, the verdicts of guilty on count 1 and not guilty on count 3 are readily able to be reconciled.
[67] McKenzie (367 ‑ 368); DPJB [10], [81].
On both counts 1 and 3, the State case depended upon the drawing of inferences, including an inference of knowledge. On count 1, the State had to prove, by inference, that the appellant knew that prohibited drugs were in the container on the back seat of the car. On count 3, the State sought to prove, by inference, that the appellant knew that the Rifle was in the container. The appellant's submissions fix on the fact that both the prohibited drugs and the Rifle were found in the same large container on the back seat. However, as explained below, the evidence supporting the drawing of these two inferences was not identical. Some of the circumstances supporting the inference of knowledge of the drugs did not apply, or did not apply with the same force, to the inference of knowledge of the Rifle.
The appellant's fingerprints were detected on the underside of the container holding the Xylitol. The Xylitol container and the Tupperware container with 2.3 kg of methylamphetamine were found next to each other inside the main storage tub. The container holding the Xylitol had written on it, among other things, '700 Xylitol … 2.68 in box'. The other container had '2.68' written, also in black marker pen, on its outside. The Xylitol had been contaminated with a small amount (.2%) of methylamphetamine.
It was open to the jury to find that these connections between the Xylitol container, on which the appellant's fingerprints were found, and the container holding the methylamphetamine provided support for an inference that the appellant knew of the presence of the methylamphetamine within the other Tupperware container. These connections were not established between the Xylitol container and the Rifle.
When initially stopped by police, the appellant had small clipseal bags in his pocket.[68] There was evidence that methylamphetamine sold on the streets is commonly packaged in clipseal bags.[69] The jury was entitled to take those facts into account in evaluating whether, on the whole of the evidence, they were satisfied beyond reasonable doubt that the appellant knew there was methylamphetamine in the plastic tub in the car. Thus, the appellant's possession of clipseal bags provided some support for the State case on count 1. It did not provide the same support for count 3 in that there is not the same logical connection between the clipseal bags and a weapon.
[68] ts 91.
[69] ts 228.
Further, the State case pointed to the considerable value of the drugs found in the container. The State suggested, and the jury were entitled to take the view, that it was highly unlikely that the owner of drugs of such value would leave the drugs in the black Commodore, while allowing the appellant sole custody of the Commodore, without informing the appellant of the presence of the drugs. Thus, that circumstance supported the drawing of an inference that the appellant knew of the presence of the drugs. This consideration does not apply in relation to the Rifle, which is not an item of a value of anything like the same magnitude as the drugs.
For these reasons, in our opinion, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant knew of the presence of the drugs in the container, while not being satisfied beyond reasonable doubt that the appellant knew of the presence of the Rifle within the storage tub.
In large part, the appellant's submissions assume that the only means for the appellant to have known of the drugs was that he packed the plastic tub that was found on the backseat of the car. That assumption is unfounded. The State case on count 1 did not require proof that the appellant packed the plastic tub. The jury was entitled to infer the appellant's knowledge of the presence of the methylamphetamine from all of the circumstances, including those to which we have referred in [50] ‑ [53] above, without being satisfied that the appellant packed the plastic tub.
The appellant's third submission, set out at [45] above, must be rejected. Contrary to the appellant's submission, it is not necessary for the State to prove, in relation to the fingerprint, the absence of any reasonable alternative inference consistent with innocence. That test applies only to an inference of guilt or an inference of an indispensable intermediate fact.[70] The fingerprint evidence was not of that character. Rather, the fingerprint evidence was one of the circumstances, all of which were to be considered, in determining whether to draw the inference that the appellant knew of the methylamphetamine.
[70] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579, 585.
The appellant's fourth submission, set out at [45] above, must also be rejected. The submission assumes that the evidence on count 1 and the evidence on count 3 was identical. As we have explained, that was not the case.
For these reasons, there is no merit in ground 1. We would refuse leave in respect of it.
Ground 2
The appellant's assertion, by ground 2, that the verdict of guilty cannot be supported having regard to the evidence is entirely without merit, and should not have been advanced.
The principles relevant to a ground of this character are well known, and need not be restated.[71] For the reasons already given at [50] – [56], the evidence at trial comfortably sustained the drawing of the inferences necessary to establish the appellant's guilt on count 1. The appellant concedes, correctly, that it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew of the drugs.[72] However, the appellant asserts that the surrounding circumstantial evidence did not establish beyond reasonable doubt the appellant's intention to possess or exercise control over the drugs.[73] This submission invites the acceptance of a fanciful possibility. The suggestion that, in the circumstances of this case, the appellant knew that the large plastic tub on the backseat of the car he was driving contained a large amount of methylamphetamine, but had no intention to possess or exercise control over those drugs, needs only to be stated for its absurdity to be evident.
[71] See, for example, Wells v The State of Western Australia [2017] WASCA 27, [13] - [14].
[72] Appellant's submissions [53].
[73] Appellant's submissions [53].
For these reasons, we would refuse leave in respect of ground 2.
Conclusion
We would make the following orders:
1.Leave to appeal on all grounds be refused.
2.The appeal be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
ASSOCIATE TO THE HONOURABLE JUSTICE BEECH28 MAY 2018
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