Julien v The State of Western Australia - [2021] WASCA 79

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JULIEN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 79
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   15 FEBRUARY 2021
DELIVERED          :   6 MAY 2021
FILE NO/S:   CACR 7 of 2020
BETWEEN:   ROAN MAXWELL JULIEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BRADDOCK DCJ
File Number            :   IND 1334 of 2018

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of possession of 55.7 g of methylamphetamine with intent to sell or supply it to another - Whether verdict of guilty unreasonable or cannot be supported having regard to the evidence

Legislation:

Misuse of Drugs Act 1981 (WA), s 3(1), s 4, s 6(1)(a), s 11(a)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
La Bianca v The State of Western Australia [2019] WASCA 105
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Sims v The State of Western Australia [2020] WASCA 100
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

JUDGMENT OF THE COURT:

This is an appeal against conviction.
The appellant was charged on indictment with two drug offences.
Count 1 alleged, in essence, that on 16 August 2017, at Stoneville, the appellant had in his possession 3.57 g of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MDA).
Count 2 alleged, in essence, that on 16 August 2017, at Stoneville, the appellant had in his possession 55.7 g of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA.
On 18 December 2019, after a trial before Braddock DCJ and a jury, the appellant was convicted, as charged, on both counts.
The trial judge sentenced the appellant to 2 years' immediate imprisonment on count 1 and 5 years 6 months' imprisonment on count 2. The sentences were ordered to be served concurrently. The total effective sentence was therefore 5 years 6 months' imprisonment. A parole eligibility order was made.
The sole ground of appeal alleges, in essence, that the verdict of guilty, on which the conviction for count 2 is based, should be set aside because, having regard to the evidence, the verdict is unreasonable or cannot be supported. The appellant does not challenge his conviction on count 1. On 12 July 2020, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
The sole ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

Overview of the State's case at the trial

On 16 August 2017, police executed a search warrant at the appellant's residence in Stoneville. The appellant was the only person at the address. The search was video recorded. The prosecutor tendered the video as part of the State's case.
During the search, Detective Criddle examined a desk in an office/study area. Upon removing the drawers of the desk, Detective Criddle found a concealed compartment. The compartment was a purpose-made void within the desk. Detective Criddle lifted and removed a cover and gained access to the void. He got onto the floor and looked inside the void. He saw the top of a clipseal bag.
The police located in the void within the desk three medium sized clipseal bags containing white crystals, two small clipseal bags (one bag being within the other bag) containing a brown powder, and a glass pipe.
The white crystals in the three medium clipseal bags were analysed. Each of them contained methylamphetamine. One bag had 3.57 g of the drug with a purity of 72%. Another had 28.2 g of the drug with a purity of 76%. The third had 27.5 g of the drug with a purity of 74%.
During the search of the appellant's residence other items were found as follows:
(a)a wallet (which the appellant confirmed was his) containing $1,030 cash (which was returned to the appellant after the search) and a clipseal bag containing traces of methylamphetamine;
(b)two sets of digital scales (one of which was operational);
(c)empty clipseal bags on the desk in the office/study area (being the desk where the drugs were found in the concealed compartment);
(d)a box behind the desk which contained clipseal bags;
(e)throwing knives in the top drawer of the desk;
(f)a mobile telephone next to a bed;
(g)clipseal bags in a kitchen drawer;
(h)CCTV cameras which were monitoring the property; and
(i)a notepaper with letters and numbers written on it.

During the search, the appellant told police that 'heaps of people' came into the office/study area.
Forensic analysis of swabs taken from the seal area of each of the three medium sized clipseal bags containing the methylamphetamine and the two small clipseal bags containing the brown powder were analysed by PathWest. The analysis by Fiona Orr‑Baxter, a forensic scientist at PathWest, revealed the following:
(a)A mixed DNA profile, assumed to have come from four individuals, was recovered from a swab taken from the bag which originally contained the 3.57 g of methylamphetamine. Ms Orr‑Baxter identified a contributor within the mixed DNA profile which matched the appellant's reference DNA profile. Ms Orr‑Baxter gave evidence that, based upon statistical evaluation, it was greater than 100 billion times more likely to obtain the mixed DNA profile if the appellant was a contributor than if he was not. The remainder of the profile was not suitable for further interpretation (ts 217 ‑ 218).
(b)A mixed DNA profile, assumed to have come from two individuals, was recovered from a swab taken from the bag which originally contained the 28.2 g of methylamphetamine. Ms Orr‑Baxter identified a contributor within the mixed DNA profile which matched the reference DNA profile of Levi Congdon. Ms Orr‑Baxter gave evidence that, based upon statistical evaluation, it was greater than 100 billion times more likely to obtain the mixed DNA profile if Levi Congdon was a contributor than if he was not. The remainder of the profile was not suitable for further interpretation (ts 217 ‑ 218).
(c)A mixed DNA profile was recovered from a swab taken from the bag which originally contained the 27.5 g of methylamphetamine. However, due to its complexity, the mixed DNA profile was not suitable for further interpretation or comparison to any person's reference DNA profile (ts 218).
(d)A mixed DNA profile was recovered from a swab taken from the outer of the two bags which originally contained the brown powder. However, due to its complexity, the mixed DNA profile was not suitable for further interpretation or comparison to any person's reference DNA profile. A DNA profile was not recovered from a swab taken from the inner of the two bags (ts 219).
Detective Smith and Detective Bonser gave evidence that:
(a)Mr Congdon had died in the course of a police investigation into a significant (different) drug matter. Mr Congdon had been a person of interest in relation to that investigation (ts 156, 212).
(b)A death certificate had been issued for Mr Congdon, his date of death being 13 November 2017 (exhibit 9).
Detective Bonser gave expert evidence to the following effect:
(a)Methylamphetamine is normally packaged in clipseal bags and small sandwich packs (ts 198).
(b)Methylamphetamine is normally sold in points of a gram, 1 g, 3.5 g (known as an eight ball), 1.75 g (known as a half ball), half ounces, ounces (28 g), kilograms and multi-kilograms (ts 199).
(c)In August 2017, 3.5 g of methylamphetamine would have cost about $1,000 and an ounce (28 g) would have cost about $7,000 (ts 200).
(d)Items commonly found which are indicators of drug dealing include clipseal bags, scales, ticklists and weapons (ts 205).
At the trial, the State adduced propensity evidence, being the facts relating to the appellant's two prior convictions in 2001 and 2007, for possessing amphetamine and methylamphetamine respectively, with intent to sell or supply the drug to another. The salient facts were these:
(a)In 2001 the appellant was arrested at a property in Lesmurdie. Upon entry into the property, police observed the appellant, who was sitting on a sofa in the lounge room, attempting to conceal something between the cushions of the sofa. Police found a bag containing 0.1 g of amphetamine amongst the sofa cushions. Police also found two other bags containing 1.7 g and 0.9 g of amphetamine respectively on the coffee table, another 0.8 g of amphetamine in a handbag, a cutting agent, scales and cash.
(b)In 2007 police executed a search warrant at the appellant's Stoneville residence (being the same residence as in the present case). Police found 14.1 g of methylamphetamine (with a purity of 6%) in a drawer in a briefcase in the office/study area, together with a cutting agent, numerous clipseal bags and scales.

Overview of the appellant's case at the trial

The appellant gave sworn evidence at the trial.
The appellant's evidence was to the following effect:
(a)His occupation is a mechanical fitter (ts 229).
(b)He began using methylamphetamine about 6 months before the police searched his Stoneville residence. He injected methylamphetamine after weighing the amount. He used clipseal bags for cleanliness. He purchased clipseal bags in bulk online (ts 230 ‑ 232).
(c)He met Mr Congdon at about the time he began using methylamphetamine. Mr Congdon brought his cars to the appellant's residence for work to be done on them. The appellant ascertained that Mr Congdon sold drugs. The appellant purchased drugs from Mr Congdon for his own use including in quantities of a 'half ball' and a 'ball' (ts 232).
(d)Mr Congdon had been to the appellant's residence about a dozen times before the police executed the search warrant. The appellant and Mr Congdon always met at the appellant's residence. They would always go inside the house and enter the office/study area. He left Mr Congdon alone in that area a few times (ts 233). The last time he left Mr Congdon alone in that area was 'very close to the [police] raid' (ts 263).
(e)When he purchased drugs from Mr Congdon, the appellant would put the drugs in his 'stash spot' in the desk. The appellant would pull out the drawer, put his arm in the drawer, lift a little bit of wood and then put the drugs on the side (ts 233). Mr Congdon had seen the appellant do this and asked him about it. The appellant told Mr Congdon that he had a 'stash spot' on the top of the desk (ts 234 ‑ 235).
(f)He saw Mr Congdon a couple of days or a week before the police executed the search warrant. Mr Congdon offered him some drugs but, on this occasion, he did not purchase any drugs from Mr Congdon (ts 236).
(g)The door to the house at the Stoneville residence had a lock, but only from the inside. The appellant did not lock the door during the day if he was working on the property. The door to the office/study area was not lockable (ts 235 ‑ 236).
(h)The notepaper with letters and numbers written on it related to a YouTube quiz he had done with a friend. It was not concerned with drug dealing.
(i)Other than the bag which originally contained the 3.57 g of methylamphetamine, he knew nothing about the other bags which the police found in the desk (ts 240).
(j)He had last used the glass pipe which the police found in the desk a couple of weeks before the search (ts 247).
(k)Purchasing drugs in quantities of a 'ball' was the best value for money. He paid $600 for a 'ball'. The most he ever bought was two 'balls'. He never bought ounces (ts 245). A 'ball' would last him between three and seven days. He used between a 'half-weight' and a gram a day or what he could afford (ts 246).
(l)He had the throwing knives because he liked knives. He denied that he had the knives for protection from people who might try to steal his drugs (ts 271).

The critical issues at the trial

By the close of the appellant's case at the trial, it was apparent that the critical issues were these:
(a)As to the bag which originally contained the 3.57 g of methylamphetamine, it was not in dispute that the appellant had possession of those drugs. The point in issue was whether the appellant intended to sell or supply any of the drugs to another.
(b)As to the bag which originally contained the 28.2 g of methylamphetamine and the bag which originally contained 27.5 g of methylamphetamine, the point in issue was whether the appellant had possession of those drugs. It was not suggested that if the appellant did have possession of those drugs then the drugs were for his personal use.

The ground of appeal: the appellant's submissions

The appellant was represented by counsel at the trial, but was self‑represented in the appeal.
As we have mentioned, the sole ground of appeal alleges, in essence, that the verdict of guilty, on which the conviction for count 2 is based, should be set aside because, having regard to the evidence, the verdict is unreasonable or cannot be supported.
The particulars of the ground of appeal allege, in essence, that:
(a)Particular (a): the appellant could not be found guilty on count 2 unless the jury was satisfied beyond reasonable doubt that the appellant had the 55.7 g of methylamphetamine 'in his possession … knowingly and intended to sell and supply [it] to others'.
(b)Particular (b): the appellant's evidence at the trial 'and the fact it wasn’t contested was a plausible reason for how the [55.7 g of methylamphetamine] was located in the desk without his knowledge'.
(c)Particular (c): the 'physical evidence supported [the appellant's] explanation without speculation'.
The appellant, in his written and oral submissions, emphasised and elaborated upon those particulars.
The appellant referred to Ms Orr‑Baxter's evidence and noted, in effect, that the DNA analysis of the bags which, in combination, contained the 55.7 g of methylamphetamine the subject of count 2 did not connect him to the bags. By contrast, the DNA evidence in relation to the bag which originally contained the 28.2 g of methylamphetamine revealed that, based upon statistical evaluation, it was greater than 100 billion times more likely to obtain the mixed DNA profile if Mr Congdon was a contributor than if he was not.
The appellant submitted that a plausible reason for 'how the drugs got into the desk' was the appellant's evidence that Mr Congdon was at the Stoneville residence on the night before the police search. The appellant pointed out that he gave evidence that Mr Congdon was alone in the office/study area while the appellant went outside, and Mr Congdon therefore had the opportunity to put the drugs inside the desk without the appellant's knowledge.
The appellant argued that he 'should not be penalised' because Mr Congdon was unable to give evidence at the trial in support of the defence case.

The ground of appeal: the State's submissions

Counsel for the State submitted:
(a)The absence of evidence connecting the appellant to the bags which in combination contained the 55.7 g of methylamphetamine the subject of count 2 does not, either alone or in combination with any other matters, indicate that the verdict of guilty in relation to count 2 is unreasonable or cannot be supported.
(b)The appellant's evidence at the trial as to how the 55.7 g of methylamphetamine may have been placed in the desk, without his knowledge, was directly challenged by the prosecutor in cross‑examination.
(c)There is no basis in the evidence for the appellant's assumption that Mr Congdon could have given evidence that would have supported the defence case. Mr Congdon died before the trial. The jury could not speculate as to what evidence he may have been able to give.
(d)Whether the appellant's evidence gave rise to a plausible reason as to whether and if so how the 55.7 g of methylamphetamine was placed in the desk, without his knowledge, was a question for the jury to determine.
By its verdict of guilty on count 2, the jury must have found that the inference which the appellant invited the jury to draw, namely that Mr Congdon may have placed the drugs in the desk without the appellant's knowledge, was not reasonably open on the evidence. It was submitted that the jury was entitled to reject that inference.
Counsel contended that the State's case against the appellant on count 2 was compelling. Neither the absence of DNA evidence connecting the appellant to the two bags which in combination contained the 55.7 g of methylamphetamine (and the presence of DNA evidence connecting Mr Congdon to one of the bags) nor the appellant's evidence that Mr Congdon had visited him shortly before the police search, either alone or in combination, required the jury to have a reasonable doubt as to the appellant's guilt on count 2.
It was submitted that the appellant had failed to demonstrate that, having regard to the trial record, the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead to the conclusion that an innocent person may have been convicted.

The ground of appeal: its merits

It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[1] Zaburoni v The Queen;[2] GAX v The Queen.[3]
[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).
[2] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).
[3] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).
An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[4]
[4] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[5]
[5] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].
The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493). See also R v Nguyen;[6] SKA [13].
[6] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

Circumstantial evidence must not, of course, be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier.[7]
[7] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] (Gummow, Hayne & Crennan JJ).
In R v Baden‑Clay,[8] 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) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133 CLR 82 at 104) (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (R v Hillier (2007) 228 CLR 618 at 637 [46] (footnote omitted)) (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (R v Hillier (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535).
[8] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [47].
In Pell v The Queen,[9] the High Court made these statements about the assessment of the credibility of a witness by the jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:
[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, 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 upon the evaluation of the witnesses in the witness‑box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. (footnote omitted)
[9] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
The High Court in Pell [39] also made these comments, in the context of the evidence of a complainant in a child sex case, about the function of the appellate court in determining a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either 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 proof of guilt. (footnote omitted)
The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. See M (494 ‑ 495); Hillier [20]; Fitzgerald v The Queen;[10] Baden‑Clay [66].
[10] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).
The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].
The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[11] GAX [25].
[11] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).
The nature and extent of the appellate court's task, in a particular case, will be informed by:
(a)the elements of the offence;
(b)the accused's defence;
(c)the issues in contest at the trial;
(d)the manner in which the trial was conducted;
(e)the way in which the case was ultimately left to the tribunal of fact;
(f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
(g)the particulars of the ground of appeal.
For example, in Zaburoni the critical issue concerned what was able to be inferred, beyond reasonable doubt, about the appellant's state of mind. The question for the appellate court was whether, having made its own independent assessment of the evidence, the court considered it to have been open to the jury to be satisfied beyond reasonable doubt that the appellant had the requisite subjective intention [56].
Section 6(1)(a) of the MDA provides that a person commits a crime if that person, with intent to sell or supply it to another, has in his or her possession a prohibited drug. Methylamphetamine is a prohibited drug.
The expression 'to possess' is defined in s 3(1) of the MDA as follows:
to possess includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings.
The compendious expression 'to sell or supply' is not defined in the MDA. However, the words 'to supply' have an extended definition in s 3(1) and include:
[T]o deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied.
Section 11(a) of the MDA reads:
11.Presumption of intent to sell or supply
For the purposes of -
(a)section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug[.]
Schedule V of the MDA provides that the presumption applies where the quantity of methylamphetamine is not less than 2 g.
In the present case, the presumption applied to count 2.
Putting to one side for the moment the issue of the accused's knowledge, where a person is charged as a principal offender with an offence contrary to s 6(1)(a) of the MDA, the State must prove beyond reasonable doubt:
(a)that the accused had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;
(b)at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) of the MDA;
(c)that the substance or thing was, in fact, a 'prohibited drug' within s 4 of the MDA; and
(d)(unless the presumption in s 11(a) of the MDA applies), that the accused intended to sell or supply to another at least some of the substance or thing.
It is well established that the concept of possession in s 6(1)(a) of the MDA involves, as an element, knowledge of the substance or thing. In Sgarlata v The State of Western Australia,[12] the following propositions in respect of the element of knowledge were stated:
(a)the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;
(b)the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was, in fact, 'a drug', within the ordinary and natural meaning of that term;
(c)it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was the specific drug the subject of the charge; and
(d)it is unnecessary for the accused to have at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the weight or quantity of the substance or thing was as alleged in the charge.
[12] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [180] ‑ [192] (Buss JA). See also La Bianca v The State of Western Australia [2019] WASCA 105 [28] (Buss P & Mazza JA); Sims v The State of Western Australia [2020] WASCA 100 [23] (Buss P, Mazza & Mitchell JJA).
The concept of possession, for the purposes of s 6(1)(a) of the MDA, may involve sole possession by the accused or joint possession by the accused with another or others.
As we have mentioned, in the present case, the critical issue at the trial in relation to count 2 was whether the appellant had possession of the 55.7 g of methylamphetamine the subject of that count.
It was not suggested at the trial (and it could not reasonably have been suggested) that if the appellant did have possession of the 55.7 g of methylamphetamine in question then the drugs were solely for his personal use and he did not intend to sell or supply any of them to another or others.
The State's case against the appellant in relation to count 2 was strong. There was a powerful body of circumstantial evidence which supported the State's contention that the only reasonable inference from the evidence as a whole was that the 55.7 g of methylamphetamine was in the appellant's control or under his dominion, within the extended definition of 'to possess' in s 3(1) of the MDA.
We are satisfied that the evidence which, in combination, supported that inference, as the only reasonable inference, included:
(a)At the material time the appellant was the only person who lived at the Stoneville residence.
(b)Detective Bonser's evidence indicated that the drugs had a significant value, namely about $14,000.
(c)The drugs were hidden in a concealed compartment that was a purpose-made void within the desk in the office/study area.
(d)The mixed DNA profile recovered from the swab taken from the bag which originally contained the 3.57 g of methylamphetamine included a contributor which matched the appellant's reference DNA profile. That bag was found in the same concealed location as the bags which, in combination, contained the 55.7 g of methylamphetamine.
(e)Numerous items commonly associated with drug dealing were found at the Stoneville residence, including an operational set of digital scales, numerous clipseal bags, throwing knives, CCTV cameras (which were monitoring the property) and a notepaper (with letters and numbers written on it) which it was open to conclude was a ticklist.
(f)The propensity evidence; in particular, the appellant's two prior convictions in 2001 and 2007, for possessing amphetamine and methylamphetamine respectively, with intent to sell or supply the drug to another.
It was open to the jury, in the circumstances, to reason that the only reasonable inference open on the evidence relied upon by the State, considered as a whole and not on a piecemeal basis, was that:
(a)the appellant had at least an awareness or a belief in the likelihood (in the sense that there was a significant or real chance) that the two bags which originally contained the 55.7 g of methylamphetamine in question were hidden in the concealed compartment within the desk in the office/study area;
(b)the appellant had at least an awareness or a belief in the likelihood (in the sense that there was a significant or real chance) that the white crystals in the two bags were methylamphetamine;
(c)those drugs were in the appellant's control or under his dominion; and
(d)the appellant intended to control or have dominion over those drugs.
We are satisfied, after examining the trial record and weighing the whole of the evidence, that it was reasonably open to the jury to reject the appellant's evidence and his defence, and to be satisfied beyond reasonable doubt as to his guilt on count 2.
In particular, the jury was entitled to reject, as a reasonable inference, that Mr Congdon may have hidden the 55.7 g of methylamphetamine in the concealed compartment within the desk without the appellant's knowledge. The rejection of that inference was supported by the following evidence, considered as a whole and not on a piecemeal basis:
(a)The drugs had a significant value of about $14,000.
(b)On the appellant's evidence, he had known Mr Congdon for only six months and had met him about a dozen times. They primarily had a business relationship which involved either Mr Congdon's cars or Mr Congdon supplying the appellant with illicit drugs. Their relationship was not based on trust. Mr Congdon had not been given unrestricted access to the Stoneville residence.
(c)On the appellant's evidence, Mr Congdon knew that the appellant kept the appellant's drugs in the concealed compartment within the desk.
(d)The proposition relied upon by the appellant, namely that Mr Congdon hid drugs having a value of about $14,000 at the Stoneville residence was implausible in that:
(i)the appellant and Mr Congdon were merely acquaintances;
(ii)Mr Congdon did not have unrestricted access to the house;
(iii)Mr Congdon allegedly put the drugs in question in a location of which the appellant was (to Mr Congdon's knowledge) aware;
(iv)the appellant was (to Mr Congdon's knowledge) a drug user;
(v)the appellant would (to Mr Congdon's knowledge) store the appellant's drugs in the concealed compartment; and
(vi)it necessarily followed from (d)(iii), (iv) and (v) above that the appellant would from time to time access the compartment and, when he did, would be highly likely to find any drugs which Mr Congdon had hidden in the compartment.
(e)On the appellant's evidence, Mr Congdon never asked him about any drugs when they met after the police search and Mr Congdon never sought to retrieve any drugs after the search.
(f)The presence of the contributor within the mixed DNA profile, which matched the reference DNA profile of Mr Congdon, on the bag which originally contained the 28.2 g of methylamphetamine is consistent with the evidence adduced at trial that occasionally Mr Congdon sold or supplied the drug to the appellant.
The prosecutor directly confronted the appellant in cross‑examination about the appellant's evidence as to how the 55.7 g of methylamphetamine may have been placed in the desk without his knowledge.
The appellant's contention that he 'should not be penalised' because Mr Congdon died before the trial and was unable to give evidence in support of his case assumes that Mr Congdon would have given evidence which supported the defence case. The jury was properly directed by the trial judge that they could not speculate in relation to what evidence Mr Congdon may have been able to give.
Neither the absence of DNA evidence connecting the appellant to the two bags which originally contained the 55.7 g of methylamphetamine nor the existence of DNA evidence connecting Mr Congdon to one of those bags required the jury, having regard to that evidence either alone or in combination with any other evidence, to have a reasonable doubt as to the appellant's guilt on count 2. Contrary to the assumption inherent in some of the appellant's submissions, the absence of evidence of his reference DNA profile on the bags which together contained the 55.7 g of methylamphetamine is not evidence that the appellant did not touch those bags. Similarly, the appellant's evidence that Mr Congdon visited him shortly before the police search did not require the jury, having regard to that evidence either alone or in combination with any other evidence, to have a reasonable doubt as to the appellant's guilt on count 2.
The trial record does not require the conclusion that the jury must necessarily have entertained a reasonable doubt about the appellant's guilt on count 2. The verdict of guilty on that count was not unreasonable. It was supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. Our assessment of the matters complained about by the appellant in the appeal does not persuade us that the jury, acting reasonably, should have decided that the State had not proved the offence charged in count 2 to the criminal standard. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the very significant benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on count 2 or as to the correctness of his conviction on that count. It would not be dangerous, in the circumstances, to permit the verdict of guilty to stand.
The sole ground of appeal is without merit.

Conclusion

The sole ground of appeal did not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
6 MAY 2021