Kennedy v The State of Western Australia
[2021] WASCA 55
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KENNEDY -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 55
CORAM: BUSS P
VAUGHAN JA
HALL J
HEARD: 16 DECEMBER 2020
DELIVERED : 31 MARCH 2021
FILE NO/S: CACR 194 of 2019
BETWEEN: LUKE GARY KENNEDY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PETRUSA DCJ
File Number : IND 79 of 2018
Catchwords:
Criminal law – Appeal against conviction – Possession of prohibited drugs with intent to sell or supply – 17 kg of MDA located at a safe house – Appellant convicted of being in joint possession of the drugs – Whether the trial judge's directions on possession occasioned a miscarriage of justice – Whether the directions of the trial judge excluded the possibility that the appellant had knowledge of the drugs but did not exercise control or dominion over them – Propensity evidence – Whether admitting evidence of the appellant's prior convictions for drug offences as propensity evidence occasioned a miscarriage of justice – Whether verdict was unreasonable or unsupported by the evidence
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Leave to appeal granted on grounds 1 and 3
Leave refused on ground 2
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | J D Edwardson QC with F P Merenda |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Holborn Lenhoff Massey |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
MEN v The State of Western Australia [2020] WASCA 118
R v GNN [2000] SASC 447; (2000) 78 SASR 293
R v Saleh [2017] SASCFC 75
R v Wood [2017] SASCFC 100
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
The Queen v Hiller [2007] HCA 13; (2007) 228 CLR 618
The State of Western Australia v Jackson [2019] WASCA 118
JUDGMENT OF THE COURT:
This is an appeal against conviction.
The appellant was charged on an indictment, together with a co‑accused, Theofanis Daniel Kalathas, with one count of possessing a prohibited drug with intent to sell or supply, namely 17.7 kg of 3,4‑methylenedioxyamphetamine (MDA), contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). At the close of the prosecution case the trial judge concluded that Kalathas had no case to answer on the charge and found him not guilty pursuant to s 108 of the Criminal Procedure Act 2004 (WA). The appellant was convicted by the jury at the conclusion of the trial.
There are three grounds of appeal. The first ground alleges that the trial judge's directions in respect of the element of possession occasioned a miscarriage of justice. The second ground alleges that a miscarriage of justice was occasioned by the admission of evidence of the appellant's prior convictions as propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA). The third ground alleges that the guilty verdict in respect of the appellant was unreasonable and unsupported by the evidence.
For the reasons that follow, leave to appeal should be granted in respect of grounds 1 and 3, leave should be refused in respect of ground 2, but none of the grounds has been made out and the appeal should be dismissed.
Prosecution case
The State case at trial was that the appellant was in joint possession of 17.7 kg of MDA that had been found by the police at 75 Fenchurch Street, Alexander Heights (Fenchurch Street house) on 3 April 2017. The drugs consisted of over 80,000 tablets and 260 g of broken pills, fragments and powder.
The drugs were found in a locked toilet adjacent to the laundry and in an air vent adjacent to the living area of the house.[1] At the time of the search there was no furniture or other indications that anyone was living in the house. The house was empty other than for the drugs and some indicia of drug dealing, including digital scales, plastic clip seal bags and disposable gloves.[2]
[1] ts 182, 189 ‑ 190, 210, 399, 496; Exhibits 17 ‑ 19.
[2] ts 147; Exhibits 17 ‑ 19.
The Fenchurch Street house had been leased two months earlier. On 3 February 2017 a man named Abdul Al‑Yakoubi had referred Ms Jasmine Hart to the leasing agent handling the property. Ms Hart met with the agent and entered into a lease the same day.[3]
[3] ts 130 ‑ 138; Exhibit 2.
In the months prior to the police search the appellant had been under police surveillance. He had been observed attending at the Fenchurch Street house on a number of occasions, in particular on 10 February 2017, 13 February 2017 and 30 March 2017.[4]
[4] Closed court ts 27/09/19; Exhibits 25, 34, 14.
Intercepted telephone calls[5] and surveillance evidence[6] also revealed that the appellant, Kalathas and Al‑Yakoubi were associates and in regular contact with each other. Some of the telephone conversations will be referred to in more detail shortly. In telephone conversations and text messages between the appellant, Kalathas and Al‑Yakoubi the Fenchurch Street address is referred to as 'Auntie's house'.[7]
[5] Exhibit 25.
[6] Closed court ts 27/09/19; Exhibits 33.1 ‑ 33.10.
[7] Exhibit 25 (CSN: 00150-001, 00208-001, 00850-001, 01135-001).
On 13 February 2017 some off‑road motorbikes had been taken to the Fenchurch Street house and driven from there by the appellant and some of his associates. This was relied upon by the defence as providing an innocent explanation for his attendance at the property, on this and other occasions.
Amongst the telephone calls between the appellant and his associates was one made on 11 March 2017 to a man named Hamadani. In that call the following exchange occurred:
Appellant:Are you gonna be home later, bro? Grab some money?
Hamadani:Ah, I'll be honest with ya, I haven't got any money o‑, on me now. I mean, the, the fifteen I borrowed off Ramish, I gave it to you.
Appellant:Yeah.
Hamadani:How much is the mosh for anyways? I forgot?
Appellant:Three and a half.
Hamadani:Three and a half?
Appellant:Yeah.
Hamadani:How much did I give you?
Appellant:You give me fifteen hundred.[8]
[8] Exhibit 25 (CSN: 02136-001).
Later on the same day, in another recorded telephone conversation, the appellant said that he was going back to Abdul's (Al‑Yakoubi) to 'look at something'. When asked what he was going to look at the appellant said 'donuts' and 'Krispy Kremes'.[9] The State alleged that this was code for drugs.
[9] Exhibit 25 (CSN: 02097-001).
On 1 April 2017 and 2 April 2017 the appellant had telephone conversations with a man named Omar regarding the recovery of a debt. In the course of the conversation on 1 April 2017 the following exchange occurred:
Appellant:Oi, you told me that, um, whats‑her‑name's not sorting it out; Abs is gonna sort it out. The boys told ya eh?
Omar:I didn't say that, brother. He, I said, he called me just then. He said he was at, um, Raffles.
Appellant:Yeah.
Omar:And I was like, I dunno. I was, like, I'm, I'm waiting for Abdul and they would sort it out, 'cause they were the ones supposed to pay, they were the ones that owe the thing, you know?
Appellant:Yeah.
Omar:Pay the rest of the amount …[10]
[10] Exhibit 25 (CSN: 03288-001).
In the first call on 2 March 2017 the following exchange occurred:
Omar:Well, um, I met up with old mate at Raffles.
Appellant:Yeah.
Omar:Um, I got two out of it.
Appellant:Yeah
Omar:And, um, the rest, it's been promised tomorrow. Um …
Appellant:Did he, were they there?
Omar:Sorry?
Appellant:Were they there?
Omar:Yeah, the boys were there. And, um, old mate put it on them. And th‑, one paid up straightaway and another, another got it huh?
Appellant:Did he bash 'em or not?
Omar:I can't hear you.
Appellant:Did he bash 'em?
Omar:Not really, oh, one of them, yeah, but, you know … Yeah, one of the guys did cop a couple of hits, but, yeah.[11]
[11] Exhibit 25 (CSN: 03292-001).
In another telephone call later the same day Omar tells the appellant that he has got 'another eight' from 'one of the guys' and that in total he has 'two eight' and that he is waiting on another 'two eight'. Omar asks if this is all right and the appellant says 'Yeah. Sweet, bro. No worries'. Omar then says if he receives the other 'two eight' tonight he will drop it in to the appellant.[12]
[12] Exhibit 25 (CSN: 03310-001).
The State also relied on surveillance footage of a meeting held in a laneway between the appellant and a number of other men on 27 March 2017.[13]
[13] Closed court ts 27/9/19.
The last attendance at the Fenchurch Street house before the police search was on 30 March 2017. On that date a white Toyota HiAce van with distinctive markings was observed arriving at and leaving from the premises. The van had the name of a roof restoration company written on the side. Al‑Yakoubi was an employee of that company at the time and had permission to use the van.
At 12.23 pm on 30 March 2017 the appellant had a telephone conversation with Kalathas in which he told Kalathas that he was 'heading [to/into] the hood'.[14] At 1.35 pm Kalathas can be heard in the background of a telephone call between the appellant and another person, indicating that at that time they were in company together.[15]
[14] Exhibit 25 (CSN: 03184-001).
[15] Exhibit 25 (CSN: 03187-001).
The van was driven to the Fenchurch Street house at 1.58 pm. The State case was that the appellant was the driver based on hairstyle, visible tattoos and general appearance as seen in CCTV footage. Initially the van was driven past the house before turning around and returning from the opposite direction. On the State case this was consistent with an attempt to scope out the area to see if it was under surveillance.
After the van entered the driveway it paused momentarily before proceeding further. The State case was that this was consistent with the driver activating the garage door mechanism and waiting a few seconds for the door to open. A fob which operated the Fenchurch Street house garage door was subsequently recovered from that van by police, together with a set of keys for the house.[16] A shopper's door in the garage gave access to the house via the kitchen.
[16] ts 483.
About 31 minutes elapsed before the van, driven by the same person with no visible passenger, left the premises. While reversing down the driveway the driver leans across in an apparent effort to ensure that the passenger door is closed properly.
Having left the Fenchurch Street house the van was driven back to Al‑Yakoubi's home in Honeywell Boulevard, Mirrabooka. The appellant was observed parking the van in the garage at that location at 2.49 pm. Four minutes later the appellant's vehicle, a Jeep Cherokee, which had been parked at the Honeywell address drove away.
When police executed a search warrant at the Fenchurch Street house on 3 April 2017 they located the 17.7 kg of MDA in a locked toilet adjacent to the laundry and in an air vent in the living area. Although the toilet was described as being locked, the locking mechanism appears to have been a privacy lock which did not require a key and could be opened from the outside using a blunt knife or screwdriver.[17]
[17] Exhibit 17.
A latent fingerprint impression (also described as left palm print) was lifted from a toilet cistern in an ensuite bathroom (that is, in an area different to the toilet adjacent to the laundry). When examined, that print was found to match the appellant.[18] A disposable glove was also found floating in the toilet bowl of that toilet.
[18] ts 582, 588 - 590.
On the same day, 3 April 2017, the police also executed a warrant at the appellant's home, 42B Hardcastle Avenue, Landsdale. Four MDA pills were located inside the house which were identical in appearance and in chemical structure to the drugs found at the Fenchurch Street house.[19]
[19] ts 315, 549 ‑ 570; Exhibits 28, 46 ‑ 50.
The appellant was arrested and interviewed by police on 3 April 2017. He denied knowing anything about the Fenchurch Street house or ever having been there. This evidence was relied on by the State as being lies told out of a consciousness of guilt. The appellant also sought to distance or disassociate himself from Al‑Yakoubi, the HiAce van and the street where Al‑Yakoubi lived.
Propensity evidence
The State also relied on prior convictions of the appellant as propensity evidence. These convictions related to possession of methylamphetamine and MDA in December 2013. The facts of those convictions were read in to evidence at the trial after an application to adduce the evidence had been allowed. The statement of facts as read to the jury in respect of the prior convictions was as follows.
On 21 April 2015, following a plea of guilty, Luke Kennedy was sentenced for one count of possession of MDA with intent to sell or supply and one count of possession of methylamphetamine with intent to sell or supply.
The facts are as follows. At about 8.00 am on Thursday 19 December 2013 police officers executed a search warrant at the offender's home address which is in Girrawheen.
Police arrived, when they arrived the address was vacant. Efforts were made to contact the offender and his partner via telephone and they were unsuccessful. Therefore an independent person was called to be present during the search of the premises.
A drug detection dog was deployed, implicated a length of plastic pipe sealed at both ends concealed in the backyard of the premises – the pipe was examined and found to contain two clip seal bags wrapped in a paper towel. One of the clip seal bags contained 308 MDA tablets, that equates to 61.1 g of MDA, at 12% purity. The second clip seal bag contained 13.4 g of methylamphetamine, and that was a 48% purity.
Further, during the search of the premises, inside in the kitchen, a further 5 ground [sic – round] MDA tablets were located, alongside paper towelling which was similar in appearance to the towelling wrapping the drugs in pipe, along with a similar make and size of clip seal bags. These 5 MDA tablets amounted to 0.97 g, therefore, the total weight of the MDA tablets came to 62.07 g.
The search also located cash totalling $9,450 in various locations, including inside coffee table [drawers], inside a printer, inside an iPad cover, and inside a desk drawer. The offender had been warehousing the drugs for an associate in exchange for the discharge of a drug debt.[20]
[20] ts 636 ‑ 637.
Grounds of appeal
The grounds of appeal as are as follows:
1.The trial Judge's directions in relation to the law of possession occasioned a miscarriage of justice.
Particulars
a.The trial Judge failed to adequately apply the concepts of 'knowledge' and 'intention to exercise control or dominion' to the facts of the case, which, in the particular circumstances of it, was necessary to avoid the jury convicting on an unreasonable basis;
b.In explaining to the jury how 'in some situations' knowledge may not amount to an intention to exercise control or dominion over something, she used an example whereby a person is in physical custody of an item, but is doing so under duress.
c.The factual example given by the trial Judge was not only unrelated to the facts of the case, it was also capable of misleading the jury into reasoning that short of there being evidence of duress, satisfaction that the Appellant had knowledge of the drugs found at the 75 Fenchurch Street would be sufficient, without more, to conclude that the Appellant had an intention to exercise control or dominion over the drugs.
2.A miscarriage of justice was occasioned by the admission of the evidence of the Appellant's prior convictions pursuant to s 3lA of the Evidence Act 1906 (WA), in that the evidence:
a.Was not significantly probative; or alternatively
b.A fair‑minded person would not have considered that the public interest in adducing all relevant evidence would outweigh the risks to the Appellant of an unfair trial.
3.The verdict was unreasonable and unsupported by the evidence.
Relevant directions
In regard to ground 1 the relevant directions given by the trial judge on the element of possession were as follows:
So what then are the essential ingredients or elements of the charge? Well, the elements of the charge, each of which the State must prove beyond a reasonable doubt in order to prove the offence, are these. First, Mr Kennedy was the offender, that is, it was Mr Kennedy who did the things which the State say constitute – asserts constitute the offence. Second, that Mr Kennedy had in his possession a prohibited drug, namely 3,4‑methylenedioxyamphetamine (MDA), and I'll refer to it as 'MDA' after this. And thirdly, that Mr Kennedy had an intention to sell or supply all or any part of the MDA that was in his possession.
So let's have a closer look at those three things. The first element is self‑explanatory, the State must prove that Mr Kennedy was the offender. The second element is the possession element. The State must prove beyond a reasonable doubt that Mr Kennedy had in his possession a prohibited drug, namely MDA. Now, under our law, MDA is a prohibited drug. Accordingly, if you are satisfied beyond a reasonable doubt that Mr Kennedy was in possession of MDA as alleged, you will necessarily conclude he was in possession of a prohibited drug, okay? Because as a matter of law, it is a prohibited drug.
What then is the meaning of 'possession'? Well, under our law, a person can possess a prohibited drug by either – by having either actual physical possession of the drug or by having control or dominion over the drug. A person can therefore possess a prohibited drug by physically holding it, that is, by actually having it on their person. However, they can also possess a prohibited drug without physically holding it, provided he or she has control or dominion over the drug.
It is also the case under our law that for possession of a prohibited drug to be established, there must be proof of an intention to possess the drug. You can not possess a prohibited drug if you do not intend to possess it.
What is required is that the person has physical custody of the drug, accompanied by an intention to have physical custody of the drug, or a person has control or dominion over a drug, accompanied by an intention to have control or dominion over the drug the physical custody or the control or dominion and the intention to have physical custody or control or dominion must exist at the same time.
Further, in order for a person to intend to possess a prohibited drug by actual physical custody or by control or dominion, the person must know of the drug – prohibited drug's existence. A person can not intend to have actual physical custody of a prohibited drug or intend to have control or dominion over the prohibited drug, if he or she does not know of the drug's existence. Therefore, proof of knowledge of the existence of the prohibited drug is an essential prerequisite of proving an intention to possess.
Knowledge, in this context, means an awareness or a belief in the likelihood, in the sense that there is a significant or real chance of the prohibited drug existing. Now, members of the jury, knowledge and intention are states of mind. You can not look inside a person's head to see what his or her knowledge of intention was. A person's knowledge and intention, if they exist, can only be inferred from facts which you find have been established by the evidence.
The knowledge and intention may be inferred from all of the circumstances surrounding an alleged offence, from the conduct of the person, and from what the person has said. I remind you what I said about drawing inferences. If you are to draw an inference adverse to the accused, it must be the only reasonable inference open on all of the evidence. Now, you may have noticed from what I have said to this point in my directions, that I have drawn a distinction between knowledge and intention.
While I have said that knowledge is an essential prerequisite to the existence of an intention, and therefore possession, I have not said that knowledge, in itself, equates to intention. I have not said so because there may be some situations in which a person may know about a thing's existence, but still not intend to have physical custody of the thing or to exercise control or dominion over it.
I'll give you an example unrelated to this case, a person can be forced to take physical custody of the thing against their will. The person will obviously know of the thing's existence, but they would not, for the purposes of our law, be said to be in possession of the thing because they would not intend to take physical custody of the thing. All right? Because they've been forced to, they didn't have an intention. The next thing you need to know is that possession does not have to be exclusive to one person.
Two or more persons can jointly possess the one quantity of a prohibited drug at the same time. Although the nature of their possessions may be different. Again, I'll give you an example related, potentially, to this case, this one person may possess prohibited drug by reason of having intentional, physical custody of it, while another may be in possession of that same quantity of drugs by having intentional control or dominion over it in the sense that the first person has it at the instruction and on behalf of the second person. So you can see how they've both got possession at the same time.
The State does not, in order to prove that a person was in possession of a prohibited – of the prohibited drug, MDMA, need to prove that the person knew that the prohibited drug that they were in possession of was in fact MDMA, or knew the precise quantity of the MDMA that he or she was in possession. The State need only prove that the person possessed, in the way in which I've described, in other words, the State in order to prove that a person was in possession of the prohibited drug MDA, need only prove that the person had an awareness or a belief in the likelihood of the substance being a prohibited drug.
That the person intended to have physical custody of the substance or to have control or dominion over the substance and of course that the substance was MDA.
…
So just to give you an example of what I was endeavouring to explain to you, so if a person possesses a prohibited drug which he or she believes is heroin and it turns out to be MDA, the person's still guilty of possessing a prohibited drug, namely, MDA. Right. So I just want to do a quick recap about the things that are required to establish possession because there are three of them. All right? So you need to have all three things before the law says you have possession.
First, that the accused had custody or control or dominion over the MDA found in the house. Second, that the accused had knowledge, in that he had an awareness or belief in the likelihood, in the sense that there was a real or significant chance that the prohibited drug was in the house. And thirdly, that the accused had a present intention to exercise control or dominion over the drugs.[21]
[21] ts 744 ‑ 747.
The trial judge continued her summing up the following day. Relevantly, she repeated on a further seven occasions that proof of possession required that all of the components of that element be established.[22] In particular, her Honour emphasised that there were three components of possession: first, custody, control or dominion; second, knowledge; and third, an intention to exercise control or dominion – 'all three of which needed to be met and satisfied'.[23] She consistently emphasised the necessity for all three components to be proven.
[22] ts 755, 756, 758, 759, 761, 771 ‑ 772, 773.
[23] ts 755.
In summarising the defence case her Honour referred to the defence contention that the State had not proved either that the appellant 'knew anything about or had any association with the MDA' or 'if he knew about it, he intentionally had control over it'.[24] Necessarily implicit in this was that a failure in either respect would mean that possession had not been established. In particular, that knowledge without intentional control was not enough.
[24] ts 773.
In regard to ground 2, the directions given by the trial judge in respect of the propensity evidence are relevant in assessing whether there was a risk of an unfair trial. The relevant directions were as follows:
Now, evidence of Mr Kennedy's prior offences and convictions for them is commonly referred to as propensity evidence. And what I'm going to do now is give you some directions as to the use that you can make of the evidence relating to these prior convictions – sorry – I should say prior offences.
Now, members of the jury, the State contends the fact that Mr Kennedy committed the prior offences shows that he has been willing to engage in drug distribution at least to warehouse the drugs and that he has connections with drug distributors. And further, that he has done this in respect of MDA.
In this case the Fenchurch, the State says, was being used as a warehouse for MDA. And insofar as this evidence is concerned, the State submits that when you are considering what reasonable inferences are available, this evidence, in the context of all of the other evidence makes it more likely that he knew about the drugs and intended to have control over them. That is, it goes to the aspects of knowledge and intention.
Further, the propensity evidence may assist you to evaluate whether other inferences consistent with innocence or possession are reasonable.
Members of the jury, it is for you to decide if Mr Kennedy's commission of the prior offences increases likelihood that he knew about the MDA and had an intention to have control over them.
In deciding this question, you will need to give consideration to any similarities or differences which exist between the facts and circumstances of the prior offences and the facts and circumstances of this case. Differences like how the drugs were stored, where they were stored and the basis on which he stored them.
If you find that Mr Kennedy's commission of the prior offences does increase the likelihood of him having knowledge of the MDA and an intention to possess it, then you can take that finding into account in deciding if the State has proved beyond reasonable doubt that Mr Kennedy is guilty of the offence before you.
There are, however, two things that you cannot do with the evidence of his prior convictions. First, you must keep firmly in mind that proof that Mr Kennedy is more likely to have knowledge of the MDA and an intention to possess it is not proof itself that Mr Kennedy committed the offence for which he is charged.
The evidence of the commission by Mr Kennedy of the prior offence cannot be used as a substitute for evidence that relates directly to the charge. All right? So you can't reason 'He did it before, so he must have done this.' Okay? That is impermissible.
Even if you do not find that Mr Kennedy's commission of the prior offence does increase the likelihood of him having knowledge of the MDA and intention to possess it, it does not follow automatically that he committed the charged offence. Proof that the person did something on one occasion does not compel the conclusion that he did a similar thing on another.
The question for you, at all times, remains whether having regard to the whole of the evidence, the State has proved to your satisfaction beyond a reasonable doubt that Mr Kennedy is guilty of the offence charged.
The second way that you cannot use Mr Kennedy's prior convictions in determining whether he was the driver of the Passione panel van on 30 March. This fact, that is, the fact of whether he was the driver of the Passione panel van, requires you to consider and evaluate the evidence that relates to what was seen and done on that day, and his prior convictions cannot help you with this.
Now, the defence of course say that Mr Kennedy's prior convictions can't assist you at all, except perhaps to understand why he might have told some untruths when he was asked about the Fenchurch Street house. And I'll come to that.[25]
[25] ts 761 ‑ 763.
Ground 1 – appellant's submissions
The appellant submits that the trial judge failed to adequately direct the jury in relation to the law of possession. In particular the appellant submits that the trial judge failed to properly apply the law relating to knowledge and control and dominion to the facts of the case. This is said to be because in the circumstances of this case it was necessary for the trial judge to explain to the jury that a finding of knowledge could not in and of itself equate to a finding that the appellant had control or dominion (or intention to exercise control or dominion) over the drugs.
The appellant places particular reliance on the South Australian case of R v GNN.[26] In that case Doyle CJ (with whom Prior and Olsson JJ agreed) held that a trial judge had failed to adequately apply the law of possession to the facts of the particular case. The critical omission was the failure to identify, with reference to the evidence, how the jury could permissibly reach a conclusion that the appellant was in joint possession of the drugs found inside her home.
[26] R v GNN [2000] SASC 447; (2000) 78 SASR 293.
The appellant in GNN was convicted of joint possession of heroin that had been found in a house where she was a co‑occupant. There was a body of evidence that supported the contention that the appellant had knowledge of the drugs, including intercepted phone calls that appeared to rely on the use of code terminology, the finding of cash in elastic bands in the appellant's handbag and the finding of digital scales.
It was held in GNN that the trial judge had adequately directed the jury in relation to the law of possession generally but had failed to apply the law to the facts of the case in order to ensure that the jury did not convict on an unreliable basis. In this regard Doyle CJ said at [24] ‑ [25]:
As I have said, the Judge adequately identified and explained the basic legal concepts involved – possession, knowledge, custody and control. But, in my respectful opinion, his directions did not give the jury the assistance that they needed in applying those concepts to the facts of the case.
It was particularly important to identify the circumstances which, if proved to the jury's satisfaction, would establish that the heroin was in the possession of Ms GNN as distinct from being in the possession of one or other of the men found in the house. The Judge's direction does not really grapple with that issue. It is an issue which cannot be resolved solely by reference to the knowledge of Ms GNN. It required some further explanation of the practical application of the concept of control. It was not a case that required further general discussion of the nature of the relevant concepts, but rather an explanation of how they were to be applied. The jury needed further guidance on the issue of control because, in this case, it was quite possible that the heroin had been brought into the house by one of the men, but with the knowledge and acquiescence of Ms GNN. The Judge's directions gave no assistance on that issue, other than by referring to the concept of custody or control. As well, in my opinion the directions that the Judge gave might have misled the jury in two respects. First, the Judge referred to a person possessing an object which was in a place such as a person's home, and said that in that situation although the person did not have immediate control of the object, the person could still claim an exclusive right or power over it. There is a risk of the jury interpreting this as meaning that their satisfaction that Ms GNN knew the heroin was hidden in her kitchen was sufficient to constitute possession. As well, in the circumstances of this case I consider that the emphasis on knowledge might have caused that to assume undue importance in the jury's mind. Of course, knowledge was a critical issue, but in the circumstances of this case so was control, and so was the issue of whether the jury were satisfied that Ms GNN, and not some other person was exercising the relevant control or had an intention to assert control. In particular, the Judge did not tell the jury that to convict Ms GNN they would have to exclude the possibility that she had merely acquiesced in one of the men hiding the heroin in the kitchen, in the sense of merely permitting him to conceal his heroin in her house. (emphasis added)
The appellant submits that a direction of the type referred to in GNN was required in this case because there was a body of evidence that supported the contention that the appellant may have had knowledge of the drugs but allowed for the possibility that he did not exercise control or dominion of the drugs. The appellant refers to the finding of the four pills at 42B Hardcastle Avenue and the lies told by the appellant to the police as having a capacity to prove his knowledge of the drugs. However, it is submitted that the jury needed to exclude, for example, that the appellant was merely a purchaser of the drugs that were found at his house. The fact that he may have known about the drugs at the Fenchurch Street house may well have arisen from his relationship with Kalathas and Al‑Yakoubi, but it is said that there was evidence which supported a lawful common association between those persons. If the appellant merely had knowledge of the existence of the drugs and had purchased a small quantity for himself, this would be insufficient to establish guilt.
The appellant submits that the trial judge's directions were inadequate in two respects. First, it is said that the directions did not identify how the concepts of knowledge and intention to exercise control or dominion could apply to the facts of the case. The example given to the jury related to a person acting under duress and was inapplicable to the facts of this case. The appellant submits that the question for the jury was whether they could exclude the possibility that the appellant might have known about the drugs but did not intend to exercise control or dominion over them. In other words, the jury had to exclude that the appellant might have known about the drugs because he was a purchaser of them or simply by virtue of his common association with Kalathas and Al‑Yakoubi and, as a consequence of their interest in motorbike related activities at the Fenchurch Street house.
The second respect in which the directions are said to be inadequate is that the nature of the example when read with her Honour's direction that in 'some situations' a person may have knowledge of a thing but have no intention to possess it, had the capacity to mislead the jury into reasoning that, short of such an example being a live issue in the case, mere knowledge would be sufficient to establish intention to exercise control or dominion over the drugs.
It is submitted that there was a real possibility that the jury would have considered that if they were satisfied that the appellant had knowledge of the drugs then that was sufficient to prove that he had an intention to exercise control and dominion over the drugs found inside the Fenchurch Street house. The danger is said to be emphasised by the fact that, assuming that the jury accepted that the four pills found at 42B Hardcastle Avenue did in fact belong to the appellant, then that would have permitted the drawing of a strong inference that the appellant had knowledge of the drugs. However, a finding of knowledge on this basis would not necessarily lead to the inevitable conclusion that the appellant intended to exercise control or dominion over the drug.
Ground 1 – respondent's submissions
The respondent submits that the case of GNN involved factual circumstances which were very different from the present case. In GNN there were a number of men who had visited the home of GNN at the relevant time, including her partner with whom she shared a bed. One batch of heroin was found between the mattress and base of their bed. The other batch of drugs was found in the kitchen of her home. It is in this context that there was a particular need for a direction to the effect that knowledge of the drugs, in the sense that GNN had allowed one of the men to hide the heroin in her house and nothing further, would not amount to possession.
The respondent submits that the present case is significantly different. The premises where the drugs were found was undoubtedly being used as a safe house by a drug dealing syndicate. It was not being used as a residence by either the appellant or anyone else. This was not a case where, on any rational view of the evidence, it could be contended that the appellant had possession of the drugs to the exclusion of all others.
The respondent notes that in subsequent cases in South Australia it has been emphasised that the directions referred to in GNN related to the particular circumstances of that case and that GNN does not prescribe a particular approach to directing juries on possession: see R v Saleh,[27] and R v Wood.[28]
[27] R v Saleh [2017] SASCFC 75 [16].
[28] R v Wood [2017] SASCFC 100 [18].
The respondent submits that the trial judge directed the jury that they needed to be satisfied of three things in order for the element of possession to have been established namely: custody, dominion or control of the drugs; knowledge of the drugs; and an intention to exercise dominion or control over the drugs. Her Honour expressly made a point of directing the jury that there was a distinction between knowledge on the one hand and an intention to exercise dominion or control on the other hand. Given the manner in which the case was conducted by the parties and the way in which the jury were instructed on the separate components of the element of possession, it is submitted that it is fanciful to suggest that the jury acting in accordance with these directions might have embarked upon a process of reasoning to the effect that mere knowledge of the two parcels of drugs hidden in the safe house would be sufficient to convict regardless of any dominion and control or intention to possess on the part of the appellant.
The respondent submits that the appellant's complaint boils down to the proposition that there was a real possibility that the jury might have concluded that proof of knowledge was sufficient to prove an intention to exercise dominion and control simply because the example used to illustrate the difference between the concepts was unrelated to the present case. For the jury to have reasoned in this way would have required them to completely disregard the distinction between the three elements that make up the element of possession and the directions given by the judge in that regard.
The respondent points to the fact that the appellant's trial counsel did not seek a redirection as to the interaction between the facts of the case and the relevant legal concepts, despite being expressly invited to do so. It may be inferred from this failure that counsel saw no risk of a miscarriage of justice arising from the impugned direction. The respondent submits that there is no perceptible risk that the jury might have reasoned in the manner alleged.
Ground 1 – merits
The principal task of a trial judge is to ensure a fair trial of the accused.[29] The law should be explained to the jury in terms which apply to the particular facts of the case. This requires the trial judge to decide what the real issues in the case are, to tell the jury in light of the law what those issues are, and to direct the jury on only so much of the law as is necessary to enable them to resolve those issues.[30]
[29] See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41].
[30] See Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466.
The appellant was charged with being in possession 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. The phrase 'to possess' is defined in s 3(1) of the Act to include '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'. This definition extends the scope of possession beyond physical custody.
Knowledge is a necessary but not sufficient basis for possession. Furthermore, possession need not be exclusive. It is possible for two or more people to have joint possession. Where a quantity of drugs is accessible by more than one person the prosecution must prove that the accused knew of it and exercised control or dominion over it, whether or not others also did so. An intention to exercise control or dominion must also be proven. Possession can be established by inference from circumstantial evidence.
In some cases where drugs are located in premises owned or occupied by an accused person together with others, there may be a risk that knowledge of the presence of the drugs will be equated with possession. In such cases it may be necessary to alert the jury to the possibility that the drugs were in the possession of another person with access to the premises and that the accused knew of the drugs but merely acquiesced to them being stored in that location without exercising any control or dominion over them. That was the case in GNN where the defence case was that the drugs found on the premises were possessed by the appellant's partner and that, whilst knowing of their existence she did not exercise any control or dominion over them. The risk in that case arose from the fact that the appellant resided at the premises and knew of the existence of the drugs.
In the present case the trial judge was careful to direct the jury that each of the three components of possession had to be established. She specifically told the jury that whilst knowledge of the presence of the drugs at the Fenchurch Street house was necessary it was not sufficient to establish the appellant's guilt. In order to find the appellant guilty it was also necessary for the jury to find that he had control or dominion over the drugs. Given that the primary purpose of the premises was to store and prepare the drugs, that the appellant did not live there and that he had no uncontested need to visit, the circumstances were materially different from those in GNN.
The defence case was that the appellant had a legitimate reason for attending the premises, namely an interest in off‑road motor biking. It was suggested that his visits to the premises may have been in connection with activities related to off‑road motor biking and not in order to access the drugs. Whilst the print on the ensuite cistern was evidence that the appellant had been inside the premises, the defence position was that that print was not inconsistent with the innocent explanation for attending the house. Those matters were squarely placed before the jury and were in issue at the trial. Unlike GNN there was no uncontested innocent reason for the appellant being at the house.
In order for the risk referred to by the appellant to have materialised, the jury would have had to ignore the express directions given by the trial judge that possession of the drugs could not be established unless knowledge, control or dominion and an intention to exercise control or dominion were proven. The directions in this regard were clear and repeated.
It was suggested by the appellant that the directions of the trial judge should have included the following:
(a)in the circumstances of this case knowledge of the presence of the charged drugs at 75 Fenchurch Street is not enough to prove possession. For example, satisfaction on the jury's part that the accused knew that Al‑Yakoubi or anyone else had concealed or brought the charged drugs into the property would not be sufficient to establish that he, that is the accused, was in possession of those drugs;
(b)before the accused could be found guilty the jury must be satisfied that the charged drugs were not in the exclusive possession of others connected to the property. Put another way, the prosecution must exclude beyond reasonable doubt the possibility that it was Al‑Yakoubi or others who were exercising the relevant control or had an intention to assert control of the charged drugs rather than the accused;
(c)the prosecution must prove beyond reasonable doubt that the accused had both physical control over the charged drugs and an intention to exercise control over them; and
(d)if it was a reasonable possibility, or put another way if the prosecution has failed to exclude beyond reasonable doubt, that there was an innocent explanation, such as being a purchaser, possession would not be proved and an acquittal must follow.
As to (a), the trial judge in effect stated this in her directions, though without providing the examples suggested. As to (b), though this negative proposition was not put, a positive proposition which is the corollary to it was. As to (c), the trial judge directed in these terms. As to (d), this was implicitly said by the trial judge in her directions, again in positive rather than negative terms.
It was not wrong for the trial judge to direct the jury's attention to the necessity for each of the elements of the offence alleged against the appellant to be proved beyond reasonable doubt. To frame the directions in positive terms, rather than as the necessity to exclude other possibilities, was to approach the matter in the simplest way most likely to be understood by the jury. If the jury had been directed to exclude other possibilities, some of them speculative, there would be a risk of their attention being distracted from the essential issue of whether the elements of the offence had been proved. If the positive propositions outlined by the trial judge were established they necessarily excluded the innocent explanations advanced by the appellant.
The trial judge's directions to the jury properly explained the law, in particular by setting out the necessary elements of the offence and explaining that each of those elements had to be proven beyond reasonable doubt. The law was properly allied to the circumstances of the case and in terms that were readily understandable. In the circumstances of this case those directions were adequate and there was no need to do more. This was not a case like GNN where there was a risk that the jury might engage in a false course of reasoning.
Ground 1 has not been made out.
Ground 2 – appellant's submissions
The appellant submits that the propensity evidence was relied on in two ways. First, the appellant's prior involvement with drugs was said to make it far less likely that he had an innocent association with the Fenchurch Street house. Secondly, the previous offences were relevant in assessing the significance of the four tablets that were found in the carport of 42B Hardcastle Avenue, because this was said to be a similar scenario to the tablets found in the appellant's kitchen on the earlier occasion. That is, the propensity evidence was relied on to rebut any suggestion that the appellant had an innocent association with the Fenchurch Street house or with the drugs found inside the carport at the Hardcastle Avenue House.[31]
[31] Or at least that the only association was as a purchaser of those drugs for personal use.
The appellant submits that the propensity evidence was inherently general and this detracted from it having any significant probative value. Although it is accepted that the facts of the earlier convictions revealed a prior involvement in the distribution of prohibited drugs by warehousing them, it is submitted that involvement was in very confined factual circumstances. It is said to be significant that in 2013 the appellant warehoused drugs because he needed to resolve a significant personal drug debt. It is said that the earlier convictions arose out of unique circumstances and did not involve any conclusion that he was himself a drug dealer. The appellant refers to the distinction between the size of the operation on the two occasions (that is, the quantity of drugs) and that in 2013 the appellant stored drugs in his own home.
Although the evidence was also used by the State to rebut innocent association with the four pills found at 42B Hardcastle Avenue, the appellant submits that the evidence was not significantly probative for that purpose. It is said that the finding of drugs in the home of a drug user on a previous occasion in order to support a finding that the person was in possession of drugs found in their home on another occasion is so general as to barely pass the basal test of relevance. The question for the jury in relation to the four pills was whether the integrity of the evidence relating to the finding of them was compromised. The fact that five pills had been found in the appellant's home in 2013 could not resolve the possibility that the evidence that the police had found the four pills in 2019 had been compromised. The suggestion was that the police could have planted the four pills.
If the evidence does meet the test of being significantly probative, the appellant submits that it nonetheless fails to meet the fair‑minded person test pursuant to s 31A(2)(b) of the Evidence Act. It is said to be significant that the appellant's conduct on the previous occasion was predicated upon his requirement to settle a drug debt. Although aspects of his conduct, when viewed in isolation, demonstrated a previous willingness to engage in the distribution of prohibited drugs by warehousing them, that disposition could not be looked at in isolation from the circumstances that gave rise to it. The differences between the past behaviour and the conduct in question were such that a risk remained that the jury would uncritically look past these differences regardless of any direction given by the trial judge. The similarities between the past and present conduct were not such that a fair‑minded person would think that the public interest in adducing all relevant evidence would outweigh the risks of an unfair trial.
Ground 2 – respondent's submissions
The respondent submits that the evidence of the appellant's past convictions was significantly probative of the fact that he had possession of the drugs at the Fenchurch Street house. It also had significant probative value in rebutting that part of the defence case which alleged that the police had removed four pills from a larger quantity seized at the Fenchurch Street house and planted them at the appellant's home.
The respondent submits that the pertinent aspects of the appellant's past convictions were that:
1.they were proximate in time to the current offending, the appellant having been apprehended in possession of the drugs on 19 December 2013;
2.the larger quantity of the two drugs seized in 2013 was MDA, the same type of prohibited drug as in this case;
3.the drugs found in 2013 were hidden in the backyard of his home in a sealed pipe;
4.although a much smaller quantity of MDA was possessed in 2013 relative to this case, it was nonetheless a significant quantity – 61.1 g (308 pills). The quantity of methylamphetamine was also significant – 13.4 g; and
5.the appellant was sentenced on the basis that he was warehousing the drugs for an associate in order to discharge a drug debt.
The live issue at the trial was whether the appellant had possession of the drugs found at the Fenchurch Street house. The essence of the appellant's defence was that he had an innocent association with both the safe house and the others, who must have been involved in warehousing the drugs at that location (particularly Al‑Yakoubi). The respondent submits that the propensity evidence was capable, together with all of the other evidence adduced in the trial, of rebutting this claimed innocent association. The evidence was also capable of rebutting the defence theory concerning the origins of the four pills found in the garage of the appellant's home, which were visually and chemically consistent with the pills seized from the Fenchurch Street house.
The respondent submits that the appellant has relied upon an inconsequential factual distinction, namely that the prior offending involved drugs concealed at his own home whereas the drugs the subject of this matter were concealed at a safe house. There is no need for the propensity conduct to have an underlying unity or striking similarity in order to be admissible; it is the similarities rather than the differences which are relevant to the probative value.
As to the fair‑minded person test, the respondent submits that the appellant's arguments are predicated on the court finding that the evidence does not possess significant probative value. The appellant acknowledges that the court must take into account whether suitable directions may reduce the risk of an unfair trial but does not advance any argument as to why such directions were insufficient in this case.
Ground 2 – merits
Section 31A of the Evidence Act provides :
31A.Propensity and relationship evidence
(1)In this section –
propensity evidence means –
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers –
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The principles relevant to whether propensity evidence has significant probative value, within the meaning of s 31A of the Evidence Act, were summarised in RMD v The State of Western Australia as follows:[32]
[32] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185] (Beech J, Mazza JA relevantly agreeing).
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.
(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value (footnotes omitted).
The appellant's characterisation of the propensity evidence as being too general to have significant probative value cannot be accepted. The evidence related to conduct of the same nature, involving (at least in part) the same type of drugs and the concealing of a larger quantity of the drugs whilst keeping a small sample closer to hand. The fact that on the previous occasion a smaller total amount of drugs was involved, that the larger portion was kept in the appellant's backyard rather than at a safe house, and that his stated reason for becoming involved was to discharge a drug debt, does not detract from the identified similarities. These differences are not inconsistent with both of these occasions being manifestations of a propensity on the part of the appellant. In particular, it would be expected that a safer location than the appellant's own backyard would be found for a larger quantity of drugs.
The assessment of the probative value of the propensity evidence has to take into account the purposes for which the evidence was admitted.[33] The evidence was relevant to the jury's assessment of the defence case, in particular whether it was likely that the appellant's association with the Fenchurch Street house was innocent. The probability that the appellant's association with the house was limited to an interest in off‑road motor biking is significantly lessened when regard is had to the fact that he had been previously involved in warehousing drugs of the same type as were found at that house.
[33] The State of Western Australia v Jackson [2019] WASCA 118 [20] ‑ [23].
Similarly the fall back limb of the defence case to the effect that the appellant had knowledge of, but no involvement with, the large quantity of prohibited drugs is significantly weakened when regard is had to the fact that he had previously been involved in warehousing drugs of the same type. In this regard it is relevant to take into account other evidence, including the evidence of the appellant's multiple visits to the house (and that on 30 March 2017 he attended alone).
The propensity evidence was also significantly probative in rebutting the defence suggestion as to the origin of the four pills found in the carport of the appellant's home. The appellant's possession of these four pills was a powerful piece of circumstantial evidence against him which was otherwise unexplained, except by a theory that the police had planted the pills. The propensity evidence helped to negate that theory.
As to the fair‑minded person test, the appellant has not identified any matters additional to those that are raised in regard to whether the evidence had significant probative value. There is no suggestion that the directions given by the trial judge as to the use of the propensity evidence were wrong or inadequate. Those directions clearly identified the use which could be made of the evidence, and how it could not be used. The directions obviated any realistic risk that the trial would be unfair.
This ground of appeal is without merit and leave in respect of it should be refused.
Ground 3 – appellant's submissions
The appellant submits that the evidence was incapable of establishing beyond reasonable doubt that he was in joint possession of the drugs found at the Fenchurch Street house. There are said to be eight shortcomings in the evidence:
1.There was no evidence that the appellant entered the Fenchurch Street house on 30 March 2017 apart from the time that the Toyota HiAce van was present, being approximately 30 minutes.
2.Even if it was open to find that the appellant did enter the house, there was no evidence as to what he did whilst inside. The larger quantity of drugs was found by the police in a locked toilet and the remaining quantity was located out of sight inside a vent. There was no evidence that the appellant had access to a key which could open the toilet.
3.The association between the appellant and the Fenchurch Street house was through his associations with Kalathas and Al‑Yakoubi. There was evidence that demonstrated a lawful association between the appellant and the house, namely the use of that house as a starting point for off‑road motor biking.
4.The recorded phone calls and text messages between the appellant and other persons did not lead to a conclusion that the appellant was the possessor of the drugs found at the Fenchurch Street house. Nor did those conversations necessarily refer to the sale of drugs as opposed to some other unrelated illegal activities.
5.The finding of the four pills found at 42B Hardcastle Street could only support a conclusion that the appellant had knowledge of the drugs. The finding of those pills did not rule out the possibility that the appellant had purchased those pills from the possessor of the larger quantity of drugs found at the Fenchurch Street house.
6.The lies told by the appellant in his police interview were consistent with him only having knowledge of the drugs, rather than having control or dominion over them. There were plausible explanations as to why the appellant may have lied to the police about his knowledge or attendance at the Fenchurch Street house, namely that he did not want to be associated with what he knew was a house used to store drugs or did not want to implicate his friends.
7.Assuming the propensity evidence was admissible, that evidence did not assist in resolving whether the appellant had an intention to exercise control or dominion over the drugs, bearing in mind the significant differences between the current case and the nature of the prior offending.
8.The propensity evidence could not establish that the appellant had contacts with other drug distributors and any such conclusion would be mere speculation.
Ground 3 – respondent's submissions
The respondent submits that the appellant's argument suffers from the flaw described in The Queen v Hiller[34] in that it looks at each piece of evidence in isolation. It is wrong to consider a circumstantial case in such a piecemeal fashion.
[34] The Queen v Hiller [2007] HCA 13; (2007) 228 CLR 618.
To the extent that the appellant contends there was no direct observation of him walking through the doorway of the Fenchurch Street house on 30 March 2017, the respondent accepts that this is correct. However, it is submitted that an inference that he did in fact enter the house is compelling. That evidence includes the telephone conversation with Kalathas about half an hour before arriving in which the appellant said that he was heading into 'the hood'. The van, driven by a man who it could be inferred was the appellant, with no passenger visible in the front seat, arrived at the Fenchurch Street house at 1.58 pm. The appellant drove past the address before turning around and returning to it. This is consistent with an attempt to scope out the area to see if it was under surveillance. After the van entered the driveway it paused momentarily before proceeding further up the driveway. This is consistent with the driver having activated the garage door mechanism and waiting a few seconds for the door to open sufficiently. A fob which operated the garage door and house keys was subsequently recovered from that van by the police. The kitchen of the house could be accessed via the shopper's door in the garage. About 31 minutes elapsed before the van driven by the appellant, again with no visible passenger, left the premises. Having left the Fenchurch Street house, the appellant drove back to Al‑Yakoubi's house in Mirrabooka where he was observed parking the van in the garage and then leaving in his Jeep Cherokee about four minutes later. From this evidence an inference was clearly capable of being drawn that the appellant had entered the house.
As to the contention that the drugs were not accessible to the appellant because the larger quantity was in a locked toilet and that there was no evidence that the appellant had access to the key to that toilet, the respondent says that the difficulty with that proposition is that the lock on the toilet was a basic toilet privacy lock which could readily be opened from the outside and was not operated by a key mechanism.
The respondent submits that there is no inference fairly open on the evidence which does not involve interaction by the appellant with the drugs in the house. The premises were being used as a safe house to store a large quantity of drugs. Other than a few stickers related to motor cross racing there was nothing in the house which suggested that it was being used for anything other than the storage, packaging and preparation of the drugs. The appellant's contention that he could have had an innocent association with the house related to motorbike riding and that he could have been collecting a bike from the garage on 30 March 2017 is said to be belied by the subterfuge employed by the appellant on his arrival and that surveillance footage shows that there was no large object in the storage area of the van upon departure. Furthermore, it would not have taken the appellant half an hour to load a motorbike into the van and the movement of the van is not consistent with that being the purpose.
As to the suggestion that there is no evidence that the association between the appellant, Kalathas and Al‑Yakoubi related to drugs, the respondent says that there is evidence that the three men were engaged at some level in the distribution of prohibited drugs and acted together in doing so. Although the trial judge found that Kalathas had no case to answer insofar as possession of this particular batch of drugs was concerned, her Honour was nonetheless satisfied that there was an inference open on the evidence that Kalathas was a member of a drug distribution enterprise. Al‑Yakoubi was the person who had arranged for the Fenchurch Street house to be leased for the evident purpose of storing the drugs. The appellant attended by himself at the house in Al‑Yakoubi's work van. The respondent says that it beggars belief that the appellant would be permitted by Al‑Yakoubi to attend at the house unaccompanied if he did not have a direct involvement in the drug dealing enterprise.
As to the contention regarding the intercepted telephone calls and messages, the respondent says that these were capable of showing that the appellant was a person involved in the distribution of prohibited drugs. In particular the phone calls and text messages on 1 and 2 April 2017 show that the appellant was involved in the collection of money by force, in circumstances where another was inflicting violence on those who owed money and that the money was to be given to the appellant.
As to the contention that the four pills found at his home could have been purchased by the appellant, the respondent says that this is only one inference open on the evidence. The proposition that he was a mere purchaser of these four pills is said to be belied by the evidence that he was permitted to attend the safe house unaccompanied by others and that, as outlined earlier, there was other evidence that he was involved in the business of dealing with drugs.
As to the lies told by the appellant during the police interview, these should not be considered in isolation. It was open to the jury to accept that, having regard to the totality of the evidence, the lies were told out of a consciousness of guilt of possession of the drugs rather than mere knowledge of their existence. The fact that it is possible to think of other explanations for the lies does not mean that it was not open to the jury to reject those explanations in light of all of the evidence and then conclude that they were lies motivated by consciousness of guilt.
As to the contentions regarding the propensity evidence, that evidence was relevant and significantly probative for the reasons that were outlined in respect of ground 2.
Ground 3 – merits
This court recently summarised the general principles governing the determination of appeals alleging that a jury's verdict is unreasonable or cannot be supported in MEN v The State of Western Australia.[35] It is unnecessary to repeat that summary.
[35] MEN v The State of Western Australia [2020] WASCA 118 [403] ‑ [410], [705].
In considering a ground of this nature it is necessary for the court to 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. 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. In a circumstantial case it is important to consider the totality of the evidence. A doubt that may be felt when considering one part of the evidence in isolation may be resolved when considering that evidence in the context of the evidence as a whole.
The evidence was capable of establishing the following:
1.that the premises were leased for the purpose of storage and preparation of the drugs;
2.the premises were in fact used for that purpose and any other use, such as a meeting point for off‑road motorbike activity, was merely incidental to the principal purpose;
3.the premises were never occupied or furnished and, apart from a few stickers relating to motorbikes, the house was empty other than for drugs and paraphernalia connected with packaging and distributing drugs;
4.despite the house being empty there were regular visits to the premises, only some of which involved motor biking;
5.intercepted telephone calls and messages established a connection between the appellant and the Fenchurch Street house beyond a mere innocent connection such as one concerned with motorbikes. The appellant routinely referred to the safe house in coded language when speaking with Al‑Yakoubi and Kalathas. In particular the three men referred to the house as 'Auntie's house' and to collecting the keys to 'Auntie's house'. The compelling inference considering the totality of the evidence is that all parties, including the appellant, were aware that the true purpose for which the premises were being used was the storage and preparation of drugs;
6.there were a number of telephone conversations which were capable of supporting an inference that the appellant was involved in the distribution of prohibited drugs and in particular the enforcement of drug debts by violent means. At least one of the conversations has the hallmarks of a coded discussion between the appellant and a person who wished to purchase prohibited drugs from him;
7.the appellant was the last person to attend the Fenchurch Street house on 30 March 2017 before the police searched it on 3 April 2017. There was little if any evidence to suggest that the appellant attended the premises on that day for some lawful reason unconnected with the drugs. No motorbikes had been seen at the house after 11 March 2017. On 30 March 2017 the appellant drove past the house, despite having been there previously, before turning around and parking in the driveway. This behaviour is consistent with the appellant adopting counter‑surveillance steps;
8.although the appellant's print was found on the cistern of the ensuite toilet and not the toilet where the drugs were stored, the ensuite toilet also had a disposable glove in it. It was one of several gloves and other drug paraphernalia which were recovered from various locations around the house;
9.the appellant lied to the police in his interview in regard to having any connection with the Fenchurch Street house. He also attempted to disassociate or distance himself from Al‑Yakoubi, the white Toyota HiAce van and the name of the street where Al‑Yakoubi lived;
10.the appellant had in his possession four pills which matched chemically and visually the pills found in the safe house. It was open to the jury to reject the appellant's argument at trial that these pills were planted. An alternative inference raised on appeal, namely that the appellant could have been a customer who had purchased these pills, was also capable of being rejected given his conduct and manner of visiting the Fenchurch Street house on 30 March 2017; and
11.the appellant had previously been convicted of being in possession of prohibited drugs, including drugs of the same type. Those previous convictions involved keeping a small sample of drugs in his house whilst concealing a larger quantity in a pipe in his backyard.
It should be noted that at the trial the prosecution accepted that in order for the jury to be satisfied that the appellant possessed the drugs they would have to be satisfied that he was the driver of the HiAce van on 30 March 2017. That is, identification of the appellant as the driver was accepted as being an indispensable component of the circumstantial case. A direction in that regard was given to the jury by the trial judge.[36] It was plainly open to the jury to be satisfied in this regard. It is not suggested by the appellant that any other component of the circumstantial case was of this nature.
[36] ts 765.
Having regard to the totality of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant jointly possessed the drugs concealed in the safe house. In particular, it was open to the jury to infer beyond reasonable doubt that, on the whole of the evidence, the appellant did not merely know of the drugs but also had control or dominion and intended to exercise control or dominion over them. It was also open to the jury to reject the explanations advanced by the appellant, namely that he had an innocent association with the safe house and that the pills found at his house were not his and had been planted by the police.
Having undertaken an independent assessment of the totality of the evidence, we are satisfied that the verdict was not unreasonable, nor was the verdict unsupported by the evidence. The verdict of guilty 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 prosecution had not proved the charged offence 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 benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on the charged offence or as to the correctness of his conviction on that charge. It would not be dangerous, in the circumstances, to permit the verdict of guilty to stand.
Ground 3 has not been made out.
Conclusion
For the reasons given, leave to appeal should be granted in respect of grounds 1 and 3, leave should be refused in respect of ground 2, but none of the grounds has been made out and the appeal should be dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
29 MARCH 2021
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