Kimberley v The State of Western Australia
[2018] WASCA 172
•9 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KIMBERLEY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 172
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 21 SEPTEMBER 2018
DELIVERED : 26 SEPTEMBER 2018
PUBLISHED : 9 OCTOBER 2018
FILE NO/S: CACR 87 of 2018
BETWEEN: BRUCE ROBERT KIMBERLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DERRICK DCJ
File Number : BUN IND 187 OF 2016
Catchwords:
Criminal law - Appeal against conviction - Attempt to possess drugs with intent to sell or supply - Whether trial judge misdirected jury that attempt to possess drugs amounted to proof of intention to sell or supply
Legislation:
Criminal Procedure Act 2004 (WA), s 112
Misuse of Drugs Act 1981 (WA), s 11(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | No Appearance |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
REASONS OF THE COURT:
The appellant, who is self‑represented, sought leave to appeal against conviction. On 26 September 2018, the court unanimously pronounced orders that:
1.Leave to appeal is refused.
2.The appeal is dismissed.
The court said it would deliver its reasons later. These are those reasons.
On 19 October 2017, the appellant was convicted after a trial in the District Court at Busselton before Derrick DCJ (as his Honour then was) and a jury of one count of attempting to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another (count 1), and possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another (count 2).
The single proposed ground of appeal concerns the conviction on count 1 only. It alleges that his Honour erred:
when he directed the jury that if the jury found that the appellant attempted to possess the illicit drug, it is likely that they would find the element of intent to sell or supply had been met when this was not accepted by the defence.
The State's case at trial
On 29 June 2016, police officers executed a search warrant at 8 Roman Road, East Bunbury.[1] Those premises were across the road from 7 Roman Road, East Bunbury. Up until 25 June 2016, the appellant had been residing in the premises at 8 Roman Road. On 29 June 2016, he was in the process of moving from 8 to 7 Roman Road.[2]
[1] ts 38 - 39.
[2] ts 267.
Police found, in the letterbox at 8 Roman Road, a parcel addressed to a Mr Bradley Payne.[3] Mr Payne testified that he had not arranged for any parcel to be delivered to that address. He knew the appellant through an educational course the appellant had conducted. In the unopened parcel police found 27.8 g of methylamphetamine.[4] This is the methylamphetamine the subject of count 1. The police then searched 7 Roman Road where they found 4.13 g of methylamphetamine, along with clipseal bags and a set of digital scales.[5] This is the methylamphetamine the subject of count 2.
[3] ts 267.
[4] ts 268.
[5] ts 269.
In relation to count 1, the State alleged that the appellant had purchased the methylamphetamine via the internet, and had arranged for it to be delivered to 8 Roman Road under Mr Payne's name.[6] The State alleged that the appellant had done everything to possess the drug, save for going to the letterbox and retrieving the parcel and thus his actions were more than merely preparatory.[7] The State's case was that the appellant intended to sell at least some of the methylamphetamine, possibly to support his drug habit.[8]
[6] ts 268.
[7] Closing addresses ts 9.
[8] Closing addresses ts 13.
The State's case on count 1 as to the elements of attempted possession and intent to sell or supply was entirely circumstantial.
In relation to count 2, the appellant did not dispute that he possessed the 4.13 g of methylamphetamine found in the house at 7 Roman Road.[9] The State's case on count 2 as to the intention to sell or supply relied upon the presumption in s 11(a) of the Misuse of Drugs Act 1981 (WA) (MDA). The presumption in s 11(a) was not applicable to the charge in count 1 of attempted possession of methylamphetamine with intent to sell or supply; see Krakouer v The Queen.[10]
[9] ts 270.
[10] Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202.
The defence case at trial
In relation to count 1, the focus of the defence case was on the element of attempted possession. The defence case was that the appellant knew nothing about the parcel that had been delivered to 8 Roman Road, and he had no knowledge of or belief as to its contents.
The appellant was interviewed by police on 29 June 2017, at the premises at 7 Roman Road, and later at the Bunbury detectives' office.[11] He also elected to give evidence in his defence.
[11] ts 270.
While he admitted that he was a user of methylamphetamine, the appellant denied having any connection with the parcel that had been delivered to 8 Roman Road.[12] He suggested that an associate of his, namely Rory Chaplain, was the person who may have purchased the methylamphetamine and arranged for it to be sent to 8 Roman Road. The appellant testified that the 4.13 g of methylamphetamine found at 7 Roman Road had been what was left of 7 g of the drug that he had purchased from Mr Chaplain.[13] In cross‑examination he said that when he purchased larger amounts of the drug for personal use, he would buy 'a ball [3.5 g]' or 'a quarter [7 g]'.[14] In neither his police interviews nor in his evidence did he suggest that if he had attempted to possess the methylamphetamine found in the package at 8 Roman Road, he did not intend to sell or supply it, or any part of it, to anyone else.
[12] ts 270.
[13] ts 270.
[14] ts 145.
It is clear from the way the trial was run that the key factual issue for the jury to decide in respect of count 1, was whether the State had proved beyond reasonable doubt that the appellant had attempted to possess the methylamphetamine found in the parcel at 8 Roman Road. While defence counsel did not concede that, in the event the State proved beyond reasonable doubt the element of attempted possession, the element of intent to sell or supply was established, no argument to that effect was put to the jury.
The summing up
The trial judge directed the jury in conventional and clear terms that it was the sole judge of the facts and that it was not bound by any comment his Honour made about the facts of the case or the evidence given at trial.[15]
[15] ts 214 - 215.
His Honour fairly and accurately summarised the State and defence cases as to attempted possession. His Honour then turned to the element of intent to sell or supply. His Honour's direction is relatively brief and can be quoted in full. The impugned parts of the direction are italicised.
What then are the cases of the parties on the intent to sell or supply element? The State's case is that given that Mr Kimberley attempted to possess that methylamphetamine the only inference that is reasonably available to be drawn, having regard to the quantity and the value of the methylamphetamine, is that he did so with the intention of selling or supplying all or at least some of the drug to another.
The State's case is that such a large amount of valuable methylamphetamine is total[ly] inconsistent with an intention on the part of Mr Kimberley to use the drug personally, particularly when one has regard to the evidence of his financial resources and to what he told the police and what he said in his evidence about the amount of methylamphetamine that he would use over a given period of time. It is, on the State's case, far more than [a] person who was a mere user would have in his possession for his use.
The State, of course, also relies in this regard on the text messages to which I've already referred, which the State asserts demonstrate that Mr Kimberley was, during that period 2 June 2016 to 29 June 2016, engaged in drug dealing. The State also relies in this regard on the new clipseal bags, or the unused clipseal bags found in his house at 7 Roman Road near the smaller amount of methylamphetamine, and also the digital scales found in his house.
As to the text messages, the State contends that given that he was engaged in drug dealing this increases the likelihood that he intended to sell or supply all or some of that methylamphetamine that he attempted to possess. So that's what the State says. The State says if you find he attempted to possess, then for those reasons you should find that his intention was to sell or supply some or all of the methylamphetamine that he was attempting to possess.
What then is Mr Kimberley's position? Well, Mr Kimberley does not say, 'Look, yes, I attempted to possess the methylamphetamine, but I didn't have an intent to sell or supply all or some of it to another.' Rather, Mr Kimberley's case, as I've already explained, is quite obviously that he did not have an intention to sell or supply the methylamphetamine because he never attempted to possess it. He knew nothing about it and, therefore, quite obviously didn't have the relevant intent.
He also asserts, as I've already pointed out, that he was not the sender or receiver of the text messages that the State places considerable reliance upon in this context. Now, members of the jury it's always a matter for you to decide if an element of an alleged offence has been proved beyond reasonable doubt. It is for you to determine on all of the evidence if the only inference reasonably available to be drawn is that Mr Kimberley intended to sell or supply the methylamphetamine that he attempted to possess, if you find that he did attempt to possess it.
However, I think you will understand from what I've just said about the respective cases of the parties on the intent to sell or supply element, that if you are satisfied beyond reasonable doubt that Mr Kimberley did attempt to possess the methylamphetamine as alleged it is likely, I would have thought, that you are going to also be satisfied beyond reasonable doubt that he made the attempt with an intent to sell or supply some or all of the quantity of methylamphetamine to another.
You will understand why I've said that. This case hasn't really been fought on the issue of intent when it comes to count 1 on the indictment. The case has been fought on the issue or whether, in fact, Mr Kimberley made the attempt to obtain possession of that significant amount of methylamphetamine, so I emphasise that it's always for you to decide if any element of an offence has been proved but it does seem to me, by way of my comment on the evidence which you're not bound by, but if you find he made the attempt, you're probably not going to have a lot of difficulty coming to the view or the conclusion the State has also proved that his intent was to sell or supply some or all of the methylamphetamine that he was attempting to possess (ts 237).
The appellant's submissions
The appellant submitted that the impugned parts of the summing up were more than merely comments and would have been understood by the jury as being an instruction that if the State established beyond reasonable doubt that the appellant attempted to possess the methylamphetamine, this amounted to proof of the element of intention to sell or supply to the required standard.
Legal principles
Section 112 of the Criminal Procedure Act 2004 (WA) states:
After addresses have been made in accordance with section 145 and before the jury retires to consider its verdict, the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice.
As Gaudron ACJ, Gummow, Kirby and Hayne JJ said in RPS v The Queen,[16] the fundamental task of a trial judge is to ensure a fair trial of the accused. This requires the judge:
(a)To instruct the jury about so much of the law as it needs to know to dispose of the issues in the case. No doubt this will include instructions about the elements of the offence, the burden and standard of proof and the functions of the judge and jury.
(b)Subject to any relevant statutory provisions, to identify the issues in the case and to relate the law to those issues.
(c)Put fairly to the jury the case the accused makes.
(d)In some cases, to give the jury warnings about how it goes about its task, including to warn the jury, where necessary, how it should not reason, or about the particular care that must be shown before accepting certain kinds of evidence.
None of this must obscure the different functions of judge and jury. It is for the jury alone to decide the facts. While a judge is entitled to comment, even strongly comment, on the evidence (as s 112 of the Criminal Procedure Act makes clear), he or she must do so in a way which conveys to the jury that it is not bound by the comment.
[16] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [42] - [43].
Disposition
In the present case, the trial judge directed the jury in accordance with the legal principles we have just described. With respect to count 1, he correctly identified the main issue for the jury to determine, namely the element of attempted possession. He fairly put to the jury the case the appellant made on this element. Contrary to the appellant's submissions, his Honour expressly left to the jury for its consideration the element of intent to sell or supply. In doing so, he correctly observed that the case had not been fought on this issue. His Honour then commented, as he was entitled to, that if the jury found that the appellant had attempted to possess the methylamphetamine which had been delivered to the letterbox, given the quantity of the drug in the parcel, it would probably not have any difficulty arriving at the conclusion that the State had proved the element of intent to sell or supply. He did not state, and his words could not reasonably be understood as meaning, that proof of the element of attempted possession amounted to proof of the element of intent to sell or supply.
His Honour's comment was consistent with the way in which the parties had run their case at trial and was appropriate. In doing so, his Honour made it abundantly clear that it was for the jury to find the facts in the case and, in particular, it was for the jury to decide whether the State had proved beyond reasonable doubt the element of intent to sell or supply. He told the jury, twice, that it was not bound by his comment. The appellant's experienced and competent defence counsel took no exception to anything in his Honour's summing up.[17]
[17] ts 262.
His Honour's comment, far from being erroneous, was accurate and helpful, and in accordance with his duty as trial judge. The appellant's proposed ground was devoid of merit.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
ORDERLY/SUPPORT OFFICER TO THE HONOURABLE JUSTICES MURPHY & MAZZA9 OCTOBER 2018
0
3
2