Kometer v The State of Western Australia

[2012] WASCA 220

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   KOMETER -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 220

CORAM:   MARTIN CJ

McLURE P
NEWNES JA

HEARD:   3 OCTOBER 2012

DELIVERED          :   2 NOVEMBER 2012

FILE NO/S:   CACR 30 of 2012

BETWEEN:   RALPH RODGER KOMETER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WISBEY DCJ

File No  :IND 702 of 2011

Catchwords:

Criminal law - Appeal against conviction - Whether trial miscarried as a result of inadmissible hearsay and opinion evidence - Whether failure to object rational forensic decision - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 30
Misuse of Drugs Act 1981 (WA), s 6

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr L M Levy SC

Respondent:     Ms S H Linton

Solicitors:

Appellant:     N R Barber Legal

Respondent:     Director of Public Prosecutions (WA)

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

Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291

Oblak v The State of Western Australia [2007] WASCA 176

Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769

1. MARTIN CJ:  This appeal should be dismissed for the reasons given by McLure P, with which I agree.

2. McLURE P: This is an appeal against conviction. The appellant was convicted after trial of one count of being in possession of a prohibited drug (methylamphetamine) with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

3. On 25 November 2010, police pulled over a Commodore utility registered in the name of and driven by the appellant.  Mr Austin Doig was a passenger in the vehicle.  A search of the vehicle located a total of 1.352 kg of methylamphetamine hidden in a spare tyre attached to the vehicle.  Mr Doig, who was jointly charged with the appellant, was acquitted.

4. The prosecution case at trial was as follows.  In the months preceding 25 November 2010, police conducted a covert operation in which the appellant was the subject of surveillance, including the lawful interception of his telephone calls.  At the material time, the appellant was a resident of Kalgoorlie.

5. On 25 November 2010, police intercepted a telephone call from the appellant to his brother, Grant Kometer, at 5.45 am.  The appellant indicated that he was outside his brother's house at 7 Ryde Street, Gosnells (the Ryde Street property).  The respondent alleged at trial that the appellant had driven his vehicle from Kalgoorlie that night, accompanied by Doig.

6. At 7.42 am, the appellant made a telephone call to an unknown male.  In the course of the conversation the appellant asked him 'ah yeah, hey um do you drop that thing off for Grant hey?' to which the male responded 'nah (indistinct) I can go get it if you want', to which the appellant responded in the negative.

7. At 8.02 am the appellant telephoned Bennett's Hardware in Gosnells seeking to purchase a tyre lever and a bead breaker.  He was advised by a store employee that they did not have a bead breaker and he would have to go to a specialised place.  A bead breaker is a tool used to separate a tyre from the rim.

8. The interception of these telephone calls resulted in police commencing covert surveillance outside the Ryde Street property at approximately 9.40 am.  The appellant and Doig, who were absent when surveillance commenced, arrived there at 10.05 am and went inside.

1. The appellant and Doig re-emerged around midday and drove to Park Road, Hovea.  Police kept them under surveillance until they entered Park Road, temporarily curtailed surveillance for operational reasons, and then recommenced surveillance when they emerged from Park Road about 30 minutes later.  The appellant and Doig arrived back at the Ryde Street property at about 1.30 pm and went inside.  The evidence at trial was that a male in a blue King Gee‑style shirt carried a box, approximately 30 cm long and 5 cm deep, from the driver's side of the vehicle into the house.

2. At 3.37 pm, a covert surveillance officer observed the appellant and Doig emerge from the Ryde Street property.  While the appellant stood leaning against the front passenger door of his vehicle, Doig wheeled a tyre to the rear of the vehicle and was seen to attach it to the underside of the rear tray.  After making several trips to and from the vehicle and the Ryde Street property, the appellant and Doig drove away in the appellant's vehicle.  They were intercepted by police at 5.45 pm.  Police searched the appellant's vehicle.  They located and cut open the spare tyre that had been attached to the underside of the vehicle by Doig.  The methylamphetamine found inside the tyre was stored in three vacuum‑sealed plastic bags, each of which was wrapped in a separate piece of rag, and all three were wrapped inside one dirty sheet.  Police also located $2,850 in cash in a pocket behind the driver's seat.  Located in the glove box was a receipt from Coventry's dated 25 November 2010 for the purchase of a tyre lever and a Jackson brand tyre hammer.  The receipt was made out to Wild West Racing, a business owned by the appellant.  There was no evidence to indicate the time of day the tools were purchased.

3. The rim of the spare tyre containing the methylamphetamine did not match the rims of the other four tyres on the appellant's vehicle.  Later that evening police searched the Ryde Street property and seized two tyre levers and a Jackson brand tyre hammer from a tool bench in the rear shed.

4. A number of items underwent DNA testing.  A mixed DNA profile was identified on the surface of the white sheet in which the three drug bags had been wrapped.  The most significant contributor to that mixed profile matched nine regions of the appellant's DNA profile.  PathWest scientist, Mr Ross Hedley, was unable to say how the appellant's DNA was deposited onto the sheet.  His evidence in relation to the issue of secondary transfer was that it could occur under experimental conditions, but was difficult to achieve.  He agreed that secondary transfer was possible, but unlikely even if the police officer handling the relevant items (Detective Trist) had not changed his gloves.  There was no DNA evidence relating to Doig.

5. The telephone intercept evidence suggested that the length of the appellant's stay in Perth was to be only about 10 hours.

6. The prosecution adduced evidence from Detective Senior Constable David Knight relating to, inter alia, the cessation of surveillance when the appellant's vehicle entered Park Road, Hovea.  He was cross­examined on that evidence by the appellant's trial counsel, Mr Lovitt QC, a very experienced criminal barrister with a well deserved reputation for aggressively defending his client's interests.

7. The appellant elected not to give evidence.  However he called three witnesses in the defence case; Mr Brian McDonald, a DNA expert, his brother, Grant Kometer, and Mr John Lloyd, a mechanic and friend of the appellant.

8. Mr McDonald gave evidence about the potential for cross­contamination of the items seized by police if officers had not changed gloves when they were doing the search.

9. Grant Kometer gave evidence that the tyre containing the methylamphetamine was taken from a vehicle that belonged to him.  He said the original source of the spare tyre was probably a boat owned by Mr Les Hoddie (deceased), that the spare tyre was on his own vehicle and that he removed it to give to the appellant for use as a spare for his vehicle, the appellant having had a puncture to one of his tyres.  Grant Kometer said that before Hoddie had died, some three years earlier, the appellant had agreed with Hoddie to exchange a jeep for the boat which was then housed in Grant Kometer's shed.  The witness was asked in examination‑in‑chief:  'Now back to this tyre … Les Hoddie; was he a member of the gypsy jokers' to which the witness answered 'yes he was'.  The defence case, through this witness, was that the large quantity of methylamphetamine was already in the tyre when the tyre had come into his (Grant Kometer's) possession, probably from Les Hoddie, and he had given the tyre to the appellant because he (the appellant) was attempting to repair a puncture to one of his tyres.

10. Mr Lloyd gave evidence about the appellant's involvement in drag racing and suggested that the appellant was picking up the tyre to put on his dragster.

11. It was also part of the defence case that the police were improperly targeting the appellant, had failed to disclose all relevant information to the jury and had 'cut corners' in their investigation.

Grounds of appeal

1. The appellant relies on two grounds of appeal.  First, it is contended that the appellant's trial miscarried as a result of inadmissible and prejudicial hearsay and opinion evidence given by Detective Knight in relation to a man known as 'Grano'.  Leave was granted on this ground.

2. The second ground is that the appellant's trial miscarried as a result of a combination of factors arising from Detective Knight's evidence about Grano.  The factors include comments made by the prosecutor in his closing address, comments made by the appellant's counsel in response, the trial judge's observations to the jury in relation to the comments of the prosecutor and the appellant's counsel and finally the trial judge's summing up of the evidence relating to Grano.

The evidence adduced at trial

1. Detective Knight gave evidence‑in‑chief of his observations of the appellant's vehicle at about 11.56 am on 25 November 2010 as follows:

   Yes.  And where was the vehicle that you were following headed ‑ headed towards---It was headed towards the hills area of Perth.

   Now, do you recall where the vehicle reached before surveillance ceased‑‑‑Yeah.  We followed it up Great Eastern Highway until it turned on to Park Road and then we ceased surveillance and waited for it to come back out from Park Road.

   What locality was that---Hovea.

   And why did you cease surveillance at that particular point---Because we had a fair idea of who he'd be meeting at that address and we didn't want to compromise that address at all.

   What, if anything, can you say about the state of the roads at that particular location---It's a road.  There's really no special feature, as best I can recall.

   All right.  It was an operational decision, you say, to cease the surveillance at that point---It was, yeah.  I mean, we didn't want to go past the person's house who we believed he'd be stopping at.

   All right.  Now, did you re-engage with that particular vehicle---We did.  About half an hour later the car came back out on to Great Eastern Highway and then we followed it back because it went back to Ryde Street (ts 57).

2. The evidence in italics is now said to be inadmissible and prejudicial.  The appellant's counsel did not object to this evidence at trial.  The appellant's counsel called for and cross­examined Detective Knight on his surveillance notes (ts 65).  The relevant cross­examination is as follows:

   11.56 Kometer leaves, goes to Grano's(?)---Yep.

   Grano's?  Yes.  Now, Kometer's a member of the Gypsy Jokers isn't he ‑ ‑  ----He is.

   Ralph Kometer---Yep.  He's the president.

   And so is Grano---Yes.

   Grano's a well known.  I think he was a ‑ a ‑ I think he was the chairman or president at one stage, is that right---He may have been before my time, I don't know.

   Was he one of the people who was under ‑ as part of the investigation‑‑‑No, he wasn't.  But he's someone's who's very well recorded as being a drug dealer of a high level.

   Yes.  Ever heard of a man called Les Hoddie(?)---Yep, I've heard of him.

   Yes.  He's now deceased, isn't he---I believe so.

   Yes.  He was in the Gypsy Joker's too---Mm hmm.

   Eleven.56, Kometer leaves, goes to Grano's.  So how do you know he went to Grano's, I mean ‑ ‑ ----Well he ‑ ‑ -

   ‑ ‑ ‑ you didn't see him stop anywhere---No, he didn't.  That's why we stopped surveillance on Park Road, because we he'd be going to Grano's, so ‑ ‑ ‑

   Well, you believed he was---We had a pretty good inkling he'd be going to Grano's.

   Yes.  All right---Yeah.

   All right, fair enough (ts 68 ‑ 69).

3. There was no objection by the appellant's counsel to the evidence in italics until after the completion of the trial judge's summing up.

Closing addresses and summing up

1. In the prosecutor's closing address, he read to the jury that part of the cross­examination of Detective Knight relating to Grano and submitted there was uncontradicted evidence of 'Grano being a drug dealer of a high level' (ts 401).  The prosecutor also suggested that the accused may have obtained the drugs in question from Grano.

2. In his closing address, the appellant's counsel told the jury that Detective Knight's evidence on the subject was gratuitous and that there was no evidence that Grano was a drug dealer.  He was also highly critical of Detective Knight for giving that answer, saying it was an outrageous thing to say in a criminal trial.  The appellant's counsel also criticised the prosecutor for relying on Detective Knight's evidence about Grano, telling the jury that this was outrageous behaviour from the prosecutor.  Notwithstanding these protestations, the appellant's counsel in closing repeatedly reminded the jury of the detail of Detective Knight's evidence in relation to Grano (ts 425, 429, 430).

3. Following the closing addresses, the trial judge told the jury that the prosecutor's behaviour was not outrageous, but was entirely proper (ts 345).

4. After the jury had retired to consider its verdict, the appellant's counsel applied to discharge the jury based on Detective Knight's evidence that Grano was 'a drug dealer of a high level'.  When the trial judge pointed out that there had been no challenge or objection to that evidence, counsel for the appellant said 'I rather hoped that common sense would apply and it'd be left alone' (ts 369).  The application to discharge the jury was dismissed.

Legal principles

1. Where inadmissible evidence is received at a criminal trial without objection and the trial judge makes no ruling on its admission, there is no wrong decision by the judge on a question of law, within s 30(3)(b) of the Criminal Appeals Act 2004 (WA). In the absence of a ruling, an appeal based on receipt of inadmissible evidence will not be allowed unless the court is satisfied that its admission constituted a miscarriage of justice within s 30(3)(c) of the Criminal Appeals Act.  There will be no miscarriage of justice if it can be inferred that the trial counsel failed to object to the evidence in furtherance of a forensic strategy.  Moreover, there will be no miscarriage of justice unless the inadmissible evidence occasioned material prejudice to the appellant.  See Suresh v The Queen (1998) 72 ALJR 769 [23]; Oblak v The State of Western Australia [2007] WASCA 176 [6]‑ [9]; Birks v The State of Western Australia (2007) 33 WAR 291 [44] ‑ [60].

Ground 1

1. Detective Knight's evidence‑in‑chief about the reason for discontinuing surveillance is now objected to on the ground that it is inadmissible speculative opinion and hearsay evidence.  The evidence was self‑evidently not admissible to prove the truth of its contents.  It would have been clear to the jury that the witness was speculating about what had occurred during the hiatus in the surveillance.  However, the evidence was admissible for the purpose of explaining why the witness discontinued surveillance.  In any event, the evidence in isolation is not prejudicial.  Moreover, having regard to the cross‑examination of Detective Knight on the subject by the appellant's counsel, the strong inference is that the failure to object was a calculated forensic decision.

2. Until the cross‑examination of Detective Knight, there had been no evidence that the appellant was a gypsy joker at all, never mind its president.  Moreover, the appellant's counsel intentionally adduced the evidence that Detective Knight believed that the appellant and Doig had gone to visit Grano in Park Road, Hovea, that Grano was a senior gypsy joker and that Les Hoddie had also been a gypsy joker.  It is inconceivable that this cross‑examination could be anything but a calculated forensic strategy.  Although Detective Knight's statement that Grano was regarded as 'a drug dealer of a high level' was not responsive to the appellant's counsel's question, the appellant's counsel said 'yes' to the answer, made no timely objection to it and moved on to question the witness about Mr Hoddie.  The only reasonable inference is that this too was part of the forensic strategy.

3. The defence case was in effect that, unknown to Grant Kometer and the appellant, someone had hidden a large quantity of methylamphetamine in the tyre and that someone was probably Les Hoddie.  The objectively determined forensic objective of the cross‑examination of Detective Knight was to provide some support for linking the deceased Hoddie, his status as a gypsy joker, and the very large quantity of methylamphetamine apparently abandoned in the tyre.

4. As a result of the way the defence case was conducted, the prosecutor reminded the jury of their obligation to consider their verdict without prejudice or fear (ts 417).  However, I do not infer that the cross‑examination was conducted for the improper purpose of causing the

members of the jury to approach their task against a backdrop of concern for their safety.  Ground 1 should be dismissed.

Ground 2

1. This ground is predicated on the assumption that the evidence about Grano as a high level drug dealer was not properly part of the circumstantial evidence on which the jury could rely.  For the reasons given on ground 1, that assumption is erroneous.  Ground 2 is without merit and should not be the subject of a grant of leave.

Conclusion

1. Leave to appeal on ground 2 is refused.  The appeal should be dismissed.

2. NEWNES JA:  I agree with McLure P.