La Bianca v The State of Western Australia
[2019] WASCA 105
•31 JULY 2019
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
TITLE OF COURT : THE COURT OF APPEAL (WA)
| CITATION | : | LA BIANCA -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 105 |
| CORAM | : BUSS P |
MAZZA JA
MITCHELL JA
| HEARD | : 21 JUNE 2019 | ||
| DELIVERED | : 31 JULY 2019 | ||
| FILE NO/S |
|
CACR 175 of 2018
| BETWEEN | : ANTHONY LA BIANCA |
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : GILLAN DCJ | ||
| File Number |
| ||
| Catchwords: |
Criminal law - Evidence - Propensity evidence - Whether evidence of past drug
[2019] WASCA 105
dealing had significant probative value - Whether absence of direction
identifying permissible use of propensity evidence gave rise to a miscarriage of
justice
Criminal law - Offences - Possession of a prohibited drug with intent to sell or supply it to another - Where State case depended on the State proving beyond reasonable doubt that drugs in a vehicle driven by the accused were so clearly visible that he must have seen the drugs - Whether evidence led at trial was
capable of establishing that fact - Whether verdict unreasonable
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 7, s 8
Evidence Act 1906 (WA), s 31A
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11(a)
Result:
CACR 174 of 2018
Leave to appeal on grounds 2 and 2A refused Leave to appeal on grounds 3, 4 and 5 granted Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered
CACR 175 of 2018
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Mr J D Edwardson QC & Mr F Merenda |
Respondent : Mr L M Fox
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Solicitors:
| Appellant | : Legal Pathways |
Respondent : The Director of Public Prosecutions (WA)
Case(s) referred to in decision(s):
Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A
Crim R 186
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A
Crim R 61
DKA v The State of Western Australia [2017] WASCA 44
Donaldson v The State of Western Australia [2005] WASCA 196
El-Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93
Gibbs v The State of Western Australia [2018] WASCA 68
House v The King [1936] HCA 40; (1936) 55 CLR 499
Huggins v The State of Western Australia [2018] WASCA 61
Hughes v The Queen [2017] HCA 20; (2017) 264 A Crim R 225
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim
R 457
Nuhana v The State of Western Australia [2018] WASCA 79
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846
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
Scafetta v The State of Western Australia [2010] WASCA 209
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR
176
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A
Crim R 119
The State of Western Australia v La Bianca [2017] WADC 113
The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
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Wells v The State of Western Australia [2017] WASCA 27
[2019] WASCA 105
BUSS P & MAZZA JA
BUSS P & MAZZA JA:
The appellant has appealed against conviction and sentence.
The appellant and a co-accused, Angelos Papadopoulos, were charged on indictment with one count. The count alleged that on 9 July 2016, at Joondalup, the appellant and Mr Papadopoulos had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
On 29 June 2018, after a retrial in the District Court before Gillan DCJ and a jury, both the appellant and Mr Papadopoulos were convicted of the charge.
On 29 August 2018, the trial judge sentenced the appellant to 11 years' imprisonment. The sentence was backdated to 5 February 2018. A parole eligibility order was made.
We would allow the appeal against conviction, set aside the appellant's conviction and enter a judgment of acquittal. It is unnecessary to deal with the appeal against sentence. Our reasons for those conclusions are as follows.
The grounds of appeal
Ultimately, the appellant relied upon five grounds of appeal as
follows:
2. The learned trial judge erred in directing the jury as to the essential element of 'possession' by:
a.
directing the jury that 'if on the evidence you're satisfied beyond reasonable doubt that either accused had knowledge that the bag of the crystalline substance was in the car, and that the substance was a prohibited drug, and with that knowledge they continued to drive the drug somewhere, then that is evidence from which - that would permit you to conclude that the prosecution has proven that the accused had both control over the drug and an intention to control the drug.' (original emphasis)
b.
failing to direct the jury that before [the appellant] could be found guilty on the State's first pathway to guilt, namely, joint possession, the jury needed to be satisfied that the charged drug was not in the exclusive possession of Mr Papadopoulos (and vice versa); and
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c.
failing to direct the jury that knowledge of the presence/existence of the charged drug was not enough to constitute possession.
2A. The learned trial judge erred by directing the jury that, if satisfied, that [the appellant] saw and thereby identified the drug in the green shopping bag positioned between Mr Papadopoulos' legs, that fact could be sufficient to prove control and an intention on his part to possess, if he acquired that knowledge proximate to the stopping of the vehicle. 3. The verdict of the jury was unreasonable and was not supported by the evidence at trial. 4. The evidence of the appellant's prior convictions for his possession of methylamphetamine with intent to sell or supply in 1999, 2001 and 2008, and the facts underlying those convictions, occasioned a miscarriage of justice in that the evidence concerning those convictions did not have significant probative value or, otherwise, the probative value of the evidence compared to the degree of risk of an unfair trial was not such that a fair-minded person would think that the public interest in adducing all relevant evidence of guilt had priority over the risk of an unfair trial. 5. The learned trial judge erred in law by failing to direct the jury, properly or at all, as to the permissible use of the propensity evidence.
Originally, the appellant had relied upon another ground (ground 1), but at the hearing of the appeal counsel for the appellant abandoned the ground.
The State's case and the appellant's case at trial
The State's case and the appellant's case at trial are set out in Mitchell JA's reasons. We will not repeat them except to the extent necessary to explain our reasons. We merely note the following.
It was not in dispute at the trial that at about 4.40 pm on Saturday 9 July 2016 the appellant and Mr Papadopoulos were the sole occupants of a Toyota LandCruiser. The appellant was driving the vehicle. Mr Papadopoulos was in the front passenger seat. Police officers in a police vehicle that was behind the LandCruiser noticed that the LandCruiser was travelling slowly, its brake lights were being activated frequently and it was slow to depart from an intersection when the traffic lights facing the LandCruiser changed from red to green. The
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police officers (Detective Constable Alexander Griffiths and Detective
Senior Constable Roy Flanagan) stopped the LandCruiser.
The police officers searched the LandCruiser. A green shopping bag was in plain view on the floor of the front passenger seat footwell. The bag contained a clear plastic package of a crystalline substance. Later analysis revealed that the substance was 986 g of methylamphetamine with a purity ranging between 80% and 88%.
The appellant did not participate in an electronically recorded interview with police and did not make any admissions in relation to the charged offence. He did not give evidence at the trial.
Grounds 2 and 2A
It is unnecessary to deal with grounds 2 and 2A. Leave to appeal on those grounds should be refused.
Ground 4: the admission at the trial of evidence of the appellant's previous convictions
Section 31A of the Evidence Act 1906 (WA) provides, relevantly:
(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;
…
(2) Propensity 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.
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On 25 August 2017, at a pre-trial hearing pursuant to s 98 of the Criminal Procedure Act 2004 (WA), O'Neal DCJ ruled, on the State's application, that evidence of the appellant's three previous convictions in Western Australia for possession of methylamphetamine, with intent to sell or supply it to another, was admissible at the appellant's trial as propensity evidence, pursuant to s 31A of the Evidence Act. See The State of Western Australia v La Bianca.[1]
[1] The State of Western Australia v La Bianca [2017] WADC 113.At the trial, evidence of the appellant's three previous convictions comprised formal admissions made by the appellant, pursuant to s 32 of the Evidence Act, as follows:
Indictment 1938 of 1999
On 18 June 1999, [the appellant] was found in possession of 437 grams of methylamphetamine, at a purity of 58%. The drug was located in a thermos flask in the boot of a car in [the appellant's] possession. He had sourced the drug from a party in the eastern states, to be delivered to another party; the latter party was to be the ultimate distributor of the drug.
Indictment 326 of 2002
On 20 September 2001, police intercepted a man at the airport and located 849 grams of methylamphetamine at a purity of 53%. Police substituted the drug with another substance, and the man agreed to continue with his delivery. The next day, the [appellant] took possession of the substance from the man at a motel, believing it to be the original package of methylamphetamine. He attempted to possess the drug and intended to sell or supply it to another.
Indictment 996 of 2009
On 30 December 2008, [the appellant] and others were located in a hotel room. On a sideboard in the room were items including a mobile phone box and a bag, containing a total of 8.62 grams of methylamphetamine, the majority of it at 7% purity. The [appellant] was in possession of the drug, and had the intent to sell or supply it to another.
In his reasons, O'Neal DCJ referred to Detective Flanagan's witness statement and his proposed evidence to the effect that he had observed the green shopping bag in its original position on the floor of the front passenger seat footwell of the LandCruiser. The top of the bag was open. Detective Flanagan said, 'I could clearly observe a plastic package approximately 30 cm x 20 cm within the green bag
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containing a large quantity of crystal material which I suspect was
methamphetamine'. His Honour said:The significance of this evidence in my view is that if it is to be suggested that Mr Papadopoulos was the owner, or had the immediate physical custody of the green [shopping] bag and its contents, no effort had been made by him to attempt to conceal the contents of the bag from someone else sitting in the LandCruiser [9].
O'Neal DCJ was of the opinion that the evidence of the appellant's previous convictions had probative force because it could rationally affect, by inference, the assessment of the probability that the appellant knew of the existence of the substantial quantity of methylamphetamine 'within arm's reach' in the LandCruiser he was driving [32]. His Honour elaborated:
When regard is had to the fact that [the appellant] has a conviction (or two) for his involvement in an organised effort to distribute a substantial quantity of methylamphetamine the probative force becomes even greater. The fact that there are two (or three) such convictions, admittedly one for a relatively modest amount, but each involving the same drug, each with an intention to sell or supply, result in the evidence of the prior convictions having significant probative value. In my view the jury would be entirely justified in inferring that, given his background as revealed by the conduct leading to the convictions, it is objectively improbable that [the appellant] did not know of the presence of methylamphetamine in the LandCruiser [32].
His Honour acknowledged that 'the fact of the elapsed time
between the … 1999 offence and that alleged in the current indictment
might, at first blush, seem to diminish the force to be attributed to the conduct leading to the 1999 conviction' [33]. However, his Honour decided that '[o]nce it was appreciated that for a very substantial portion of the intervening time [the appellant] was in prison, and on parole when the third offence was committed', the passage of time had 'little significance' [34].
O'Neal DCJ concluded that the 1999 and 2001 offences were together 'significantly probative of knowledge of the drugs in the LandCruiser' [35]. His Honour added that the three previous offences revealed 'a deeply entrenched criminality relating to this specific kind of offending' [35]. His Honour said that the appellant had, by virtue of his previous convictions, 'shown himself to be somebody who has been willing to involve himself in the distribution of a dangerous drug and at a level that on one (or two) occasions demonstrates that he has connections far beyond those commonly seen in prosecutions in this
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court' [36]. According to his Honour, the previous convictions revealed the appellant's willingness 'to persist with this kind of offending seemingly regardless of the consequences', and the evidence of the previous convictions could properly be said 'to demonstrate a tendency or propensity that [the appellant] has or had' [37].
His Honour then considered whether the probative value of the evidence of the appellant's previous convictions, compared to the degree of risk of an unfair trial, was 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. His Honour expressed the view that 'where a jury is going to be asked to infer that [the appellant] had knowledge of the methylamphetamine in the
LandCruiser he was driving … fair-minded people would be taken
aback at the idea that [the appellant's] history of possession with intent to sell or supply methylamphetamine would be kept from them' [45]. His Honour concluded:
[I]t is common in this court, when prior convictions are relied on as propensity evidence, to warn the jury against any process of 'automatic reasoning'. That is, juries are warned that they should not automatically reason from the fact that the accused has been convicted of an earlier offence that he is therefore necessarily guilty of the offence charged on the indictment. The use of the evidence for the purposes of inferential reasoning is invariably explained. Neither of these directions is complicated or difficult to understand.
…
In my view the risk of a jury engaging in impermissible reasoning because of the evidence of the prior convictions here is negligible, particularly having regard to the inevitability of a warning against 'automatic reasoning' [53], [55].
Ground 4: relevant legal principles in relation to s 31A of the Evidence
Act
The term 'propensity evidence', as defined in s 31A(1), means:
(a) similar fact evidence; or (b) other evidence of the conduct of the accused person; or (c) evidence of the character or reputation of the accused person; or (d) evidence of a tendency that the accused person has or had.
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A court may decide, in a particular case, that the tests in s 31A(2)(a) and s 31A(2)(b) are satisfied in relation to proposed 'propensity evidence' (as defined in s 31A(1)) provided that the evidence is admitted solely for a particular or limited purpose. Further, a court may decide, in a particular case, that the test in s 31A(2)(b) is satisfied in relation to proposed 'propensity evidence' (as defined in s 31A(1)) provided that the trial judge gives the jury a specific direction or directions in relation to the evidence. See Daniels v The State of Western Australia.[2]
[2] Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [44] - [45]In Dair v The State of Western Australia,[3] Steytler P said in relation to the concept of 'significant probative value' within s 31A(2)(a):
[3] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] - [61].The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone 'significant' probative value.
Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant
fact in issue to a significant extent: ie, more is required than mere …
relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].
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So:
(a) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. (b) 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. (c) The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'. (d) 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 the evidence is relevant, and the significance or importance that the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
In Dair, Steytler P made these points about the comparison which s 31A(2)(b) requires [62] - [67]. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson.[4]
[4] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).
[2019] WASCA 105
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A number of other observations may be made about s 31A including, in particular, the phrase 'significant probative value':
(a)
If an appellant who has been convicted after trial appeals to this court against his or her conviction on the ground that evidence was wrongly admitted under s 31A and the admission of the evidence occasioned a miscarriage of justice, the task of this court is to decide for itself whether the evidence in question had significant probative value. That approach has consistently been taken by this court in dealing with appeals against conviction. It was also the approach taken by the High Court in Stubley v The State of Western Australia[5] and IMM v The Queen.[6] In other words, on an appeal against conviction after trial, this court must determine whether the evidence in question was admissible by reference to the principles enunciated in Warren v Coombes[7] and not by reference to those enunciated in House v The King.[8] See DKA v The State of Western Australia.[9]
(b)
For the purpose of determining its admissibility, the court must take the proposed propensity evidence at its highest from the perspective of the prosecution. See Donaldson v The State of Western Australia;[10] DKA [35].
(c)
The significance of the probative value of proposed propensity evidence depends on the nature of the facts in issue to which the proposed propensity evidence is relevant, and the significance or importance which that evidence may have in establishing those facts. In other words, to be admissible the proposed propensity evidence must be influential in the context of fact-finding. See IMM [46] (French CJ, Kiefel, Bell & Keane JJ).
(d)
Proposed propensity evidence will have probative force if it increases the probability that the accused committed the charged acts.
[5] Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374.[6] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300.
[7] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.
[8] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[9] DKA v The State of Western Australia [2017] WASCA 44 [33] - [34] (Buss P, Mazza JA & Beech J).
[10] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [153]
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(e)
The question whether, in a particular case, proposed propensity evidence has significant probative value may depend on the degree of generality or specificity with which the propensity is identified. On the one hand, a propensity which is identified at a high level of generality will, ordinarily, be an obstacle to its having significant probative value. On the other, in general, the closer and more particular the similarity between the alleged propensity and the alleged charged acts, the greater the likelihood that the proposed propensity evidence will have significant probative value. See El-Haddad v The Queen[11] and the cases there cited; DKA [42].
(f)
However, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. The matters which must be examined include the nature, quality, extent and duration of the conduct the subject of the proposed propensity evidence, on the one hand, and the nature, quality, extent and duration of the charged acts, on the other, and the nature and extent of any rational connection between the conduct the subject of the proposed propensity evidence and the charged acts. See DKA [43].
[11] El-Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93 [70] - [72] (Leeming JA, McCallum
Ground 4: its merits
At the trial, the State's primary case against the appellant was that he was in joint possession with Mr Papadopoulos of the methylamphetamine contained in the clear plastic package, with intent to sell or supply it to another, as a principal offender. The primary case relied upon s 7(a) of the Criminal Code (WA) (the Code). The State's alternative case against the appellant was that Mr Papadopoulos was in sole possession of the methylamphetamine, with intent to sell or supply it to another, as the principal offender, and that the appellant knowingly aided Mr Papadopoulos in committing the offence (that is, the appellant knowingly aided Mr Papadopoulos in his possession of the methylamphetamine with intent to sell or supply it to another). The alternative case relied upon s 7(b) or s 7(c) of the Code.
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Criminal responsibility under s 7(a) of the Code for the offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, requires proof by the State of the elements of the offence, including that:
(a) the accused had at least an awareness of or a belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing; and (b) the accused had at least an awareness of or a belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was, in fact, 'a drug' within the ordinary and natural meaning of that term. See Sgarlata v The State of Western Australia.[12]
[12] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [181] - [182], [192],
Criminal responsibility under s 7(b) or s 7(c) of the Code for the offence of possessing a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act (the offence), requires proof by the State that:
(a)
a person or persons (the principal) has or have committed the offence;
(b)
the 'aider' had actual knowledge of the facts amounting to the offence committed by the principal;
(c)
the 'aider' did or omitted to do something with the intention of aiding or assisting in the doing of the acts which make up the offence; and
(d)
what the 'aider' did or omitted to do actually aided or assisted the commission of the offence.
See Scafetta v The State of Western Australia;[13] Nuhana v The State of
Western Australia.[14][13] Scafetta v The State of Western Australia [2010] WASCA 209 [12] (McLure P; Buss JA generally
[14] Nuhana v The State of Western Australia [2018] WASCA 79 [72] (Mazza, Mitchell & Beech JJA).
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By s 11(a) of the MD Act, relevantly, for the purposes of s 6(1)(a) of the MD Act, 'a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug'. The quantity specified in sch V in relation to methylamphetamine is 2 g.
The object of s 11(a) of the MD Act is to facilitate proof of liability under s 6(1)(a) of the MD Act. Once the fact of possession of at least the quantity of a prohibited drug specified in s 11(a) read with sch V of the MD Act is proved beyond reasonable doubt by the State or admitted by the accused, the State has no other onus to discharge. In such a case, s 11(a) imposes on the accused the onus of establishing on the balance of probabilities that, on the whole of the evidence, he or she did not intend to sell or supply the prohibited drug to another. See Abbott v The State of Western Australia.[15]
[15] Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 [4] (Steytler P;Liability under s 6(1)(a) of the MD Act can be established in a number of ways, including pursuant to s 7(b) or s 7(c) of the Code. Section 11(a) of the MD Act applies to all persons charged with contravening s 6(1)(a) of the MD Act pursuant to s 7 (or, indeed, s 8) of the Code, including pursuant to s 7(b) or s 7(c) of the Code, provided their liability depends upon proof, amongst other things, that a person or persons was or were in possession of a prohibited drug with intent to sell or supply it to another. Accordingly, s 11(a) of the MD Act applies to an alleged offence against s 6(1)(a) of the MD Act where liability under s 6(1)(a) allegedly arises pursuant to s 7(b) or s 7(c) of the Code. See Scafetta [21] - [22].
In the present case, a critical issue of fact in dispute at the trial was whether the clear plastic package containing the methylamphetamine was visible to the appellant.
The prosecutor conceded, in effect, that the State could not establish that the appellant knew of the existence of the methylamphetamine unless the State proved beyond reasonable doubt that the clear plastic package containing the methylamphetamine was visible to him.
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The State did not run its case on the basis that the appellant's knowledge of the existence of the methylamphetamine could be inferred from all the facts and circumstances of the case (including the propensity evidence), even if the clear plastic package containing the methylamphetamine was not visible to him. In other words, the State did not assert that the only reasonable inference open from all the facts and circumstances of the case (including the propensity evidence) was that the appellant knew of the existence of the methylamphetamine, even if the clear plastic package was not visible to him.
The trial judge directed the jury, in accordance with the prosecutor's concession, that it had to be satisfied beyond reasonable doubt that the clear plastic package containing the methylamphetamine was visible to the appellant before the jury could convict him either of being in joint possession with Mr Papadopoulos of the methylamphetamine or of aiding Mr Papadopoulos in committing the offence (ts 833, 837). In particular, her Honour directed the jury:
You must be satisfied beyond a reasonable doubt with respect to [the appellant] that the position of the green [shopping] bag was in the footwell [of the front passenger seat] and its contents were visible to him before you can find him guilty on either being in possession of the drugs or of aiding or abetting Mr Papadopoulos (ts 837).
In our opinion, the evidence of the appellant's previous convictions for the 1999 and 2001 offences was 'propensity evidence', as defined in s 31A(1) of the Evidence Act, in that the evidence of those convictions was evidence of the appellant's 'conduct' of involvement in the acquisition and distribution of substantial quantities of methylamphetamine; further or alternatively, evidence of the appellant's 'tendency' to be involved in the acquisition and distribution of substantial quantities of methylamphetamine.
The evidence of the appellant's previous convictions for the 1999, 2001 and 2008 offences was relevant to and probative of a fact in issue in relation to the State's primary case and, also, the State's alternative case against the appellant. The evidence of the appellant's previous convictions for the 1999 and 2001 offences demonstrated that the appellant had knowledge of and experience with the nature and appearance of a substantial quantity of methylamphetamine. If the State proved beyond reasonable doubt that the clear plastic package containing the methylamphetamine was visible to the appellant then it was open to the jury to infer, on the basis of the appellant's knowledge of and experience with the nature and appearance of a substantial
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quantity of methylamphetamine, that the appellant had at least an awareness of or a belief in the likelihood (in the sense that there was a significant or real chance) that the substance in the clear plastic package was, in fact, 'a drug' within the ordinary and natural meaning of that term (and, indeed, was probably methylamphetamine). The evidence of the appellant's previous conviction for the 2008 offence demonstrated that, at least when he was not in custody or under supervision while on parole, he had an abiding knowledge of and experience with the nature and appearance of methylamphetamine. The evidence of the appellant's previous convictions for the 1999, 2001 and 2008 offences had 'significant' probative value in relation to his knowledge of and experience with the nature and appearance of methylamphetamine. That 'significant' probative value was not materially diminished by the interval between the appellant's commission of the 1999, 2001 and 2008 offences, on the one hand, and his alleged commission in 2016 of the offence in question, on the other.
Further, on the State's case, if the State established that the clear plastic package containing the methylamphetamine was visible to the appellant, then the evidence of the appellant's convictions for the 1999 and 2001 offences and, to a lesser extent, the 2008 offence, had 'significant' probative value in negating any suggestion that any connection between the appellant and the methylamphetamine in the LandCruiser was innocent and coincidental.
However, having regard to the manner in which the State ran its case, the evidence of the appellant's previous convictions (in particular, his convictions for the 1999 and 2001 offences) was not relevant to or probative of the critical fact in issue, namely whether the clear plastic package containing the methylamphetamine was visible to the appellant. The appellant's prior involvement in the acquisition and distribution of methylamphetamine, as demonstrated by his previous convictions, was not relevant to or probative of whether the clear plastic package was visible to him. The determination of that issue depended upon the jury's evaluation of and findings in relation to:
(a)
Detective Griffiths' evidence, Detective Flanagan's evidence and the photographic and video evidence concerning the location of the green shopping bag on the floor of the front passenger seat footwell of the LandCruiser;
(b) whether and, if so, when and to what extent the bag was open;
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(c) whether and, if so, when and to what extent the clear plastic package in the bag was visible to Detective Griffiths or Detective Flanagan or from the perspective of the person who took the photographs and made the video recordings; and (d) whether, having regard to the relevant evidence as a whole, the only reasonable inference was that, at a material time, the clear plastic package was visible to the appellant.
Also, having regard to the manner in which the State ran its case, the evidence of the appellant's previous convictions (in particular, his convictions for the 1999 and 2001 offences) was not relevant to or probative of whether the appellant's knowledge of the existence of the methylamphetamine could be inferred from all the facts and circumstances of the case (including the propensity evidence), even if the clear plastic package containing the methylamphetamine was not visible to him. As we have mentioned, the State did not assert that the only reasonable inference open from all the facts and circumstances of the case (including the propensity evidence) was that the appellant knew of the existence of the methylamphetamine, even if the clear plastic package was not visible to him.
We note that when O'Neal DCJ made his ruling on the State's application, at the pre-trial hearing pursuant to s 98 of the Criminal Procedure Act, his Honour was not aware of the manner in which the State's case would, in fact, be run by the prosecutor at the trial and the retrial.
We are satisfied that the probative value of the propensity evidence as outlined at [38] - [39] above, compared to the risk of an unfair trial, was such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt (that is, the evidence of the appellant's previous convictions for the 1999, 2001 and 2008 offences) must have priority over the risk of an unfair trial, provided that the trial judge gave the jury a specific direction as to the particular or limited purposes for which the propensity evidence was admissible and a specific direction to guard against the impermissible use of the propensity evidence.
| 44 | The evidence of the appellant's previous convictions for the 1999, 2001 and 2008 offences was admissible under s 31A of the Evidence Act for the particular or limited purposes which we have mentioned and |
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subject to the trial judge giving the jury appropriate directions in
respect of the evidence.
Ground 4 fails.
| Ground 5 |
At the trial, the prosecutor told the jury in his opening address that the evidence of the appellant's previous convictions was relevant because it made it 'more likely that he [had] committed the offence [in question]'. Also, the evidence of the appellant's previous convictions made it 'less likely that the drugs found in [the LandCruiser] that he was driving were there without his knowledge or involvement' (ts 427).
The prosecutor made these submissions in his closing address about the evidence of the appellant's previous convictions:
Now, I said this to you at the start and I'll say it again, the evidence of [the appellant's] prior involvement with the drug does not mean that he must have done so again in this case.
But it does establish that he has a proven tendency or a propensity to involve himself in large quantities of methylamphetamine with intent to sell or supply and that makes it more likely that he did so in this case. And it makes it less likely that it was only a coincidence that this drug was in the car. It makes it less likely that he was oblivious to the presence of a large quantity of that very drug in the car that he was driving.
There is another relevance to his past involvement with the drug methylamphetamine and that is that it's clear he knows what the drug looks like. It's a necessary conclusion from his prior involvement with that drug. So any suggestion or thought that he might have noticed the drug in the shopping bag but not known what it was, well, that's something you can reject out of hand.
You're entitled to considered [sic] how likely it is that [the appellant], a man with a repeated history of possessing methylamphetamine with intent to sell or supply it to another including in large quantities ranging into the many hundreds of grams, how likely it is that he was driving a car in which there was nearly a kilogram of that drug yet he had no knowledge or involvement with it.
The likelihood that [the appellant] was driving along blissfully unaware of the presence of the drugs and blissfully unaware of the large and valuable quantity of it, that is just about within arms' reach of him as he sits in the driver's seat - well, it's the prosecution case that the overwhelming conclusion - the only reasonable conclusion is that [the appellant] primarily was himself in possession of those drugs with
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Mr Papadopoulos - well, at a minimum was assisting or aiding Mr Papadopoulos with possession by transporting him and the drug around. But either way, [the appellant] is guilty of the offence as charged (ts 732 - 733).
In her summing up, the trial judge directed the jury about the evidence of the appellant's previous convictions as follows:
Now, you can take those prior convictions into account when you come to consider the case against [the appellant]. But when you do consider the prior convictions, I'm going to direct you as to two things.
The first is that prior convictions are part of the facts and circumstances against which you are to judge whether [the appellant] committed the offence as charged. The prior convictions are relevant to prove that he may be more likely to have committed this offence.
Now, the State's case is that the evidence of prior convictions is evidence that the accused is guilty in this trial because it makes it more likely that he knew about the drugs in the LandCruiser. You cannot, however, use the evidence of prior convictions in substitution for the evidence that you have heard in this case.
You must not reason that just because of the prior convictions [the appellant] is, therefore, guilty of the count he is charged with in this indictment. The prior conviction cannot prove in itself the count on the indictment.
Simply because he has a conviction does not make it automatically follow that he committed the offence with which he's been charged in this case. You cannot convict [the appellant] unless the State has satisfied you beyond a reasonable doubt that he committed the specific act alleged against him in the indictment (ts 838 - 839).
Later, her Honour gave the jury the following additional direction concerning the evidence of the appellant's previous convictions:
Now finally about the propensity evidence. I've talked to you about what you could and could not use [the appellant's] previous convictions for but I have to tell you this, that what you cannot use it for is to assist in the determination of the reliability and credibility of Detective Flanagan's evidence and specifically, you can't use the fact that [the appellant] was previously convicted to make any specific findings about where the bag was when it was first sighted. Okay? So that - those previous convictions are not relevant to your consideration of that matter (ts 847).
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A judge is bound to give an instruction or a warning to the jury if, in the circumstances of the particular case, the instruction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen;[16] Longman v The Queen;[17] Tully v The Queen.[18] This is an incident of the judge's duty to ensure the fair trial of the accused. See RPS v The Queen.[19]
[16] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325 (Brennan J).[17] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ).
[18] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J).
[19] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron ACJ, Gummow, Kirby & Hayne
In the present case, we are satisfied that the trial judge's directions on the propensity evidence did not adequately identify the permissible and impermissible uses of the evidence, in accordance with our reasons in relation to ground 4, and that the absence of a direction which correctly identified the permissible and impermissible uses of the evidence gave rise to a miscarriage of justice.
Ground 5 has been made out.
| Ground 3 |
Subject to our reasons in relation to grounds 4 and 5, we agree with Mitchell JA, generally for the reasons he gives, that it was not open to the jury, acting reasonably, to be satisfied beyond reasonable doubt that, prior to the LandCruiser being stopped by the police while the appellant was driving the LandCruiser and Mr Papadopoulos was in the front passenger seat with the green shopping bag, the clear plastic package containing the methylamphetamine was visible to the appellant. The prosecutor ran the State's case on the basis that the State could not establish that the appellant knew of the existence of the methylamphetamine unless the State proved beyond reasonable doubt that the clear plastic package containing the methylamphetamine was visible to him. In the circumstances, proof beyond reasonable doubt that, at a material time, the clear plastic package was visible to the appellant, was an indispensable link in reasoning to a verdict of guilty.
Ground 3 has been made out.
| Conclusion |
We would grant leave to appeal on grounds 3, 4 and 5. As we have mentioned, it is unnecessary to deal with grounds 2 and 2A. Leave to appeal on those grounds should therefore be refused. The
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MITCHELL JA
appeal should be allowed, the appellant's conviction should be set aside
and a judgment of acquittal should be entered.
It is unnecessary to deal with the appeal against sentence. Leave to appeal should therefore be refused and the appeal dismissed.
MITCHELL JA:
Summary
During a routine traffic stop on 9 July 2016, police officers discovered approximately 1 kg of methylamphetamine in a LandCruiser being driven by the appellant in Joondalup. The methylamphetamine was in a clear plastic package inside a green shopping bag between the feet of the passenger, the appellant's co-accused Angelos Papadopoulos. Both men were jointly charged with possessing the methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). They were convicted after trial, and the appellant was sentenced to 11 years' imprisonment. The appellant now appeals against his conviction and sentence.
At trial, the State advanced a case against the appellant which depended on it proving, beyond reasonable doubt, that the methylamphetamine was so clearly visible to the appellant as he drove the LandCruiser that he must have known it was present at that time.
The State led evidence of facts underlying the appellant's past convictions of offences involving commercial dealing with methylamphetamine as propensity evidence. In a pre-trial ruling, it was held that the evidence could be adduced under s 31A of the Evidence Act 1906 (WA), on the basis that it was of significant probative value in proving that the appellant knew the methylamphetamine was in the LandCruiser as he drove it. Both the prosecutor's closing address to the jury and the trial judge's direction contemplated that the jury could use the propensity evidence in deciding whether the appellant knew the drugs were in the LandCruiser. However, the appellant's past offending did not make it more or less likely that the methylamphetamine was visible to the appellant as he drove the LandCruiser. Given the way in which the State's case as to knowledge was ultimately advanced at trial, the evidence of the appellant's past offending did not have significant probative value. Further, if the evidence was properly admitted, the jury should have been directed that they could not use the evidence of
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the appellant's past offending to decide whether he knew the drugs were in the LandCruiser. The admission of the evidence under s 31A, and the failure to direct the jury as to the permissible and impermissible uses of the evidence, gave rise to a miscarriage of justice.
Further, the other evidence adduced at trial was not capable of establishing that the methylamphetamine was so clearly visible to the appellant as he drove the LandCruiser that he must have known it was present. As the evidence was not capable of establishing that critical aspect of the State's case, the verdict of guilty was unreasonable.
For these reasons, explained in more detail below, I would allow the appellant's appeal against his conviction, set aside the conviction and substitute a judgment of acquittal. It is therefore unnecessary to deal with the appellant's appeal against his sentence.
Primary facts
At about 4.40 pm on 9 July 2016, Detective Senior Constable Roy Flanagan and Detective Constable Alexander Griffiths pulled over a Toyota LandCruiser in Joondalup. The LandCruiser was being driven by the appellant. Mr Papadopoulos was seated in the front passenger seat.
DSC Flanagan gave evidence that, during the course of the traffic stop, he observed an open green shopping bag in the passenger footwell between Mr Papadopoulos' legs. DSC Flanagan saw a clear plastic package containing a white crystal substance (subsequently determined to be 986 g of methylamphetamine) in that bag. The appellant and Mr Papadopoulos were then arrested and searched. Subsequently, DC Griffiths observed, for the first time, the green shopping bag in the passenger footwell. The plastic package and green shopping bag were removed from the LandCruiser, in a process recorded on a video which became exhibit 2.
The appellant's counsel challenged the reliability of DSC Flanagan's evidence as to the position of the green shopping bag when he first observed it. The appellant's counsel suggested that the green shopping bag was under the front passenger seat when DSC Flanagan first observed it, and that the officer had moved the bag into the passenger footwell after the arrest of the accused men and before it was observed by DC Griffiths. The appellant relied on the evidence of two other officers about briefings given by DSC Flanagan
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which indicated that the green shopping bag was located underneath the
passenger seat.[20][20] Trial ts 471, 519 - 521.
The prosecutor accepted that, before the jury could find the appellant guilty, it had to be satisfied, beyond reasonable doubt, that the green shopping bag was in a location where the appellant could see its contents.[21]
[21] Trial ts 799 - 800.
In light of the way that the case was left to the jury, to arrive at its verdict the jury must have accepted DSC Flanagan's evidence as to the position of the green shopping bag when he first observed it. It was well open to the jury to do so. The prosecutor pointed out the logical difficulty with the appellant's contention that DSC Flanagan had moved the green shopping bag from a point from where the methylamphetamine was not visible.[22] If the green shopping bag was positioned under the seat such that the plastic package of methylamphetamine was not visible, DSC Flanagan would not have been able to see it in the first place so as to know to arrest the accused men and pull it out to the footwell. Further, there was evidence that the plastic package of methylamphetamine was too thick to allow it to fit under the front passenger seat of the LandCruiser.[23]
[22] Trial ts 737.
[23] See trial ts 636, 639, 662, 715, exhibit 8.
There was no substantial challenge to the reliability of other aspects of the prosecution evidence. The appellant did not give or adduce evidence, or participate in a recorded interview with police.
The jury having accepted DSC Flanagan's account, the following primary facts were established by the evidence admissible against the appellant.
The LandCruiser
The Toyota LandCruiser was a 1981 model, painted two-tone grey and beige. Its registered owner was a Mr Brett Lemmey.[24] Mr Lemmey had lent the LandCruiser to another person in 2015, with a view to that person purchasing it when they had enough money. He reported the LandCruiser stolen on 18 June 2016 after he received
[24] Trial ts 662 - 663, exhibit 15.
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infringement notices for the vehicle and could not make contact with
the other person.[25]
There was a small space under the front lip of the passenger seat. The top of the seat was approximately 25 cm above the floor, and the bottom of the seat was 12 cm above the floor. The horizontal measurement from the front edge of the seat to the metal bar under the seat was about 8 cm.[26] The gap between the bottom of the seat and the bar was between 2 cm to 3 cm.[27]
Evidence of appellant's and Mr Papadopoulos' activities on 8 - 9 July
[26] Exhibit 8, trial ts 515 - 517, 524 - 525.
[27] Trial ts 636, exhibit 13.
Between 12.17 pm on 8 July 2016 and 12.05 pm on 9 July 2016, 33 phone calls were logged between the phone numbers used by the appellant and Mr Papadopoulos. 24 of those calls were answered and 1 was forwarded.[28]
[28] Trial ts 663, 672, exhibit 5.
At about 2.45 pm on 9 July 2016, a car of the same appearance as the appellant's Commodore[29] was captured by CCTV driving along a street connecting Marmion Avenue and Shenton Avenue in Currambine (Currambine CCTV). At 3.05 pm, what appears to be the same car is captured by the Currambine CCTV heading in the opposite direction.[30]
[29] Trial ts 561.
[30] Trial ts 668 - 669, exhibit 18. There was evidence that the Currambine CCTV was located in proximity to
CCTV footage showed the appellant and Mr Papadopoulos together at the Joondalup TAB from about 3.18 pm to about 3.44 pm on 9 July 2016.[31] The appellant can be observed taking money to place a bet from the satchel which was later located by police in the centre console of the LandCruiser.
[31] Trial ts 665 - 667, exhibit 17. The transcript reference to the men departing at 3.34 is in error, as indicated
At about 4.02 pm on 9 July 2016, a car of the same appearance as the appellant's Commodore was captured by CCTV on the same street as Mr Daniel Yates' property in Tapping, heading towards the property.
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At about 4.11 pm, a car of the same appearance as the LandCruiser was captured by the same CCTV heading away from Mr Yates' property.[32]
[32] Trial ts 670 - 672.
At about 4.29 pm on 9 July 2016, a car of the same appearance as the LandCruiser was captured by the Currambine CCTV. At 4.39 pm, that LandCruiser is captured by the Currambine CCTV on the same street, heading in the opposite direction.[33]
The traffic stop
[33] Trial ts 670, exhibit 18.
At about 4.40 pm on Saturday 9 July 2016, DC Griffiths and DSC Flanagan were driving in an unmarked police car on Marmion Avenue near Currambine. DC Griffiths was driving the vehicle and DSC Flanagan was in the front passenger seat.[34] It was very windy and there was heavy rain.[35]
[34] Trial ts 430 - 431, 650.
[35] Trial ts 434.
The officers observed the LandCruiser travelling in front of them in the same direction. The LandCruiser turned left into Shenton Avenue, and was driving slowly (approximately 40 km/h) in comparison to the speed limit (70 km/h). The LandCruiser was repeatedly braking, braking when there was no need to, and delayed taking off from a set of traffic lights (about three to five seconds). The emergency lights of the police car were activated, and the LandCruiser pulled over on the southbound on-ramp of the Mitchell Freeway from Shenton Avenue. The police car pulled up a couple of metres behind the LandCruiser.[36] DSC Flanagan could observe two people sitting in the front seats of the LandCruiser through its rear window.[37]
[36] Trial ts 431 - 433, 650 - 651.
[37] Trial ts 432.
DC Griffiths got out of the police car and walked up to the driver's side of the LandCruiser. He spoke to the appellant from outside the LandCruiser, while the appellant remained seated in the driver's seat with the driver's window down. DC Griffiths requested the appellant's identification and was given his driver's licence. DC Griffiths did not see the green shopping bag at this time.[38]
[38] Trial ts 433 - 434, 652, 683. 39 Trial ts 433 - 434, 653 - 654.
DC Griffiths returned to the police car with the appellant's driver's licence. DSC Flanagan, who had remained in the police car due to the weather, checked the driver's licence details on the police computer,
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while DC Griffiths called for assistance on the police radio (to obtain a
preliminary breath analysis machine).39
At this time, Mr Papadopoulos got out of the LandCruiser and walked to the front passenger side of the police car. DSC Flanagan put the window down and Mr Papadopoulos asked if he could go. DSC Flanagan asked Mr Papadopoulos why he wanted to leave. Mr Papadopoulos did not give an answer. DSC Flanagan asked Mr Papadopoulos for his name and date of birth, which he provided. DSC Flanagan asked Mr Papadopoulos to return to the LandCruiser, and Mr Papadopoulos returned to its front passenger seat. DSC Flanagan checked Mr Papadopoulos' details on the police computer.[40]
[40] Trial ts 434 - 435, 582 - 583, 653, 684.
Both officers then got out of the police car. DC Griffiths walked to the driver's side of the LandCruiser to speak to the appellant. DSC Flanagan walked to the passenger side of the LandCruiser to speak to Mr Papadopoulos.[41]
[41] Trial ts 435, 654 - 655.
DC Griffiths asked the appellant whether he had any large sums of cash, drugs or weapons in the LandCruiser. The appellant said that he had about $3,000 in a green satchel bag that was in the centre console, lifting the satchel up as he did so.[42] The satchel was subsequently found to contain $650 cash in the front pocket and $4,200 cash in the main pocket.[43] When DC Griffiths saw the satchel, he did not see a green shopping bag at the feet of Mr Papadopoulos.[44]
[42] Trial ts 655 - 656.
[43] Trial ts 680 - 681.
[44] Trial ts 685.
Mr Papadopoulos' door was open when DSC Flanagan was speaking to him. It had been opened by Mr Papadopoulos. DSC Flanagan intended to speak to Mr Papadopoulos about the circumstances of the traffic stop. DSC Flanagan was standing directly beside Mr Papadopoulos, less than a metre away.[45]
[45] Trial ts 436 - 437.DSC Flanagan saw the green shopping bag sitting between Mr Papadopoulos' legs in the front passenger footwell. The green shopping bag was open and its two handles were down. DSC Flanagan had a clear view of a clear plastic package inside the green shopping bag which DSC Flanagan could see contained a crystal substance.
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DSC Flanagan asked Mr Papadopoulos to get out of the LandCruiser, and he did so.[46] When he saw this, DC Griffiths asked the appellant to get out and they proceeded to the passenger side of the LandCruiser. DSC Flanagan advised both accused men that they were under arrest.[47] At this time DC Griffiths had still not seen the green shopping bag.[48]
[46] Trial ts 436 - 437, 446.[47] Trial ts 437 - 438, 655 - 656.
[48] Trial ts 685 - 686.
After asking for and obtaining consent from Mr Papadopoulos to do so, DSC Flanagan conducted a pat-down search of Mr Papadopoulos' person and a search of the LandCruiser. DSC Flanagan put on gloves and then looked inside the cab of the LandCruiser from the front passenger side for a minute or two, confirming that the contents of the clear plastic package appeared to be methylamphetamine. DSC Flanagan moved the green shopping bag slightly to confirm what was in it, but did not move it from its physical location on the floor.[49] DSC Flanagan then called for further police assistance.
[49] Trial ts 438 - 439.
DC Griffiths searched the appellant and located $200 in cash in his pockets. DC Griffiths popped his head around the front passenger door of the LandCruiser to see what was inside. From a metre away, he saw, for the first time, a green shopping bag with its top 'open slightly'. DC Griffiths could see a large clipseal package of crystal material inside the green shopping bag.[50]
[50] Trial ts 657, 687.
Two additional police officers arrived at the scene at about 5.15 pm. The appellant was required to provide a sample of his breath for analysis, which showed no alcohol content. The other two police officers then conveyed Mr Papadopoulos to the Joondalup Police Station, while the appellant remained with DSC Flanagan and DC Griffiths.[51]
[51] Trial ts 558 - 559, 658.
Detective Senior Constable Matthew Robinson arrived at about 5.25 pm with camera equipment. Nothing was done with the LandCruiser while the officers waited for DSC Robinson to arrive, other than to close the doors to prevent the weather from getting in.[52]
[52] Trial ts 440 - 441, 458, 658 - 659.
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A video-recorded search of the LandCruiser was conducted, and the plastic package of methylamphetamine, the green shopping bag and the satchel of cash were removed from the vehicle and placed into evidence bags.[53] The plastic bag was subsequently analysed to contain 986 g of methylamphetamine with a purity between 80 and 88%.[54] If sold as a kilogram, the drugs would be worth $90,000 - $140,000. If sold in quantities of 'points' of a gram, the drugs would be expected to return between $500,000 and $1 million undiluted. As the purity was very high, it could be diluted with a substance such as MSM to almost double the return.[55]
[53] Exhibit 2.[54] Trial ts 506 - 507, exhibit 7.
[55] Trial ts 609 - 610.
A smaller quantity of a substance, subsequently analysed to be 1.59 g of methylamphetamine, was located under the lip of the carpet trim by the rear passenger seat on the driver's side of the LandCruiser.[56] This methylamphetamine was not the subject of the charge against the appellant.
[56] Trial ts 505, 508; exhibits 2 and 7.
Exhibit 2 also shows the glovebox of the LandCruiser to be open at the time of the roadside search. Although the glovebox was not mentioned by the police officers when they gave evidence, there was no evidence of it being opened after Mr Papadopoulos left the LandCruiser at the direction of DSC Flanagan. The inference is that the glovebox must have been open when DSC Flanagan spoke to Mr Papadopoulos at the LandCruiser.
The LandCruiser was sealed with evidence tape and towed to a police storage facility.[57] Its open windows, which police were unable to put up, were covered with cardboard bags to try to prevent the weather from getting in.[58]
Examination of methylamphetamine and green bag
[57] Trial ts 441, 446 - 447, 459 - 460.
[58] Trial ts 460.
On the night of 9 - 10 July 2016, DSC Robinson and another officer conducted a recorded examination of the clear plastic package containing methylamphetamine.[59] The horizontal dimensions of the clear plastic package were agreed at trial to be approximately 20 cm by 30 cm.[60] The plastic package was vacuum sealed and quite firm.61
[59] Trial ts 461 - 462, 471, 474 - 476, exhibit 9.
[60] Trial ts 633 - 634.
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When it contained the methylamphetamine, the plastic package was about 5 cm thick.62
A DNA sample from Mr Papadopoulos was obtained on the same
night.63
Subsequent swabbing of the outside of the green shopping bag detected the mixed DNA of 3 people. One of those persons had a DNA profile that matched that of Mr Papadopoulos. The appellant, Mr Daniel Yates and his identical twin brother Jamie Yates were excluded as contributors.64
Search of Yates' property on 10 July 2016
At about 12.45 pm on 10 July 2016, police officers executed a search warrant at the Tapping property noted at [74] above. Daniel Yates was an occupier of that address, and was the sole occupant present during the search. In the course of that search, police located the appellant's Commodore parked at the front of the property. The keys for the Commodore were located in Daniel Yates' bedroom. Police were able to use the keys to unlock and start the Commodore without any difficulties.65
Also located at the address on the same date was about 2.2 g of methylamphetamine, 'tick lists', a drug 'costing sheet', clipseal bags and glass pipes. These items are common indicia of drug dealing.66 Daniel Yates was arrested for possession of a prohibited drug with intent to sell or supply to another.67
At 10.10 am on 14 July 2016, DSC Flanagan and other officers again attended Daniel Yates' Tapping residence. Daniel Yates was at home and again arrested for possession of a prohibited drug with intent to sell or supply to another.68
61 Trial ts 661, exhibit 14.
62 Trial ts 662, 715.
63 Trial ts 462 - 463.
64 Trial ts 622 - 623.
65 Trial ts 561, 596 - 599; exhibit 10.
66 Trial ts 608 - 609, 610 - 612. This evidence also indicates that other common indicia are digital scales,
large sums of cash, weaponry, multiple mobile phones and MSM powder.
67 Trial ts 600 - 604, exhibit 11.
68 Trial ts 560 - 561.
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Search of the LandCruiser on 12 July 2016
On 12 July 2016, DSC Flanagan and forensic officers Morgan and Ferguson conducted a further video-recorded search of the LandCruiser at the police storage facility.[69]
[69] Trial ts 447 - 448; exhibit 3.A tape lift from the driver's side rear passenger floor carpet obtained a mixed DNA profile which included DNA matching that of either Daniel Yates or his identical twin Jamie Yates.[70] The appellant and Mr Papadopoulos were excluded as contributors to that mixed DNA profile.[71]
[70] Trial ts 513 - 514; 616 - 617.
[71] Trial ts 623.
Tape lifts from an empty drink can found under the front passenger seat of the LandCruiser obtained a mixed DNA profile, and a single DNA profile, matching Daniel or Jamie Yates. The appellant and Mr Papadopoulos were also excluded as contributors to the mixed DNA profile.[72]
[72] Trial ts 624 - 625.
The prosecution case
The State alleged that the appellant was liable either on the basis that he was a principal offender[73] who, jointly with Mr Papadopoulos, had possession of the methylamphetamine with the relevant intent, or as a person who aided Mr Papadopoulos to do so.[74]
[73] Under s 7(a) of the Criminal Code (WA).
[74] Under s 7(c) of the Code.
In his opening address, the prosecutor identified the element of possession as the issue most likely to be in dispute in the trial. He described the question for the jury in the following terms:[75]
[W]hether each accused man was in himself in possession of the drug, either alone or jointly with the other accused man, or indeed with anyone. Or even if the particular accused man wasn't in possession himself, alternatively whether he was aiding another person in the possession of the drug, assisting them.
Either the other accused man or anyone else, by for example, assisting to transport the drug.
[75] Trial ts 428. 76 Trial ts 726.
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In his closing address, the prosecutor said:76
You know that the two men were located in the same vehicle when it was pulled over by the police. The prosecution's case is that in that vehicle on the passenger footwell there was a green cloth shopping bag with a kilo of methylamphetamine inside it.
The prosecutor submitted that DSC Flanagan's evidence and the search video showed that the green shopping bag was in a position where 'it and its contents are easily visible by anyone inside the vehicle'. He suggested that 'there is no way to miss that bag and its contents in the position' shown in the video.[77]
[77] Trial ts 726.
The prosecutor submitted that it was not surprising that DC Griffiths did not see the bag in his initial interaction with the appellant, as he was talking to and focussed on the driver and was not expecting there to be drugs in the vehicle.[78] He said:[79]
By contrast, the two accused men, they were inside that vehicle for a significant period of time. And that bag and its contents could not have been missed by either of them if it was in a location we say it was.
[78] Trial ts 726.
[79] Trial ts 727.
In dealing with the suggested possibility that the bag was under the front passenger seat during the course of the car ride, the prosecutor observed:[80]
You might think though if that bag was indeed openly in the passenger footwell with its contents visible, as we say it was, you might think it's a very short distance indeed from that fact to a verdict of guilty in respect of each man, and I'll come to that in a moment.
I think you're not likely to have much trouble moving from a finding that the bag was in the footwell to being satisfied beyond reasonable doubt of each man's guilt. So of course, it is a critical issue.
[80] Trial ts 727.
After making submissions as to whether the package of methylamphetamine and the green bag would fit under the seat, the prosecutor said:[81]
But it's the prosecution case that this bag wasn't concealed. It wasn't tucked under the lip of the seat or in any way in that specific area. We say it was open in the passenger footwell. You can see it there on the
[81] Trial ts 729. 82 Trial ts 730.
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MITCHELL JA
roadside video. And before I said to you it was a short walk from that
factual finding to conviction, and I say that for these reasons.If that bag was in the location we say it was, there's no way that the driver or the passenger could have missed it. It's not small, it's not hidden. The top of the bag is open and the contents are visible. And the car ride has not been short either. These two men have been in each other's company for some time.
After referring to the evidence of the time that the appellant and Mr Papadopoulos spent together, the prosecutor said:82
It's the prosecution case that the only reasonable conclusion to draw from all the evidence is that both [the appellant] and Mr Papadopoulos were aware of that bag and they were both in possession of it.
The prosecutor anticipated the trial judge's direction about possession as follows:[83]
I imagine you'll be told something along the lines of the fact you need to know that the item exists. You've got to be in a position to exercise control over it and you need to intend to exercise control over it in order to possess something.
[83] Trial ts 730.
After dealing with other matters, the prosecutor then encapsulated the prosecution case against the appellant as follows:[84]
Well, he was the driver of the vehicle. On the prosecution case, as I've already said, there's no reasonable possibility that [the appellant] was not aware of the presence of those drugs. And he was the one who was physically moving them around by virtue of driving the car.
Now, either [the appellant] was himself in possession of the drugs, i.e., he had the ability and intention to exercise control over them. But at the minimum, even if that were not the case, at the minimum, he was aiding Mr Papadopoulos in possessing those drugs by virtue of knowingly transporting Mr Papadopoulos and the drugs around knowing by virtue of the sheer size of the package, if nothing else, that this was Mr Papadopoulos's intention to sell or supply some of those drugs to someone else. He knew that they were not for personal use.
[84] Trial ts 732. 85 Trial ts 746.
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After dealing with matters including the issue of the propensity evidence (considered separately below), and the reliability of DSC Flanagan's evidence as to the location of the green shopping bag when he first saw it, the prosecutor said:85
The prosecution case is that that drug was clearly there in the passenger footwell where either man could not have missed it. And the only reasonable conclusion to draw is that these men were each in possession of the drug.
In the course of discussions with the trial judge in the absence of the jury, the appellant's counsel referred to the following statement made by the prosecutor at a previous trial at which the jury were unable to reach a verdict:[86]
But I accept that in relation to the evidence in this particular case, the jury would have to be satisfied that [the appellant] was able to see the bag and its contents from where he was in the vehicle. So I have no difficulty at all with the jury being directed in the fact that that is a critical fact that they must be satisfied on beyond reasonable doubt in relation to the case against [the appellant].
[86] Trial ts 799.
The prosecutor said that he maintained this position in the current trial. He said:[87]
I accept that the jury would have to be satisfied that [the appellant] could see the substance before they could convict him.
[87] Trial ts 800.
Later, the prosecutor observed:[88]
[W]hile we don't have to establish to the centimetre where the bag was, I do accept that the bag would have to have been in a location where it could be seen by [the appellant] and Mr Papadopoulos. And I accept that's a fact that they'd have to be satisfied of beyond reasonable doubt.
[88] Trial ts 805.
The trial judge's direction as to the element of possession
Consistently with the prosecutor's concession, the trial judge directed the jury that:[89]
For you to be satisfied that either of you [sic] had possession of the methylamphetamine, you will have to believe the evidence of Detective Flanagan about where he found the green environmental bag.
[89] Trial ts 816. 90 Trial ts 819.
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So you'll have to be satisfied beyond a reasonable doubt that when the LandCruiser was pulled over, the green environmental bag was in the footwell of the front passenger seat, and that it and the bag of methylamphetamine were visible to [the appellant] and Mr Papadopoulos.
In directing the jury as to the elements of the offence, the trial
judge said:90
Possession is relevantly defined in our Criminal Code as including having control in any manner whatsoever, whether for the use or benefit of the accused or someone else.
Now, I'll direct you as a matter of law that if you - that you will possess something, a person will possess something if they have it under their control physically, they know that they have it, and they intend to exercise control over it.
The trial judge directed the jury that possession could involve a person physically possessing something, for example by holding it their hand. The trial judge also directed the jury that:[91]
A person can also possess something without physically holding it in their hand. If I take my pen in my briefcase and put it in my car and drive my car, then I would still be in possession of my pen.
But for a person to be in possession in that sense, they're required by law to know that they have that item.
[91] Trial ts 820.
The trial judge identified two elements of knowledge with respect to the drugs which the jury would have to find in order to find the appellant guilty. The first was that:[92]
The person has to be in possession in the sense required by law. They have to know that they have it in the sense that I have just been discussing with you.
But so in this case specifically, you will have to find beyond reasonable doubt that each of the accused knew of the existence of the bag of methylamphetamine in the car.
And when I say the bag of methylamphetamine, I'm really talking about the bag - specifically about the bag that contained the crystalline substance, the drugs, the methylamphetamine.
[92] Trial ts 820.
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MITCHELL JA
The second element of knowledge was that 'each accused' knew that what was in the bag was a prohibited drug. In this respect, the direction was unduly favourable to the appellant,[93] although no complaint is made about that aspect of the direction in the appeal.
[93] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176.
The trial judge then said that 'the accused must have it in their control physically'. Her Honour noted that the cases against Mr Papadopoulos and the appellant were different. After referring to the case against Mr Papadopoulos, the trial judge said:[94]
Against [the appellant] the case may be put a little bit differently. The case is put a little bit differently because he was in charge of driving the car.
If on the evidence you're satisfied beyond a reasonable doubt that either accused had knowledge that the bag of the crystalline substance was in the car, and that the substance was a prohibited drug, and with that knowledge they continued to drive the drugs somewhere, then that is evidence from which - that would permit you to conclude that the prosecution has proven that the accused had both control over the drug and an intention to control the drug. (emphasis added)
[94] Trial ts 821.
The trial judge explained that possession need not be exclusive, and that several people can have joint possession of an item.[95]
[95] Trial ts 821.
After directing the jury as to the elements of the offence, the trial judge summarised the respective cases. Her Honour summarised the defence answer to the charge in the following terms:[96]
The defence answer, of course, to this charge is that neither of them - [the appellant] or Mr Papadopoulos - knew of the existence of the drugs in the car. And they say this because they say that you should not be satisfied that the green environmental bag was visible to either of them.
[96] Trial ts 824.
During a break in the trial judge's directions, in the absence of the jury, the appellant's counsel raised a difficulty with the direction quoted at [122] above. When he began to raise the issue as to the possession directions, the trial judge said 'I got a bit confused then'.[97] Counsel for the appellant said:[98]
[97] Trial ts 830.
[98] Trial ts 831. 99 Trial ts 832.
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MITCHELL JA
EDWARDSON, MR: No. But it's not a matter of either one having
knowledge. It's knowledge - for example, in the case of [the appellant], even if they found, for example, that Mr Papadopoulos had knowledge
that doesn’t affect the case. The case has to be, whether it be on
possession or accesses - - -
GILLAN DCJ: [The appellant] had knowledge.
EDWARDSON, MR: Exactly.
The prosecutor indicated that he took no issue with anything the appellant's counsel had raised.99
When the jury returned, the trial judge said:[100]
Now, I've told you that in order to convict either of these men you will need to be satisfied beyond a reasonable doubt that the green environmental bag was in the footwell of the car, and that it was clearly visible to both of them.
So this is an important element of the case because the case needs to be looked at separately. You need to be satisfied beyond a reasonable doubt that the green bag and the bag of methylamphetamine inside of it was visible both to Mr Papadopoulos and also visible to [the appellant] if you want - it you were to come to the conclusion beyond a reasonable doubt that they're guilty of this matter.
[100] Trial ts 833.
Later in her directions, the trial judge said:[101]
But I will repeat it to you again: the critical direction in this case that I give you is the fact of the position of the bag with the contents visible to both men is a fact that must be proved beyond a reasonable doubt against both men before you can be satisfied that - sorry, let me put it this way.
You must be satisfied beyond a reasonable doubt with respect to [the appellant] that the position of the bag was in the footwell and its contents were visible to him before you can find him guilty on either being in possession of the drugs or of aiding or abetting Mr Papadopoulos.
[101] Trial ts 837.
Propensity evidence at trial
Following a decision of O'Neal DCJ (primary judge) on 25 August 2017, the prosecution was permitted to lead evidence of the facts underlying the appellant's three prior convictions of possession of
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methylamphetamine with intent to sell or supply to another. The primary judge's granted the application to admit the evidence under s 31A of the Evidence Act, which relevantly provides:
(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;
(2) Propensity 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.
The primary judge saw the significant probative value of the appellant's previous convictions in the tendency of that evidence to prove that the appellant knew that the methylamphetamine was in the LandCruiser. The difficulty for the State is that, at trial, it accepted that proof that the appellant knew the methylamphetamine was in the car depended on proving that it was so clearly visible to him that he must have seen it. The State did not run its case on the basis that knowledge of the existence of the package of drugs could be inferred from the appellant's conduct in driving his Commodore and the LandCruiser containing the methylamphetamine. That is, the State did not put its case on the basis that the only reasonable inference to be drawn from all the circumstances was that the appellant must have known the methylamphetamine was in the LandCruiser as he drove it, even if the drugs were not visible to him. Both limbs of the State's case as run at trial (identified at [103] above) depended on establishing that the package of drugs was so clearly visible that the appellant must have seen it as he was driving the LandCruiser. Once that was established, no other evidence was required to establish that the appellant knew that he was driving a vehicle with a package likely to contain drugs inside.
The difficulty for the State is that evidence of the appellant's prior offending could not make it more or less likely that the package containing the methylamphetamine was visible to the appellant. Counsel for the State on the appeal properly accepted that this presented a difficulty for the prosecution.[121] Counsel also properly accepted that the propensity evidence had no role to play up to the point where the jury found that the appellant knew that the drugs were in the green bag because he saw them from the driver's seat of the LandCruiser.[122] That is, given the way the State's case was run at trial, the propensity evidence was irrelevant to the issue of knowledge to which the primary judge assigned it significant probative value.
[121] Appeal ts 55.[122] Appeal ts 56. 123 Appeal ts 59.
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The work that the State now says that the propensity evidence had to do at trial related to the issue of whether the appellant exercised exclusive dominion or control over, and intended to possess, the drugs. That issue arose only once the jury concluded that the appellant knew the drugs were in the car. Counsel for the State on the appeal put the submission in the following terms:123
So we have the drugs in the car and which he is driving – issue – they are clearly visible through – he has already reached that point. Is he just
sort of innocently in that car, having nothing to do with the drugs other than he knows is there? Or does he exert some dominion or control over them? Given that he has in the past exerted dominion and control over significant quantities of prohibited drugs.
…
The propensity evidence belies the sheer improbability that he would be in that car, know of the drugs, but have no dominion or control over them, because he's the type of person who has had dominion and control over these quantities of drugs in the past in these circumstances. And that is the work, in my submission, that the propensity evidence has to do.
However, once the jury concluded that the appellant was driving the LandCruiser knowing it contained the package of methylamphetamine, it would be difficult to avoid the conclusion that the appellant was either in possession of the drugs or was aiding Mr Papadopoulos to maintain possession with the intent to sell or supply. Counsel for the State observed:[124]
[T]here was not far to go from knowledge of those drugs to a finding of
guilt, but nonetheless there were some steps that needed to be covered.[124] Appeal ts 56.
In my view, the limited work which the State now gives to the propensity evidence does not support a conclusion that it has significant probative value for the purpose of s 31A of the Evidence Act.
It may be that the evidence of the appellant's prior dealings with methylamphetamine was admissible quite apart from s 31A of the Evidence Act. Evidence of his past experience in dealing with methylamphetamine would be relevant as it would make it more likely that the appellant would recognise the crystals in the plastic package to be methylamphetamine. However, the use of that evidence for that purpose would not be to show any tendency of the appellant. Rather, it
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would be relevant to show that the appellant had experience which would enable him to recognise the drugs for what they were. The admissibility of the evidence for that purpose under the general law would be subject to it being excluded by reason of its probative value being exceeded by its prejudicial effect.
However, the primary judge decided that the evidence could be admitted under s 31A of the Evidence Act, rather than under the general law. The matters referred to in the previous paragraph were not debated at the point at which the evidence was admitted. The admission of the evidence under s 31A gave rise to a miscarriage of justice in the trial.
In my view, ground 4 is established to the extent identified above.
Disposition of ground 5
Further, even if the propensity evidence had been properly admitted under s 31A, the absence of an adequate direction about the permissible use of that evidence gave rise to a miscarriage of justice.
As noted at [147] above, a warning should be given if it is necessary, in the circumstances of the particular case, to avoid a perceptible risk of miscarriage of justice. Even if the propensity evidence was properly admitted, the trial judge's direction needed to identify the permissible and impermissible uses of the evidence. The prosecutor's submissions reproduced at [137] above, and the trial judge's direction reproduced at [139] above, both contemplated that the jury could use evidence of the appellant's prior convictions in deciding whether he knew the drugs were in the LandCruiser. The trial judge's direction taken as a whole did not prohibit the use of the propensity evidence to infer knowledge, except in relation to the reliability and credibility of DSC Flanagan's evidence as to the location of the green shopping bag when he first sighted it. In my view, it was necessary in the circumstances of this case to give a direction delineating the permissible uses of the propensity evidence in order to avoid a perceptible risk of miscarriage of justice. Such a direction would properly have identified the impermissibility of using the propensity evidence to infer that the appellant knew that the drugs were in the LandCruiser. In my view, in all the circumstances of this particular case, the absence of a direction identifying the only permissible uses of the propensity evidence gave rise to a miscarriage of justice.
Ground 5 is established to the extent identified above.
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Conclusion on grounds 4 and 5
Given the way in which the State ultimately ran its case, the admission of the propensity evidence at trial under s 31A of the Evidence Act, and the failure to give the direction discussed above, gave rise to a miscarriage of justice. There is a real prospect that the jury accepted the prosecutor's invitation to use the propensity evidence when inferring that the appellant knew the drugs were in the LandCruiser. Given the potential for such an impermissible use of the propensity evidence to have improperly influenced the jury's verdict, it cannot be concluded that no substantial miscarriage of justice has occurred. It follows that the appeal must be allowed and the conviction set aside. Unless the evidence admissible against the appellant was not capable of supporting a guilty verdict, the court must order a new trial.
Ground 3: unreasonable verdict
Given the above conclusions, it is convenient to now turn to ground 3, which contends that the verdict of guilty was unreasonable.
General principles
Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow an appeal against conviction if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
The general principles governing an appeal on this ground are well established.[125] In summary:
[125] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The
(1)
The appeal court must 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.
(2)
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.
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(3)
That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)
In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(5)
A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(6)
If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(7)
The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
Disposition
Either limb of the prosecution case (identified at [103] above) required the appellant to know that he was transporting drugs as he was driving the LandCruiser.
For the State to prove its first limb, namely that the appellant was in possession of the methylamphetamine, it had to prove beyond reasonable doubt that the appellant knowingly had physical custody of, or exercised dominion or control over, the methylamphetamine with the relevant intent.[126] The State's allegation was that the appellant exercised physical control over the methylamphetamine by driving the LandCruiser with the methylamphetamine inside. The State had to prove that, when he drove the LandCruiser with the methylamphetamine inside:
[126] Nuhana v The State of Western Australia [2018] WASCA 79 [73] and cases there cited.
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[127] The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483 [26], and the cases cited at[128] Sgarlata [192], [202], [211].
(1) The appellant intended to control the package containing the
methylamphetamine;[127] and(2) The appellant was aware or believed in the likelihood (in the sense that there was a significant or real chance) that the substance in the package was, in fact, 'a drug', within the ordinary and natural meaning of that term.[128]
For the State to prove its second limb, namely that the appellant aided Mr Papadopoulos to be in possession of the methylamphetamine with intent to sell of supply it to another by driving the LandCruiser, it had to prove, beyond reasonable doubt, that:[129]
[129] Nuhana [72].
(1) Mr Papadopoulos possessed the methylamphetamine with intent
to sell or supply it to another person;(2) The appellant had actual knowledge that Mr Papadopoulos
possessed the methylamphetamine with that intent;(3) The appellant drove the LandCruiser with the intention of aiding or assisting Mr Papadopoulos to possess the methylamphetamine with that intent; and (4) The appellant's driving of the LandCruiser actually aided or assisted Mr Papadopoulos to possess the methylamphetamine with that intent.
The State sought to prove the mental elements of both limbs of its case by establishing that the appellant drove the LandCruiser knowing that he was transporting drugs. As noted at [103] - [116] above, it accepted that, in order to prove the appellant's knowledge of the presence of the drugs, it had to prove, beyond reasonable doubt, that the clear package of methylamphetamine was so clearly visible to the appellant that he must have seen it as he was driving the LandCruiser. In my view, the evidence at trial was not capable of establishing that fact beyond reasonable doubt.
The evidence established that the methylamphetamine was visible to DSC Flanagan as he stood by the front passenger seat with the passenger door open. The evidence also established that the
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methylamphetamine must have been visible to Mr Papadopoulos as he sat with the open green shopping bag between his legs. However, the prosecution did not attempt to adduce evidence establishing the view of the green shopping bag or plastic package of methylamphetamine from the perspective of a person sitting in the driver's seat.
There are two exhibits, both being images taken during the search of the LandCruiser on 12 July 2016, which provide some evidence from the view of the front passenger footwell from the perspective of the driver's seat:
(1) A photograph taken from the position of the driver's door
looking across the front cabin.[130](2) The video of the search, which gives a perspective from the
driver's seat at one point.[131]It can be seen from those images that the driver's view of the front passenger footwell of the LandCruiser is partly obscured by the transmission hump between the front seats, as well as by the open glovebox. The driver's perspective would also be partly obscured by the legs of a passenger.
[130] Exhibit 13.2.
[131] Exhibit 3 at 1 min 44 sec.
The position of the green shopping bag is shown in exhibit 2, the video recording of the roadside search of the LandCruiser on 9 July 2016.[132] DSC Flanagan's evidence was that this was position of the green shopping bag when he first saw it, and it had not been moved to any significant extent.[133] The video shows the sides of the green shopping bag partially collapsed so that the size of the opening of the bag is narrowed and faces away from the driver's seat. In my opinion, the view of a person sitting in the driver's seat of the LandCruiser of the package of methylamphetamine was likely to have been obscured by the sides of the green shopping bag. A person standing by the open passenger door of the LandCruiser would have a much better view of the contents of the green shopping bag than a person sitting in the driver's seat.
[132] Exhibit 2 at 3 min 24 sec - 3 min 35 sec.
[133] Trial ts 446. 134 Appeal ts 70. 135 Appeal ts 55 - 56, 57 - 58.
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In considering whether it was open to the jury to find that the appellant must have seen the methylamphetamine, it is also necessary to consider the period for which he may have been driving the LandCruiser with the drugs inside.
The inference readily drawn from the primary facts noted above is that the appellant and Mr Papadopoulos were together at the Joondalup TAB from about 3.18 pm to about 3.44 pm on 9 July 2016. They travelled together in the appellant's Commodore to the property of Mr Yates, a person engaged in dealing in methylamphetamine, arriving at about 4.02 pm. They left the Commodore at Mr Yates' property and drove away in the LandCruiser at about 4.11 pm. At about 4.29 pm, the LandCruiser was driven to a location near the Currambine CCTV, and was driven by the appellant away from that location at 4.39 pm. The LandCruiser was stopped by police at about 4.40 pm.
The longest period during which the appellant may have been driving the LandCruiser with the methylamphetamine inside it would have been about 30 minutes (assuming the methylamphetamine was there when the LandCruiser was driven away from Mr Yates' property at about 4.11 pm). However, the evidence also supported the equally likely inference that the methylamphetamine had been collected from a location near the Currambine CCTV. In that event, the appellant would have been driving the LandCruiser while it contained the methylamphetamine for only a few minutes. In either event, it would be expected that the appellant's attention would have been focused on the road rather than the front passenger footwell, particularly given the inclement weather.
The above evidence does not establish that the methylamphetamine in the green shopping bag, in the position in which it was observed by DSC Flanagan, was so clearly visible to the appellant that he must have seen it while driving the LandCruiser. In my view, the images identified at [169] above indicate that the appellant's view of the clear plastic bag containing methylamphetamine was probably obscured by a combination of the transmission hump, the open glovebox, Mr Papadopoulos' legs and the sides of the green shopping bag. The jury had no advantage over this court in assessing, from those images, the visibility of the package of methylamphetamine from the appellant's perspective in the driver's seat of the LandCruiser.
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Further, it cannot be assumed that the clear package of methylamphetamine and the green shopping bag were in the same position as observed by DSC Flanagan when the appellant was driving the LandCruiser. Counsel for the State submitted that it could be inferred that Mr Papadopoulos would not, during a police traffic stop, have moved the methylamphetamine from a less visible to a more visible position.134 However, the direct evidence gives rise to a reasonable inference that Mr Papadopoulos may well have done so.
It is clear that Mr Papadopoulos was aware of the existence of the package of methylamphetamine in the LandCruiser. It may be inferred that Mr Papadopoulos' strategy to avoid detection was to walk away from the scene with the methylamphetamine before the LandCruiser was searched and the drugs detected by police. He approached DSC Flanagan in the police car and asked if he could leave, notwithstanding that asking to walk away from a car stopped on a freeway on-ramp in a storm was likely to have exacerbated rather than allayed the police officer's suspicions. The fact that Mr Papadopoulos opened the front passenger door, rather than wind down the window, also suggests that he was planning to walk away from the LandCruiser if allowed to do so.
Mr Papadopoulos' plan to walk away would depend on him having ready access to the methylamphetamine, which he would need to take with him if he was to avoid detection. Implementing that plan might naturally involve moving the methylamphetamine and green bag into a position where it could be taken by Mr Papadopoulos as he walked away from the LandCruiser. It might also involve moving the package of methylamphetamine from some other location in the LandCruiser into the green shopping bag so he could walk away with it without the drugs being seen. The evidence, which did not address whether the package of methylamphetamine would have fit into the glovebox, did not exclude the prospect that the drugs were moved from the glovebox into the green shopping bag for that purpose.
The possession, or aiding, which the State alleged arose from the appellant driving the LandCruiser (thereby exercising control over the drugs or assisting Mr Papadopoulos to possess the drugs with the relevant intent). From the point when the LandCruiser was stopped by police, the appellant was not in a position to drive the vehicle so as to exercise control or provide assistance to Mr Papadopoulos by those
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means. Therefore, for the appellant to be convicted, the point in time at which he must have known of the existence of the drugs was when he was driving the LandCruiser prior to being pulled over by the police officers. The evidence relied on by the State does not establish the location of the green shopping bag or the plastic package containing methylamphetamine within the LandCruiser at any point significantly prior to the time when police pulled the vehicle over.
Having regard to the above matters, in my view it was not open to the jury, acting reasonably, to be satisfied beyond reasonable doubt that the package of methylamphetamine was so clearly visible to the appellant, at the time he was driving the LandCruiser with the drugs inside, that he must have seen it. Given that this was an indispensable link in the State's case as advanced at trial, it follows that the jury could not have been satisfied, beyond reasonable doubt, that the appellant was guilty of the offence of possession of methylamphetamine with intent to sell or supply to another.
In reaching these conclusions, I have not had regard to the propensity evidence, which I do not regard as admissible. However, I would have reached the same conclusions even if the propensity evidence was admissible at trial. That is because, even if the propensity evidence were admissible on some basis, it is now common ground that it was irrelevant to the question of whether the appellant knew that drugs were in the LandCruiser when he was driving it because they were visible to him.135
This is not a case in which the jury's verdict is explicable by the advantage enjoyed by the jury at trial. The assessment of the visibility of the package of methylamphetamine from the appellant's perspective in the driver's seat of the LandCruiser does not turn on the way in which witnesses gave evidence. This court is in as good a position as the jury to draw inferences from the primary facts which the jury must have found, and from the photographic and video evidence, as to whether the methylamphetamine must have been so clearly visible to the appellant when he was driving the LandCruiser that he must have known of its presence at that time.
Recognising the principles referred to at [163] above, in my view it was not open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of the offence of which he has been convicted on the basis advanced by the prosecution. In all the circumstances, it
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would be dangerous to permit the verdict to stand. In my view, ground 3 is established, so that the appeal must be allowed, the conviction set aside and a judgment of acquittal entered for the charged offence.
Grounds 2 and 2A: directions as to possession
The above conclusions mean that it is unnecessary to deal with grounds 2 and 2A, which concern the adequacy of the trial judge's directions. Leave to appeal on those grounds should be refused for that reason.
Orders
For the above reasons, I would make the following orders in the appeal against conviction:
(1) Leave to appeal is refused on grounds 2 and 2A. (2) Leave to appeal is granted on grounds 3, 4 and 5. (3) The appeal is allowed. (4) The appellant's conviction on District Court indictment 455 of
2017 is set aside and a judgment of acquittal is substituted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell
31 JULY 2019
(Buss JA; Martin CJ & Mazza JA agreeing).
(Roberts-Smith JA; Wheeler JA agreeing & Miller AJA relevantly agreeing).
& RA Hulme JJ agreeing).
[202] (Buss JA), [211] (Mazza JA).
agreeing & Mazza J agreeing).
Pullin JA relevantly agreeing).
JJ).
the residence of a Mr Barnes. However, as there was no evidence admissible against the appellant that they
had gone to Mr Barnes' property, or of any activities undertaken there, the Barnes property is not relevant for
present purposes.
by the exhibit.
HCA 52; (2018) 92 ALJR 1045 [11]; DKA v The State of Western Australia [2017] WASCA 44 [33] - [34].
State of Western Australia [2018] WASCA 68 [28] - [34].
[16] - [17]; but see the doubts expressed in the cases referred to at [19] and [209] - [210].
25
23
4