La Bianca v The State of Western Australia [No 2]
[2010] WASCA 204
•22 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LA BIANCA -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2010] WASCA 204
CORAM: PULLIN JA
BUSS JA
JENKINS J
HEARD: 17 AUGUST 2010
DELIVERED : 22 OCTOBER 2010
FILE NO/S: CACR 168 of 2009
BETWEEN: ANTHONY LA BIANCA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MAZZA DCJ
File No :IND 995 of 2009
Catchwords:
Criminal law - Appeal against conviction - Possession of methylamphetamine with the intent to sell or supply - Judge's direction - Proof of possession
Criminal law - Appeal against conviction - New evidence - No miscarriage of justice
Legislation:
Evidence Act 1906 (WA), s 11
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr D Dempster
Solicitors:
Appellant: Malcolm Ayoub
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Davies v The State of Western Australia [2006] WASCA 151
Davis v The Queen (1990) 5 WAR 269
De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
PULLIN JA: I agree that the appellant's appeal against his conviction for possession of a prohibited drug with intent to sell or supply should be dismissed for the reasons given by Jenkins J supplemented by some brief additional reasons set out below. I also wish to add some observations about the effect of the certificate given to Mr Brunet under s 11 of the Evidence Act 1906 (WA).
Mr Brunet was given a certificate under s 11 because 'the manner' in which he gave his evidence was to the 'satisfaction' of the members of the court. See s 11(1) and (2). Deciding whether the manner of his giving evidence was to the satisfaction of the court, required an assessment of 'the way' the witness gave evidence; his 'outward bearing' while giving evidence: Macquarie Dictionary, 'manner'. The fact that a witness gives his evidence in a satisfactory manner and the witness is granted a s 11 certificate does not mean that the court is then obliged to accept the veracity of the evidence given by the witness. Whether the evidence is probative of the facts the witness is called to prove involves an assessment of the quality of that evidence in the light of other evidence and any internal inconsistencies which might exist in that evidence. As Jenkins J points out, there were inconsistencies in Mr Brunet's evidence and other evidence cast doubt on the veracity of the parts of his testimony suggesting that the appellant knew nothing about the drugs.
Mr Brunet was given $3,000 by the appellant on the way to the hotel from the casino. Mr Brunet then purchased methylamphetamine from a third person for $2,000. He put the drugs in the appellant's bum bag and took the bum bag to the appellant's new room. He placed the bag on the table in that room with the appellant present in the room. Mr Brunet, in his testimony, attempted to give the impression that the appellant was asleep and knew nothing about all of this, but other evidence revealed that when the police arrived, the appellant was seated at the table with others and the bum bag was on the sideboard and not on the table. Jenkins J explains why Mr Brunet's evidence was unconvincing, but even if his testimony be accepted, it did not prove that the appellant was innocent or that he should not have been convicted of possessing the drug. In fact, his evidence that he spent $2,000 on the drugs after receiving $3,000 from the appellant, that he then placed the drugs in the appellant's bum bag and on the appellant's order took the bum bag and the appellant's other belongings to the appellant's new room is supportive of the allegation that the appellant possessed the drugs rather than evidence against the allegation.
Before the conclusion of the trial, the appellant knew about Mr Brunet's proposal to give evidence and the substance of that proposed evidence. The appellant made a deliberate decision not to call Mr Brunet. As a result, there was no miscarriage of justice: Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517.
As a result, I conclude, as Jenkins J concludes, that Mr Brunet's evidence was not sufficient to prove that the appellant was innocent or that he should not have been convicted.
BUSS JA: I agree with Jenkins J.
JENKINS J: On 29 October 2009 the appellant was convicted after a trial in the District Court at Perth before a judge and jury of one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. The appellant applies for leave to appeal against his conviction.
The indictment
The indictment presented against the appellant contained one charge which alleged that on 30 December 2008 at Scarborough he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to the Misuse of Drugs Act 1981 (WA) s 6(1)(a).
The appellant stood trial on this charge in the District Court at Perth on 28 October 2009. The following day the jury returned a verdict of guilty.
Grounds of appeal
On 4 May 2010 Owen JA referred the question of leave to appeal on the two proposed grounds of appeal to the substantive hearing of the appeal. Those two grounds are:
1.His Honour erred both in law and fact when he misdirected the jury as to the meaning of possession for the purposes of Section 6(1)(a) of the Misuse of Drugs Act 1981, such that there was a miscarriage of justice;
…
2.New evidence, that has emerged since the hearing of the trial, establishes that a miscarriage of justice occurred when the Appellant was convicted.
Summary of the evidence
On 26 December 2008 the appellant checked into room 1601 of the Rendezvous Observation City Hotel Scarborough (the hotel). The proposed check‑out date was 30 December 2008. The room was booked for two people. The appellant paid $870, by credit card, in advance for the room. The check‑out time was 1.58 pm on 30 December 2008. The evidence did not disclose whether the appellant did that personally or whether he returned the room keys at that time. The total amount spent on the room was $1,851.31 and this amount included the room charge, food, beverages and car parking.
On 29 December 2008 a female by the name of Shevonne Vrachnas checked into room 2011 of the same hotel. The departure date was said to be 31 December 2008 and the room was booked for two people. On 29 December 2008 $495 in cash was paid for the room and the following day a further $295 in cash was paid. This brought the account into credit. The account for room 2011 was finalised on 4 January 2009 by someone other than the appellant. The account was then still substantially in credit.
At about 3.00 pm on 30 December 2008 the police executed a search warrant for room 2011. When they entered the room, police observed five people seated at a table, including the appellant and Chad Brunet.
On a sideboard in the room there were four mobile telephones, a Nokia phone box, the appellant's wallet and a black bag, commonly known as a bum bag. There were entries in the phonebooks and message boxes of three of the mobile phones which tended to indicate that they had been used by the appellant to make calls and receive messages. There was no evidence before the jury to connect the four mobile phones to anybody else in the room.
The police located drugs in the Nokia phone box and in the bum bag. The charge on the indictment related to methylamphetamine located in a snap‑lock plastic bag inside the bum bag. The methylamphetamine weighed 8.16 g and was of 7% purity. The methylamphetamine in the Nokia phone box was in a much smaller plastic bag and weighed 0.46 g.
The police also located $5,000 in cash in the bum bag. There were documents in the bum bag which connected the appellant to it. These were a letter from the Department of Planning and Infrastructure addressed to the appellant, an extraordinary driver's licence in his name and a traffic infringement notice which had been completed in his name. There were also some TAB receipts found in the bum bag. Those receipts were for winnings of $11,000 on two tickets on 29 December 2008.
A glass pipe which had been pushed through a hole made in an empty drink bottle was found in a cupboard in the sideboard. A glass pipe was also found near the bed. These items are normally involved in the use of illicit drugs.
The appellant indicated to the police that the personal belongings in the room, being a suitcase of clothing, toiletries and other items, belonged to him. The police collected those up and put them in the appellant's car which was parked in the basement of the hotel. Mr Brunet had a small plastic bag containing some shoes in the room. The only woman in the room, Tara Buckley, had a hand bag in the room. No other occupant of the room had any significant property in room 2011.
No fingerprints were found on the snap‑lock plastic bag containing the larger amount of methylamphetamine. A mixed DNA profile from a male and a female was obtained from the zipper of the bum bag. The result indicated that more than one person had handled the item but it could not be said whether two, three or more people had done so. There was insufficient DNA to enable any of the five people in the room to be identified as contributors or excluded as contributors to the DNA profile.
Evidence was led from a police officer that methylamphetamine is commonly sold in weights of 0.1 g, half a gram, an eightball (3.5 g), a quarter of an ounce (7 g) and half an ounce (14 g). Evidence was given that 8.16 g of methylamphetamine is not a common amount to be sold. It was said at that time 7 g of methylamphetamine would cost in the range of $2,000 ‑ $2,500 and 1 g would cost $400 ‑ $500; although lower quality methylamphetamine may sell for a bit less. The same police witness gave evidence that when the police apprehended drug dealers it was common for the police to find the drug dealers were in the possession of multiple mobile phones.
The search of the room by police officers was videoed and the edited recording of the search was played to the jury. During the search the appellant said little but told the police that he had been in room 2011 for a couple of hours.
The appellant did not give or call any evidence in the trial.
On the second day of trial, court reconvened at approximately 11.15 am because of the trial judge's other judicial duties. At that time the appellant's counsel, Wayne Baffsky, asked whether he could have a short adjournment because he had just become aware of some information which may bear on the trial. When court resumed at approximately 11.31 am the appellant's counsel advised the trial judge that he was ready to proceed. Counsel then addressed the jury. Addresses were followed by the judge's directions and, after the jury had deliberated a verdict of guilty was returned.
Ground 1
The trial judge directed the jury in respect to the element of possession in the following manner:
In order to prove that the accused was in possession of that amount of methylamphetamine, the State must prove that the accused had control of it. Control can mean physical control, or the ability to control the drug, irrespective of where it is or who has it.
…
A person, of course, can't possess something unless that person has knowledge of its existence. Further, a person must also intend to exercise control over it. So there must be knowledge and there must be an intention on the part of the person to exercise control and these things have to exist at the same time.
Now, it's easy to see why the law requires both knowledge and intention before possession can be proved. So far as knowledge is concerned, it'd be wrong if a person could be found to possess something that the person didn't have any knowledge of.
But even if a person has knowledge of the existence of something, there also, as I said, needs to be an intention to exercise control of it. This is because a person may know of the existence of something, but might not want anything to do with it.
Now, knowledge and intention are things that reside in the mind and therefore must be inferred. And you have to apply the inference direction that I have already given you as to whether the State has proved these things.
So in order for the accused to be found to be in possession of the methylamphetamine in the bag, the bag I'm talking about here is the black bag, the State must satisfy you beyond reasonable doubt that he had control of the drug and necessarily that means that he had knowledge of the drug and at the same time he intended to possess it (ts 177).
It is apparent from the above excerpt that the trial judge directed the jury that it was necessary for the State to prove that the appellant had knowledge of the drug and that he intended to possess it.
The appellant asserts that the state of the authorities in Western Australia 'strongly suggests' that an intention to possess a drug is not an essential component of the element of possession: Davis v The Queen (1990) 5 WAR 269, 289 (Pidgeon J); Davies v The State of Western Australia [2006] WASCA 151 [36] ‑ [53] (Pullin JA), [1] (Martin CJ), [14] (Wheeler JA). He submits that the trial judge's direction to the jury that the State had to prove that the appellant intended to possess the methylamphetamine was a misdirection and that it led to a substantial miscarriage of justice.
The appellant's submission is that the trial judge's directions placed an onerous burden on the State to prove more facts beyond reasonable doubt than as a matter of law it was required to prove. Contrary to what might be regarded as common sense, the appellant submits that this direction was prejudicial to him because it took the jury's focus away from whether the State had proved the requisite components of possession, namely knowledge and control. He submits that the jury may have erroneously used a finding of an intention to possess the drug as a pathway to guilt on the basis that because he intended to possess the drug, he must also have had knowledge and control of it. This reasoning is fallacious. The trial judge clearly directed the jury that the State had to prove that the appellant had control of the methylamphetamine, that he had knowledge of its existence and that he intended to possess it. The trial judge did not tell the jury that it could supplant proof of one of these requirements for another. Nor can it be said that the jury could have erroneously conclude from his Honour's directions that it was open for them to do so.
If, as the appellant alleges, the direction was incorrect it was overly favourable to him. No miscarriage of justice can arise from the direction; let alone a substantial miscarriage of justice. In these circumstances, this is not an appropriate case to re‑examine the majority decision in Davis. Leave to appeal on this ground should be refused.
Ground 2
Evidence which was not adduced at the trial was admitted as evidence on appeal. The evidence consists of the affidavit of Malcolm John Ayoub sworn 10 March 2010, the affidavit of the appellant sworn 22 April 2010, a transcript of a telephone conversation between the appellant and others on 1 January 2009, the transcript of a telephone conversation between the appellant and others on 25 July 2009 and the oral testimony of Mr Brunet.
The appellant deposed that he had initially briefed Laurie Levy SC as his trial counsel. On one occasion when Mr Levy visited him in prison, he (Mr Levy) told the appellant that he was in possession of or had seen a statement of Mr Brunet in which Mr Brunet admitted that the methylamphetamine in the bum bag belonged to him (Mr Brunet). The appellant said that Mr Levy told him that the evidence contained in Mr Brunet's statement was 'suspicious' and if Mr Brunet was called to give evidence in his defence he would probably be charged with attempting to pervert the course of justice. Mr Levy advised the appellant not to call Mr Brunet as a witness but sought instructions from the appellant as to whether to call Mr Brunet at his trial. The appellant said that he was very stressed at the time and did not feel that he had time to think about the matter properly. He instructed Mr Levy that he would leave the issue to his judgment.
The appellant deposed that a short time after this meeting he terminated Mr Levy's instructions as well as those of his instructing solicitor, Alana Padmanabham. He said that at that time he was unaware of Mr Levy's final position as to whether or not to call Mr Brunet to testify.
The appellant said that through his ex‑wife, Catena (Cathy) La Bianca, he instructed Mr Baffsky, a barrister from New South Wales, to represent him at his trial. Due to problems with the prison telephone system he was unable to speak to Mr Baffsky by telephone and relied on Mrs La Bianca to make all necessary arrangements on his behalf. The first time the appellant met Mr Baffsky was on Friday, 23 October 2009 and his trial was due to commence the following Monday, 26 October 2009. He said that Mr Baffsky got lost on his way to the prison and only arrived in time for a 30 minute visit. The appellant said that he understood that Mr Baffsky was then in receipt of all the material Mr Levy and Ms Padmanabham had, including Mr Brunet's statement. The appellant says that although Mr Baffsky did not mention Mr Brunet during their meeting, he assumed that this was due to Mr Baffsky holding a similar view to that of Mr Levy. He said that he, therefore, did not mention Mr Brunet to Mr Baffsky.
The appellant said that on the morning of 29 October 2009, during the short adjournment I have previously described, Mr Baffsky told him that the prosecutor had 20 pages of questions ready for a defence witness. He asked the appellant to identify that witness. The appellant told Mr Baffsky that he did not mention the witness to him because Mr Levy had not believed him. The appellant then instructed Mr Baffsky to try and contact Mr Brunet who he thought may be willing to testify and to admit that he possessed the drugs. The appellant said that Mr Baffsky and Mrs La Bianca then left the courtroom. He was later advised that they had unsuccessfully tried to contact Mr Brunet. Mr Baffsky then returned to the courtroom and asked the appellant if he wanted to try and adjourn the trial or abort it so that they could locate Mr Brunet. The appellant said that he instructed Mr Baffsky not to seek an adjournment or to apply to have the trial aborted. He said that his reasons for giving those instructions were that he was stressed, his trial had been aborted on 26 October 2009 due to the State leading inadmissible evidence, when the trial judge was deciding whether the trial could recommence later the same week, as it did, the trial judge had said that the trial may not be listed for a further six months and the thought of his trial being adjourned for up to six months 'weighed quite heavily on his mind'.
The appellant deposed that the first time that he saw Mr Brunet's statement was when he met with a solicitor on 3 March 2010. He said that until that date he did not realise that at the time of the trial Mr Baffsky was unaware of Mr Brunet being a potential witness or of the existence of Mr Brunet's unsigned statement and unsigned statutory declaration (the two unsigned statements). He said that if he had been aware of this he would have sought Mr Baffsky's opinion as to the merits of calling Mr Brunet to give evidence at his trial.
The transcript of the telephone conversation on 1 January 2009 discloses that two days after his arrest the appellant had a telephone conversation with members of his family or friends in which the appellant said that 'Chad' had to go and 'do the right thing'. The appellant also said:
So Chad, it was all Chad you know. You've got to just tell him you know. I just took the blame for him.
Very late in the conversation there is an exchange between the appellant and another person where it seems that the other person said to the appellant that he does not think that Chad intends to come forward. The other person said that a female, Sarah, wanted to say that the drugs were hers. The appellant said that 'he's got to do it'.
Given the evidence now before the court, it is clear to me that the 'Chad' referred to in the call is Mr Brunet.
The telephone conversation on 25 July 2009 is between the appellant and another person. During the course of that telephone conversation a person by the name of Chad commences to speak to the appellant. At one point in the conversation he tells the appellant that he and another person were going to come and see the appellant the following week. The following exchange then occurs:
APPELLANT: Yeah, it's better … at the moment … just stay you know what I mean?
CHAD: Alright.
APPELLANT: [indistinct] for nothing.
CHAD: Hey?
APPELLANT: [indistinct] yeah, yeah the distance you know what I mean?
CHAD: Alright, yeah.
APPELLANT: So they think, you know.
CHAD: Yeah.
APPELLANT: Yeah you know what happened anyway.
CHAD: Yeah I know.
APPELLANT: Everyone knows what happened. (BAB page 122)
Mr Ayoub is the principal of the firm of solicitors who are on the court record as acting for the appellant. He attached to his affidavit correspondence from Mr Baffsky, Mr Levy, Mr Andrews (solicitor for Mr Brunet), Mr Watters (the appellant's counsel), Mr Padmanabham, Mrs La Bianca and himself. The correspondence was mainly created when Mr Ayoub was making enquiries to obtain material in support of this ground of appeal, although it also contains some material prepared before the trial.
The correspondence from Mr Andrews includes a facsimile to Mr Levy dated 10 March 2009 attaching an unsigned statutory declaration of Mr Brunet. The facsimile advises Mr Levy that Mr Brunet would be prepared to give evidence of the matters contained in it subject to the grant of a certificate pursuant to the Evidence Act 1906 (WA) s 11. Mr Brunet's unsigned statement, which was apparently prepared at about the same time, is very similar in substance. The statutory declaration of Mr Brunet states in part:
On 30 December 2008 I was relaxing with friends in room 2011 of the Observation City Hotel in Scarborough. At approximately 3.00 pm several police officers entered the room. The officers conducted a search of the room and located two clip seal bags in a bum bag which belonged to me. One clip seal bag apparently contained approximately 8.6 g and the other 0.5 g of methamphetamine. A smoking implement was also located in the room.
…
Despite there being five people in the room the officers present only took [the appellant] and myself into custody escorting us back to the Scarborough Police Station on Scarborough Beach Road, Scarborough. At the Police Station I admitted that the drugs and smoking implement were mine however the officer indicated that the opportunity for me to make such an admission was back at the hotel room and it was now too late to make a statement.
…
… I cannot in all consciousness allow [the appellant] to continue to be punished for an offence he had no knowledge of an which he did not commit. The drugs located in the hotel room were mine which I had purchased for my own personal use. The smoking implement was also mine. (WAB page 016).
In another piece of correspondence attached to Mr Ayoub's affidavit, Mr Levy acknowledged that he received a facsimile from Mr Andrews on 10 March 2009. It had an attachment to it being a similar document to the one quoted above (WAB page 022).
Mr Levy said that he spoke to Mr Brunet at the Perth Magistrates Court on 30 April 2009. Following that conversation he sent an email to Ms Padmanabham in which he set out the substance of the conversation he had had with Mr Brunet. He said that Mr Brunet had confirmed the following matters:
•He was at the hotel when police searched.
•The bum bag was his (he had left it in the room earlier).
•The drugs were his.
•He thought there was 4 ‑ 6 g but it turned out to be 8.5 g.
•The money was [the appellant's].
Mr Levy said that he raised with Mr Brunet the fact that the bum bag had contained the appellant's documents. He said that he advised Mr Brunet to obtain further legal advice and to think very carefully about whether he would give evidence.
Mr Levy told Ms Padmanabham that they needed to obtain clear instructions from the appellant. He said that without a credible explanation for Mr Brunet's account that the bum bag and drugs were his but the money and the documents in it were the appellant's, Mr Brunet's evidence would be 'highly suspicious'. Mr Levy expressed the view that if the account was 'nonsense', the appellant would get an increased sentence for attempting to pervert the course of justice than he would for possession of the drugs (WAB page 022).
Mr Levy said that subsequently he met with the appellant on at least one occasion and discussed Mr Brunet's potential evidence. He raised with the appellant the issues which he had raised with Ms Padmanabham. He said that no final decision had been made about whether Mr Brunet should give evidence when his instructions were terminated. He then returned the brief to Ms Padmanabham.
Mr Baffsky stated in letters to the appellant's current solicitors that prior to flying to Perth to represent the appellant at the trial he had been contacted by one of the people who had been arrested in the hotel with the appellant. He met with this person who informed him that the drugs belonged to them; not the appellant. Mr Baffsky said that he had some concern about this evidence and that this concern was enhanced when he read the transcripts of the intercepted telephone calls. He said that it was not until he arrived in Perth on the Thursday night (25 October) that he received more statements and transcripts of intercepted telephone calls. Mr Baffsky said that it was clear from the intercepts that the appellant believed that the drugs belonged to Mr Brunet and Mr Brunet was not the person he had spoken to.
Despite saying this, Mr Baffsky's position is that he was unaware of Mr Brunet as a potential witness until the morning of 29 October 2009.
Mr Baffsky said that when he saw the appellant on the Friday (23 October) he (the appellant) was very stressed and did not want the trial adjourned. He said:
As [the appellant] was not going to give evidence this caused a serious problem, especially with the new material.
Mr Baffsky said that the appellant had always maintained that the drugs 'were not his'. However he would not give evidence as to who they belonged to and he thought that the appellant could not have given any evidence other than what he suspected.
Mr Baffsky denied having received, as part of his brief, either Mr Brunet's unsigned statutory declaration or unsigned statement (the two unsigned statements). He said that he was told on the morning of 29 October 2009 that there was a person, Mr Brunet, who was the possessor of the drugs the subject of the charge who was prepared to give evidence. He said that it was impossible to find that person and confirm the truth or otherwise of that assertion.
Mr Baffsky confirmed the material in the appellant's statement that it was on the morning of 29 October 2009 that he (Mr Baffsky) became aware that the prosecution expected him to call a witness. Mr Baffsky then spoke to Mrs La Bianca about whether Mr Brunet could be contacted. He then spoke to the appellant and asked the judge for a short adjournment. During the adjournment he spoke to Mrs La Bianca who immediately made some telephone calls. He said that no one knew how to contact Mr Brunet or where he lived. He said that he did not know whether what the appellant had told him was correct. That was, he did not know whether Mr Brunet was prepared to give evidence to the effect that the drugs were his and that he (the appellant) did not know they were in room 2011. In those circumstances, Mr Baffsky returned to the appellant and told him that Mr Brunet could not be contacted and that the only thing they could do was to either seek to adjourn the trial or abort it. He said the appellant did not want any adjournment as he was very stressed and just wanted the trial to finish. Mr Baffsky said he did not think they had any chance of obtaining an adjournment or of aborting the trial. He said '[the appellant] would not give evidence and there was no option but to continue.'
In a letter to Mr Watters, dated 21 February 2010, Mrs La Bianca said that further to a conversation which she had with Mr Watters she had been able to acquire the two unsigned statements. In an email dated 3 March 2010 sent on behalf of Mr Watters, it is disclosed that he had received for the first time from Mrs La Bianca an unsigned statement from Mr Brunet, being one of the two unsigned statements.
There is a letter dated 3 March 2010 from a solicitor on behalf of the appellant which advised that the appellant instructed that solicitor that approximately six to seven weeks before the listed trial date, Ms Padmanabham requested that money be deposited into trust for trial preparation including interviewing witnesses and counsel's trial fee. The appellant was upset as he thought that most of the preparation would have been completed by that time. He then went about finding another lawyer and eventually instructed Mr Baffsky.
The letter of 3 March 2010 also advised that the appellant instructed that he had told Mr Baffsky that he wanted to proceed to trial. He did not tell Mr Baffsky about Mr Brunet because Mr Baffsky was confident in the defence case as it was. The appellant did not ask Mr Brunet to come to court to give evidence. There is material in the letter which is not consistent with the known facts. It stated that Mr Brunet attended court when Mr Baffsky was acting for the appellant. It also stated that the appellant said it was only after the completion of the trial that he was informed by Mr Baffsky that the prosecutor was prepared for Mr Brunet to give evidence and had 20 pages of notes for potential cross‑examination.
There is further material attached to Mr Ayoub's affidavit concerning whether or not Mr Baffsky was forwarded a copy of either of the two unsigned statements, with the brief. There is conflict between the accounts given by various people. However, Mr Baffsky denied receiving either of those documents and there does not seem to be any profit in pursuing that issue. For the purpose of the appeal, I will assume that Mr Baffsky did not see either of the two unsigned statements before the completion of the trial.
The respondent did not seek to cross‑examine the appellant on his affidavit. However, it gave notice that it required Mr Brunet to attend for cross‑examination and Mr Brunet gave evidence, in the following terms, at the hearing of the appeal.
Mr Brunet is a 25‑year‑old plasterer. He is in a de‑facto relationship and has an infant child. During the course of his examination‑in‑chief he refused to answer any question the answer to which may incriminate him in the commission of an offence. He was advised that if he answered such questions and other questions that may be put to him in a satisfactory manner the court would grant him a certificate pursuant to the Evidence Act s 11(2). Mr Brunet then answered all questions asked of him and subsequently he was provided with a certificate pursuant to the Evidence Act s 11.
Mr Brunet said that on 29 December 2008 he had been at the casino with the appellant. The appellant had won a substantial amount of money and he gave Mr Brunet approximately $3,000 in cash (ts 37). Mr Brunet then drove the appellant to the hotel in the early hours of the morning. They went to room 2011, although the appellant had been staying in room 1601. He said that they went to room 2011 with a couple of other friends. He said that he did not know the male who had 'hired' room 2011 but he knew his acquaintance, Tara. He said he was a drug user at that time and he asked Tara to buy him some methylamphetamine and gave her approximately $2,000. He did not instruct her to buy a specific quantity but he thought she had given him 'three balls' (10.5 g). He said after he asked Tara to purchase the drugs he went home and spent a few hours with his girlfriend. He gave his girlfriend $1,000 of the $3,000 that the appellant had given him (ts 39). He then went back to the hotel, as planned, and went to room 2011. He said there were three other people in the room; two male and one female, Tara. He said that the appellant was also in the room, 'asleep the whole time' (ts 40).
He and Tara went to room 1601 were she gave him some drugs in a large clip‑seal bag. He said he had an empty small bag in his pocket and so he put some of the drugs in that bag and then put both bags in the appellant's bum bag. He thought the drugs would be safe there as no one ever went through the appellant's belongings. He said he could not be sure how much he took out of the larger bag but it was 'probably about 4 g' (ts 41). He said he could not recall how much was left but it was approximately 8 g. He said at that time the bum bag was in room 1601 but the appellant was not present. He said he did not have any of his possessions in room 1601 and any possessions he had taken to the hotel were in his car; although he did not recall when he put them there.
Mr Brunet testified that another reason he went to room 1601 was to pack up the appellant's belongings, as by then the appellant had moved into room 2011. He said he then packed up the appellant's belongings and took them to room 2011, including the bum bag. He left the bum bag on the only table in room 2011 (ts 43). When he returned to room 2011 he believed that the appellant was still there, but half asleep. He said he did not tell the appellant that he had put drugs into his bum bag and the appellant had no knowledge of the drugs (ts 43 ‑ 44).
Mr Brunet said that the purpose of putting some of the drugs into the smaller bag was to enable them to be shared around between 'everyone'. He said they shared it around, but he could not recall who used the drugs. He said the appellant did not use any of the drugs because he was still half asleep. At another point, Mr Brunet was asked whether people in the room used the drugs and he answered 'not that I recall' (ts 44).
Mr Brunet testified that when he returned to room 2011 he realised that he had left his drug smoking pipe in his car. He went down to the car park to pick it up and to bring it back upstairs. He said he was out of the room for 5 ‑ 10 minutes. When he left the room both bags of drugs were in the bum bag on the table. Some minutes after he returned to room 2011, the police arrived (ts 45).
He said when the police came into the room he did not say anything as he did not wish to be recorded. However, when he was placed into custody he tried to explain to the police that the drugs were his. He said that the police asked him whether he was going to take the 'rap' for the appellant. He said that on the way down in the lift he told the police that he had something to tell them and the police advised him that he had had his opportunity to make a confession whilst in the room. He decided not to say anything at that time.
Mr Brunet testified that in early January 2009 he spoke to Mrs La Bianca. He then contacted Mr Andrews because he could not let the appellant 'take the rap' for his drugs. He met with Mr Andrews and completed a statutory declaration, although he made sure it was not signed. He was shown the unsigned statutory declaration and was asked about the sentence which states that the drugs were located in two clip‑seal bags in a bum bag which belonged to him. He testified that the bum bag did not belong to him (ts 48).
Mr Brunet said that after the appellant's trial he again spoke to Mrs La Bianca who told him that the appellant had been convicted. He said he had not changed his address from the date of his arrest although he had changed his mobile phone number after the search of room 2011.
In cross‑examination Mr Brunet said that he had stayed in room 1601 and the appellant had paid for the room. He said that at the time he was acting as the appellant's driver. The appellant used to 'fix' him up with a few hundred dollars here and there when he needed it. He said that the appellant was 'a mate' who he had known for couple of years prior to the incident at the hotel (ts 51).
Mr Brunet acknowledged that he had convictions for traffic offences and offences of violence but that he did not have any drug convictions.
Mr Brunet denied knowing anyone called Shevonne Vrachnas. He said he had known Tara for a while and knew she was able to obtain drugs for him.
Mr Brunet gave evidence that he became aware that the appellant was moving from room 1601 to room 2011 in a telephone conversation with the appellant when he was driving back to the hotel after having been at his home with his girlfriend (ts 53). He said it was in that telephone call that the appellant asked him to go to room 1601, pack up his belongings and bring them to room 2011.
Mr Brunet acknowledged that he put the drugs in the appellant's bum bag because it was the safest place for them. It was put to him that he could rely on the appellant not to call the police if he found the drugs in the bum bag. Mr Brunet replied 'why would he phone the police? … I'm a friend' (ts 54).
In regard to ownership of the bum bag, Mr Brunet said that the sentences in his two unsigned statements could be taken 'either way' (ts 54). He denied that he had told Mr Levy that the bum bag was his. He also denied that he had told Mr Levy the amount of drugs that were found. He acknowledged that he had not told the police that the drugs were his (ts 56).
Mr Brunet denied ever having spoken to the appellant about the charges. He said he could not recall speaking to the appellant on the telephone on 25 July 2009. He was taken to the transcript of that intercepted telephone call and cross‑examined on the relevant portion of it. He maintained that he could not recall having had that conversation with the appellant and did not identify the other person who was referred to in it (ts 57 ‑ 59).
When questioned by the bench, Mr Brunet said he had met the appellant through a friend of a friend and they had clicked 'there and then' (ts 59). He said in December 2008 he was staying with the appellant at the hotel because it was approaching New Year's Eve and the appellant thought he would have some people around for some drinks through to the New Year. Mr Brunet thought he stayed in room 1601 with the appellant on the nights of 28 and 29 December 2008. He said a female, whose name he could not recall, had stayed on the evening of the 29th. He said both he and the appellant had vehicles at the hotel.
Mr Brunet was questioned about whether he used drugs on 28 and 29 December 2008. His answers were seemingly contradictory. At one point he said he did not have a quantity of drugs in his possession on those days. He then said that he did use drugs on those days and, a short time later, he said that he had run out and that he did not use drugs in room 1601 (ts 61).
Mr Brunet was asked whether the appellant knew he was a drug user and he answered that the appellant 'had his suspicions'. He said the appellant had not, to his knowledge, seen him use drugs (ts 61).
He said he and the appellant went to the casino on the evening of 29 December 2008 in the appellant's car. He was asked whether 'the girl' had gone with them as well. He had earlier said that 'the girl' and her acquaintance had met them (the appellant and Mr Brunet) at the casino. That appears to have been a reference to Tara, rather than to the female who Mr Brunet said had stayed in room 1601.
Mr Brunet said that Tara and her acquaintance already had room 2011 booked and, when they met in the foyer of the hotel, they invited him and the appellant to have drinks with them in that room. He said he had known Tara for a while and he knew she could purchase drugs for him, but it was just a coincidence that they had met one another on that occasion. He said, to the best of his knowledge, the appellant did not know Tara (ts 63).
Mr Brunet said when he returned to the hotel, presumably from having visited his girlfriend, the appellant was asleep on the bed and he then went downstairs with Tara to room 1601. He said he could still get into room 1601 because he had the room keycard from the night before. He said after receiving the drugs from Tara and after packing up the appellant's belongings, he returned to room 2011. He put the bum bag on the table which was the table in the room with a number of chairs around it (ts 64). This was not the sideboard the bum bag was found on when the police searched the room.
Mr Brunet was asked whether the people who were then in the room had used the drugs. He said when he went downstairs to go and collect some of his things and his drug smoking pipe, the drugs were left in the bum bag. He was absent for 5 ‑ 10 minutes and he had no knowledge of what happened whilst he was away. He said he did not know whether anybody used the drugs before he went downstairs and that he did not use the drugs (ts 64 ‑ 65). He said the appellant was still sleeping when he left the room. However, when he returned the appellant had just started waking up so he put the pipe away as he did not want him to see what was going to occur. He said the bum bag was at that time on the large table and a short time later the police arrived (ts 65).
I note that this is inconsistent with what is disclosed on the search video. This shows that when the police arrived all the occupants of the room including the appellant and Mr Brunet were sitting around the table. The table had drinks on it but the bum bag and the drugs were on a sideboard, some distance away from the table.
Mr Brunet said that the appellant did not have a clue that the drugs were in room 2011 and did not know that he (Mr Brunet) owned the drugs (ts 65).
This evidence appeared inconsistent with the transcript of the telephone intercept on 1 January 2009 in which the appellant said that Mr Brunet had to do the right thing and that he (the appellant) took the blame for Mr Brunet.
Mr Brunet said he had been driving the appellant in the appellant's car for approximately 6 ‑ 7 months because the appellant had lost his licence. He and the appellant were close friends. He said he drove him on most days to and from work or would pick him up from the TAB or from some other place and take him there. He also took him to social events (ts 66).
He was asked further questions about how he knew the appellant and had got to know him. Somewhat inconsistently with what he had said earlier in his evidence, he said he knew of the appellant but it was not until a year or so later that they started 'getting close'. After some prevarication he acknowledged that he first met the appellant at Wooroloo Prison Farm and had visited him there with a family friend (ts 67). He thought that the appellant's arrest on 30 December 2008 was exactly a year after the appellant had been released from Wooroloo Prison Farm. He said approximately a week after the appellant's release he met up with him and they had a drink together with some other friends. He said the appellant never told him why he was in Wooroloo Prison Farm and he did not know (ts 68).
He was also asked to clarify the sequence of events when he returned to the hotel after having visited his girlfriend at home. He said that he spoke to the appellant on the way to the hotel on the telephone. He said he arrived at the hotel probably half an hour or 25 minutes later. By the time he arrived the appellant was asleep. He then said that he arrived at the hotel probably about half an hour or 45 minutes after the telephone call. He said that he checked on the appellant first in room 2011, found that he was 'still asleep' and he then went to room 1601. When he took the bum bag back to room 2011 it was approximately 15 minutes before the police arrived. He said he did not have a clue how the bum bag had got from the table where he had put it to the sideboard and that he had not put it there. He said he did not know how long the appellant had been sitting around the table prior to the police arriving (ts 69).
Findings as to Mr Brunet's credibility
I did not find some aspects of Mr Brunet's evidence to be credible. Most importantly, Mr Brunet's evidence of the sequence of events and the movements of the appellant from the time Mr Brunet said that he spoke to the appellant on the telephone on the way back to the hotel from having visited his girlfriend at his home to the time the police arrived was at times contradictory and at other times so vague as to leave me with the impression that Mr Brunet was not telling the entire truth.
Clearly, the appellant had to be awake in order for Mr Brunet to speak to him on the telephone. Mr Brunet then gave inconsistent estimations as to how long it took him to get back to the hotel. His evidence about the appellant's state of consciousness at various times was also inconsistent. In evidence‑in‑chief he had said that the appellant was asleep the whole time (ts 40) but he also said that when he returned to room 2011 with the bum bag the appellant was half asleep and that he was just waking up (ts 43 ‑ 44). In cross‑examination, Mr Brunet said that the appellant was still sleeping when he left room 2011 to get his pipe (ts 65). By the time the police arrived, the appellant and Mr Brunet were seated at the table. Mr Brunet did not explain how this occurred.
Mr Brunet said he had put 4 g of the drugs in a plastic bag to share with the others yet he did not know how or when it was removed from the bum bag and put in the Nokia phone box, where it was found by the police. In my view, on Mr Brunet's account, the appellant must have been awake and present at the time that occurred, yet Mr Brunet testified that the appellant did not know he had the drugs. Mr Brunet's account lacks consistency and does not accord with other known facts such as the location of the drugs when the police arrived.
Mr Brunet also said he put about 4 g of drugs in the small bag yet when it was weighed by the authorities it weighed less than half a gram. In evidence‑in‑chief Mr Brunet said he put some of the drugs in the smaller bag to share them around between everyone and that the drugs were shared around. At another stage he could not recall who had used the drugs or even if people in room 2011 had used the drugs (ts 44, 64 ‑ 65). Mr Brunet's evidence that the drugs were to be shared around between everyone was also inconsistent with his evidence that he hid his drug smoking pipe and other drug‑related dealings from the appellant. How were the drugs to be shared between 'everyone' without the appellant being aware of it? Why would Mr Brunet be concerned about hiding his glass pipe when there was another pipe found in the area of the bed in room 2011? It was not explained how the appellant could have been in the room, sometimes asleep on the bed, without seeing the pipe.
Mr Brunet's evidence that he had only just brought the appellant's belongings up to room 2011 also seems inconsistent with the state of the room, which is shown on the police video. The appellant's belongings appear to be distributed throughout the room. For example, there are clothes hung up in the wardrobe and toiletries all along the bathroom vanity and on the edge of the bath.
Further, in the two unsigned statements, Mr Brunet stated that the bum bag was his. He said, in explanation, that the offending sentence was incorrectly phrased. Effectively, he said the sentence should have said that the police found the drugs, which belonged to him, in the bum bag rather than that they found the drugs in the bum bag, which belonged to him. This is an explanation which may have been persuasive if I was otherwise convinced about the credibility of Mr Brunet. Given my view as to the unreliability of Mr Brunet's evidence, I do not accept this explanation.
Mr Brunet's evidence that he did not recall taking part in the telephone conversation with the appellant on 25 July 2009 was not credible. Mr Brunet was evasive in his evidence when he was taken to certain portions of that telephone call in order to refresh his memory of it. It was obvious that he did not want his memory to be refreshed about the conversation and did not want to consider in any meaningful manner the possibility that he was a party to the conversation.
Another area of Mr Brunet's evidence which was not credible was his testimony concerning how he met and developed a relationship with the appellant. Admittedly, it is not an area of evidence which is crucial to the appellant's guilt or innocence, but the fact is that Mr Brunet's evidence about the issue was inconsistent and he appeared not to want to tell the court who had introduced them and the circumstances in which he came to meet the appellant.
Legal principles applicable to new evidence
It is apparent from the wording of ground 2 and from the appellant's submissions that he concedes that the evidence of Mr Brunet is new, as opposed to fresh evidence. New evidence will give rise to a miscarriage of justice which requires a court to allow an appeal if it shows that the appellant is innocent or it raises such a doubt that the court concludes that the appellant should not have been convicted. In respect to the applicable principles I can do no better than to quote Pullin JA in De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291:
If further evidence is admitted on appeal, this cannot be used to establish a ground of appeal that the verdict was unreasonable and unsupported by the evidence: s 30(3)(a). The further evidence cannot be used to establish that there was any wrong decision by the trial judge on a question of law: s 30(3)(b). Gallagher v The Queen (1986) 160 CLR 392 at 395. If the further evidence is to result in a successful appeal, it must be because there has been a 'miscarriage of justice': s 30(3)(c), and as to that, Barwick CJ said at 517 in Ratten:
'... there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if the evidence had been called and been believed a different verdict at the trial would most likely have resulted. The accused, nevertheless, will have had a fair trial.'
and see also Mickelberg v The Queen (1989) 167 CLR 259 at 301.
The interests of justice are served by finality in litigation. The interests of justice will not usually be served by allowing an appellant to adduce evidence on an appeal if the appellant made a tactical decision at trial not to call that evidence, or if the appellant suffered Nelsonian blindness and for that reason did not call that evidence at trial. Having said that, the overriding consideration however, must be whether or not the further evidence demonstrates that there has been a miscarriage of justice. If the evidence is 'fresh evidence', then the court only has to reach a conclusion that there would have been an increased chance of acquittal in order to decide that there was a miscarriage of justice. It must be shown that the jury would have been 'likely' to have entertained a reasonable doubt; or 'might' have; or there was a 'significant possibility' of that being so: Mickelberg v The Queen at 275; Roth-Beirne v Western Australia (2005) 156 A Crim R 101 at [40]).
However, if the evidence is 'new' evidence, then it is not enough merely to show an increased chance of acquittal: Tkacz v Western Australia [2005] WASCA 108 at [49]. The 'new' evidence must be strong enough to show that the appellant is innocent or raises such a doubt that the Court concludes that the accused 'should not have been convicted': Lawless at 676, Mickelberg v The Queen (2004) 29 WAR 13 at 413, Nolan at 62 ‑ 63; Easterday v The Queen (2003) 143 A Crim R 154 at [371] and Hillstead v The Queen [2005] WASCA 116 at [61], [156] ‑ [158]
The application of the legal principles to this case
The task of the court is to decide whether the new evidence reveals that there has been a miscarriage of justice. In determining this question it is relevant that only a day or two after the appellant was arrested for the offence, he said things which made it apparent that he believed that Mr Brunet had knowledge of matters that were relevant to the charge. By mid‑May or June 2009 the appellant was aware that Mr Brunet had made a statement in which he admitted ownership of the drugs in the bum bag. Although he says he did not see the statement at that time, he knew that Mr Brunet was a potential witness who may give evidence to the effect that the drugs were his and not the appellant's drugs. He was also aware that his then counsel, Mr Levy, had doubts or suspicions about the veracity of the material in Mr Brunet's statement. Knowing these matters, the appellant terminated the instructions to his then solicitor, Ms Padmanabham, and to Mr Levy.
Whilst Mr Baffsky, his new counsel, denies receiving either of the two unsigned statements, it is apparent from other material that prior to the commencement of the trial Mr Baffsky was aware there was a potential witness who may be able to give evidence in support of the defence. For example, Mr Baffsky received transcripts of the telephone intercept material which referred to the appellant speaking to his associates about a person called Chad for whom the appellant had 'taken the rap' and whom the appellant wanted to come forward. On the police video of the search of room 2011, Mr Brunet identified himself as Chad Brunet. The appellant apparently made a deliberate decision not to discuss the potential evidence of Mr Brunet with Mr Baffsky. This is despite him having the opportunity to do so. He also decided, alone or in conjunction with Mr Baffsky, that he (the appellant) would not give evidence at his forthcoming trial.
Prior to the conclusion of the trial, Mr Baffsky became aware of the identity of Mr Brunet as a proposed witness. The appellant received legal advice from Mr Baffsky as to the options open to him once it was ascertained that Mr Brunet could not be located to enable him to give evidence at that trial. He was told he could either seek an adjournment of the trial or ask that it be aborted. Knowing his options, the appellant made a deliberate decision to instruct Mr Baffsky to proceed with the trial in the absence of Mr Brunet.
The relevance of the appellant's decision not to give evidence at his trial is as Buss JA stated it during the hearing of the appeal. If, as is clear, the appellant had decided not to give evidence it meant that it was very important to the appellant and his counsel to give serious consideration as to whether any other evidence should be called which could tend to exculpate the appellant. The prosecution had a strong circumstantial evidence case implicating the appellant in the commission of the offence. The appellant had ample opportunity to arrange for Mr Brunet to be subpoenaed to attend at the trial to give evidence. He also had ample opportunity to raise with Mr Baffsky such a potentiality. He did not do so. The appellant says he did not discuss Mr Brunet's potential evidence with Mr Baffsky because he was very stressed. However, as Pullin JA commented during the course of the hearing of the appeal, it would have been a very simple matter for the appellant to say to Mr Baffsky that he wanted Mr Brunet called to give evidence or he wanted Mr Baffsky's advice as to whether that should occur. He did not do so. His explanation for not doing so is unconvincing.
I am satisfied on the basis on the above material that the appellant made a tactical decision to proceed with the trial in the absence of Mr Brunet. Thus, the appellant can not now succeed on appeal on the basis there has been a miscarriage of justice because the outcome of the trial was unfavourable to him or because the trial concluded without Mr Brunet being called to give evidence. The only basis on which the appellant could succeed in respect of this ground is if the court is satisfied that there was a miscarriage of justice because Mr Brunet's evidence either shows that the appellant was innocent or raises such a doubt that the court concludes that the appellant should not have been convicted.
In assessing the strength of the new evidence I have taken into account that the appellant in his affidavit has not deposed to the truth of what is contained in Mr Brunet's two unsigned statements. There is, of course, no obligation on the appellant to do so. But the consequence is that Mr Brunet's evidence is unsupported by the evidence of any other witness.
Earlier in these reasons I made findings about the credibility of Mr Brunet which by themselves mean that I am not prepared to rely upon his evidence to conclude that either the appellant was innocent or to conclude that the appellant should not have been convicted. However, even if I accept that Mr Brunet's evidence may be reliable, it is not such as to enable me to conclude that the appellant is innocent or that he should not have been convicted.
Mr Brunet's evidence is that the appellant gave him $3,000 and that he used $2,000 of that money to purchase the methylamphetamine, the subject of the charge. He said that he left that methylamphetamine on a table in a hotel room, occupied by the appellant and three others. At that time the methylamphetamine the subject of the charge and a smaller amount of methylamphetamine were contained in two plastic bags which were inside the appellant's bum bag. Mr Brunet had put part of the methylamphetamine in a separate bag so that it could be shared amongst those in the room. Mr Brunet was of the view that the drugs were safe in the bum bag because no one, presumably other than the appellant, would touch the bum bag. Mr Brunet then left the room.
In the time that Mr Brunet was away from the room the smaller bag containing methylamphetamine was removed from the bum bag and placed in a Nokia phone box and approximately 3 1/2 g of methylamphetamine from that bag disappeared. The bum bag itself was moved from the table to the sideboard. The phone box containing the smaller bag of methylamphetamine was next to the bum bag on the sideboard. There is evidence to support an inference that the four phones found in the room belonged to the appellant. They and the appellant’s wallet were located close to the phones, the phone box and the bum bag.
The only reasonable inference to be drawn from these facts is that the appellant opened the bum bag, removed the smaller bag containing methylamphetamine from the bum bag and moved it and the bum bag to the sideboard. On this scenario, it is inescapable that the appellant must also have played a role in the disappearance of the missing methylamphetamine from the smaller bag.
When this evidence is combined with the evidence that Mr Brunet did not have a job except for driving the appellant around, it was the appellant who had a large amount of cash, it was the appellant whose cash had paid for the drugs and it was the appellant who owned the mobile phones, it is apparent that the evidence of Mr Brunet is far from sufficient to prove that the appellant is innocent or that he should not have been convicted.
The respondent also relies on inconsistencies between Mr Brunet's evidence and Mr Levy's account of his conversation with Mr Brunet. There are three specific areas which the respondent relies on. The first is that MrLevy stated in an email written to Ms Padmanabham that Mr Brunet said that the bum bag was his. The second is that Mr Levy said that Mr Brunet confirmed to him that he thought there were 4 ‑ 6 g of methylamphetamine but it turned out that there was 8.5 g of methylamphetamine. The third area was that Mr Brunet confirmed that the money in the bum bag belonged to the appellant. In evidence, Mr Brunet denied he had discussed the first two matters with Mr Levy.
If Mr Brunet had been called to give evidence at the appellant's trial and he had testified that the money belonged to the appellant, that would have been evidence that was not favourable to the appellant. Further, if Mr Brunet had testified that the bum bag was his, that evidence would have been difficult to reconcile with his evidence that the money in it belonged to the appellant and that there were documents that clearly belonged to the appellant also in the bum bag. Lastly, given that Mr Brunet said that he had never spoken to the appellant about the charges, its not apparent that his evidence that he thought that there were 4 ‑ 6 g of methylamphetamine but that it turned out to be 8.5 g would be of assistance to the defence.
As Mr Levy did not give evidence and Mr Brunet denied the truth of what is contained in Mr Levy’s letter, I will not rely on what he said Mr Brunet said to him. However, the inconsistency between Mr Brunet’s assertions in the two unsigned statements that the bum bag was his and his sworn evidence that it was the appellant's bum bag remains an issue that is relevant to Mr Brunet's credibility. Also, Mr Brunet's knowledge, or lack thereof, about the amount of drugs ultimately found by the police remains an issue, without having regard to Mr Levy's email. Lastly, even without making a finding as to the truth of the matters contained in Mr Levy's email, the prejudice to the appellant's case if Mr Brunet had given evidence that the money found in the bum bag was the appellant's is a matter which also remains relevant to support my conclusion that it was a tactical decision not to call Mr Brunet at the appellant's trial.
Leave to appeal on ground 2 should be refused and the appeal dismissed.
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