Leahy v The State of Western Australia
[2021] WASCA 66
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LEAHY -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 66
CORAM: BUSS P
VAUGHAN JA
HALL J
HEARD: 18 DECEMBER 2020
DELIVERED : 22 APRIL 2021
FILE NO/S: CACR 34 of 2019
BETWEEN: TRAVIS NATHAN LEAHY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 194 of 2015
Catchwords:
Criminal law – Appeal against conviction – Extension of time required – Cultivation of cannabis with intent to sell or supply – Possession of cannabis with intent to sell or supply – Amounts above that which raise the presumption of intent - Whether the appellant discharged his onus to prove that he did not have the intent – Issue at trial as to the extent to which the cut cannabis had dried – Application to adduce fresh or new evidence on the appeal – Evidence not fresh and not capable of affecting the outcome – Other claims regarding disclosure, conduct of counsel and directions of the trial judge without merit – Extension of time refused
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 7(1)(a), s 11
Result:
Extension of time to appeal refused
Leave to appeal on all grounds refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Clarke v The State of Western Australia [2018] WASCA 14
Headley v The State of Western Australia [2019] WASCA 119
Huggins v The State of Western Australia [2018] WASCA 61
Jeffery v The State of Western Australia [2018] WASCA 219
JJS v The State of Western Australia [2014] WASCA 136
Rankins v The State of Western Australia [2018] WASCA 138
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
JUDGMENT OF THE COURT:
This is an appeal against conviction.
The appellant was convicted after a trial of one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and one count of cultivating a prohibited plant, namely cannabis, with intent to sell or supply it to another contrary to s 7(1)(a) of the Misuse of Drugs Act. On 16 March 2016 he was sentenced to a total effective sentence of 12 months imprisonment suspended for 2 years.
The appeal notice was not filed until 12 March 2019. Accordingly the appeal is grossly out of time and an extension is required. In an affidavit the appellant has explained that the delay was due to an inability to obtain legal advice and his own lack of understanding of the justice system. The very long delay has not been adequately explained and an extension should only be granted if it is established that not to do so would result in a miscarriage of justice. This requires consideration of the merits of the grounds of appeal.
The appellant is self‑represented on the appeal. His admitted lack of understanding of the justice system is reflected in the wording of the grounds. The essential issue is whether the trial proceeded on the mistaken basis that the cannabis the subject of the possession count was completely dry. This was relevant because the only issue at trial was whether the appellant had an intent to sell or supply. The quantity of cannabis seized raised the statutory presumption of such an intent. The appellant bore the onus of establishing on the balance of probabilities that he did not have that intent. The defence case was that the cannabis was entirely for personal use. A calculation of the quantity of usable cannabis could be affected by how dry it was. The smaller the quantity of useable cannabis the more credible the claim that it was all for personal use.
The appellant alleges in his grounds of appeal that there is fresh or new evidence as to the state of the cannabis, that relevant evidence was not disclosed by the prosecution, that the issue of the state of the cannabis was not properly explored by his trial counsel and that the trial judge misdirected the jury on this issue. There is no merit in any of those allegations. The extension of time should be refused and the appeal dismissed. Our reasons for those conclusions follow.
Before turning to the merits of the grounds it is necessary to deal with a preliminary matter raised by the appellant.
Application to adjourn the appeal
On 14 December 2020 the appellant filed an application seeking an adjournment of the appeal hearing for at least three months. In a supporting affidavit the appellant stated that on 9 November 2020 his house was destroyed by fire. He said that the fire destroyed documentation relating to the appeal, had serious repercussions for his mental health and limited the time he had to prepare for the appeal hearing.
At the time the application was filed the appeal was already listed for hearing on 18 December 2020. An order was made on 14 December 2020 that the appellant was to appear by counsel or in person at the hearing and seek leave for the application to be granted. On 18 December 2020 the appellant appeared in person (by audio link) and sought the adjournment.
The appellant said that the loss of his house was a devastating and overwhelming experience. He said that dealing with issues related to the fire had been his priority for the preceding three or four weeks. Regarding the loss of documentation, the documents comprised mostly of notes and applications that he intended to file. However, he confirmed that he had the appeal books in his possession. The appeal books include the grounds of appeal, the appellant's detailed written submissions, the respondent's written submissions and other documents relevant to the appeal.
After hearing from the appellant and counsel for the respondent we dismissed the application, with the reasons for that decision to be given at a later date. Orders were also made giving the appellant an opportunity to file supplementary written submissions within four weeks. The appellant availed himself of that opportunity by filing further written submissions, which extended to 22 pages, on 15 January 2021.
The principles relating to the granting of the adjournment of a criminal appeal hearing are referred to in The State of Western Australia v Silich[1] and Headley v The State of Western Australia.[2] It is unnecessary to repeat those principles.
[1] The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [36] ‑ [44], [111] ‑ [113].
[2] Headley v The State of Western Australia [2019] WASCA 119 [158] ‑ [168].
We dismissed the application because we were not satisfied that the interests of justice required an adjournment. Notwithstanding the claim that relevant documents had been destroyed, it was clear that the appellant had access to all the necessary materials to present his case (including the appeal books). No medical reports were provided to substantiate the claim of mental health issues. Any prejudice to the appellant in proceeding with the appeal was removed by permitting him a further four weeks to file additional written submissions. Furthermore, there had already been a very long delay between the filing of the appeal notice and the hearing. The public interest in the timely finalisation of criminal appeals was a relevant consideration.
Prosecution case
On 26 June 2014 at 6.15 pm a search warrant was executed at the appellant's home, 16 Hollis Street, Samson. A total of 22 cannabis plants were located. A small insulated growing chamber in the appellant's bedroom contained 14 juvenile plants. A purpose built growing room set up in a rear bedroom contained eight mature plants. The growing room was lined with silver reflective material and contained lights, heating, electrical timers, hydroponic chemicals, an exhaust fan, small water pumps and a digital thermometer. These 22 plants were the subject of count 2 on the indictment, a charge of cultivation of cannabis with intent to sell or supply.
The police also located cannabis material which at the time of seizure weighed in total 1.5826 kg. At the time of analysis the material comprised:
1.182 g of cannabis leaf material located in a plastic tub in the lounge room;
2.61.3 g of cannabis head material located on the lounge room floor;
3.217 g of cannabis material located on the lounge room floor in front of the couch;
4.10.3 g of loose cannabis material located in a tin in the corner of a kitchen cupboard;
5.2.66 g of cannabis located on the second shelf in the corner of a kitchen cupboard in a plastic container;
6.0.51 g of cannabis located in a glass jar at the top of a kitchen cupboard;
7.207 g of cannabis head material drying on newspaper on the floor of a spare bedroom; and
8.753 g of cannabis material drying on a string in the growing room.[3]
[3] The discrepancy between the total amount seized and the total of the amounts on the certificates of analysis was explained in the evidence of S/C Webster as being due to some drying having occurred; see [34].
The total quantity of 1.5826 kg of cannabis material was the subject of count 1 on the indictment, a charge of possession of cannabis with intent to sell or supply.
The State's case was that on the arrival of the police the appellant was in the lounge room engaged in the process of separating cannabis heads from plants. The heads are the floral clusters in which the active component of cannabis, tetrahydrocannabinol (THC) is most highly concentrated. The heads are the most usable and valuable part of the plant.
During the search the police also located a set of scales in the kitchen. The scales were seized and later found to have traces of cannabis on them. The State's case was that the appellant had used these scales to weigh the cannabis for the purpose of sale. There was a coffee grinder that was alleged to have been used by the appellant to grind up cannabis for sale. There were also two different sizes of clip seal bags which the State said were of a type and size typically used to package cannabis for sale. These items were alleged to be the hallmarks of the processing and packaging of cannabis for sale or supply.
Police officers found diagrams that appeared to depict the growing room and a book on how to grow cannabis. There were also files on a computer labelled with names that suggested that they contained information on how to grow cannabis.
In addition the State relied upon evidence from Western Power as to the patterns of power consumption at the house. In particular, the average daily power usage reduced dramatically after the execution of the search warrant (from between 30 and 40 units per day to an average of 5 units per day) and remained consistently lower from that point on. The State's case was that the high power usage had commenced in about October 2005 and continued through to the time of the offences and that this indicated that the appellant had been growing cannabis, and using the lights required for that purpose, for many years.
The State relied on evidence from a police officer with experience in the illegal drug market, in particular cannabis. Detective Sergeant Coen gave unchallenged expert evidence that the typical yield of cannabis head material from hydroponically grown cannabis ranged from 100 g ‑ 400 g per plant. Accordingly it was the State's case that the eight mature plants in the growing room could yield between 800 g and 3.2 kg of cannabis head material. The actual amount of cannabis head material obtained from those eight plants was around 900 g ‑ 1 kg. The 14 juvenile plants in the insulated grow chamber were upon maturity capable of yielding between 1.4 kg and 5.6 kg of cannabis head material.
Section 11 of the Misuse of Drugs Act provides that a person shall, unless the contrary is proved, be deemed to have an intent to sell or supply if he has in his possession a quantity of a prohibited drug specified in schedule V or cultivates the number of prohibited plants specified in schedule VI. The relevant quantity of cannabis is 100 g and the relevant number of cannabis plants is 10.
Defence case
The defence case was that the appellant had been a regular user of cannabis since the age of 15 years (he was 39 years old at the time of the search). He smoked cannabis every day, between 3 ‑ 6 joints and between 15 and 20 cones on the weekend.
The appellant expended a considerable amount of money on cannabis. For this reason in 2014 he decided to attempt growing cannabis hydroponically. It was for that purpose that he had the text book found by the police. He acquired some second‑hand hydroponic equipment and commenced growing cannabis. He attempted to factor in an attrition rate for the plants and a wastage rate bearing in mind that only the flowering head was usable.
In simple terms the appellant's case was that this was not a commercial operation. He did not intend to sell any of the cannabis. The cannabis found at his house by the police on 26 June 2014 was all intended for his personal use.
It was conceded by defence counsel in opening that there was 'quite a lot' of cannabis and it would 'probably take him … a few months to smoke it all'. However, the appellant's case was that he intended to seal the cannabis in plastic bags and freeze some of it so that it would last for a longer period. This would save him from having to purchase any cannabis for several months.
As to the quantity of usable cannabis defence counsel said in opening:
Not all of it was viable. Not all of it was going to be ultimately able to be used. And the police arrived, it appeared, when it was still in the drying phase. And I think you'll hear from one of the detectives who will agree with the proposition, and he's given us a report about this so we know what he's going to say, the prosecution have to give us their evidence before we start the case.
And I think the officer will agree that when you find cannabis which is recently harvested, probably it will reduce by about 75 per cent in volume. So if you say there's 1.5 kilos of it, at the end of the day you might be lucky to end up with, you know, a half a kilo, of that order.
So that's a factor to look for as we go through. Just because you have X amount in weight when it's wet, of course you can't smoke cannabis before it all dries out, it loses that moisture and of course the weight will be completely different.
In regard to electrical usage at the house the defence case was that the appellant ran many electrical appliances including 'some fairly inefficient air‑conditioning'. That was said to explain the increased electricity use after 2005. The defence case was that in 2014, when the appellant claimed he set up the grow room, he decided to moderate some of his other electrical use in order to offset the lights used in that room. For this reason the defence argued that the electricity usage did not support an inference that the appellant had been engaged in cannabis growing at his home for many years.
In regard to other items found at the house the defence case was that these had innocent explanations. The plastic bags were said to be for domestic kitchen use. The digital scales were used when the appellant bought cannabis for personal use, to ensure that dealers had provided him with the quantity that he had paid for. This was why cannabis was detected on those scales.
The defence also relied on the fact that no significant amounts of cash or assets consistent with the appellant being a drug dealer were found.
It was conceded that the appellant was in possession of the cannabis, the subject of count 1, and had cultivated the cannabis plants, the subject of count 2. It was accepted that the only issue was whether the appellant possessed the cannabis and cultivated the plants with intent to sell or supply some or all of the drug. It was accepted that because the amount of cannabis and the number of plants exceeded the statutory deeming provision, the onus was on the appellant to satisfy the jury on the balance of probabilities that he did not have such an intent.
Prosecution evidence
Senior Constable Nicholas Webster
S/C Nicholas Webster was the officer‑in‑charge of the execution of the search warrant at the residence of the appellant. A video of the search was tendered and played during his evidence.[4] The cannabis material and plants found in various parts of the house can be seen on the video. The harvested cannabis material appears to be drier than the still growing plants, but the degree to which it has dried out cannot be determined with any certainty from the video.
[4] Exhibit 1.
The copy of the video tendered at the trial was edited to have the sound removed. The appellant has suggested that this should not have been done, so it is necessary to refer to why this occurred. When the video was tendered, the prosecutor stated in open court that the sound had been edited out and that this had been done by agreement.[5] There was no demur from defence counsel in this regard. Indeed, when the jury later asked why the audio was removed the judge told them, with the agreement of defence counsel, that this was done by agreement between the prosecution and the defence and that the appellant had exercised his right to silence during the search.[6]
[5] ts 112.
[6] ts 182 ‑ 185.
During the playing of the video S/C Webster stated in evidence that in the second bedroom or study there was cannabis head material drying out on newspaper.[7] He also noted that cannabis found in the rear bedroom was suspended on a string for drying.[8] He said that the cannabis material was separated and the leaf and head material was placed into security movement envelopes with paper towels.[9] He could not recall the state of dryness of the heads on the string in the rear bedroom but said that paper towels were only used if there was visible moisture.[10]
[7] ts 121.
[8] ts 123.
[9] ts 124.
[10] ts 124.
In cross‑examination S/C Webster was asked to account for the difference in the weight of the cannabis seized as recorded on the search warrant exhibit log as compared to the certificates of analysis. The exhibit log records the cannabis weights as at the date of the search warrant, on 26 June 2014, whereas the relevant certificates of analysis are dated 6 November 2014.[11] He agreed that the differences were due to some drying out of the cannabis.[12] This had apparently occurred even though the cannabis was stored in sealed bags. The relevant weight changes were as follows:[13]
[11] Exhibit 2.
[12] ts 142.
[13] ts 141 ‑ 142.
Location Weight recorded on exhibit log (g) Weight recorded on certificate of analysis (g) Reduction (g) Cannabis leaf material located in a plastic tub in the lounge room 203.4 182 21.4
(10.5%)
Cannabis head located on the lounge room floor 67.6 61.3 6.3
(9.3%)
Cannabis located on lounge room floor 235.8 217 18.8
(7.97%)
Combined loose cannabis found in kitchen cupboards 15.2 13.47 1.73
(11.38%)
Cannabis head drying on newspaper on study / bedroom floor 229 207 22
(10.6%)
Cannabis material drying on string in the main grow room (stalks removed) 831.6 753 78.6
(9.45%)
S/C Webster agreed that telephones and computers are seized if there is anything found on them that is of interest. This is done at the time of the search. Apart from a few files relating to cannabis growing there was nothing else of interest found on the appellant's computer and nothing to indicate that he was a commercial dealer of drugs. The appellant's mobile telephone was 'quite an old telephone', not an iPhone.[14]
[14] ts 136 ‑ 137.
No large quantities of cash, significant assets or client lists were located.[15] S/C Webster was not aware of any suspicious financial transactions undertaken by the appellant, though this possibility would have been examined by the police proceeds of crime unit.[16]
Detective Sergeant Andrew Coen
[15] ts 136, 138.
[16] ts 138.
D/S Andrew Coen attended at the execution of the search warrant. At the time of the trial he had been a police officer for 21 years and a detective since 2004. He was called as an expert in cannabis cultivation based on his experience as a police officer. His expertise was not disputed.
D/S Coen said that cannabis is typically sold in snap seal bags and the sale value varied according to the weight being sold. He referred to current prices in the Perth metropolitan area. A small snap seal bag containing 2 g, about the size of a matchbox and usually referred to as a stick, normally sells for $25. The next size bag containing 4 g, referred to as a deal, normally sells for $50. A half ounce (14 g) sells for $175. An ounce (28 g), which is typically packaged in a snap lock sandwich bag, sells for between $250 and $400, though $350 is the usual price. A pound (454 g), usually in a vacuum sealed bag, sells for between $4,000 and $5,000. Hydroponically grown cannabis is considered better quality than naturally grown cannabis and is usually worth 'a bit more'.[17]
[17] ts 148 ‑ 149.
D/S Coen said that the potential yield of flowering head for the cannabis plants was between 100 g and 400 g for each plant. These figures had been derived from literature, the yields claimed by sellers of cannabis seed, information from growers and from yield experiments.[18]
[18] ts 149 ‑ 150.
D/S Coen said that cannabis used for smoking is dried and that this generally resulted in a 75% loss of weight. The usual process was to pick the flowering heads and to dry them by placing them on a flyscreen or by hanging them from a piece of string. This process takes between 7 and 14 days. The heads usually have some small amounts of leaf around them and this is removed once they are dry. He said that this trimming process was what the appellant appeared to be doing when the police entered.[19]
[19] ts 153 ‑ 154.
D/S Coen said that the material being trimmed by the appellant and the material that was hanging up was predominantly head, being 70% head and 30% leaf and stem.[20] He said he made sure that the police who seized the material distinguished in the records between head material and leaf and stem material.[21] The material found hanging up was stripped from the stalks and the stalks discarded before being bagged.[22] He accepted that the 203.4 g found in the plastic tub was leaf material that had no market value.[23] The same was true of the 15.2 g of loose material found in the kitchen cupboards.[24] He estimated that of the total 1.5826 kg of cannabis material seized about 400 g ‑ 500 g was non‑saleable.[25]
[20] ts 155.
[21] ts 158.
[22] ts 170.
[23] ts 160.
[24] ts 161.
[25] ts 163.
D/S Coen said that in his experience a heavy user of cannabis could smoke up to an ounce (28 g) per week, though he accepted in cross‑examination that he had heard some people claim to smoke up to 1.5 ounces.[26]
[26] ts 156 ‑ 157.
D/S Coen said that increased power usage could be indicative that hydroponic cannabis growing was occurring. He accepted that some households could run high usage domestic appliances, such as bar heaters and blower heaters, and that is a factor that could affect power use.
D/S Coen accepted in cross‑examination that growers reported an attrition rate of about 50% of cloned plants. This was factored in when cloned plants were planted. The majority of the plants seized from the appellant appeared to be healthy. He also agreed that there was no evidence of suspicious assets or financial transactions. Nor were suspicious messages found on the appellant's mobile telephone.[27]
Keith Williams
[27] ts 163 ‑ 165.
Keith Williams was a compliance inspector with Western Power. He undertook an examination of the electricity consumption at the appellant's residence. The account for those premises in the appellant's name had commenced on 28 July 2003.
Mr Williams calculated that 28 units[28] of power per day would be required to run four 600 watt high pressure sodium vapour lamps. That usage was based on estimated average hours of use being 12 hours per day.
[28] A unit is a kilowatt hour – see ts 227.
Mr Williams produced electricity consumption records that showed that the average daily consumption in the 12 months from August 2004 to August 2005 was between 8 and 12 units. There was then a sharp increase, with average daily consumption in the two months ending 31 October 2005 being 32 units. The usage thereafter continued at similar or higher levels (with some minor variations) until 12 September 2014, when the average daily consumption for the previous two month period fell to 5 units. A similar low level continued until the last reading on 15 September 2015.[29]
[29] Exhibit 6; ts 176.
In cross‑examination it was put to Mr Williams that appliances such as air‑conditioners or heaters could have a dramatic effect on daily usage. He agreed, but said that this would be apparent from the records as such use was generally seasonal. He could not say what the power had been used for. He did not accept that the power usage was typical of an average house in the area because usage varies significantly between households.[30]
[30] ts 179.
Defence evidence
The appellant
The appellant said that he had lived alone at his residence since around 2004. He worked as a courier truck driver and earnt approximately $50,000 per annum. He did not have a mortgage as his father had paid it out in 2009.[31]
[31] ts 188 ‑ 189.
The appellant said he had been smoking cannabis for 25 years, having started smoking it in his late teens or early twenties. He quickly progressed to smoking two, three or four joints a day. Each joint or cigarette contained about 0.75 g of cannabis. He also smoked cannabis using a cone in a pipe. Each cone contained about 0.25 g of cannabis. He continued to use cannabis at the same rate up to the time of the search. He had twice been convicted of simple possession of cannabis and was fined. He had tried to grow cannabis outdoors about 21 years ago and was convicted and fined for that. He denied ever selling or supplying cannabis to anyone.[32]
[32] ts 190 ‑ 192.
The appellant accepted that all of the cannabis plants and material found at his house by the police on 26 June 2014 belonged to him. He was solely responsible for the cultivation of that cannabis. He said that in or around January 2014 he had decided to grow some cannabis hydroponically. He acquired used equipment from an acquaintance. The initial outlay was around $1,000. The first plants were planted in late February or early March.[33]
[33] ts 192 ‑ 193.
The appellant said by 2014 his cannabis habit was costing between $200 and $300 per week. That amount would buy about an ounce of cannabis at that time. It was sometimes difficult to source cannabis when he wanted it. For this reason he had decided to grow his own. He did not make a conscious decision as to how much he wanted to produce. He believed that an attrition rate of about 50% of plants was expected. He knew that if the cannabis was dried correctly and stored it would keep for at least three months. He expected to produce 300 g ‑ 400 g of usable cannabis. This would be enough to support his habit for 3 ‑ 4 months, perhaps a little longer.[34]
[34] ts 193 ‑ 195.
The appellant said that he used lights to grow the cannabis. Initially the lights were on for 18 hours a day and then this was reduced to 12 hours a day to encourage flowering. The lights he used were four 400 watt high pressure sodium lights. He knew that this would result in increased power usage. To compensate for that he stopped using a number of appliances, including a pool pump and chlorinator, a portable air‑conditioner and a radiator heater. He also purchased a new air‑conditioner in December 2013 to replace an older less efficient one. He accepted that the Western Power electricity consumption figures were correct, but denied that he had been growing cannabis for a much longer period.[35]
[35] ts 195 ‑ 200.
The appellant accepted that the digital scales found in his kitchen belonged to him. He had owned them for about 15 years. He said that when he was purchasing cannabis he used the scales to check that he had received the quantity he had paid for. He said that the clip seal bags found in the kitchen were for domestic use, such as when he took lunch to work, to freeze food or to store fishing bait. Smaller bags were used for spices and fishing tackle.[36]
[36] ts 200 ‑ 201.
The evidence of S/C Webster regarding the appellant's mobile telephone was put to the appellant. The appellant disputed that he did not have an iPhone. He said that he did have an iPhone and that the police checked it. Further, that this was the only working telephone he had. There were some older telephones in a drawer but they were obsolete and did not have SIM cards.[37]
[37] ts 201.
The appellant gave evidence that the head material found on the newspaper in the spare room (229 g) had been harvested the day before the search. He said that the head material found in the lounge room (67 g) had been harvested half an hour before the police arrived. He said that the other mixed material in the lounge room (235.8 g) was material he had intended to 'manicure' next. He said the cannabis that was hanging up for drying in the grow room (831 g) had been cut about an hour before the police arrived. All of the other material was leaf or stem that would be thrown out.[38]
[38] ts 202 ‑ 203.
The appellant said his only asset apart from the house was a car worth about $5,000. He had no significant amounts of cash or money in the bank.[39]
[39] ts 204.
In cross‑examination the appellant accepted that the larger clip seal bags were the size of bag that an ounce of cannabis would be put in for sale. The smaller bags were of the size that could be used to package smaller amounts of cannabis for sale.[40] He had purchased the first eight mature plants in February 2014 and the juvenile plants as female clones two days before the search.[41] As at the time of search he had not used any of the cannabis he had grown.[42] He accepted that his friends knew he was growing cannabis but he denied an intention to supply any of it to them.[43]
Dean Muzzarelli
[40] ts 207 ‑ 208.
[41] ts 211 ‑ 213.
[42] ts 216.
[43] ts 218.
Dean Muzzarelli is an electrician who is employed by a company called Power On Electrix. In November or December 2015 he attended at the appellant's house to compile a list of appliances and to check the meter and circuitry for anything untoward. He found no evidence of tampering and the circuitry was working correctly. He went into the roof space and noticed that there was no insulation, which would result in an increase of the heating costs in winter and the cooling costs in summer.[44]
[44] ts 222.
Mr Muzzarelli produced photographs of the appliances he saw at the house. A portable air‑conditioner located in the master bedroom was connected, but he did not test it to see if it was in working condition. A reticulation system was in poor condition and did not appear to be working. A floodlight in the outdoor area would draw 120 watts of power. There was a pool but it was empty and the pump and filter were dismantled and in poor condition. He could not say how much power the pool equipment would have drawn when operational. A portable oil heater in the house was of a type that draws very high amounts of power. There was an older style vacuum cleaner in the lounge room, an oven, a dishwasher and a refrigerator in the kitchen that both looked very new, an older style microwave oven, and an iron and washing machine in the laundry. There was also a range hood in the kitchen and a disconnected clothes dryer in the rear shed.[45]
[45] ts 223 ‑ 226.
Mr Muzzarelli made a list of the appliances, including model numbers and power ratings. He provided that list to his employer, Glenn Eccles, so that a report could be prepared. He could not obtain details of the pool pump and filter because the label had faded.[46]
Glenn Eccles
[46] ts 226 ‑ 228.
Glenn Eccles is an electrical contractor and the proprietor of Power On Electrix. He said that towards the end of 2015 he was requested to carry out an electrical inspection and a load assessment of existing electrical installations at the appellant's residence. He sent Dean Muzzarelli to undertake the inspection and then prepared a report based on that inspection.
Mr Eccles prepared a chart which included the electrical appliances at the premises and their estimated power consumption. The items were an iron, washing machine, lamps, ceiling fans, dishwasher, refrigerator, oven, microwave, kettle, toaster, bar heater, range hood, vacuum cleaner, air‑conditioners, television, portable air‑conditioner, dryer and a pool pump. He then calculated daily and weekly power use based on experience in his own house. He accepted that this calculation was based on assumptions, but said that it was similar to calculations done in respect of new houses to determine how much power use needs should be allowed for. His estimate was that a household with this range of appliances would use 'something like' 73.87 kilowatts per week or 10.55 kilowatts per day. That figure could vary with seasonal use of air‑conditioners and heaters.[47]
[47] ts 232 ‑ 235.
Mr Eccles made a calculation of average daily power use for the appellant's residence in the period 22 October 2014 to 15 September 2015 of 30.32 units or kilowatt hours, which he suggested was consistent with 'a typical daily average household' in Perth. However, he accepted that he did not have access to information from power companies as to what the average is. He said that his own personal average is 35 units per day.[48]
[48] ts 238 ‑ 239.
In cross‑examination Mr Eccles agreed that power use could vary significantly depending on the behaviour of the occupants of a house. He had never spoken to the appellant and had no knowledge of what his pattern of behaviour in regard to electricity use was. He said that his own household consisted of himself, his wife and three children.[49]
Jason White
[49] ts 240.
Professor Jason White was the professor of pharmacology and head of the School of Pharmacy and Medical Sciences at the University of South Australia. He interviewed the appellant in September 2015 regarding his history of cannabis use. Based on what the appellant told him, Professor White said that the appellant was a significant cannabis user, but 'far from being the very highest end of use'. His reported use was 'well within the range that you would see from people who use on a daily basis'.[50]
[50] ts 246.
Professor White generally agreed with the estimates of D/S Coen regarding the weights of cannabis in typical cannabis cigarettes or in cones. He also accepted that the flowering head contained the highest concentration of THC and was mostly what users would consume. A user with access to the plant would typically only use the head material.[51]
[51] ts 247.
Professor White said that he agreed that cannabis would usually lose 75% of its weight in the drying process. If the 1.5 kg of plant material was seized 'prior to it being dried' then based on the appellant's reported use that quantity would last about 23 weeks. Dried cannabis could be kept in dried form for a period of years because the rate of loss of the active ingredient is very slow.[52]
[52] ts 247 ‑ 248.
Professor White accepted in cross‑examination that his calculation was that the quantity of usable dried material that could be produced was 375 g. This assumed that no significant amount of drying had already occurred.[53]
[53] ts 248.
Grounds of appeal
The appellant was self‑represented on the appeal. The grounds as contained in the appellant's case are not in conventional form. In essence the grounds are as follows:
1.That there has been a miscarriage of justice because fresh or new evidence establishes that all of the cannabis seized was wet. That evidence consists of statements made by police officers in the audio of the search warrant video, which were edited out at trial.
2.That there was a failure on the part of the DPP to disclose the audio of the search warrant video and this resulted in a miscarriage of justice.
3.That the prosecutor misled the jury as to the state and value of the cannabis occasioning a miscarriage of justice.
4.That there was a miscarriage of justice as a result of the failure of defence counsel to identify and adduce the search warrant audio evidence and in failing to challenge prosecution claims that the cannabis was dry.
5.That the trial judge misled the jury by telling them that some of the cannabis was 'quite dry' and this occasioned a miscarriage of justice.
The grounds also include a number of claims regarding the power usage. The appellant asserts that he was not made aware that a pool pump had not been tested and that had such testing been undertaken it could have explained the high power used in the period from 2005 ‑ 2014. He states that there was a failure on the part of his counsel to ensure that the electrician called as a defence witness had carried out his task thoroughly, in particular by not drawing attention to the fact that the pool pump was not tested. The appellant claims that the trial judge stated to the jury that the pool pump was not functioning, whereas it had not been tested by the electrician.
The appellant also submits that there is evidence that he owned an iPhone, contrary to what was stated by S/C Webster in his evidence. This is said to be relevant to an assessment of the credibility of S/C Webster.
Ground 1 – applications to adduce additional evidence and to issue witness summonses
The appellant filed an application to adduce additional evidence on the appeal. The relevant material is annexed to an affidavit of the appellant. It consists of the following material:
1.a copy of the transcript of the police interview with the appellant of 26 June 2014 marked with suggested edits;
2.an email dated 10 February 2015 to the appellant from his solicitor;
3.an email dated 3 September 2015 from the appellant's solicitor to his senior counsel;
4.a three page document headed The State of WA v Travis Nathan Leahy Case Concept;
5.an email dated 11 May 2015 from the appellant's solicitor to his senior counsel and a response of the same date;
6.a receipt from Harvey Norman dated 27 February 2014 in the name of the appellant for an iPhone 5S;
7.a letter dated 29 May 2019 from RAC Insurance to the appellant showing that claims on a home insurance policy for damage to a pool pump were made in 2004 and 2007;
8.an email dated 28 July 2015 from an officer of the DPP to the appellant's solicitor;
9.a 14 page report of unknown date listing a number of electrical appliances and their power ratings;
10.a 12 page proof of evidence of the appellant updated on 26 January 2016;
11.14 pages extracted from a book entitled Marijuana Growers Handbook by Ed Rosenthal; and
12.a list of three internet sites which appear to relate to cannabis seeds.
Shortly prior to the hearing of the appeal the appellant filed a further application to adduce additional evidence. That evidence was described in an annexure to an accompanying affidavit as being a YouTube video clip which demonstrates the difference between wet and dry cannabis 'being harvested and manicured'.
Also shortly prior to the hearing of the appeal, the appellant filed an application for witness summonses to require the attendance and giving of evidence by a number of people, including the prosecutor and defence counsel at the trial and two police officers who gave evidence at the trial. The stated purpose was to establish that the police, prosecutors and defence lawyers were aware of the contents of the audio of the search video.
Ground 1 – applicable legal principles
In Clarke v The State of Western Australia,[54] Buss P stated the legal principles applicable to the introduction of additional evidence on an appeal. That summary has since been repeated in Huggins v The State of Western Australia[55] and Rankins v The State of Western Australia.[56] The summary is as follows:[57]
[54] Clarke v The State of Western Australia [2018] WASCA 14.
[55] Huggins v The State of Western Australia [2018] WASCA 61 [384] ‑ [397].
[56] Rankins v The State of Western Australia [2018] WASCA 138 [55] ‑ [69].
[57] Clarke [231] ‑ [246].
Part 3 of the Criminal Appeals Act 2004 (WA) is headed 'Appeals from superior courts' and comprises s 22 to s 35A.
Part 3 creates rights of appeal in relation to criminal proceedings heard and determined in the General Division of the Supreme Court or in the District Court. Rights of appeal against conviction, sentence and any order made as a result of a conviction are available to a person (the offender) who has been convicted of an offence. It is unnecessary to refer to other rights of appeal created by pt 3.
Part 4 of the Criminal Appeals Act is headed 'Provisions applicable to any appeal' and comprises s 36 to s 45.
Section 39(1) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40.
Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following –
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence.
The discretionary power conferred on this court by s 40(1)(e) to admit 'any other evidence', for the purposes of dealing with an appeal, is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions in the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power. See, generally, CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [108] (McHugh, Gummow & Callinan JJ). The power in s 40(1)(e) must be exercised, in the context of an appeal against conviction pursuant to s 30, having regard to, amongst other things, the relevance of the evidence sought to be adduced in evaluating whether, within s 30(3), this court is of the opinion that 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 (s 30(3)(a)); or the conviction should be set aside because of a wrong decision on a question of law by the judge (s 30(3)(b)); or there was a miscarriage of justice (s 30(3)(c)).
At common law, there is a well established distinction between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. See Beamish v The Queen [2005] WASCA 62 [9] (Steytler, Wheeler & McLure JJ).
The courts have traditionally treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence.
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA; McLure P relevantly agreeing).
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 ‑ 302 (Toohey & Gaudron JJ). The fresh evidence must be relevant. It must also be credible in the sense that a reasonable jury could accept it as true (but it is not necessary that the appellate court should think it likely that a reasonable jury would believe it) or be sufficiently cogent and plausible to lead a reasonable jury to have a reasonable doubt as to the appellant's guilt (although the reasonable jury might not necessarily prefer it to other evidence with which it is inconsistent). See Lawless (676 ‑ 677) (Mason J); Gallagher (397) (Gibbs CJ), (401 ‑ 403) (Mason & Deane JJ), (410) (Brennan J); Mickelberg (302) (Toohey & Gaudron JJ).
Ordinarily, there will be no miscarriage of justice at a criminal trial unless:
(a)in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; and
(b)in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.
Although it is highly unlikely that Parliament intended that s 40(1)(e) should be construed as obliterating the distinction developed in the common law courts between the admission of fresh evidence and the admission of new evidence on appeal, the power in s 40(1)(e) is broader than the principles applicable in common law proceedings. See, generally, CDJ [108], [111].
As I have indicated, an appellant's prospects of establishing that a miscarriage of justice, within s 30(3)(c), has occurred will be relevant in determining whether the court should exercise its power to admit additional evidence (whether new or fresh) in the appeal pursuant to s 40(1)(e).
In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P (Wheeler & Pullin JJA agreeing) said, in relation to s 40(1)(a), (b), (d) and (e):
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco [[2006] WASCA 31; (2006) 31 WAR 291] at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].
As Steytler P explained in Rinaldi, although the common law principles concerning new and fresh evidence are not necessarily determinative of the manner in which the discretion conferred by s 40(1)(e) will be exercised, those principles will, ordinarily, be weighty, and it will be a rare case in which an exercise of the statutory discretion produces an outcome different from that produced by the application of the common law principles. Steytler P's observations in Rinaldi have been referred to with approval in numerous decisions of this court. See, for example, DPJB [64]; Cramphorn v Bailey [2014] WASCA 60 [61] (Mazza JA; McLure P & Buss JA agreeing).
In my opinion, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence are relevant to the exercise of the discretion under s 40(1)(e) and the determination of whether there was a miscarriage of justice at the trial within s 30(3)(c), but the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles. As McHugh, Gummow and Callinan JJ noted in CDJ, in the context of civil proceedings, the common law courts have always reserved to themselves 'an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it' [105]. The power under s 40(1)(e) is to be exercised, and whether there was a miscarriage of justice within s 30(3)(c) is to be determined, having regard to, amongst other relevant considerations, the overarching principle of the proper functioning and the protection of the integrity of the criminal justice system in the particular case. The interests of justice in that context include not only the interests of an accused who has been convicted, but also the public interest as represented by the State.
Ground 1 – appellant's submissions
The majority of the additional evidence sought to be adduced by the appellant relates to the issue of whether (and to what extent) the cannabis was wet. The principal complaint of the appellant is that the audio of the search video was edited out and not played to the jury. He seeks to adduce the transcript of that search video on the appeal to show that it contained relevant evidence. He relies on several questions put to him by S/C Webster during the search. He contends that what was said by S/C Webster supports his claim that the cannabis was wet.
The appellant refers, in particular to three sections of the transcript; on page 15 whilst in the study or spare room S/C Webster states:
Yeah. Your computer. Yeah. Um, just some items of interest here and just these, um, these cannabis heads here which are still, and is still quite damp. Um, what can you tell me about these Travis?
LEAHY: No comment.
A short time later on page 17 of the transcript whilst still in the study S/C Webster states:
Alright. Well we will be se-, we will be seizing that item. And what we'll do now we will secure these items here which is the cannabis head. Um, we'll be placing a bit of, um, tissue paper in there because it's still quite a bit damp.
Immediately after this passage S/C Webster notes that the head material is drying on newspaper. He notes that the newspaper is dated 18 June 2014 and asks whether the cannabis has been drying out since then. The appellant makes a 'no comment' response.
A short time later on page 18 whilst in in the main grow room S/C Webster states:
Okay the time now is 7.50 and we're still 16 Hollis Street, Samson. Um we've just come into this room here, we just want to do a quick pan of this area here. Um, you can see that there's a, ah, there's cannabis being held up there by a bit of string. It's drying. I just touched it before, it's quite damp still, and if you look over to the right here there's um numerous plants in black buckets. Um, there's a setup with all the nutrients and the lights, fans, this is like a little grow room. There's also black plastic over the windows, um possibly to hide the fact that this is in here. Um, this is quite an elaborate setup in here, Travis, in relation to growing cannabis. What can you tell me about this?
LEAHY: No comment.
WEBSTER: Um, there's obviously quite a lot of plants in here. They've obviously been quite well looked after. You're the only person that you told us that actually resides here. What can you tell me about these plants?
LEAHY: No comment.
WEBSTER: Alright these plants that are just being, obviously harvested, up in here. Is there anything that you can tell me about those?
LEAHY: No comment.
The appellant submits that these statements support a conclusion that the cannabis was wet and that this affects the calculations as to the likely yield of usable cannabis and the value of that yield.
Ground 1 – merits
The transcript (and audio) of the police search is not fresh evidence. This is material that was in existence as at the date of the trial and was available to the appellant. The appellant was represented at the trial by a very experienced senior counsel. It is apparent from the transcript of the trial that the defence was aware of the existence of the audio and that a considered decision had been made to agree that the audio of the search recording should be edited out because it was inadmissible given that the appellant had exercised his right to silence.[58]
[58] This is also confirmed by the exchange of emails between the appellant's solicitor and his senior counsel of 11 May 2015, which is item 5 of the additional evidence.
Furthermore, these statements are no more than observations in general terms by a police officer about the appearance of parts of the cannabis that was seized. They do not support a conclusion (as the appellant suggests) that all of the cannabis had been freshly harvested. In any event, these statements are inadmissible hearsay unless relied on to establish some material inconsistency in S/C Webster's evidence at trial.
The statements made by S/C Webster during the search as to the state of parts of the cannabis were not inconsistent with the evidence that he gave at the trial. It was apparent from the video that some of the cannabis was not completely dry. S/C Webster gave evidence that when police seize cannabis that is not dry they place paper towelling into the bags to absorb some of the moisture and prevent decomposition of the seized material. Whilst he could not recall the state of dryness of the cannabis heads suspended on the string in the grow room, he noted that they were placed into the security movement envelope with a paper towel to absorb moisture. He said that this was only done when the officers could see visible moisture. He agreed that there was moisture left in the heads of the drying cannabis seized in the grow room.[59]
[59] ts 124 (27/01/2016).
The respondent refers to the fact that there was only a small reduction in weight of the cannabis due to drying between the time of seizure and the time of analysis. It is submitted that this supports an inference that significant drying had already occurred. However, that submission has to be weighed against the fact that the cannabis was placed in sealed plastic bags at the time of seizure which may have inhibited further drying. The respondent also points out that the newspaper on which the harvested cannabis heads were drying in the appellant's study predated the search by eight days.
Contrary to the appellant's suggestion, the prosecution case was not based on a false assumption that the 1.5826 kg of cannabis material was completely dry. The evidence was that the cannabis was in various stages of the drying process. The issue of the state of the cannabis was one that was raised at the trial and was a matter that the jury could take into account. The comments of S/C Webster during the search provide no admissible evidence in regard to this issue and add nothing to the evidence that he gave.
As to the other additional evidence listed in the appellant's two applications, items 2, 3, 4, 5, 8 and 10 are communications from or to the appellant's legal advisors or documents prepared by them. The appellant relies on them to support ground 4, which alleges a failure on the part of the solicitors and counsel to adduce the audio of the search video or to challenge claims that the cannabis was dry. These items do no more than confirm that the decision to exclude the audio was a considered one and that it was always part of the appellant's case that he had harvested the cannabis recently. The relevance of these items and the merit of ground 4 depend upon the success of ground 1.
Item 6, a receipt for the purchase of an iPhone, is said to be evidence that contradicts the evidence of S/C Webster that the appellant did not have an iPhone at the time of the search. The appellant claims that this could have impacted on the credibility of S/C Webster. The date of the receipt is 27 February 2014 and there is nothing to suggest that it was unavailable to the appellant at the trial or could not with due diligence have been obtained. The appellant's purchase of an iPhone in February 2014 does not prove that he had one at the time the search occurred. In any event the possession or otherwise of an iPhone had no relevance. It was not the prosecution case that any mobile telephone had been used to engage in selling or supplying cannabis. There is no reasonable possibility that this receipt could have had any impact on an assessment of the credibility of S/C Webster.
Item 7, a letter confirming insurance claims for the pool pump in 2004 and 2007, is said to support a conclusion that the pump was operating at those times and that this could impact on the power usage evidence. The appellant also claims that the trial judge wrongly stated in his directions to the jury that the pool pump was not functioning. The insurance claims were made by the appellant on 5 January 2004 and 1 June 2007, and there is nothing to suggest that this information was unavailable to the appellant at the trial or could not with due diligence have been obtained. In any event, the letter does not establish that the pump was working at those times. The statement by the trial judge was that the evidence of Mr Muzzarelli was that when he inspected the residence the pool equipment was non‑functional.[60] That statement was a correct summary of that part of the evidence.
[60] ts 264.
Item 9 is an extract from the report prepared by Mr Eccles together with a number of photographs of some of the electrical appliances. This is said to be relevant on the basis that the prosecutor stated in closing that some of the appliances were new. The report accords with the evidence given by Mr Eccles. Photographs of the appliances were tendered by the defence at the trial as Exhibit 8. Clearly this material is not fresh evidence, it was available to, and relied on by the appellant at trial. The statement by the prosecutor that some of the appliances appeared to be new was consistent with the evidence of Mr Muzzarelli.
Items 11 and 12 and the YouTube video are relied upon by the appellant as providing information regarding the yield of cannabis plants. These items are claimed to be relevant on the basis that they are contrary to the prosecution case. This material consists of mere statements of opinion by persons who are either unidentified or who have no established qualifications as an expert. It is not admissible evidence nor could it meet the requirements of fresh evidence.
None of the additional evidence that the appellant seeks to rely on has been established as being fresh in the sense that it was either not in existence or not able to be obtained by the exercise of due diligence at the time of the trial. It is far from clear that any of the evidence is even relevant; at best it is an attempt by the appellant to reargue the case that was run at trial. The application to summons witnesses suffers from the same flaw.
As noted earlier, the appellant was represented at the trial by a very experienced senior counsel and there is nothing to support a suggestion that the additional evidence should have been obtained or adduced by the appellant's solicitors or senior counsel. As this evidence is properly characterised as new evidence it would have to establish that the appellant is innocent or raise such a doubt that the court is satisfied that the appellant should not have been convicted. None of the evidence (considered separately or in combination) meets that test.
Adapted to the particular issue in this case, none of the evidence sought to be relied on by the appellant (considered separately or in combination) is capable of establishing, on the balance of probabilities, that the appellant did not have an intent to sell or supply any of the cannabis. Even assuming that the evidence is admissible (and much, if not all, of it is not), it does not prove, when seen in the light of all of the other evidence available at trial, that it was more likely that the appellant did not have an intent to sell or supply any of the cannabis material.
The applications to adduce additional evidence and to issue witness summonses should be refused. No miscarriage of justice has been established and ground 1 is without merit.
Ground 2 – merits
This ground relies upon an alleged breach of the prosecution's disclosure obligations. The appellant asserts that the prosecution failed to disclose the audio of the search video. This ground is misconceived. It is apparent from the trial transcript that the appellant's interview with the police, including the transcript of the audio, had been disclosed to his defence team. The appellant's written submissions do not contain any substantive submissions advancing this ground.
Ground 3 – applicable legal principles
By this ground the appellant alleges that the trial prosecutor misled the jury as to the state and value of the cannabis. The primary complaint is that the trial prosecutor misled the jury by referring to dried cannabis in his opening and closing addresses. The appellant argues that this is wrong because it is inconsistent with the search warrant audio. He also alleges that the estimated yield figures provided by D/S Coen and converted into monetary value by the prosecutor were irrelevant, inflammatory and prejudicial.
The fundamental duty of a prosecutor is to act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed, and of helping to ensure that the accused's trial is a fair one. In the course of the closing address the prosecutor should not tell a jury something that is not in evidence, offer a personal opinion, introduce false lines of reasoning or invite the jury to speculate about evidence. Nor should a prosecutor make intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury or make comments which belittle or ridicule any part of the accused's case.
A prosecutor is, however, entitled to firmly and vigorously advance the prosecution case and to attack the defence case in terms which a jury would readily understand. Whilst slang expressions and pejorative terms are generally best avoided, a prosecutor may emphatically advance the proposition that an accused's account should be rejected because of its implausibility.[61]
[61] See JJS v The State of Western Australia [2014] WASCA 136 [132] ‑ [136], [157].
Ground 3 – merits
The prosecutor stated in his opening address that the State's case was that the appellant was growing cannabis and had in his possession 'dried amounts of cannabis'.[62] He said that the possession count related to cannabis that was found in the house that 'was dry, being separated out into different parts'.[63] He referred to the accused possessing 'dried, cut up cannabis' and said that the issue for the jury was 'whether he [the appellant] possessed the dry cannabis and was growing the plants with an intent to sell or supply'.[64] Later he referred to the appellant possessing 'the cannabis that was found in cut, dried form'.[65] There were also references to the cannabis that was 'drying'.[66]
[62] ts 96.
[63] ts 96.
[64] ts 96.
[65] ts 98.
[66] ts 99, 101.
In his closing address the prosecutor said that the loose cannabis 'was in the process of drying'. He then suggested to the jury that they could see from the search video that the way the loose cannabis moves and breaks apart when handled was 'not like a wet plant'. He said that there appeared to be two stages: the cannabis that was 'hanging up drying' and the material that was being separated, which he suggested did not look 'really wet'. He said that Professor White's calculations were based on an assumption that the loose cannabis had just been cut and that no significant drying had occurred and suggested that the real position was 'somewhere in between' the figure given by Professor White and the figure for useable material (being 70% of the total).[67]
[67] Closing ts 7.
When these statements are seen together and in context it is apparent that the jury were not misled as to the state of the loose cannabis. The issue of whether that cannabis was wet or dry was not a simple black and white question. The issue was to what extent the loose cannabis had dried. That was an issue that was left to the jury as a relevant factor for them to consider based on the evidence that they had heard. The final position of the prosecutor was not that the loose cannabis was completely dry but that it 'was somewhere in between'.
In his opening address the prosecutor said that the eight mature plants could have produced cannabis with a value of between $9,800 and $39,000. He said that the 14 juvenile plants could produce cannabis with a value of between $17,000 and $90,000. As to the remaining cannabis material, the prosecutor said that a significant portion of it was head material and it would be worth 'in the thousands'.[68]
[68] ts 101.
D/S Coen's unchallenged evidence was that an ounce of cannabis would typically cost $350 and that the typical yield of cannabis head material from a hydroponically grown plant was between 100 g and 400 g. The following table sets out the basic calculations as to the potential value of the harvested mature plants, based on typical yield range and the sale of the harvested cannabis in ounce amounts.
Yield Ounces Sale value of yield per plant Sale value of eight plants Sale value 14 plants 100 g 3.57
(per 100 g)
$1,250 $10,000
(8 x $1,250)
$17,500
(14 x $1,250)
400 g 14.28
(per 400 g)
$5,000 $40,000
(8 x $5,000)
$70,000
(14 x $5,000)
These calculations are based on the usual price of $350 for an ounce of cannabis. However, D/S Coen said that prices for an ounce of cannabis could vary between $250 and $400. If those figures are allowed for the value of the yield for the eight plants, the value could be as little as $7,100 and as much as $45,700. The value of the yield for the 14 plants could be as little as $12,500 and as much as $80,000.
The calculations of the range in value for the eight hydroponically grown plants of between $10,000 and $40,000 is consistent with the prosecutor's opening address. The calculations of the range in value for the 14 juvenile plants of between $17,500 and $70,000 (or $80,000 at the outside) is inconsistent with the prosecutor's opening address to the extent that he gave the upper figure as being $90,000. However, those figures were not repeated in closing address and the jury were invited to do the calculations for themselves based on D/S Coen's evidence of the sale value of an ounce of cannabis.[69]
[69] Closing ts 8.
There is no foundation for the appellant's claims that the prosecutor's statements regarding value were irrelevant, inflammatory and prejudicial; the statements were based on the anticipated evidence, which was largely uncontroversial. The possible value of the cannabis if sold was a relevant consideration in deciding whether the appellant had an intent to sell or supply some or all of it. To the extent that the upper value of the juvenile plants referred to in opening might be disputed, nothing said by the prosecutor could have been prejudicial bearing in mind that it was made clear by both the prosecutor and the trial judge that anything said in the opening or closing address was merely submission and subject to the evidence that the jury had heard.[70] There is no reasonable possibility that the jury would have been misled by the mathematical error regarding the upper value of the yield from the juvenile plants.
[70] ts 91, 97, 249.
The appellant has not established that any part of the prosecutor's opening or closing address was misleading, prejudicial, inflammatory or irrelevant such as to lead to a miscarriage of justice. This ground cannot succeed.
Ground 4 – applicable legal principles
By this ground the appellant alleges incompetence on the part of his counsel. As earlier noted, the appellant was represented by very experienced senior counsel at the trial. His complaint appears to be that counsel did not pursue some of the matters that the appellant now raises, in particular by adducing in evidence the audio of the search video.
The general principles relating to a ground of appeal that alleges a miscarriage of justice by reason of the conduct of defence counsel are well‑established and were recently summarised by this Court in Huggins.[71] An appellant who seeks to demonstrate that the conduct of counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. In general an accused person is bound by counsel's conduct. Counsel has a broad discretion as to how an accused person's defence is to be conducted: Jeffery v The State of Western Australia.[72]
[71] Huggins [375] ‑ [383].
[72] Jeffery v The State of Western Australia [2018] WASCA 219 [174].
It is not a basis for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgement or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of the trial by trial counsel.[73] Ultimately the question of whether a miscarriage of justice has occurred depends on whether counsel's conduct resulted in a material irregularity in the trial and, if so, whether there is a significant possibility that the irregularity affected the outcome.[74]
[73] See Huggins [376].
[74] See TKWJ v The Queen [2002] HCA 46 [76]; (2002) 212 CLR 124 .
Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as they think best. The test of whether there was a material irregularity is objective. An appellate court does not enquire into whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage but only whether it was capable of explanation on that basis. It is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views. However, if the error of counsel plainly affected the result of a trial, there will be a miscarriage of justice even though the error involved a forensic choice or judgement.[75]
[75] TKWJ [79] ‑ [84].
Where an alleged material irregularity involves the failure to adduce evidence there are parallels with the test for the admission of new or fresh evidence. An appellate court will not allow the appeal against conviction on the basis of new evidence unless the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted.
Ground 4 – merits
The appellant complains that his counsel did not seek to adduce the audio of the search video or challenge the prosecution's statements about the cannabis being dry and the associated monetary values. He submits that because the amount of cannabis was a critical issue at the trial, defence counsel failed in his duty 'to resolve the issue of the wet cannabis prior to trial and/or during the proceedings'.
As earlier noted, any comments made by the police officers during the search were merely expressions of opinion and had no evidentiary value. In any event, what was said by S/C Webster regarding the state of the cannabis was consistent with what he said in his evidence. The jury also had the vision from the search recording available to them. The comments made by S/C Webster could not have assisted in determining the issue as to how much usable cannabis would ultimately have been produced.
The decision of defence counsel to agree that the audio of the search video would not be played took into account that there were no admissions from the appellant during the course of that search. Nor indeed was there anything said by the appellant of an exculpatory nature. The appellant consistently made 'no comment' responses to all questions put to him. The finding of the plants and loose cannabis was not in dispute. There was no admissible evidence in the audio of the search. Furthermore, defence counsel may have had a justifiable concern that the jury might impermissibly draw an adverse inference from the exercise by the appellant of his right to silence. In those circumstances it was an entirely reasonable forensic decision to agree to the editing and not to adduce any evidence of the audio of the search.
The appellant has not established that the conduct of his defence counsel resulted in any material irregularity in the conduct of the trial. This ground of appeal cannot succeed.
Ground 5 – merits
Ground 5 alleges that the trial judge's directions to the jury contained a factual error as to the state of the cannabis. In particular that his Honour stated to the jury that 'when the cannabis that was found in the growing room in a drying process was packaged it was quite dry'. He submits that this would have misled the jury as to the actual usable amounts of cannabis in totality. He refers to the fresh evidence of the search video as being inconsistent with this statement.
The context in which the impugned comment appears is in a review of the evidence. The statement is not, and does not purport to be, a direction to the jury as to what they should find proven. His Honour gave the jury the standard direction that whilst they must accept what he said about the law anything that he said about the facts 'you may accept or not, as you see fit'. He told the jury that he would make some observations on the facts but that nothing he said was intended to persuade them to any particular outcome.[76]
[76] ts 256.
The comment appears immediately after the trial judge had observed that the evidence of D/S Coen and Professor White was that 75% of the weight of a wet cannabis plant, that is a freshly harvested plant, would be lost in the drying process. His Honour's reference to cannabis found in the growing room 'in a drying process' was to the cannabis that was drying on a string in the main grow room. The statement is preceded by the words 'But you'll see'. It is apparent from this that his Honour was referring the jury to the search video and inviting them to make their own observations as to the state of the cannabis drying on the string. None of this misled the jury or distracted them from the question of how much usable cannabis there might be. The search warrant audio makes no material difference as it did not contain admissible evidence and was not inconsistent with evidence given at the trial.
The trial judge did not mislead the jury and no miscarriage of justice was occasioned. Ground 5 is without merit.
Conclusion
None of the appellant's grounds of appeal has any merit. There is no reasonable prospect that any of them could succeed or that a miscarriage of justice could be established. In these circumstances the extension of time should be refused, leave to appeal refused and the appeal dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
21 APRIL 2021
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