Lia v The State of Western Australia
[2020] WASCA 216
•26 FEBRUARY 2021
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
TITLE OF COURT : THE COURT OF APPEAL (WA)
| CITATION | : | LIA -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 216 |
| CORAM | : QUINLAN CJ |
BUSS P
MAZZA JA
| HEARD | : 15 MAY 2020 | ||
| DATE OF FINAL | |||
| SUBMISSIONS | : 28 JANUARY 2021 | ||
| DELIVERED | : 26 FEBRUARY 2021 | ||
| FILE NO/S |
| ||
| BETWEEN | : TITO LIA |
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : GOETZE DCJ | ||
| File Number |
|
[2020] WASCA 216
Catchwords:
Criminal law - Drug offences - Appeal against conviction - Appellant convicted after trial of one count of possession of cocaine with intent to sell or supply - Whether conviction was unreasonable or cannot be supported on the evidence - Whether the guilty verdict on this count was factually inconsistent with the appellant's acquittal on one count of attempted possession of cocaine with intent to sell or supply
Legislation:
Criminal Appeals Act 2004
(WA), s 30(3)(a) sch I, sch V
Criminal Code (WA), s 4
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T F Percy QC & E W L Greaves |
| Respondent | : | L M Fox & M M Yeung |
Solicitors:
| Appellant | : | Abbas & Co Lawyers |
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in decision(s):
Bailey v The State of Western Australia [2018] WASCA 169
DPJB v The State of Western Australia [2010] WASCA 12
Jackson v The State of Western Australia [2018] WASCA 84
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
[2020] WASCA 216
Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
La Bianca v The State of Western Australia [2019] WASCA 105
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Milenkovski v The State of Western Australia [2004] WASCA 85
R v Kirkman (1987) 44 SASR 591
R v Stone (Unreported, EWCA Crim, 13 December 1954)
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49
WAR 176
Sims v The State of Western Australia [2020] WASCA 100 Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 Stipanich v The State of Western Australia [2018] WASCA 22
Tingley v The State of Western Australia [2008] WASCA 193
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A
Crim R 22
Weggers v The State of Western Australia [2014] WASCA 57
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539
[2020] WASCA 216
JUDGMENT OF THE COURT
JUDGMENT OF THE COURT:
This is an appeal against conviction.
The appellant was charged on indictment in the District Court with four offences, all of which were alleged to have occurred on 13 February 2018 at Ballajura. Counts 1, 3 and 4 alleged that the appellant attempted to possess a prohibited drug, namely cocaine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Misuse of Drugs Act 1981 (WA) (MDA). Count 2 alleged that the appellant had in his possession a prohibited drug, namely cocaine, with intent to sell or supply it to another, contrary to s 6(1)(a) MDA.
On 25 July 2019, after a four-day trial before Goetze DCJ and a jury, the appellant was convicted of count 2 and acquitted of counts 1, 3 and 4. On 2 August 2019, the appellant was sentenced to 4 years 6 months' imprisonment with eligibility for parole, backdated to commence on 23 July 2019.
The appellant relies on a single ground of appeal which alleges, in effect, that the verdict of guilty on count 2 was unreasonable or cannot be supported on the evidence because it is factually inconsistent with his acquittal on count 1. The question of leave to appeal on this ground was referred to the hearing of the appeal.[1]
[1] Order of Buss P dated 11 November 2019; WAB 4.
The evidence
The evidence led by the State at trial was largely unchallenged and may be summarised as follows. On 13 February 2018, a total of four Australia Post Express Post envelopes were delivered to two addresses in Ballajura, being 6 Cahow Grove and 13 Cahow Grove.[2] Two envelopes were delivered to each address.
[2] ts 31.
Counts 1 and 2 concerned the envelopes delivered to 6 Cahow Grove, one of which was addressed to Hayley Sling (count 1), and the other to Tamara Kingston (count 2). No one by those names lived at 6 Cahow Grove. No person by the name of Hayley Sling was on the WA Police database.[3] No person by the name of Tamara Kingston was listed in the WA Police database as being connected to the address.[4]
[3] ts 191.
[4] ts 229.
[2020] WASCA 216
JUDGMENT OF THE COURT
The appellant had a connection to the address. Some of his relatives lived there, but, at the time, they were away. The appellant also kept his BMW at the address.[5] The envelope addressed to Hayley Sling originally contained 39.4 g of cocaine secreted in an anniversary card. On 12 February 2018, police officers from the Meth Transport Team, having been alerted to the envelope, seized the cocaine, substituted it with an inert substance and reconstructed the envelope.[6]
[5] Sentencing ts 2.[6] ts 33.
On 13 February 2018, police placed the envelope addressed to Hayley Sling in the letterbox at 6 Cahow Grove. Unknown to the police and unobserved by them, the envelope addressed to Tamara Kingston was delivered to the same letterbox earlier that day. This package contained 52.2 g of cocaine which was also secreted in an anniversary card.
At about 2.00 pm on 13 February 2018, police officers observed a black Holden Commodore vehicle being driven by Mr Karl Al Asadi pull into the driveway at 6 Cahow Grove. The appellant, who was in the front passenger seat, got out and went straight to the letterbox. He appeared to sort through the mail, discarding some items and then removed the envelopes addressed to Hayley Sling and Tamara Kingston. The appellant returned to the vehicle with the envelopes and Mr Al Asadi drove off.[7]
[7] ts 34.
Police officers followed the Commodore at a distance to 13 Cahow Grove. Earlier that day, and again unknown to the police, two more Express Post envelopes, identical in type to those delivered to 6 Cahow Grove, had been delivered to 13 Cahow Grove.[8] These envelopes were addressed to Kelly Anderso [sic] (count 3) and Stephanie McLeod (count 4), respectively. No one by those names lived at 13 Cahow Grove.[9] In fact, the house was occupied by a cousin of the appellant, Enzo Cruz, his wife, Noor Haify, and their children. Mr Cruz and Ms Haify had previously lived at 6 Cahow Grove.[10]
[8] ts 34.
[9] ts 36.
[10] ts 164, 172.
[2020] WASCA 216
JUDGMENT OF THE COURT
Each of the envelopes delivered to 13 Cahow Grove contained a quantity of cocaine. The cocaine in the envelope addressed to Kelly Anderso weighed 27.2 g and the cocaine in the envelope addressed to Stephanie McLeod weighed 15.2 g.[11]
[11] ts 34 - 35.Two police officers observed the appellant get out of the vehicle and knock on the front door of the house. The knocks went unanswered. He then walked towards the letterbox. He did not enter the house, nor did he take possession of the envelopes.[12]
[12] ts 35.
At this point, the police officers, who were each wearing a vest over their plain clothes with the word 'Police' prominently written on it, ran towards the Commodore yelling, 'Police, stop, don't move'. Mr Al Asadi was arrested. The appellant ran from the police officers, who pursued him and arrested him about 200 m from the vehicle. At trial, the appellant's flight was relied upon as evidence of consciousness of guilt.[13]
[13] ts 35.
While the appellant was being pursued and apprehended, other police officers entered 13 Cahow Grove where they observed, on a kitchen table, the two Express Post envelopes addressed to Kelly Anderso and Stephanie McLeod, as well as another envelope addressed to a person named Danielle Rice. On all three envelopes, Mr Cruz had written the words, 'Wrong addy [address]'.[14] Mr Cruz had opened one of the envelopes. At the trial, Mr Cruz testified that the envelope he opened had a wedding card in it. He was aware that there had been a wedding party at another house in the street. Mr Cruz said he thought the envelope and the other two envelopes had been mistakenly delivered to his address.[15]
[14] ts 36.
[15] ts 175 - 176.
After apprehending the appellant, police searched the Commodore. In the front passenger foot-well of the car, the officers found and seized the Express Post envelopes addressed to Hayley Sling and Tamara Kingston.[16] They also discovered three mobile telephones and a Blackberry telephone. Neither the appellant nor Mr Al Asadi admitted ownership of the Blackberry telephone.
[16] ts 39.
[2020] WASCA 216
JUDGMENT OF THE COURT
The contents of the Blackberry telephone were encrypted.[17] The appellant voluntarily provided a PIN for his Apple iPhone 6S Plus which revealed text and WhatsApp messages which were consistent with the appellant being a user of cocaine.[18]
[17] ts 297.[18] ts 43, 212 - 217.
The four Express Post envelopes that were seized were identical in size and type. The handwriting on them was similar. They were each addressed to women. The envelopes were all posted around the same time and all were delivered on the same day.[19] Each contained, or had contained, a quantity of cocaine in a cryovac package.
[19] ts 34.
The cocaine seized from each envelope was unusually yellow and lumpy. According to expert evidence adduced by the State at trial from Mr Rohan Edmunds, its chemical makeup suggested that it came from the same source.[20]
[20] ts 252 - 253.
The State adduced expert evidence from Detective Sergeant Scott Marron to the effect that cocaine was sold in 'lines' weighing approximately between 0.1 g to 0.25 g.[21] In respect of its value, he said that in February 2018, the street price of cocaine was approximately $400 to $450 per gram and approximately $6,500 to $8,000 per ounce (28 g).[22] Detective Sergeant Marron said that it could be purchased at a cheaper price on the dark net. He did not give evidence of how much cocaine a regular user may consume. He testified that Blackberry telephones, which are often encrypted, were commonly used by drug dealers.[23]
[21] ts 301.
[22] ts 301 - 302.
[23] ts 296.
Apart from the Blackberry telephone, which may have belonged to Mr Al Asadi, no evidence was adduced by the State that the appellant had, or was associated with, any of the common indicia of drug dealing. Police did not search the appellant's home in Perth.
The State adduced evidence to the effect that the appellant had been on Centrelink benefits for years.[24] However, in the weeks leading up to the alleged offences, sizeable cash deposits had been made into
[24] ts 13 - 14.
[2020] WASCA 216
JUDGMENT OF THE COURT
one bank account operated by the appellant. On 23 January 2018, the
appellant purchased the BMW vehicle for $23,000.[25][25] ts 14.
The appellant elected not to testify in his defence at trial. Through witnesses called by the State, evidence was led by defence counsel that the appellant had no prior criminal record and that he was a licensed crowd controller.[26] This evidence was adduced to show that the appellant was a person of good character. The appellant's brother, Mr Bassam Al Haify, who testified for the defence, said that when the appellant was a child, he (the appellant) was seriously assaulted by the authorities of Saddam Hussein's regime in Iraq.[27] This evidence was adduced to provide a possible innocent explanation for the appellant's flight from police, which, as we have said, the State alleged showed a consciousness of guilt.
[26] ts 47.
[27] ts 335 - 340.
Each of the appellant's four charges related to one Express Post package and its contents. Count 2, which concerned the envelope addressed to Tamara Kingston, was charged as a completed offence. Counts 1, 3 and 4 alleged that the appellant attempted to possess cocaine with intent to sell or supply it to another. Count 1 was charged as an attempt because, although the appellant took physical possession of the envelope, the cocaine in the envelope had been removed by police and substituted with an inert substance.[28] Counts 3 and 4, concerning the Kelly Anderso and Stephanie McLeod envelopes, were charged as attempts because, although each envelope contained actual cocaine, the appellant did not take physical possession of them.[29]
[28] ts 38.
[29] ts 39. 30 ts 45.
The State's case was that the cocaine sent to the two addresses was a single shipment of the drug divided into four packages, and that the appellant, either himself or with others, intended to take delivery of the packages, knowing the nature of the substance that was within them, with the intention of supplying it to another. The State's case as to the appellant's knowledge of the substance was entirely circumstantial.
[2020] WASCA 216
JUDGMENT OF THE COURT
The defence challenged very little of the evidence adduced by the State. It was not disputed that the appellant took physical possession of the envelopes the subject of counts 1 and 2, or that he attempted to take possession of the envelopes the subject of counts 3 and 4.30
Legal framework
Before addressing the trial judge's summing up and the ground itself, it is necessary to set out the legal framework applicable to the charges that the appellant faced.
Section 6(1)(a) MDA provides that a person commits a crime if that person, with intent to sell or supply it to another, has in his or her possession a prohibited drug. Cocaine is a prohibited drug, having regard to s 4(1)(c) read with sch I MDA.
Section 33(1) MDA provides that a person who attempts to commit an offence under the Act commits a crime and is liable on conviction to the same penalty to which a person who commits the principal offence is liable. Thus, any person who attempts to commit an offence contrary to s 6(1)(a) MDA commits an offence contrary to s 33(1) MDA.
The expression 'to possess' is defined in s 3(1) MDA as follows:
to possess includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings.
The compendious expression 'to sell or supply' is not defined in the MDA. However, the words 'to supply' have an extended definition in s 3(1) and include:
[T]o deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied.
Section 11(a) MDA reads:
11. Presumption of intent to sell or supply For the purposes of -
(a)
section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a
[2020] WASCA 216
JUDGMENT OF THE COURT
prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug[.]
Schedule V MDA provides that the presumption applies where the quantity of cocaine is not less than 2 g.
The presumption in s 11(a) MDA has no application to the attempt charges the subject of counts 1, 3 and 4.[31] In the present case, the presumption only applies to count 2.
[31] See Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 [15] - [18] and Kalbasi v The State of
Putting to one side for the moment the issue of the accused's knowledge, where a person is charged as a principal offender with an offence contrary to s 6(1)(a) MDA, the State must prove beyond reasonable doubt:
(a) that the accused had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing; (b) at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) MDA; (c) that the substance or thing was, in fact, a 'prohibited drug' within s 4 MDA; and (d) (unless the presumption in s 11(a) MDA applies), that the accused intended to sell or supply to another at least some of the substance or thing.
It is well established that the concept of possession in s 6(1)(a) MDA involves, as an element, knowledge of the substance or thing. In Sgarlata v The State of Western Australia,[32] the following propositions in respect of the element of knowledge were stated:
[32] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [180] - [192]
(1)
the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a
[2020] WASCA 216
JUDGMENT OF THE COURT
significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;
(2) the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was, in fact, 'a drug', within the ordinary and natural meaning of that term; (3) it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was the specific drug the subject of the charge; and (4) it is unnecessary for the accused to have at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the weight or quantity of the substance or thing was as alleged in the charge.
The expression 'attempts to commit an offence' used in s 33(1) is not defined in the MDA. However, the expression has been construed as having the same meaning as that set out in s 4 of the Criminal Code (WA) (the Code).[33] Section 4 of the Code states:
Term used: attempt to commit offence
When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.
It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
It is immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.
The same facts may constitute one offence and an attempt to commit another offence.
[33] Weggers v The State of Western Australia [2014] WASCA 57 [7] - [8] (Martin CJ), [144] (Buss JA).
[2020] WASCA 216
JUDGMENT OF THE COURT
As stated in Milenkovski v The State of Western Australia,[34] the words of s 4 of the Code are clear. An attempt to commit an offence is established if it is proven that the accused:
[34] Milenkovski v The State of Western Australia [2004] WASCA 85 [22] (Miller J). See also Weggers [145]
(a) had an intention to commit an offence; (b) began to put that intention into execution by doing an act that is more than merely preparatory to the commission of the offence; and (c) did not fulfil his or her intention to the extent of committing the offence.
Whether an act or acts are merely preparatory, or are more than merely preparatory, will turn on the individual facts and circumstances of a particular case. But, ordinarily, matters of importance in the application of this distinction include:
(a) the nature of the completed offence; (b)
the actions which are necessary for carrying out the completed offence;
(c)
the nature of the particular acts of the accused that are in question; and
(d)
the relative proximity (including in time and place) of the acts in question to those actions that would have been necessary for the successful carrying out of the completed offence.[35]
[35] Weggers [158] (Buss JA).
Defence counsel's closing address
Defence counsel delivered his closing address to the jury on the afternoon of 24 July 2019. Defence counsel told the jury that there were 'very few things' the State and defence disagreed on. He went on:[36]
What we're in disagreement about is knowledge, knowledge of cocaine, knowledge of a prohibited drug. That's what we're in disagreement about.
[36] Defence closing address ts 19. 37 Defence closing address ts 21.
[2020] WASCA 216
JUDGMENT OF THE COURT
Later in the closing address, defence counsel told the jury that the one element the jury needed to focus on was knowledge.37 A short time later defence counsel elaborated:[38]
The question is knowledge beyond reasonable doubt of the contents of the envelopes. That's the issue. I don't want to say anything to you at all about the intention to sell or supply. You heard what Detective Sergeant Marron told you this morning. I've got nothing to add to what [the prosecutor] told you. I have no difficulty with any of that.
[38] Defence closing address ts 22.
Defence counsel submitted that the appellant may have thought the envelopes contained cash.[39] He asserted that the appellant was in the wrong place with the wrong crowd and that the jury could not be 'certain that this was not Mr Al Asadi's mischief'.[40]
[39] Defence closing address ts 25.
[40] Defence closing address ts 22.
Defence counsel concluded his closing address with this
submission:[41]
I suggest to you, ladies and gentlemen, that you can't safely conclude beyond reasonable doubt that [the appellant] had knowledge or intended to get possession of a large amount of cocaine.
[41] Defence closing address ts 29.
Trial judge's discussion with defence counsel prior to the summing up
On the morning of 25 July 2019, in the absence of the jury and just before commencing his summing up, his Honour raised with defence counsel the direction that he would give to the jury on the element of intention to sell or supply. Specifically, his Honour asked defence counsel whether he would agree to a direction to the jury to the effect that:[42]
If they find beyond reasonable doubt the fact of possession which incorporates obviously knowledge, then in those circumstances it is conceded that the possession was with intent to sell or supply.
[42] ts 363.
Defence counsel sought and was given permission to take instructions from the appellant, and after doing so, he told the court 'Yes. That's fine, your Honour'.[43] In other words, defence counsel had no objection to the trial judge directing the jury that, in the event that they were satisfied beyond reasonable doubt that the appellant had
[2020] WASCA 216
JUDGMENT OF THE COURT
knowledge of the cocaine in the packages, the element of intent to sell
or supply was conceded.
[43] ts 364. 44 ts 366.
Summing up
The appellant does not allege that his Honour misdirected the jury in respect of any matter of fact or law. In particular, the appellant does not allege that his Honour erred in his directions as to the elements of the offences in the indictment. However, as will be seen, there were some unusual aspects to the summing up.
The summing up commenced with his Honour giving a number of standard directions 'common to all trials',44 including a comprehensive separate verdicts direction.[45] His Honour instructed the jury that:
[45] ts 371 - 372.
(a) each count in the indictment must be considered separately; (b) the jury's verdicts did not have to be the same on each charge. In particular, the verdicts on counts 1 and 2 did not have to be the same; (c) while a lot of the evidence that had been presented to the jury was common to all of the counts in the indictment, the evidence on each count was separate and 'you [the jury] need to reach your verdict on each count on the evidence relevant to each count'; and (d) if the jury found the appellant guilty on one count, it did not follow that he was guilty of any other count.
His Honour gave the jury an orthodox direction as to the drawing of inferences in a criminal trial. He told the jury, in substance, that such a direction was necessary because the State was asking the jury to infer that the appellant 'knew exactly what he was seeking to possess at number 6 and number 13 Cahow Grove, namely a prohibited drug, which was cocaine, and that he went to those two addresses to collect the four envelopes which contained such drugs'.[46]
[46] ts 376. 47 ts 380.
In his directions to the jury as to the elements of the offences in the indictment, he differentiated between counts 1, 3 and 4, on the one hand, and count 2, on the other. He explained to the jury that counts 1,
[2020] WASCA 216
JUDGMENT OF THE COURT
3 and 4 alleged an attempt to possess a prohibited drug with intent to
sell or supply, while count 2 alleged a completed offence of this kind.
As to counts 1, 3 and 4, his Honour told the jury that count 1 was factually different from counts 3 and 4. His Honour pointed out that, on count 1, the police had removed the cocaine that had originally been in the envelope and replaced it with an inert substance. He told the jury that count 1 was charged as an attempt because 'he never actually took possession of the cocaine'.47 With respect to counts 3 and 4, his Honour told the jury that they were charged as attempts because the appellant was arrested before he took possession of the envelopes which contained cocaine. As his Honour put it, the police 'frustrated his attempt to possess and that's why counts 3 and 4 are described in terms of an attempt'.[48]
[48] ts 381.
His Honour then directed the jury as to what the State was required to prove in order to establish an attempt to commit an offence. These directions were, in substance, consistent with the statements made in Milenkovski v The State of Western Australia referred to earlier in these reasons.[49]
[49] ts 381, 382.
His Honour instructed the jury with respect to the attempt charges
in these terms:
So the first thing the State has to prove is that [the appellant] intended to commit the offence of possessing a prohibited drug in counts 1, 3 and
4 and secondly that the accused … did an act which was more than
merely preparatory to the commission of the offence, such act being
done as the initial step in putting that intention into effect.His Honour stated the 'real issue'[50] for the jury to determine on
counts 1, 3 and 4 in this way:[51]
[W]as there an attempt to possess and that attempt to possess necessarily requires a knowledge that what he was attempting to possess was the prohibited drug. So the issue for you to determine is has the State proved that beyond reasonable doubt.
[50] ts 385.
[51] ts 385.His Honour's directions with respect to the elements of count 2 were generally in accordance with the elements set out earlier in these reasons at [33] - [34]. However, in his instructions to the jury as to the
[2020] WASCA 216
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element of possession, his Honour directed them that, in order for this element to be proved, the appellant had to have knowledge that the substance he possessed 'was a prohibited drug'[52] instead of 'a drug of some kind'. Nothing turns on this point.
[52] ts 387 - 388.
His Honour directed the jury that the element of 'possession' was common to all four counts on the indictment. He emphasised that the concept of 'possession' involved three requirements in respect of 'a prohibited drug', being knowledge, custody and control and an intention to possess.[53] His Honour then explained the four counts with these requirements in mind, as follows:[54]
Count 1, it's an attempt because on the State case Mr Lia knew of a prohibited drug, he took custody or control of it and he intended to take custody or control of it. But unknown to him the police had replaced the prohibited drug with the inert substance, that's why it's an attempt.
On count 2 it's an actual possession because the State says that he knew it was a prohibited drug, that he had custody of it and he intended to possess it. And the State case there is that he took the envelopes in counts 1 and 2 from the letterbox and put them in the car.
Then on counts 3 and 4 there's an intended possession because he's interrupted in the process. He's on his way to get it, that's why it's an attempt. And the attempt to possess was something which he knew to be a prohibited drug over which he attempted to take custody or control and he intended to possess it.
[53] ts 387.
[54] ts 387.
His Honour elaborated on the requirement of knowledge as
follows:[55]
The first thing is that the accused must have had knowledge that the substance he possessed was a prohibited drug of some kind. The State does not have to prove that the accused knew what exact type and quality of prohibited drug he had in his possession or attempted to possess.
The State does not have to prove that he knew that the prohibited drug was in fact cocaine. The State only has to prove that the accused knew that he had in count 2 or attempted to have in counts 1, 3 and 4 a prohibited drug of some kind in his possession.
So this requires the accused to not only have known of the existence and presence of the substance as a fact, but such knowledge also
[55] ts 388. 56 ts 390.
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requires either an awareness by him that the substance was in fact a prohibited drug or a belief by him in the likelihood in the sense that there was a significant or real chance that the substance in question was a prohibited drug. It is not sufficient for the State to prove that the accused suspected that the substance was a prohibited drug.
Whether or not the accused had the required knowledge that he possessed in count 2 or attempted to possess in counts 1, 3 and 4 a prohibited drug is a question of fact.
The State asks you to infer this knowledge from all of the circumstances surrounding the commission of the alleged offences. Whether or not the inference should be drawn is a matter for you as members of the jury, but the inference could only be drawn if it is the only reasonable inference available as I've already directed.
Later in the summing up,56 his Honour instructed the jury that knowledge of the cocaine without an intention to exercise control was 'not enough to constitute possession'.
His Honour told the jury that if, on the evidence, they were satisfied beyond reasonable doubt that:[57]
… the accused had knowledge or believed that the substance in each
case, that's counts 1 to 4, was a prohibited drug and that he had or attempted to have physical custody, or what I've referred to as control and dominion over the envelopes or attempted to have control or dominion over the envelopes in counts 3 and 4, then that would permit
you to conclude … that the accused had intention to control the drugs.
[57] ts 391.
His Honour's initial directions to the jury as to the element of intent to sell or supply reflected the concession made by defence counsel referred to at [43] of these reasons. His Honour directed the jury:[58]
Before you came in this morning, [defence counsel] authorised me to tell you that if you find beyond reasonable doubt the attempt to possess in any or all of counts 1, 3 and 4 or the fact of possession on count 2, then it is conceded that that possession was with intent to sell or supply.
[58] ts 380.
The effect of this concession was repeated several times by his Honour.[59] His Honour having done so, defence counsel, unusually and in the jury's presence, interrupted the summing up and said:60
[59] See ts 384 - 387, 392.
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Just before your Honour moves to that, your Honour's right that I conceded that if they find possession incorporating knowledge then the intent is conceded. The intent that is conceded is the intent to sell or
supply … as distinct from the intent to have … a prohibited drug.
A short time after this interruption, but in the absence of the jury,61 the prosecutor told his Honour that while he did not dispute the directions his Honour had given on the question of intention to sell or supply, as the element was not the subject of an admission pursuant to s 32 of the Evidence Act 1906 (WA), the element was still a matter for the jury to decide. The prosecutor submitted, and his Honour accepted, that his Honour had to direct the jury as to the element of intent to sell or supply, including, as it applied to count 2 only, the operation of the presumption in s 11(a) MDA. The prosecutor said that the directions could be 'abbreviated' because 'there doesn't appear to be a dispute [as to the issue of intent to sell or supply]'.62
When his Honour resumed the summing up, he gave directions to the jury as to the element of intent to sell or supply to another, including as to the application of the presumption in relation to count 2. While his Honour was doing so, defence counsel again interrupted his Honour. The following exchange then took place in the presence of the jury:63
GREAVES, MR: Your Honour, I'm very sorry, but can I just make - try and make it clearer from our perspective because I think it will help everyone?
GOETZE DCJ: Okay.
GREAVES, MR: As I see it, your Honour, there are two intent - we're only talking about count 2. That's the - - -
GOETZE DCJ: At this stage.
GREAVES, MR: Yes, yes - sorry, count 1.
GOETZE DCJ: Count 2.
GREAVES, MR: No, count 2. We are only talking about count 2, 55.2 grams - Tamara Kingston, TK - only talking about count 2, the TK Express Post envelope.
60 ts 386.
61 Defence counsel had suggested, in the presence of the jury, that the jury might benefit from a 5 or
10-minute break. A few minutes later, the trial judge took up defence counsel's offer and asked the jury to
retire for 10 minutes: ts 392.
62 ts 398.
63 ts 400 - 402.
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GOETZE DCJ: Yes.
GREAVES, MR: There are two intentions, two states of mind that are relevant, intention to possess and intention to sell or supply.
GOETZE DCJ: Yes, we're only talking about the intention to sell or supply.
GREAVES, MR: And I'm asking the ladies and gentlemen of the jury to focus their mind on intention to possess and I'm saying to the ladies and gentlemen of the jury on behalf of Mr Lia if you say he intended to possess cocaine, well, you're going to find that he intended to deal. He intended to sell or supply because "sell or supply" just means "deal".
If you find that he intended to have possession of a prohibited drug, then you'll - we're not making an issue of the second state of mind. There are two states of mind and we want you to focus on the first one. If we fail on the first one, you're going to be against us on the second one. We know that. Does that assist or create more difficulties for anyone?
GOETZE DCJ: Well, you'll know what I mean when I ask you about section 32 of the Evidence Act.
GREAVES, MR: I do, your Honour, of course.
GOETZE DCJ: Yes.
GREAVES, MR: I can't - - -
GOETZE DCJ: All right. I think I - - -
GREAVES, MR: I can't - - -
GOETZE DCJ: Okay. I understand, yes.
GREAVES, MR: I want to make as clear as possible that we just don't - - -
GOETZE DCJ: Have an issue.
GREAVES, MR: - - - have a problem.
GOETZE DCJ: Yes, all right.
GREAVES, MR: If you find that Mr Lia intended to have coke, you're going to find that he intended to sell it or supply it to himself because you're not going to say that he intended to possess it for his own personal use. It's far too much.
GOETZE DCJ: There's no evidence of that.
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GREAVES, MR: It's just far too much.
GOETZE DCJ: Yes.
Defence counsel's interruption and the discussion which followed in the presence of the jury was regrettable and is to be deprecated. The ordinary and proper practice is that counsel does not interrupt the judge's summing up. If either or both counsel form the view that a judge has erred in fact or in law, or that there should be a redirection, that should be raised either at a convenient adjournment or at the end of the summing up. If such a matter is raised, then, unless the issue is plainly uncontroversial and brief, it should be dealt with in the absence of the jury. This is because the jury has no role or interest in any such discussion and there are risks that something will be said which could cause unfairness to the conduct of the trial and, in particular, confuse the jury. An interruption of the trial judge's summing up, as occurred in this case, also has the capacity to undermine the authority of the trial judge, before the jury, as the sole judge of the law in the trial.
His Honour then resumed his direction to the jury as to the element of intent to sell or supply, as to which his Honour said:[64]
GOETZE DCJ: You're required, ladies and gentlemen, to be satisfied on the balance of probability that the possession of the 55 grams on count 2 was not with an intent to sell or supply in order to find him not guilty on that, in which case you would then find him guilty of simple possession.
I think I have to say that, Mr Greaves.
But the practicalities of it are these. Mr Greaves is right, there are two intents that are relevant. There's an intent to possess a prohibited drug. There's possession of the prohibited drug which has the three components that I've already referred you to. You have to know if the thing is a prohibited drug, you have to have custody or control of the thing and you need to have an intention to possess the thing. So they're the three requirements for possession.
So the first intent that Mr Greaves has referred to is an intent to possess the drug which is contained with the element of possession. And then the last line on count 2 refers to an intent to possess or supply which is a separate intent.
The law says that if you have more than 2 grams of cocaine, you are deemed to possess that cocaine with an intent to sell or supply unless
[64] ts 402 - 403.
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there is evidence which proves on the balance of probabilities
something to the contrary.And there's no such evidence and you should not have a problem. That's a matter of comment from me, but you need to make that finding and Mr Greaves has indicated that he doesn't have any difficulty with you making that finding.
Then in relation to counts 1, 3 and 4 that 2 gram deeming provision does not apply, but I'll get Mr Fawkes to tell us what the quantities are on counts 1, 3 and 4 again please because I just - - -
FAWKES, MR: Count 1 is 39.4 grams, count 3 is 27.2 grams and count 4 is 15.2 grams.
GOETZE DCJ: All right. Now in those circumstances, ladies and gentlemen, you've got the four quantities. You've got the State case alleging possession or attempted possession with intent to sell or supply.
You can look at the whole of the evidence and it's a matter for you, but you might conclude that the quantities involved are just so great that it's not a matter of personal consumption but it's an intent to sell or supply the whole or as I mentioned earlier part of it to another person. That's a matter for you.
Does that cover it, Mr Greaves?
GREAVES, MR: Yes, your Honour.
The effect of these directions was that, more so with counts 1, 3 and 4 than count 2, his Honour left open to the jury the element of intention to sell or supply.
At 12.28 pm, the jury retired to consider its verdicts.[65] At 12.44 pm, his Honour redirected the jury.[66] It is unnecessary to say anything about these redirections.
[65] ts 411.[66] ts 414 - 415.
The jury's question
At 3.27 pm, the jury returned to the courtroom, having sent a note to his Honour with this question:[67]
Please can you clarify the difference between (1) possession and (2) intent to possess in terms of the lawful definition of possession?
[67] ts 416. 68 ts 417.
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The foreman of the jury clarified that the question concerned counts 2, 3 and 4 (not count 1).
His Honour answered the question by repeating the substance of his earlier direction as to the three requirements of possession (see [53] above).
The foreman of the jury then sought further clarification from his Honour as to the 'specific difference between intent to possess and actual possession'.68
His Honour responded with the following analogy:[69]
Let's say that I slipped $10 into your pocket and had a note of the currency number on it and I tried to get you into trouble by saying that you'd stolen a $10 note, and we know the serial number because it's been recorded somewhere.
Now, if it's in your pocket and you don't know it's there, you don't intend it to be there, you cannot have possession of it. But if you know it's there, if you intend to have it there, and you've got the custody or control of it, then if those things are proved beyond reasonable doubt, you the jury may find possession.
[69] ts 417.
After his Honour provided this analogy, the foreman said that, 'It helps'. When his Honour asked if the jury required any further assistance, the foreman responded in the negative, adding 'I think that's - that's enough'.[70]
[70] ts 417.
At this point, it may have been expected that the jury would have been requested to retire again to the jury room to continue their deliberations. However, defence counsel in response to an inquiry from his Honour as to whether counsel had anything to add, in the jury's presence said:[71]
I mean absolutely no disrespect to the jury at all by this. I really mean it. These are difficult questions, difficult issues at law. The question
that the jury have asked us is about possession and intent to possess … I
just want to make very clear that there's not a difficulty between
possession and attempt [sic] to possess.[71] ts 417 - 418. 72 ts 418 - 421.
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His Honour then, in a way which was not responsive to the jury's question or the foreman's requests for clarification, proceeded to redirect the jury at some length on counts 1, 3 and 4 and, in particular, as to why these counts were charged as attempts and not as completed offences.72 In the course of these redirections, his Honour emphasised that there were four separate offences requiring separate verdicts and that they were not to approach the counts as a 'job lot'.[73] His Honour, in effect, repeated directions that he had given earlier in respect of counts 1, 3 and 4, that the State charged the appellant with an attempt to
commit an offence because, in respect of count 1, 'the police got to …
the envelope first'[74] and, on counts 3 and 4, the appellant was arrested before he could possess the envelopes.[73] ts 420.
[74] ts 420.
General principles applicable to the ground of appeal
Ground 1 relies upon s 30(3)(a) of the Criminal Appeals Act 2004 (WA) which reads:
The Court of Appeal must allow the appeal if in its opinion -
(a) 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[.]
Ground 1 alleges that the verdicts on counts 1 and 2 are factually inconsistent. The appellant does not allege that the ground depends upon any inconsistency with the verdicts of acquittal on counts 3 and 4.
The legal principles with respect to inconsistent verdicts were explained in the joint judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen.[75] The relevant test is one of logic and reasonableness. Their Honours approved the statement made in the judgment of Devlin J in R v Stone:[76]
[The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.
[75] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 365 - 368.
[76] R v Stone (Unreported, EWCA Crim, 13 December 1954).
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Their Honours stated that if there is a proper way by which an appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. On appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries.
Their Honours referred to the statement made by King CJ (Olsson & O'Loughlin JJ agreeing) in R v Kirkman,[77] who observed:
[J]uries cannot always be expected to act in accordance with strictly
logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
Gaudron, Gummow and Kirby JJ agreed 'with these practical and sensible remarks'.[78]
[77] R v Kirkman (1987) 44 SASR 591, 593.[78] MacKenzie (368). 79 MacKenzie (368).
Their Honours stated that, nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is
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unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency arises to the point where the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules, as '[i]t all depends on the facts of the case'.79 Their Honours also noted that if, because of inconsistency, an appellate court is persuaded that a verdict cannot stand, it must make consequential orders. Inevitably, the conviction must be set aside. Of course, the appellate court cannot disturb the verdict of acquittal. However, it may order a verdict of acquittal on the subject count. Determination of the appropriate relief will depend upon the facts of the particular case. In other words, there may be circumstances where the appropriate relief is a retrial.
These principles were affirmed by the High Court in MFA v The Queen.[80] In this court, the relevant principles have been explained in such cases as DPJB v The State of Western Australia;[81] Tingley v The State of Western Australia;[82] Jackson v The State of Western Australia;[83] Stipanich v The State of Western Australia[84] and Bailey v The State of Western Australia.[85]
[80] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.
[81] DPJB v The State of Western Australia [2010] WASCA 12 [73] - [82].
[82] Tingley v The State of Western Australia [2008] WASCA 193 [40] - [42].
[83] Jackson v The State of Western Australia [2018] WASCA 84 [47].
[84] Stipanich v The State of Western Australia [2018] WASCA 22.
[85] Bailey v The State of Western Australia [2018] WASCA 169 [40] - [43].So, where an appellant who has been convicted alleges that the jury's verdicts are inconsistent, the appellate court must consider the evidence, the issues, and the trial judge's directions to the jury in deciding whether the jury's verdict of guilty on one count is relevantly inconsistent with a verdict of acquittal on another count and the inconsistency points to an unsatisfactory or unsafe conviction.
A jury is, of course, entitled to accept part, but not all, of a witness's version of events. Also, a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said' as to the facts: Williams
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v Smith.[86] That statement, made in the context of civil proceedings, has been applied to criminal trials. See Stevens v The Queen;[87] WCW v The State of Western Australia[88] and LFG v The State of Western Australia.[89] However, those propositions are not, of themselves, an answer to a contention on appeal that a jury's verdicts are inconsistent.
[86] Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto &[87] Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29] (McHugh J).
[88] WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [14] (Buss JA).
[89] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [356] (Buss JA; Mazza
Appellant's submissions
Senior counsel for the appellant conceded that, had count 2 stood alone, it would have been open to a reasonable jury, on the evidence adduced at trial, to have convicted the appellant.[90] However, senior counsel observed that counts 1 and 2 were factually very similar, involving, inter alia, the delivery of two essentially identical envelopes to the same address which, at the time they were mailed, contained cocaine that came from what appeared to be the same chemical source.[91]
[90] Appeal ts 8.
[91] Appeal ts 9.
While it was accepted that the appellant had physical possession of each of the envelopes the subject of counts 1 and 2, the sole issue for the jury to determine was the appellant's knowledge of the contents of each envelope. It was submitted that the verdict of not guilty on count 1 was only explicable on the basis that the jury was not satisfied beyond reasonable doubt that the State had established the appellant's knowledge. It was submitted that the verdict of not guilty on count 1, in effect, signified that the jury was not satisfied beyond reasonable doubt that the appellant had knowledge of the contents of the envelope the subject of that count. As there was no factual difference in the State's case as to knowledge between counts 1 and 2, it followed that the jury's verdict of guilty on count 2 was inconsistent.[92]
[92] Appeal ts 10.
The State's submissions
The State submitted that the different verdicts on counts 1 and 2 were not relevantly inconsistent.[93]
[93] Appeal ts 35.
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It was submitted on behalf of the State that, having regard to the applicable legal principles, the verdicts were not relevantly inconsistent. First, that on the element common to each charge of intent to sell or supply to another, on count 2 but not count 1, the State could rely upon the presumption in s 11(a) MDA. The State submitted that, with respect to count 1, the jury may not have been satisfied that the State had proved beyond reasonable doubt the element of intent to sell or supply, having regard to the absence of expert evidence as to how much a heavy drug user might use over any specified period of time. Further, the State's case in respect of intent to sell or supply, in the absence of the deeming provision, was not supported by any indicia of drug dealing such as scales, small clipseal bags, tick lists or unexplained wealth other than the cash deposits made into the appellant's accounts in the weeks leading up to the offending. While the presence of the Blackberry telephone in the car might be regarded as an indication of dealing, who owned or possessed the telephone was uncertain.[94]
[94] Respondent's written submissions, pars 42 - 45; WAB 37 - 38; appeal ts 25 - 30.The State submitted that the jury's decision to acquit on count 1 did not indicate that the verdict of guilty on count 2 was relevantly inconsistent. It merely revealed that the jury took a cautious approach to the discharge of their duty to assess each element of each count separately and was not prepared to draw the inference of intent to sell or supply in a manner adverse to the appellant on count 1. The conviction on count 2 and the acquittal on count 1 demonstrated that the jury were only willing to convict where the appellant was deemed to have the relevant intent and where the contrary was not proven on the balance of probabilities.[95]
[95] Respondent's written submissions, pars 45, 47; WAB 38; appeal ts 33 - 34.
Second, the State submitted that the verdict on count 1 could be regarded as a merciful verdict. The jury, having been sufficiently satisfied to convict the appellant of the actual possession of prohibited drugs in count 1, saw no need to burden him with a conviction for the possession of a package containing an inert substance where police had already intercepted and seized the prohibited drug.[96]
[96] Respondent's written submissions, par 48; WAB 39.
Disposition
As King CJ observed in R v Kirkman, an appellate court must be very cautious about setting aside a verdict which is adequately
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supported by the evidence simply because a judge might find it difficult to reconcile with a verdict reached on another charge. Underpinning this approach are the well-established principles that the jury:
(a) is the constitutional body which has the duty of deciding the facts of the case; (b) is entitled to form a view of the facts which does not exactly represent the case put by either party; and (c) may, in performing its function, deliver a verdict of not guilty even when the accused may be technically guilty, if, in its opinion, there is some feature of the case which justifies mercy.
An appellate court's task in adjudicating upon an allegation of inconsistent verdicts is not one of trying to work out how the particular jury in the case came to its decision. Such a task would be futile having regard to the inscrutability of a jury's verdict. Rather, the task of an appellate court is to objectively analyse all of the relevant facts and circumstances of the case, including the evidence adduced at trial, the cases that were advanced by the parties, the issues for the jury to decide and the summing up, to see whether the differing verdicts can be properly reconciled. Ultimately, consistently with the statutory language in s 30(3)(a) of the Criminal Appeals Act, before an appeal based on inconsistent verdicts is allowed, the appellant must persuade this court that the verdict of guilty is unreasonable or cannot be supported having regard to the evidence.
This appeal concerns the jury's verdict of guilty on count 2. The appellant's case is that this verdict is inconsistent with the verdict of not guilty on count 1. It will be recalled that count 1 was (like counts 3 and 4) an allegation of an attempted possession of cocaine with intent to sell or supply. Count 2 alleged an actual possession of cocaine with intent to sell or supply. The two counts were concerned with the two envelopes delivered to 6 Cahow Grove, Ballajura.
His Honour gave the jury the comprehensive separate verdicts direction which we summarised at [45] of these reasons. In it, his Honour directed the jury that while a lot of the evidence had been presented to them as common to all of the counts on the indictment, they needed to reach a separate verdict in respect of each count. His Honour specifically told the jury that the verdicts on counts 1 and 2 did not have to be the same and, in the event that they found the appellant guilty on one count, it did not follow that the appellant was
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guilty of another count. During the jury's deliberations, in the course of the directions his Honour gave purportedly in response to the jury's question, he reminded the jury that the counts in the indictment were not a 'job lot'.
The appellant does not claim that the verdict of guilty on count 2 was inconsistent with the verdicts of not guilty on counts 3 and 4 which concerned the two envelopes with cocaine secreted in them, that were delivered to 13 Cahow Grove, Ballajura. These alleged offences were committed in somewhat different circumstances and the verdicts can be reasonably explained on the basis that the appellant's acts were not more than merely preparatory to possessing the cocaine. Thus, the verdicts on counts 3 or 4 can be, as senior counsel for the appellant put it in oral argument in this court, left to one side.[97]
[97] Appeal ts 4.We accept that the only real factual difference between counts 1 and 2 is that, in respect of count 1, the cocaine which had been contained in the envelope addressed to Hayley Sling had been removed by the police and substituted with an inert substance. This factual difference gave rise to certain legal differences between counts 1 and 2. First, the appellant was charged with an attempted possession of cocaine contrary to s 6(1)(a) MDA in respect of the envelope addressed to Hayley Sling (count 1), whereas, in respect of the envelope addressed to Tamara Kingston (count 2), the appellant was charged with an actual possession of cocaine. Second, as to the element common to each charge that the appellant had an intention to sell or supply cocaine to another, in respect of count 2, but not count 1, the State had the advantage of the presumption in s 11(a) MDA.
In our opinion, having regard to the combined force of the following factual features of the case, it would have been open to the jury to deliver verdicts of guilty in respect of both counts 1 and 2:
(1)
The appellant attended at 6 Cahow Grove, Ballajura, on the same day that the envelopes addressed to Hayley Sling and Tamara Kingston were delivered to that address.
(2)
The appellant had a personal connection to the address. Some of his relatives lived there, but, at the time, they were away. The appellant kept his BMW at the address.
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(3) The envelopes were addressed to persons who had no
connection to the property.(4) The appellant was a user of cocaine. (5) The appellant took physical possession of the envelopes addressed to Hayley Sling and Tamara Kingston from the mail box, after appearing to sort through the mail and discard other items. (6) When the vehicle in which the appellant had been travelling was searched by police a short time after the appellant took physical possession of the envelopes, the envelopes were found in the foot well of the front passenger seat of the vehicle. The appellant had been seated in the front passenger seat of the vehicle before he alighted at 6 Cahow Grove. (7) The appellant fled from police when officers attempted to detain
him.(8) Each envelope contained, or had contained, a considerable quantity of cocaine. In respect of count 1, the envelope originally contained 39.4 g of cocaine. In respect of count 2, the envelope contained 52.2 g of cocaine. Each of these quantities was worth, at the relevant time, according to the evidence of Detective Sergeant Marron, a considerable sum of money. (9) Although the appellant had been on Centrelink benefits for years, he had made sizeable cash deposits into one of his bank accounts and, three weeks prior to the alleged offence, he had purchased a BMW vehicle for $23,000. It would have been open to the jury to infer that the cash deposits and the purchase of the BMW vehicle were the proceeds of illicit activities.
As mentioned, senior counsel for the appellant conceded in oral argument that, had count 2 stood alone, it would have been open to the jury to find the appellant guilty of that count. This concession was correctly and properly made. His argument is not that the jury's verdict on count 2 was unsupported on the evidence; rather, it was unreasonable because of the verdict of not guilty on count 1.
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The appellant's submissions in support of the ground of appeal, in essence, boil down to this chain of reasoning. The facts in respect of counts 1 and 2 were essentially the same other than that the cocaine which had originally been secreted in the envelope addressed to Hayley Sling was substituted by police with an inert substance. The only real issue for the jury to decide was whether the appellant had knowledge of the contents of the two envelopes delivered to 6 Cahow Grove. The jury found the appellant not guilty of count 1. This verdict can only be explicable on the basis that, on count 1, the jury were not satisfied that the appellant had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the envelope contained a drug. If the jury was not satisfied beyond reasonable doubt that the appellant had the requisite knowledge in relation to count 1, the jury could not have been so satisfied in respect of his knowledge of the contents of the envelope the subject of count 2. Thus, the verdicts cannot, on their facts, be reconciled and are inconsistent, with the consequence that the conviction on count 2 must be set aside.
This chain of reasoning is flawed and cannot be accepted, for the following reasons.
While we accept that the main issue for the jury to determine in counts 1 and 2 was the appellant's knowledge of the contents of the envelopes, it was not the only factual issue for the jury to decide. Despite defence counsel making the concession in respect of the element of intent to sell or supply referred to at [43] above, in respect of all of the counts in the indictment, the prosecutor nevertheless submitted that, in the absence of a formal admission under s 32 of the Evidence Act, it was necessary that the jury be directed that they had to be satisfied as to that element in relation to counts 1, 3 and 4. The trial judge accepted that submission. The effect of this was to leave to the jury, for its consideration and decision, the element of intent to sell or supply on all counts including each of counts 1 and 2.
In relation to count 2, bearing in mind the presumption in s 11(a) MDA, the State's case was very strong. However, with respect to count 1, for reasons which have already been explained, the State could not rely upon the presumption in s 11(a) MDA to prove the element of intent to sell or supply. In our opinion, a jury acting cautiously may not have been satisfied that the State had proved this element beyond reasonable doubt. It was open to the jury, in respect of count 1, to infer that the appellant had an intention to sell or supply based on the value of the drugs in the envelope, the number of lines of cocaine that could
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be derived from the quantity of the drug in the envelope and the appellant's financial situation. However, bearing in mind that the appellant was a user of cocaine, the expert evidence of Detective Sergeant Marron did not go so far as to indicate how much cocaine a heavy user might consume over any specified period of time. Further, the State's case in respect of the element of intent to sell or supply was not supported by any evidence that the appellant possessed any of the common indicia of drug dealing such as scales, clipseal bags and tick lists or by any evidence of the presence of a security system at the appellant's home. Indeed, the police did not search his home. Moreover, the text messages on the appellant's iPhone, while consistent with drug use, were not consistent with drug dealing. The jury may not have been willing to infer that the Blackberry mobile telephone found in the Holden Commodore was owned or possessed by the appellant.
If the jury had a reasonable doubt as to the element of intent to sell or supply in count 1, but was satisfied beyond reasonable doubt of all of the other elements of the offence, it would have been open to the jury to find the appellant guilty of an alternative offence to that pleaded in count 1, being a count of attempted possession of cocaine. However, his Honour did not (as he said that he would) leave this alternative verdict to the jury. Thus, if the jury had not been satisfied that the State had established the element of intent to sell or supply on count 1, the only alternative open to it was to find the appellant not guilty.
In our opinion, the verdict of not guilty on count 1 is capable of explanation other than by the jury not having been satisfied of the appellant's knowledge (in the sense of the awareness or belief referred to at [34(2)] above) that the envelope the subject of count 1 contained a drug. A reasonable jury acting cautiously and in accordance with his Honour's separate verdict direction may not have been satisfied that the State had proved beyond reasonable doubt the element of intent to sell or supply.
The verdict of not guilty on count 1 may also be explained on the basis that it was a merciful verdict or one which accorded with the jury's innate sense of fairness and justice.
Although, as a matter of strict logic, it may be thought that the verdict of guilty on count 2 cannot be reconciled with the verdict of not guilty on count 1, it may reasonably be possible that the jury took a merciful approach with respect to count 1, having regard to the fact that it was an attempt only and that the appellant could never have taken
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possession of the actual drug because the police had substituted the quantity of cocaine which had originally been secreted in the envelope with an inert substance. A jury may have taken the view that the police had, by their actions, prevented a significant quantity of cocaine from reaching the streets, and that a conviction on count 2 involving a significant quantity of a substance that was actually cocaine was sufficient to meet the justice of the case.
For these reasons, we are satisfied that the verdicts on counts 1 and 2 were not relevantly inconsistent and do not require that the verdict of guilty on count 2 be set aside. In our view, the differing verdicts can properly be reconciled. Having regard to the evidence, it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on count 2. The verdict of guilty on count 2 is neither unreasonable nor unsupported by the evidence. While we would grant leave to appeal, the ground has not been made out and the appeal must be dismissed.
Orders
The orders we would make are as follows:
1. Leave to appeal is granted.
2. The appeal is dismissed.
Postscript
On 15 May 2020, this court heard the appeal. At the conclusion of the hearing, judgment was reserved.
On 4 June 2020, the appellant's solicitors sent a letter to the court, with the State's agreement, in which the appellant's solicitors informed the court that the parties had agreed that there were some transcription errors at pages 397, 398 and 399 of the trial transcript. In particular, various statements transcribed at those pages were wrongly attributed to defence counsel. The relevant statements should have been attributed to the prosecutor.
On 23 December 2020, this court delivered reasons for judgment in which the court indicated that leave to appeal should be granted and the appeal should be dismissed. Unfortunately, [59] and [97] of those reasons reproduced some of the transcription errors at pages 397, 398 and 399 of the trial transcript.
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On 24 December 2020, the appellant's solicitors drew the court's attention to those errors.
Consequently, the orders of the court made at judgment delivery on 23 December 2020 were not perfected. The court recalled the reasons for judgment and made programming orders for the parties to file and serve written submissions on the question whether (and, if so, on what basis) the correct identification of the speakers at pages 397, 398 and 399 of the trial transcript affected the outcome of the appeal. Pursuant to those orders, the appellant filed written submissions dated 7 January 2021, the State filed written submissions dated 22 January 2021 in response and the appellant filed written submissions dated 28 January 2021 in reply.
After considering the written submissions, to the extent that they dealt with the relevant question, we are satisfied that the correct identification of the speakers does not affect the outcome of the appeal. That is, the appropriate orders remain that leave to appeal should be granted and the appeal should be dismissed.
The effect of the correction of the transcription errors at pages 397, 398 and 399 of the trial transcript is that defence counsel did not invite the trial judge's further direction concerning intention to sell or supply in relation to count 2 and the application of s 11(a) of the MDA. Nevertheless, defence counsel did not take issue with the relevant submissions made by the prosecutor.
This court's reasoning and conclusions as to how the verdicts on count 1 and count 2 may properly be reconciled do not depend on a finding that defence counsel withdrew the concession referred to at [43] above. It is apparent from pages 397, 398 and 399 of the trial transcript, as corrected, that there was no dispute between the parties as to how the trial judge should direct the jury on the point at issue.
The effect of the trial judge's direction was to leave to the jury the element of intent to sell or supply on all counts, including count 1 and count 2. The exchange at pages 397, 398 and 399 of the trial transcript occurred in the absence of the jury. Accordingly, that exchange could not have had any bearing on the jury's deliberations.
We are satisfied that the process of reasoning which culminated in this court's conclusion at [100] above that a jury, acting cautiously, may not have been satisfied in relation to count 1 that the State had proved, beyond reasonable doubt, the element of intent to sell or supply (see
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[98] - [100] above) was not affected by the transcription errors at
pages 397, 398 and 399 of the trial transcript.
Further, this court's conclusion at [101] above that the jury may have acquitted the appellant on count 1, on the basis that the verdict on count 1 was merciful or a verdict which accorded with the jury's innate sense of fairness and justice, was not affected by the transcription errors.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable
Justice Mazza
26 FEBRUARY 2021
Western Australia [2018] HCA 7; (2018) 264 CLR 62.
(Buss JA). See also La Bianca v The State of Western Australia [2019] WASCA 105 [28]; Sims v The
State of Western Australia [2020] WASCA 100 [23].
(Buss JA).
Menzies JJ).
JA agreeing).
2
13
3