Marshall v The State of Western Australia

[2006] WASCA 207

MARSHALL -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 207

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 207
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:28/2006	Heard:	25 SEPTEMBER 2006
Coram:	ROBERTS-SMITH JA	Delivered:	10/10/06
No of pages:	23	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	DAVID KENNETH MARSHALL THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Bail Applications for bail pending appeals against conviction and sentence Drug offences Directions to jury "Fresh evidence" Evidence by others that the drugs were theirs Whether exceptional reasons why appellant should not be kept in custody pending appeal Whether bail should otherwise be granted
Legislation:	Bail Act 1981 (WA), Sch 1, Pt C, cl 4
Case References:	Bolton v The State of Western Australia [2005] WASCA 232 Button v The Queen (2002) 25 WAR 382 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Clohessy v The Queen [2001] WASCA 314 Fermanis v The State of Western Australia [2005] WASCA 212 Filippetti (1978) 13 A Crim R 335 Forkin v The State of Western Australia [2006] WASCA 10 Jones v The State of Western Australia [2006] WASCA 192 Lai v The Queen [1990] WAR 151 Lawless v The Queen (1979) 142 CLR 659 Mallard v The Queen (2003) 28 WAR 1 Milton v The Queen [2000] WASCA 25 Petty & Maiden v The Queen (1991) 173 CLR 95 R v Reeves (1992) 29 NSWLR 109 R v Tieleman (2004) 149 A Crim R 303 Ratten v The Queen (1974) 131 CLR 510 Samuels v The State of Western Australia (2005) 30 WAR 473 Shepherd v The Queen (1990) 170 CLR 573 Stalker v The Queen [2002] WASCA 364 Atholwood (2000) 110 A Crim R 417 Barca v The Queen (1975) 133 CLR 82 Colangelo v The State of Western Australia [2004] WASCA 294 Henry v The Queen [2001] WASCA 33 Hiron v The Queen [2003] WASCA 310 Le (2004) 147 A Crim R 269 Olomi v The State of Western Australia [2004] WASCA 304 R v Birks (1990) 19 NSWLR 677 R v Ireland (1970) 126 CLR 321 Samuel v The State of Western Australia [2004] WASCA 154 Schlenka v The Queen [2004] WASCA 142 The State of Western Australia v Marchese [2006] WASCA 153 Vogel v The Queen [2002] WASCA 261 Watt v The Queen [2000] WASCA 354 Williams v Olsen [1999] WASCA 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARSHALL -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 207 CORAM : ROBERTS-SMITH JA HEARD : 25 SEPTEMBER 2006 DELIVERED : 10 OCTOBER 2006 FILE NO/S : CACR 28 of 2006

CACR 31 of 2006
CACR 76 of 2006
CACR 77 of 2006

BETWEEN : DAVID KENNETH MARSHALL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WILLIAMS DCJ

File No : IND 2016 of 2004

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : H H JACKSON DCJ

File No : IND 1637 of 2004

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Catchwords:

Criminal law and procedure - Bail - Applications for bail pending appeals against conviction and sentence - Drug offences - Directions to jury - "Fresh evidence" - Evidence by others that the drugs were theirs - Whether exceptional reasons why appellant should not be kept in custody pending appeal - Whether bail should otherwise be granted

Legislation:

Bail Act 1981 (WA), Sch 1, Pt C, cl 4

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : Mr R D Young
Respondent : Ms J D Whitbread

Solicitors:

Appellant : Gunning Young
Respondent : State Director of Public Prosecutions

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

Bolton v The State of Western Australia [2005] WASCA 232
Button v The Queen (2002) 25 WAR 382
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Clohessy v The Queen [2001] WASCA 314
Fermanis v The State of Western Australia [2005] WASCA 212
Filippetti (1978) 13 A Crim R 335
Forkin v The State of Western Australia [2006] WASCA 10
Jones v The State of Western Australia [2006] WASCA 192
Lai v The Queen [1990] WAR 151

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Lawless v The Queen (1979) 142 CLR 659
Mallard v The Queen (2003) 28 WAR 1
Milton v The Queen [2000] WASCA 25
Petty & Maiden v The Queen (1991) 173 CLR 95
R v Reeves (1992) 29 NSWLR 109
R v Tieleman (2004) 149 A Crim R 303
Ratten v The Queen (1974) 131 CLR 510
Samuels v The State of Western Australia (2005) 30 WAR 473
Shepherd v The Queen (1990) 170 CLR 573
Stalker v The Queen [2002] WASCA 364

Case(s) also cited:

Atholwood (2000) 110 A Crim R 417
Barca v The Queen (1975) 133 CLR 82
Colangelo v The State of Western Australia [2004] WASCA 294
Henry v The Queen [2001] WASCA 33
Hiron v The Queen [2003] WASCA 310
Le (2004) 147 A Crim R 269
Olomi v The State of Western Australia [2004] WASCA 304
R v Birks (1990) 19 NSWLR 677
R v Ireland (1970) 126 CLR 321
Samuel v The State of Western Australia [2004] WASCA 154
Schlenka v The Queen [2004] WASCA 142
The State of Western Australia v Marchese [2006] WASCA 153
Vogel v The Queen [2002] WASCA 261
Watt v The Queen [2000] WASCA 354
Williams v Olsen [1999] WASCA 114

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1 ROBERTS-SMITH JA: This is an application for bail pending appeal against conviction and sentence on two different indictments.

2 The first two appeals CACR 28 of 2006 (conviction) and CACR 76 of 2006 (sentence) relate to a conviction on 3 March 2006, following trial in the District Court at Perth before Williams DCJ and a jury, of possession of methylamphetamine with intent to sell or supply (IND 04/2016). The appellant was sentenced on the same day to 4 years' imprisonment, with eligibility for parole, and it was ordered that all the drugs relating to that charge be destroyed along with forfeiture of $7420.

3 Then on 15 March 2006 the appellant was convicted of possession of heroin with intent to sell or supply, following trial in the District Court at Perth before H H Jackson DCJ and a jury (IND 04/1637). On 12 April 2006 his Honour sentenced the appellant to 18 months' imprisonment, with eligibility for parole. It was ordered that this term be served wholly cumulative on the sentence of 4 years ordered by Williams DCJ upon the appellant's conviction on the methylamphetamine offence. It is this conviction and the sentence imposed by H H Jackson DCJ which are the subject of the second two appeals, CACR 31 of 2006 (conviction) and CACR 77 of 2006 (sentence).

4 The Appellant's Case was filed on all four appeals on 31 August 2006 together with an application, dated 30 August 2006, to rely upon substituted grounds of appeal, for leave to adduce fresh evidence and for bail. Accompanying the request for bail was an affidavit of R D Young, sworn 30 August 2006, in support.

5 On 5 September 2006 I granted leave to file substituted appeal notices on the two conviction appeals, CACR 28 of 2006 and CACR 31 of 2006. I also granted leave to appeal on all grounds of appeal on the four appeals, aside from ground 3 of CACR 28 of 2006. I will set out the various grounds on which leave has been granted, for ease of reference.

CACR 28 of 2006 (IND 04/2016) (Methylamphetamine)

"1. The learned trial Judge erred in declining to direct the jury that the State had to negative [sic] possession by co-occupants of the house at which the drugs were located.

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PARTICULARS

a. The Appellant was one of four people present at the house at which the drugs the subject of the indictment were found, but was the only person charged with possession thereof;

b. The State did not open its case on the basis that the Appellant was in possession with any other person;

c. In the circumstances, it was incumbent on the State to negative [sic] beyond reasonable doubt the possibility that one or more of the other people present at the house were in possession of the drugs.


2. The learned trial Judge erred in failing to direct the jury that before they could convict on circumstantial evidence, that evidence must not only be consistent with the guilt of the accused but inconsistent with any other reasonable explanation.

3. …

4. A miscarriage of justice resulted in the Appellant’s case in that evidence which would have led to a different verdict was not available to be led at the time of the trial."

CACR 76 of 2006 (IND 04/2016) (Methylamphetamine)

"The learned sentencing Judge erred in that the sentence of 4 years imprisonment with parole was manifestly excessive having regard to the small quantity of drugs involved and sentencing patterns in comparable cases."

CACR 31 of 2006 (IND 04/1637) (Heroin)

"1. The learned trial Judge erred in failing to direct the jury that before they could convict on circumstantial evidence, that evidence must not only be consistent with the guilt of the accused but inconsistent with any other reasonable explanation.

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2. The learned trial Judge erred in failing to direct the jury that the Appellant had a right to remain silent in the face of police questioning and that no adverse inference could be drawn from the exercise of that right in circumstances where the State prosecutor had impermissibly introduced evidence that the Appellant had declined to answer question out [sic: put] to him by police.

3. A miscarriage of justice resulted in the Appellant’s case in that evidence which would have led to a different verdict was not available to be led at the time of the trial."

CACR 77 of 2006 (IND 04/1637) (Heroin)

"1. The learned sentencing Judge erred in making the sentence wholly cumulative on a sentence of 4 years imprisonment imposed on the Appellant on 3 March 2006, in circumstances where the effect of imposing that sentence is that the Appellant is required to serve the whole 18 months;

2. The accumulation of the 18 month sentence on the 4 year sentence imposed previously resulted in a total sentence of five and a half years imprisonment that was disproportionate to the totality of the Appellant’s offending behaviour having regard to the small quantities of drugs and sentencing patters in comparable cases."

6 I highlight again that those are the grounds on which I have granted leave to appeal.

7 I also granted leave to adduce the additional evidence of Fleur Chard-Walker on CACR 28 of 2006, and leave to adduce additional evidence on the appeal by way of affidavit from one "A" on CACR 31 of 2006.

8 The principles to be applied on an application for bail pending appeal are well established (see R v Tieleman (2004) 149 A Crim R 303). Clause 4 of Pt C of Sch 1 of the Bail Act stipulates that in deciding whether or not to grant bail to an offender awaiting the disposal of appeal proceedings, a Judge shall consider whether there are exceptional reasons why the offender should not be kept in custody, and even if there are, then shall grant bail only if satisfied it may properly be granted, having regard to the provisions of cl 1 and cl 3 of the Part. Those latter clauses are the

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provisions which set out the general considerations relevant to any application for bail.

9 It is also well established now, that where such an application is based partly or wholly upon the prospect of success of the appeal, what must be demonstrated is that there is a high prospect of success – that is, one higher than the threshold for the granting of leave to appeal (see Forkin v The State of Western Australia [2006] WASCA 10, particularly at [6] to [11] inclusive and Bolton v The State of Western Australia [2005] WASCA 232.

10 I note that Mr Young acknowledges that the appellant has a lengthy period of time to serve before possible release. He then submits that even in circumstances where the appellant will not serve most of, or all of, the custodial part of his sentence if not released on bail, the fact that the appeal is most likely to succeed can constitute an exceptional circumstance justifying the grant of bail.

11 Section 27(1) of the Criminal Appeals Act 2004 (WA) stipulates that leave to appeal is required for each ground of appeal, whether against conviction or sentence.

12 The test which must be met for leave to appeal is contained in s 27(2) of the Criminal Appeals Act, which provides that the Court must not give leave to appeal on a ground unless satisfied it has a reasonable prospect of succeeding. The application of that test was explained by the Court of Appeal in Samuels v The State of Western Australia (2005) 30 WAR 473 at [55] – [60].

13 I made some observations about the distinction between the two tests in Fermanis v The State of Western Australia [2005] WASCA 212. In that case, at [14] – [17], I said that on a bail application, something more than an arguable case must be shown; what must be shown without detailed argument, is that the appeal is most likely to succeed (Stalker v The Queen [2002] WASCA 364 at [19] – [40]). I then referred to R v Tieleman (supra), where Murray J (with whom Templeman J agreed) said that in the context of the prospects of the appeal succeeding being exceptional reasons, bail would be granted ordinarily only if the appellant could demonstrate there were strong grounds for concluding the appeal would be allowed and that the sentence, or at least the custodial part of it, was likely to have been substantially served before determination of the appeal. Even if those things could be shown, it may be necessary to demonstrate additional circumstances in a particular case before the Court

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would exercise its discretion to grant bail on the basis it was satisfied that the exceptional reasons justifying that course existed. That is a reference to the statutory requirement that once exceptional reasons are shown, bail can still not be granted unless it would be proper to do so having regard to the considerations which ordinarily apply. At [13] his Honour expressed the test as being that unless the prospects of success on appeal are affirmatively established to be so high that it could be said there was a high degree of likelihood that the Court of Appeal would quash the conviction, that factor will not constitute exceptional reasons for the purposes of cl 4.

14 As I explained at [15] of Fermanis (supra), there is no particular distinction between expressions such as "most likely to succeed" and "strong grounds for concluding the appeal would be allowed", in this context. Neither purports to set some specific threshold of potential success. Each case must be determined on the basis of its own facts. In context, each expression is predicated upon the notion that the prospect of success must be sufficiently likely as to give rise to a real concern that the appellant would suffer an injustice by having been kept in custody on an unsound conviction or sentence.

15 That the statutory test for a grant of leave to appeal is a much lower threshold than that required to meet the "exceptional reason" requirement in cl 4 of Pt C to Sch 1 of the Bail Act, is consistent with the legislative scheme, because otherwise a grant of leave to appeal would, in effect, virtually inevitably constitute an exceptional reason why the applicant should not be kept in custody pending appeal, which is patently not the legislative intent. There would be nothing "exceptional" about that reason for releasing an applicant on bail pending appeal (see the observations of Murray J in Tieleman (supra) at [30] and Steytler J at [48]).

16 So the question here is whether the appellant has demonstrated there is such a likely prospect of his appeal succeeding in the sense just explained, such as, either alone or in combination with any delay before the hearing of the appeal, as to constitute an exceptional reason why he should not be kept in custody pending the hearing of his appeal.

17 Mr Young also adverts to the personal circumstances of the appellant, although these are not advanced as exceptional circumstances warranting the grant of bail of themselves. I do, however, take them into account.

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18 Determination of this application requires an assessment of the merits of the appeal to assess whether it has that high prospect of success necessary (either alone or in combination with the likely delay) to constitute exceptional reasons why the appellant should not be kept in custody pending appeal. It must also be recognised that in determining this application, it is not for me here to decide the appeal, but to make an assessment on the material and arguments presented to me (to make a cursory evaluation) of the likely prospects of success.

19 Before coming to that I should briefly mention the time factor. Mr Young submits that on the basis of his experience these appeals are not likely to be listed for hearing for about 9 months, by which time the appellant would have served a large part of his custodial sentence. That surprised me. It does not accord with my understanding of the listing position. I have caused an enquiry to be made of the Registrar. I am informed it is presently intended that these appeals would be heard in December 2006. On that basis, time is not a significant factor on this application. I return to the trials themselves.

20 As is apparent, the trials were held out of chronological order so far as the offences were concerned. The first trial, ("the methylamphetamine trial") resulting in the conviction on 3 March 2006, actually concerned the offence on 22 January 2004. The second trial ("the heroin trial") resulting in the conviction on 15 March 2006, concerned the offence committed on 4 February 2002. I propose to deal with the matters in the order of the dates of commission of the offences.

21 The evidence in relation to the heroin trial was briefly as follows.

22 On 4 February 2002 a detective noticed the appellant apparently exchanging an item with a female seated in a car. The appellant then returned to his own car and was followed by police. Once he reached his house in Mount Hawthorn, he ran down the side and was subsequently apprehended by the police. The police obtained a search warrant and conducted a search of the premises, but did not find any drugs.

23 A short time later that day, the next door neighbour telephoned police to say he had found a suspicious package in his rose garden adjacent to the dividing fence between his property and that of the appellant. That was a place proximate to where he had been out of sight of the police. The package contained two clip-seal bags, one of which contained eight smaller bags and the other of which contained five smaller bags. In total, the heroin contained in the bags was 2.77 grams.

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24 The appellant was initially charged but the charges were later withdrawn. In 2004 however, following DNA testing, a DNA profile matching that of the appellant was found on the inside of black tape which had been used to seal the package.

25 The appellant gave evidence denying any knowledge of the package. He said that the meeting observed by police in his car was a chance meeting with a female acquaintance and that he gave her a cigarette. He denied driving in an erratic manner, but did say that he ran into his backyard to avoid police as his car was unregistered. He said that he suspected his eldest son "A" was involved in using drugs and that he suspected the package belonged to A or to his girlfriend Ms Fleur Chard-Walker.

26 Ground 1 on this appeal complains that the trial Judge did not give an adequate direction in respect of circumstantial evidence. The central issue in the case was whether the appellant could be proved beyond reasonable doubt to have had possession of the heroin. For the appellant it is contended that his Honour did not direct the jury that proof of possession rested on circumstantial evidence and he did not give a circumstantial evidence direction to the jury (that is to say one consistent with Chamberlain v The Queen (No 2) (1984) 153 CLR 521 and Shepherd v The Queen (1990) 170 CLR 573).

27 It was submitted that although his Honour gave the jury a direction on how to deal with inferences, that fell short of a circumstantial evidence direction. Counsel for the appellant relies upon Clohessy v The Queen [2001] WASCA 314 in which it was said (at [19]) that it is:

"… usual for Judges to tell juries that circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded and that before a jury can convict on circumstantial evidence, that evidence must not only be consistent with the guilt of the accused but inconsistent with any other reasonable explanation. The jury should be told that it must be satisfied beyond reasonable doubt that the circumstantial evidence from which the prosecution asks it to draw an inference of guilt is trustworthy evidence and is inconsistent with any other reasonable conclusion than that the accused person is guilty."

28 Here the trial Judge emphasized repeatedly that the onus was on the prosecution to prove its case beyond reasonable doubt. He pointed out
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that the critical question for the jury was whether they were satisfied beyond reasonable doubt the heroin was shown to have been in the possession of the appellant. He explained it was a circumstantial case and what was meant by that. He explained the process of reasoning involved. As counsel for the appellant acknowledges, his Honour gave a full direction on inferences.

29 In the course of that, his Honour directed the jury they could only find the appellant had possession of the heroin if they were satisfied that was the only inference reasonably open on the evidence; if there was a rational, reasonable explanation consistent with innocence they were obliged to give him the benefit of the doubt.

30 In light of the directions given by his Honour, I would not regard this ground as having such a high prospect of success on appeal as to constitute (either alone or in combination with other factors) an exceptional reason why the appellant should not be kept in custody pending the hearing of his appeal.

31 Ground 2 complains that evidence was led in such a way as to possibly have led the jury to draw an adverse inference against the appellant because he exercised his right to silence. Evidence was led from a police officer that the appellant was asked to comment on items found during the course of the police search but did not do so. Further, the State prosecutor asked what it is submitted is an impermissible question in the following terms:

"… it's true, isn't it, that you refused to comment on any items that were found?"

32 The appellant submits that evidence should not be led to the effect that he had exercised his right to remain silent (Petty & Maiden v The Queen (1991) 173 CLR 95). He relies upon R v Reeves (1992) 29 NSWLR 109, in which it was said that where evidence is led which discloses that an accused has exercised his right to silence, a direction should be given immediately and if necessary again in summing up, to make it clear to the jury that the accused had a fundamental right to remain silent and that he was not obliged to answer questions and no adverse inference should be drawn against him on that account. No such direction was given in this case. It is submitted in the absence of such a direction, the jury may have engaged in reasoning prejudicial to the appellant and concluded he was familiar with the procedure being
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adopted, that he was being evasive and uncooperative, or that he had something to hide by not answering questions.

33 This ground may well succeed. Should it do so, the Court would have to consider whether the defect in the proceedings caused a substantial miscarriage of justice. That is not a consideration in determining whether or not leave to appeal should be granted (Samuels (supra), at [56]) but it is when, on an application for bail, considering the prosect of the appeal succeeding and the likely outcome of it.

34 The trial Judge said nothing at all about this in his summing up. Nor was he asked to. As I have mentioned, he did repeatedly stress that the appellant was not entitled to prove anything. He gave evidence at trial and said the drugs were not his and he knew nothing about them, although he suspected they may have belonged to his son or his girlfriend. I do not consider there is such a strong prospect the Court of Appeal would uphold this ground and conclude it led to a substantial miscarriage of justice, as to constitute an exceptional reason why the appellant should not be kept in custody pending appeal.

35 Ground 3 raises what is described as "fresh evidence". That is presently produced in the form of an affidavit from the appellant's solicitor, Mr Robert Young, filed 31 August 2006. He deposes that on 6 July 2006 the appellant's son A attended at his office to speak to him in relation to the appellant's conviction for possession of heroin with intent to sell or supply on 15 March 2006. He deposes that he makes the affidavit based on what A told him and that by reason of the incriminating nature of the information, A would not himself swear an affidavit but would be prepared to give evidence before the Court of Appeal. He deposes that A gave him the following account.

36 In 2002 A was living in the appellant's home in Mount Hawthorn. Also living there were his brother, sister and her boyfriend, the appellant and the appellant's girlfriend, Fleur Chard-Walker. A said that on a day in early 2002 he was in his bedroom about mid-morning when he heard Chard-Walker making a commotion in the living room and someone calling out "cops". He said he ran into the living room area and saw a police officer around the side of the house near the gate. The police officer had hold of the appellant. A said he had a number of prior convictions and had used drugs for some time. The police had recently served a restraining order on him. He had a bench warrant outstanding at the time and was also wanted for breach of community service orders. Upon seeing police, he panicked and went to get his "stash" which was in

(Page 13)

a cupboard in his bedroom. He opened his window and threw it over the next door neighbour's fence. The dividing fence was only about 2 metres away from his bedroom window. By "stash" A was referring to heroin. That was packaged in gladbags, which were in turn packed into a larger clip-seal bag wrapped up in black tape which was sliced at the top so it could open like an envelope. He had purchased about 3½ grams for about $1400 and had packaged it in that manner himself. Some of the heroin had been used. He would have sold some of the remainder to support his own habit. The police searched his room and located a number of syringes and a replica gun which he did not have time to dispose of. After having thrown the heroin over the next door neighbour's fence, A ran out the front door and up the road to a friend's house where he stayed the night.

37 According to A, on returning home he did not find out for a couple of weeks that the appellant had been charged. He kept his mouth shut about it as he had previously argued with the appellant about his drug use. In any event, the family vacated the Mount Hawthorn property not long after and A lost contact with the appellant for a few months. Eventually the charges against the appellant were withdrawn.

38 Mr Young deposes that A told him that he went to prison in 2005. He was initially remanded in custody that year for a variety of offences including sexual penetration and deprivation of liberty. He was then released on bail but went back into custody in November 2005, having committed further offences. He was released again on bail in April 2006. According to A, he met the appellant in gaol in March 2006. That was the first time he became aware the appellant had been recharged with possession of heroin, let alone convicted and imprisoned for it. A told the appellant that the drugs were his. He said he thought about it for some time and decided he should tell the truth. That is why he told the appellant, who told him to speak to his solicitor, which A then did.

39 It is submitted that the evidence proposed to be given by A should be regarded as "fresh evidence", because he was not in contact with the appellant leading up to the trial and had not disclosed before the trial that the drugs were his. It is submitted that in those circumstances his involvement could not have been known either to the appellant or to his counsel prior to trial.

40 As Ms Whitbread points out, the evidence as it stands is hearsay. There is a question about how much weight could be attached to it.

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Certainly at the moment it could not be said that A is committed to giving evidence in those terms, if called.

41 It is not for me on this application to make any finding or ruling on whether the additional evidence of A is "fresh evidence" or "new evidence". But it is necessary for me to form a tentative view about that for the purpose of evaluating the strength of the appellant's case on appeal. My present view is that it falls into the latter category, because I consider that with reasonable diligence it could have been made available before trial. It did not depend entirely upon A volunteering the information to the appellant; in the circumstances, it would have been an obvious inquiry for the appellant to make of A on his own account. In his own evidence at trial, he said he suspected the heroin may have belonged to A. That being so, the conviction would not be set aside on this ground unless the additional evidence either showed him to be innocent or raised such a doubt about his guilt in the mind of the court, that the verdict should not be allowed to stand (Mallard v The Queen (2003) 28 WAR 1 at [25]; Ratten v The Queen (1974) 131 CLR 510, 520. A conviction will not be set aside if the new evidence reveals no more than a likelihood that the jury would have returned a verdict of not guilty (Lawless v The Queen (1979) 142 CLR 659 per Mason J at 674 - 676). That requires an assessment of what the position would have been had the evidence been given at trial.

42 The evidence in its present form is entirely hearsay. In the circumstances, there is a real issue of credibility. Whilst the son's criminal record to some extent might support his account (assuming he was prepared to give it in evidence), it would also reflect on his credibility, as would his failure to give it earlier. Then there would be the issue of coincidence – that he happened to throw the drugs out of his window and into the neighbour's property at the place where the appellant was briefly out of sight of the police just before he was apprehended; and that the appellant's DNA was found on the adhesive side of the packet. Then there is the behaviour of the appellant as observed and described by the police. I am unable to see such a significant prospect that the Court of Appeal would hold this proposed evidence to be so credible as to enable it to find it showed the appellant to be innocent or to raise such a doubt about his guilt that the verdict should not be allowed to stand, as to constitute an exceptional reason why the appellant should not remain in custody pending his appeal.

43 I do not overlook the sentence appeal (CACR 77 of 2006), but I did not understand Mr Young to be contending that had such a prospect of

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success as to justify a grant of bail. In any event, I am not of the view that it does.

44 I turn to the methylamphetamine trial. On 22 January 2004 plainclothes police officers went to the appellant's address in Lathlain. When they arrived and told him they were police officers, he ran into the garage and locked the door. The premises were subsequently searched. The search was conducted in the presence of the appellant and was recorded on video. 13.4 grams of methylamphetamine was located in the garage. Various other items such as scales and clip-seal bags and other indicia of drug supply were found about the premises. They included three sets of scales (only one of which was found in the garage) and a large amount of money. That was found in places to which the appellant had ready access but guests in the house did not necessarily. $865 was found in his shorts; $6105 was found hidden in the back of a radio in the dining room and $450 was found on the bedroom table. There were a number of mobile telephones, some with and some without SIM cards. There were five behind the bar in the lounge area and five in a box under the bed in the master bedroom. A box of glucodine was found on the games room table.

45 In addition to the appellant, three females were present in the house. They were Fleur Chard-Walker, Carly Mayfield and Ascher Kitchener. The appellant's daughter who also lived in the house was not present at the time. Neither the appellant nor any of the others present made any admissions concerning the drugs or other property.

46 The usual occupants of the house were the appellant and Chard-Walker. The police gave evidence that there was nothing to suggest either Mayfield or Kitchener lived at the house or were regular visitors. A quantity of drugs was found on Mayfield, but according to the evidence that was of a very different appearance to the methylamphetamine found in the garage. Heroin was found on Chard-Walker and she also accepted ownership of cannabis and some drug paraphernalia, such as clip-seal bags, syringes and a set of scales. The appellant did not testify and no evidence was called on behalf of the defence.

47 The issue at trial was whether it could be proved beyond reasonable doubt that the appellant had possession of the drugs. Ground 1 goes to that issue. The submission is that the only evidence linking him to the drugs was simply the fact that he was one of three occupiers of the house

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in which the drugs were found. There was some evidence of flight or attempted concealment.

48 The State opened its case without specifying whether it was alleging possession solely by the appellant or by him jointly with others. The case was left to the jury on the basis it did not matter whether the appellant was in possession solely or jointly with others, provided they were satisfied he knew of the drugs and had control or dominion over them.

49 The submission is that because the State did not open its case on the basis of joint possession it thereby assumed the burden of proving exclusive possession on the part of the applicant. If it could not negative the possibility of others, particularly those present and against whom there was sufficient evidence to jointly charge as having possession, then the State case would fail. Reference is made to Filippetti (1978) 13 A Crim R 335 and Lai v The Queen [1990] WAR 151.

50 A similar argument was advanced in Jones v The State of Western Australia [2006] WASCA 192, in somewhat similar factual circumstances. That was a judgment delivered the day after the hearing of this application. The argument failed in that case. Wheeler JA (with whom McLure and Pullin JJA agreed) said about this argument (at [17] - [22]):

"17 The appellant's grounds are both really directed to the same proposition. That proposition is that the prosecution is required 'in such a case' (which I understand to be a case in which some of the evidence is capable of pointing to possession of a drug by more than one person) to negative possession by all persons who may have had access to the drug. As I understood it, without abandoning the proposition that the methylamphetamine could have been in the possession of someone from the neighbour's property, the appellant was particularly concerned with the proposition that it was necessary to negative possession by Ms Prior.

18 The appellant relies upon the cases of Filippetti(1978) 13 A Crim R 335 and Laiv The Queen [1990] WAR 151, referred to in ground 1.2(e). Both of those were cases in which an illicit drug was found in a place to which potentially a number of persons may have had access. In each case, the appellant was one of the persons who could

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have had access to the drug. In each case, there were indications that particularly linked the appellant with the drug, but those indications were either subjective (in Filippetti the appellant was described as becoming 'very agitated', while in Lai the appellant was said to have 'gone a bit paler and to have become fidgety' as the police approached closer to where the drugs were located), or equivocal (eg, in Fileppetti the appellant said, 'I would like to find out who the bastard was that put me in.'). In each of those cases, the convictions were quashed.

19 The reasoning in each of those cases was broadly as follows. It may be inferred, as a general rule, that a person who is in control of premises has knowledge of and dominion over items located there. However, that is not an inference that can be drawn in every case. Where the item is concealed, and there is no evidence to suggest by whom it is concealed, and where a number of persons are capable of having concealed the item, there is no reason to draw the inference that any particular person concealed the item. This is not because there is some proposition of law that it is necessary, in cases where items are concealed, to negative knowledge and control by all others. It is because in cases such as the two I have described there is a reasonable hypothesis consistent with innocence, that hypothesis being that the items were placed where they were by some other person without the knowledge or consent of the appellant, and that the appellant remained unaware of them. Whether there is such an hypothesis, so as to prevent an inference adverse to a particular appellant from being drawn, is simply a question of fact.

20 As a matter of law, as was conceded by the appellant's counsel, more than one person can be convicted of having possession of the same drug. Even where evidence of possession is circumstantial, it is open to a jury to draw an adverse inference, in respect of more than one person, that those persons were jointly in possession of a drug.

21 For example, in Papaluca v The Queen [2001] WASCA 193; (2001) 123 A Crim R 322, the appellant was charged, with her husband, with having in possession

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methylamphetamine, which methylamphetamine was found in a chicken noodle soup tin in the pantry of the house occupied by both the appellant and her husband. There were some similarities between that case and this, in that there was a search which was recorded on videotape, the kitchen was searched, and the search revealed in the kitchen pantry a set of electronic scales and a bowl containing an open packet of Glucodin. At one stage during the search, Mr Papaluca entered the pantry and moved some items on a pantry shelf, which caused the investigating officers to pay particular attention to that shelf. The soup tin was found on that shelf. In her videotaped record of interview, the appellant said that she did the shopping, that she often purchased soup, and that she did not purchase chicken noodle soup because she did not like it. She did not give evidence at trial, but her husband did. He said both he and his wife did the shopping. He said that they 'never' ate tinned soup, chicken noodle or any other kind. The 'hypothesis consistent with innocence' advanced in that case was to be that the appellant could well have had no knowledge of the existence of the fake can of soup within the pantry in her house. Because the can was clearly visible on a shelf within the kitchen pantry of the house in which the appellant lived, and because of the evidence relating to her access to and use of the pantry, the Court was of the view that it was open to a jury to reach the conclusion that that hypothesis had been excluded. Cumming (1995) 86 A Crim R 156, was a similar case concerning joint potential joint possession of methylamphetamine contained in transparent plastic containers in the refrigerator in a house which the appellant shared with her partner.

22 In the present case, the methylamphetamine was, of course, concealed, but the principles are the same. The question is always whether there is a reasonable hypothesis consistent with innocence, and, if so, whether that hypothesis has been negatived by the State."

51 Her Honour went on to conclude that on the evidence as a whole in that case it was open to the jury to infer that, whether jointly with his
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de facto or not, the appellant was in possession of the methylamphetamine.

52 It seems to me the Court of Appeal might well come to the same conclusion on the evidence in the present case. I do not see this ground having the necessary likelihood of success as to constitute an exceptional reason why the appellant should not remain in custody pending his appeal.

53 Ground 2 concerns the circumstantial evidence direction. This is put in similar terms to the similar ground in the appeal on the heroin conviction. It is conceded here that his Honour did give a direction as to inferences but it is submitted it was only in very general terms and that the jury should have been directed that the very issue of possession rested on circumstantial evidence and they could not convict unless the evidence was such that there was no other reasonable explanation consistent with innocence.

54 It has to be said however, that the directions given by his Honour as to the onus and burden of proof necessarily meant they could not have found the appellant guilty unless they were satisfied beyond reasonable doubt that he was in possession of the methylamphetamine.

55 The contention then advanced here that had the jury been directed that the State must negate possession on the part of all others present, the State could not have proved its case against the appellant beyond reasonable doubt, is open to the same observation I have already made in respect of the similar ground in the heroin conviction appeal.

56 Likewise, my observations in respect of the ground concerning the admissibility of the search video in the heroin conviction appeal, apply similarly to ground 4 here.

57 The real gravamen of this appeal is in ground 5, which relies upon the "fresh evidence" of Chard-Walker.

58 In her affidavit, filed 31 August 2006, she deposes that in January 2004 she was living at the premises with the appellant, his daughter and her boyfriend. Mayfield had stayed over the night before the police search. According to Chard-Walker, when she got out of bed that morning and went into the games room area of the house, Mayfield was already there with Kitchener. She deposes that she noticed that the two of them were sitting around a glass table on which she saw a brown coloured substance and some electronic scales. She says that as she used amphetamines occasionally she recognised the brown powder as

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amphetamines. She deposes that Mayfield had told her previously that she dealt in drugs and she had also been given amphetamines by Mayfield in return for allowing her to stay the night.

59 Chard-Walker deposes that she sat down with them. One of them asked if she had any clip-seal bags. It appears to her that Kitchener was buying drugs from Mayfield. She told them she would have a look in her room. She came out with a couple of bags but the girls said they were too big. She then went back to the bedroom to lie down. Then she heard a loud banging at the door and went out to see what was going on. She saw Mayfield at the back sliding door calling out "Police, police". The house was then searched by police. She noticed that the drugs were gone from the games room table.

60 Chard-Walker deposes that she stayed quiet about what she had seen because Mayfield was a friend and she did not want to get her into trouble. The police left without charging anyone so she decided there was no need to mention what she had seen.

61 She further deposes that about two days later, Mayfield telephoned her and asked whether the police found what she had left there. Later that night she came over to visit, and according to Chard-Walker said "If they try to plant them on you I'll put my hand up". Chard-Walker said that she was in the bedroom and if anyone it would be Dave. Chard-Walker then said "I'll definitely put my hand up, there's this section that can get me off".

62 However, the appellant was not charged until about six weeks later. Between the search and the charges being laid he "went ballistic" at Chard-Walker about the heroin she had been found with because he wanted her to stop using. He was also angry at her "hanging out" with Mayfield and Kitchener. He threw her out of the house and she went to live with a friend in Goomalling for a while.

63 Chard-Walker says that although she got back with the appellant a few weeks later and he had by then been charged, she did not say anything about the incident because he had kicked her out of the house, and because Mayfield kept telling her she would do the right thing.

64 According to her affidavit, Chard-Walker and the appellant moved to a new place in Mt Lawley. While they were there they had a falling out with Mayfield because of some money she stole from them. She started threatening them. She then went to gaol for some other drugs charges and there was no chance of getting her to come forward. Nonetheless,

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Chard-Walker still did not tell the appellant or anyone else about what she had seen in the games room. The appellant told her that the police could not prove who the drugs belonged to, so she did not think he would be found guilty. She was also scared that he would be angry if he found out that she knew what had really happened, so she kept quiet.

65 When the appellant was convicted Chard-Walker says she spoke to his sister and told her the drugs were Mayfield's. He told Chard-Walker to ring the appellant's solicitor, which she did.

66 Again, it is submitted that the affidavit of Chard-Walker should be regarded as "fresh evidence". The submission is that it was through no fault of the appellant or his counsel that she withheld the relevant information. It was therefore not known to the appellant or his counsel and could not have been discovered with reasonable diligence.

67 Even if the evidence sought to be relied upon could not, with reasonable diligence, have been produced by the appellant at trial, it must be evidence capable of belief and there must be a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the evidence been before the jury at the trial (Button v The Queen (2002) 25 WAR 382). As to the apparent credibility of the evidence, the question is whether it is evidence which is credible in the sense that it was capable of belief and might be believed by reasonable persons such that there may be a significant possibility that the jury would not have convicted (see Milton v The Queen [2000] WASCA 25 per Murray J at [23]).

68 Again, it is neither possible nor appropriate for me on this application to make any final determination of the credibility and effect of this evidence. I am only concerned here with the view of it which might potentially be taken by the Court of Appeal having heard the evidence, any cross-examination on it and submissions from the parties.

69 Ms Whitbread submits that the evidence from Chard-Walker fails all three tests: it could have been discovered with reasonable diligence; it is neither cogent nor plausible in its current form; and there is no significant possibility that the jury, acting reasonably, would have acquitted the appellant had that evidence been before it at trial. She contends that much of what Chard-Walker says in her affidavit is hearsay, but even to the extent she may purport to give direct evidence in relation to what she saw in the lounge room, that would actually not be credible. It would mean Mayfield, on hearing the police arrive, had time not only to run into the garage and secrete the drugs there, but also then had time to get out of the

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garage and back into the house (without being observed by the appellant or the police) and secrete scales which were found elsewhere in the house.

70 I accept these submissions to the extent that they make it less likely the Court of Appeal would uphold the appeal on this ground. It does not to my mind have that necessary degree of likelihood of success which must be shown on an application for bail pending appeal.

71 I turn to CACR 76 of 2006 which is the sentence appeal in respect of the heroin conviction.

72 The sentence of 4 years' imprisonment imposed on 3 March 2006 was equivalent to one of 6 years' imprisonment imposed prior to the Sentencing Act amendments which came into effect on 31 August 2003. The appellant refers to a number of cases which he contends, by comparison, indicate that even allowing for significant differences in his antecedents and those of other offenders, and the differing circumstances of those cases, the appropriate range of sentence in his case would have been about 16 to 18 months, in current terms.

73 The appellant might succeed on that ground, but that outcome is by no means certain. Comparisons of that kind are inordinately difficult to make because the facts and circumstances of each case inevitably differ. For present purposes it is sufficient to say that I am not persuaded this appeal has such a high prospect of success as to constitute exceptional reasons why bail should be granted pending the hearing of it. In fairness, I did not understand Mr Young to be arguing otherwise.

74 Nor do I overlook the personal factors concerning the appellant and his family, but given the conclusion to which I have come about the prospects of success of these appeals, the personal circumstances do not constitute "exceptional reasons" in my view.

75 Overall, the State's position is that no exceptional reasons have been demonstrated here why the appellant should not remain in custody pending the hearing of his appeals. In addition, it is further submitted that even if I were to be satisfied there were such exceptional reasons, bail should be refused on the applicant of the ordinary considerations in cl 1 and cl 3 of Sch 1 to the Bail Act 1982 (WA). As to that, it is said that whilst these two matters were pending for trial and the appellant was on bail, on 22 February 2006 he was arrested in relation to another drug offence for which he is currently awaiting trial. His antecedents demonstrate a significant history of drug dealing, such that the State submits there should be reasonable concerns about the likelihood of him

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committing further offences if granted bail, particularly if he has no employment or prospect of employment and needs money (all of which appears likely). Furthermore, the length of the gaol terms still outstanding point to an increased risk that he would not answer bail if it were granted. To my mind these submissions have force. Even had I concluded there were "exceptional reasons" why the appellant should not be kept in custody pending his appeals, I would have refused bail.

76 The application will be dismissed.