McLaughlin v The Queen - [2020] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
MCLAUGHLIN v THE QUEEN
[2020] SASCFC 67
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Livesey)
9 July 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Appeal against conviction.
The appellant is originally from Northern Ireland. On 14 February 2017 he left a black bag at the Strathmore Hotel. It was picked up by the waiter just after 9:20 pm and put into the manager’s office as “lost property”. The next day, just after 9:00 am, the manager arrived for work, went inside the office and opened the black bag. Inside the bag a number of items were found including a tub that contained 72.1 grams of a substance that contained methylamphetamine, another tub containing a substance that had 2.28 grams of methylamphetamine, a resealable bag which had 0.24 grams of a substance that contained methylamphetamine, numerous unused resealable bags, plastic straws with “scoop” or “splayed” ends and $3,580 cash. Police were called and the bag was seized.
The appellant was arrested and charged with the offence of trafficking in a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA). Police later searched the appellant’s house and found an iPhone on which were found incriminating photographs taken in late 2016.
A trial commenced in the District Court before a jury. The jury returned a unanimous verdict of guilty and a conviction for the offence of trafficking in a controlled drug was recorded.
In this Court the appellant sought permission to appeal his conviction. In effect, he sought to challenge the jury’s verdict on the ground that it was “unsafe or unsatisfactory”. He contended that on an independent assessment of the evidence, though there was evidence upon which a jury might convict, it would nonetheless be dangerous in all the circumstances to allow the verdict of guilty to stand. In this regard, the appellant focused on the suggested inability of the evidence to exclude the reasonable possibility that a third party had access to the black bag and had left the drugs inside it, in the 12 hours or so between the appellant leaving it, and it being opened and seized by police the following day.
Held, per Livesey J (Kourakis CJ and Nicholson J agreeing) refusing an extension of time in which to pursue the appeal and dismissing the appeal;
1. The question of the appellant's possession of the bag and its contents (including the "chain of custody") was a question of fact to be determined by the jury having regard to whether there existed a reasonable explanation consistent with innocence for all of the contents, including those on which the appellant's DNA was found but which the appellant disavowed.
2. The verdict of guilty returned by the jury was not unreasonable nor unsupported by the evidence within s 158(1)(a) of the Criminal Procedure Act 1921 (SA).
3. Observations made regarding the conduct of the trial and the need to eschew conjecture when evaluating circumstantial evidence and whether guilt was the only rational inference.
Controlled Substances Act 1984 (SA) s 32; Criminal Procedure Act 1921 (SA) s 158; Summary Offences Act 1953 (SA) s 74D, referred to.
Barca v The Queen (1975) 133 CLR 82; Coughlan v The Queen (1911) 13 CLR 619; Director of Public Prosecutions v Spencer [1999] VSC 301; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Peacock v The King (1911) 13 CLR 619; R v Baden-Clay (2016) 258 CLR 308; R v Birks (1990) 19 NSWLR 677; R v Gum (2007) 108 SASR 77; R v Harry; Ex parte Eastway (1985) 39 SASR 203; R v Hillier (2007) 228 CLR 618; R v Jones (2017) 129 SASR 522; R v Maiolo (No 2) (2013) 117 SASR 1; R v Shueard (1972) 4 SASR 36; Shephard v The Queen (1990) 170 CLR 573; SKA v The Queen (2011) 243 CLR 400; Varley v The Queen (1977) 51 ALJR 243, considered.

MCLAUGHLIN v THE QUEEN
[2020] SASCFC 67
Court of Criminal Appeal: Kourakis CJ, Nicholson and Livesey JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Livesey J.
NICHOLSON J: I would order that an extension of time be refused and the appeal dismissed for the reasons given by Livesey J.
LIVESEY J:
Introduction
Gerard Patrick McLaughlin (the appellant) is originally from Northern Ireland. During the evening of Valentine’s Day 2017, he left his black bag under a chair in a bar at a hotel on North Terrace in Adelaide. It was picked up by a waiter just after 9:20 pm and put into the manager’s office as “lost property”. The office was locked. Only a duty manager or a manger had access to the manager’s office.
Nearly 12 hours later the manager arrived for work, went inside the office and opened the bag just after 9 am. He saw drugs and cash. Police were called and seized the bag.
Eventually, the appellant went back to the hotel and gave staff a card on which he wrote his name and a phone number. The card was given to the police. A policeman called the number. The appellant answered and agreed to go to a police station. There the appellant was arrested and charged with trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). He was released on bail in March 2017. Whilst the appellant was on bail in December 2017, police searched his house and took an iPhone on which were found incriminating photographs taken in late 2016.
The appellant pleaded not guilty to the charge and a trial commenced in the District Court before a jury in June 2019.
By the end of the evidence the appellant had terminated the instructions of two separate legal teams. Because the appellant was unrepresented, and in accordance with what has been described as “the usual practice”, the trial Judge ruled that the Crown could not address the jury.[1]
[1] Varley v The Queen (1977) 51 ALJR 243, 244-245 (Barwick CJ, with whom Stephen, Mason, Jacobs and Aickin JJ agreed). In Varley’s case it was held that the “usual practice” only applied to a “simple case”. The trial in that matter concerned a murder charge where the deceased’s body had not been found. It occupied more than 50 days. The accused presented his own final address over five days and the summing up of the trial Judge occupied two days. Manslaughter was raised late. The accused was found not guilty of murder but guilty of manslaughter.
Following the appellant’s address and the Judge’s summing up, on 26 June 2019 the jury returned a unanimous verdict of guilty and a conviction was recorded.
The appellant appeals against that conviction.
The grounds of appeal
The appellant remained unrepresented at the time he lodged his Notice of Appeal on 9 April 2020. His handwritten grounds are as follows:
1Broken chain of custody of the evidence.
2Evidence was hearsay — no firsthand knowledge that contents of bag (methylamphetamine) was defendant’s.
3Evidence of iPhone was also hearsay — no firsthand knowledge.
The hearing of this appeal was delayed because the appellant instructed a third legal team. The Court was assisted by the appellant’s legal representatives.
It was made clear on the hearing that the appellant’s challenge to the jury’s verdict was that it was “unsafe or unsatisfactory”.[2]   It was contended that, on an independent assessment of the evidence, though there was evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.[3] That is, “the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”.[4]
[2] The term “unsafe or unsatisfactory” is a shorthand method of referring to the requirements of s 158(1)(a) of the Criminal Procedure Act1921 (SA). See Fitzgerald v The Queen (2014) 88 ALJR 779, [4]-[5] (Hayne, Crennan, Kiefel, Bell and Gageler JJ) and R v H, GJ (2008) 102 SASR 82, [23] (Kourakis J, with whom Doyle CJ and White J agreed).
[3]    SKA v The Queen (2011) 243 CLR 400, [14] (French CJ, Gummow and Kiefel JJ), citing M v The Queen (1994) 181 CLR 487, 492-493 (Mason CJ, Deane, Dawson and Toohey JJ).
[4]    Libke v The Queen (2007) 230 CLR 559, [113] (Hayne J, with whom Gleeson CJ and Heydon J agreed) (emphasis in original), Pell v The Queen (2020) 94 ALJR 394, [43]-[45] (the Court).
It was accepted that it is not sufficient merely to demonstrate that the evidence may be open to criticism.[5]
[5] R v Shueard (1972) 4 SASR 36, 39 (the Court).
The appellant focused on the suggested inability of the evidence to exclude the reasonable possibility that a third party had access to his “black Bose bag”[6] in the 12 hours or so between him leaving it, and it being opened and then seized by police the following day, on 15 February 2017.
[6] The appellant described the bag in this way at trial because it had a compartment for a Bose portable speaker.
For the reasons that follow, the appellant’s appeal fails. On the evidence, and acknowledging that the jury had the benefit of seeing the appellant and the witnesses give their evidence, the verdict is not unreasonable nor unsupported by the evidence within the meaning of s 158(1)(a) of the Criminal Procedure Act 1921 (SA).
Preliminary matters
The appellant did not criticise the summing up by the trial Judge.
Although criticisms were made of the approach taken by former counsel at the trial with respect to some of the evidence, no submission was made to suggest that there had been “a miscarriage of justice” by reason of the incompetence of counsel, or otherwise.[7]
[7] See s 158(1)(c) of the Criminal Procedure Act1921 (SA) and Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ).
Whilst there might now be a different view about the preferable trial strategy, this Court must consider the case as presented to the jury at the trial.
Two examples suffice. It was suggested on appeal that the waiter who found the bag (Mr Demasi) was lying about whether he went inside the manager’s office when the duty manager (Mr Amos) put the bag inside the office. Mr Demasi initially denied the suggestion that he went inside the manager’s office, but agreed with it when he saw the relevant portion of the CCTV footage. At a time when the appellant was represented, it was never put to this witness that he was lying. Although the suggestion was floated by the appellant when he presented his own final address, he did not explain the significance, if any, of the suggested lie.[8]
[8] In his final address the appellant said to the jury, “I believe the staff members at that hotel are lying and they are trying to cover something up. That’s my belief. That’s the only thing I can believe. The evidence, I said, does nothing that connects me with the drugs”.
In addition, it was suggested on appeal that the appellant had been disadvantaged by the Crown’s failure to call Mr Amos, who had apparently refused to cooperate with police. It was said that the Crown had failed to put on any evidence about whether Mr Amos had any criminal antecedents. It was not suggested that there had been any application to the trial Judge, or even a request made to the DPP, about these matters. It was not suggested that the prosecutor had breached any relevant obligation,[9] or that this occasioned any miscarriage of justice.
[9] R v Harry; Ex parte Eastway (1985) 39 SASR 203, 210-211 (King CJ), by failing without explanation to call a material witness.
Contentions such as these do not assist the appellant’s case on appeal. To the extent that anything might or might not have been said about them to the jury, or the trial Judge, they were matters for the conduct of the trial. The appellant is bound by the way counsel and he conducted the trial. As Gleeson CJ explained in R v Birks:[10]
As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.
[10] R v Birks (1990) 19 NSWLR 677, 683 (Gleeson CJ) and see also the cases collected in JGS v The Queen [2020] SASCFC 48, [36]-[39] (Lovell J, with whom Peek and Bampton JJ agreed).
Nonetheless, it remains to assess the potential for hotel staff (and perhaps others) to have had access to the appellant’s bag when evaluating whether the only reasonable inference left open on the whole of the evidence was that the appellant was guilty as charged.
The Crown case at trial
The appellant and his domestic partner, Ms Knight, were recorded on CCTV footage arriving at a hotel on North Terrace in Adelaide at around 8:50 pm. The footage shows that the appellant carried his black Bose bag over his shoulder. It also shows that they entered a bar and sat at what was described as “table 28”. The appellant put his black bag under a seat at that table.
The appellant and Ms Knight then went to the bar to order drinks and a meal, paid for by a credit card. The credit card receipt was issued at 8:57 pm. They then went outside to a smoking area without the black bag, before moving onto the restaurant, still without the black bag.
Mr Demasi, a waiter at the hotel, saw the unattended bag and, at 9:21 pm, picked it up and put it behind the bar as lost property. He put a note on the bag to indicate that it had been found at table 28. Mr Demasi gave the bag to the duty manager, Mr Amos, who unlocked the manager’s office and put the bag inside the manager’s office. He then locked the office. Only the duty manager or a manager had access to the manager’s office.
The next morning Mr Reimann, the manager, arrived at work at around 9:00 am, unlocked his office and saw the bag. He opened it and saw that there was cash and a tub containing a “substance” inside it. He called the police who seized the bag.
Later that day Detective Henning emptied the bag and the contents were photographed. There was no dispute about the contents of the bag at that time. Some admittedly belonged to the appellant. However, he generally denied any association with other incriminating contents, being:[11]
1A small rectangular plastic tub with yellow tape around the lid containing a substance that weighed 72.1 grams and contained methylamphetamine. A thumbprint was located on the outside of the lid. According to the expert, Ms Ince, that print was identical to the appellant’s left thumbprint.
2A small plastic tub with a purple lid with yellow tape around the lid containing a substance that weighed 2.28 grams and contained methylamphetamine.
3A small round plastic tub with a clear lid containing white residue.
4Another small round plastic tub with a clear lid containing white residue.
5A black reading glasses case containing a pair of black framed reading glasses, together with a syringe containing clear liquid. The evidence of the expert Mr Volgin demonstrated that there was a mixed DNA profile obtained from the reading glasses with four contributors. A statistical weighting of the probability that the appellant was one of the contributors to that profile exceeded 100 billion. The appellant was the major contributor to the profile, contributing 70 per cent of the DNA found.[12]
6A small blue zip up purse (described as a Ted Baker purse) containing a resealable plastic bag with a small quantity of cannabis, another resealable plastic bag containing a white granular substance which included 0.24 grams of a substance which contained methylamphetamine, 21 resealable plastic bags and two red plastic straws with “scoop” or “splayd” ends. Detective Sergeant Hunt told the jury that straws of this type are commonly used to decant small amounts of methylamphetamine. A mixed DNA profile was obtained from the straws. It disclosed two contributors to that profile. The statistical weighting in favour of the appellant being a contributor to this profile again exceeded 100 billion. As well, the accused was the major contributor to the profile, contributing 99 per cent of the DNA found.
7Cash in the amount of $3,580, which was made up of $50 notes, $20 notes, $10 notes, $5 notes, $2 notes and a number of $1 notes.[13]
[11] The appellant did not deny that he had used a tub similar to one found with methylamphetamine in it, or that he left it inside the bag, and he did not deny leaving $8,000 in cash inside the bag.
[12] Mr Volgin explained that the extent of the appellant’s DNA contribution could be explained by the fact he was a “high shedder” and that the possibility of “transference” of the appellant’s DNA onto items could not be excluded: “you’re more likely to detect it in a profile from direct contact, but you can’t rule out the possibility of a second variant type transfer occurring…”.
[13] $3,000 made up of 60 × $50 notes, and $580 made up of 23 × $20 notes, 3 × $10 notes, 2 × $5 notes, 27 × $2 notes and 26 × $1 notes. It is noteworthy that from where the $1 and $2 notes came is unexplained: the $1 note was replaced by the $1 coin in 1984, and the $2 note was replaced by the $2 coin in 1988.
Detective Sergeant Hunt said that the methylamphetamine had a value between $37,000 and $70,000 in 2017.
A few days later a man who was later identified as Mr Ianella attended at the hotel and enquired about the black bag left behind on 14 February 2017.
On 20 February 2017 the appellant and Mr Ianella returned to the hotel and again enquired about the bag. The appellant left his name and Ms Knight’s mobile telephone number on a card at the hotel. The card was given to police.
On 18 March 2017 Brevet Sergeant Stevens telephoned the number and the appellant answered. He was asked to attend a police station. When he did so on 22 March 2017 he was arrested and then given bail. He was handed a copy of his stamped bail agreement by Brevet Sergeant Usher.
On 10 December 2017 police searched the appellant’s home in connection with an unrelated matter. A number of mobile telephones were seized. One of these was an Apple iPhone taken from the kitchen bench. Detective Brevet Sergeant White gave evidence that he asked the appellant whether the iPhone was his and the appellant told him that it was his iPhone.[14] Detective White gave the iPhone to Brevet Sergeant Leahy at the Holden Hill police station.
[14] There was no issue about the manner in which this conversation was recorded so as to suggest a breach of s 74D of the Summary Offences Act 1953 (SA), presumably because there did not exist the requisite suspicion cf Steen v The Queen [2020] SASCFC 60.
Brevet Sergeant Stevens gave evidence that he later downloaded the photographs on the iPhone and created the book of photographs which became exhibit P11. Relevantly, there were photographs of the appellant, Ms Knight, her child and documents bearing the appellant’s name, such as a letter from the Department of Immigration and Border Protection dated 28 September 2016 (regarding a request to revoke the decision to cancel his visa), his British passport and his stamped bail agreement dated 22 March 2017. There were other photographs which were proved to have been taken in October 2016 and November 2016, but which the appellant denied taking:
1A photograph dated 17 October 2016 of a crystalline substance being weighed on a set of electronic scales which depicted a weight of 20.52 grams;
2A photograph dated 29 October 2016 depicting a piece of paper containing money amounts commonly referred to as a “tick list”;
3 A photograph dated 4 November 2016 of a crystalline substance;
4A photograph dated 7 November 2016 depicting bundles of $50 and $100 notes, each tied with an elastic band; and
5A photograph dated 7 November 2016 depicting bundles of $50 notes tied with elastic bands.

On 12 June 2019 the trial Judge heard argument on the voir dire regarding the admissibility of these photographs. She determined to admit them as evidence relevant to establishing the proposition that the appellant was involved in the business of trafficking methylamphetamine in the months preceding the charged offence. She held that the evidence was of “strong probative value in establishing the accused’s possession of the methylamphetamine the subject of the charge and the purpose of that possession, namely for sale”. The trial Judge said that she would give a “bad person direction warning” to the jury, so as to guard against impermissible reasoning as required by s 34R of the Evidence Act 1929 (SA).
As may be obvious, the Crown case was a circumstantial case concerning the appellant’s possession of the methylamphetamine the subject of the charge. The central issue was whether the evidence proved possession beyond reasonable doubt or whether, by contrast, there remained a reasonable possibility consistent with innocence that someone unconnected with the appellant had taken access to the black Bose bag and left the drugs inside it during the 12 or so hours between Mr Demasi picking up the bag from table 28 and Mr Reimann opening it and contacting the police.
The defence case
The appellant gave evidence in support of his defence.
The appellant explained that Ms Knight surprised him by booking an overnight stay at a North Terrace hotel for the evening of 14 February 2017. Earlier that day Ms Knight had packed their bags, including the appellant’s black Bose shoulder bag. After they checked into their accommodation on North Terrace they walked to a second hotel where they planned to have a meal, and where their entry was recorded on CCTV.
The appellant said that earlier during the day on 14 February 2017 he had arranged for the sale of his car to Mr Ianella. He delivered the car and was paid $8,000 in cash. The appellant said that he put that money into the black Bose bag.
On the question of his left thumbprint on the lid of the plastic tub in which 72.1 grams of methylamphetamine was found, the appellant explained that during that day he had been eating some of Ms Knight’s “most fantastic potato salad” from a tub that looked very similar to the one containing the methylamphetamine. The “only reason” he was not certain that it was the same tub was “because of what came out of it”. He was eating the potato salad with a plastic spoon at home, on the way to Mr Ianella’s house, at Mr Ianella’s house and whilst driving to the city hotel. Despite the apparently small size of the tub, the appellant claimed that it had contained “half a kilo” of potato salad which he had not yet finished eating before he and Ms Knight left for the second hotel. He said that he took the $8,000 cash and the tub, together with the uneaten potato salad, to the hotel inside his black bag.
Under cross-examination the appellant’s evidence was that someone at the second hotel must have discarded the remainder of the potato salad, washed the tub, put the drugs inside it, and left it inside the bag, taking “the rest of the cash out as well. Let’s not forget that”.
The Crown on this appeal emphasised that, on the appellant’s case, not only did the unidentified person remove $4,420 in cash, that person left $580 in smaller denominations, because Mr Ianella said that he paid the appellant in $50 notes.
The appellant denied all knowledge of the Ted Baker purse and its contents, including the plastic straws. He could not explain how his DNA profile got onto straws inside that purse.[15] The appellant also denied all knowledge of the reading glasses and the glasses case. He could not explain how his DNA came to be on the reading glasses inside the reading glasses case.[16]
[15] However, under cross-examination the appellant wavered: “Had you used those straws, or at least one of those straws before to scoop out meth? Look, I can’t be 100% sure. To scrape out meth, no definitely not for that, no”.
[16] It was never put to Mr Volgin that there could be DNA “transference” from items inside the black bag to the reading glasses inside the glasses case and to the straws inside the Ted Baker purse, T141. As was emphasised on appeal, it was difficult to see how the possibility of DNA “transference” could apply to the contents of the Ted Baker purse and the contents of the reading glasses case.
The appellant denied association with the other contents of the black bag apart from Aspro Clear tablets, a torch, a USB charger, a Sharpie Texta, a box of heat pads and a black roll of electrical tape which he said could have been in his possession. Ms Knight did not give evidence, but the appellant said that she put batteries inside the bag.
Under cross-examination as to why he brought the bag to the second hotel, the appellant said that he did so because there was cash in it and he did not want to leave the cash at the first hotel.
As for the photographs, the appellant denied all knowledge of those which showed what looked like methylamphetamine on scales. He said the “tick list” was not in his handwriting. He could not explain how these photographs came to be on his iPhone. The appellant accepted that the photographs that depicted cash belonged to him. He explained that in the latter part of 2016 he was subject to deportation proceedings and thought he might be returning to Northern Ireland. Ms Knight sold their possessions and they photographed the cash ($18,000).
The appellant said that he had sold his iPhone in around June 2017 to a friend, Mr Colley. Whilst Mr Colley’s evidence confirmed the sale of the phone, Mr Colley denied having anything to do with the incriminating photographs of drugs. Nonetheless, the appellant conceded that the iPhone was “definitely” in his possession during October 2016 when the incriminating photographs were taken using that phone.
As for why the appellant did not immediately return to the hotel, he said that he only realised that he left the bag at the hotel when a work friend, Mr Lindblom, called that night asking after the keys to his van which had been used by the appellant earlier that day. The appellant said that he had put the keys inside his black Bose bag and, when he could not find it, realised that he must have left the bag at the hotel. He said that phone calls to the hotel that night and over the following days did not unearth the bag, and he was refused access to the CCTV footage.
On the night the bag was left, Mr Lindblom and his partner came to the hotel where the appellant and Ms Knight were staying. When Mr Lindblom was told what had happened, Ms Knight and he went to the hotel because he “was a quicker runner”. As for Mr Ianella, the appellant and Mr Ianella said that his trip to the hotel in search of the bag was at Mr Ianella’s instigation.
The appellant’s case was that someone unconnected to him left the drugs and drug paraphernalia in the bag during the 12 hours or so between the time it was picked up by Mr Demasi and opened by Mr Reimann and seized by police.
The summing up
It is unnecessary to address the summing up in detail. No criticism is made of it. It contains standard and appropriate directions regarding the drawing of inferences as well as the proper approach to circumstantial evidence, consistent with Shephard v The Queen.[17]
[17] Shephard v The Queen (1990) 170 CLR 573.
The trial Judge also gave an appropriate warning that the jury could not use the evidence of the photographs taken from the iPhone to reason that the accused had done bad things, was therefore a bad person and, in consequence, was more likely to have committed the offence. She explained that the Crown case was that the appellant was involved in the business of selling methylamphetamine shown in the photographs in exhibit P11.[18] The appellant does not suggest that these directions did not adequately conform to the requirements of s 34R of the Evidence Act 1929 (SA).
The trial Judge directed the jury that the offence contained three separate elements:
1First, as a matter of law, that the substance methylamphetamine is a controlled drug. She pointed out paragraph 7 of the agreed facts (exhibit P16) stipulated that the substance located inside the Bose bag weighed 74.6 grams and contained methylamphetamine.
2The second element was that it was the appellant who trafficked the drugs and that this relevantly meant “to have possession of the drug, intending to sell all or some of it or believing that another person intends to sell all or some” of the drug. Critical here was the necessity for the prosecution to prove the appellant’s possession of the methylamphetamine. I shall return to that aspect of the summing up directly.
3The third element of the offence was that the appellant knew that the substance the subject of the charge contained methylamphetamine, or at the least, a controlled or illegal drug.
[18] R vMaiolo (No 2) (2013) 117 SASR 1; R v Soteriou (2013) 118 SASR 119, [35], [38] (Vanstone J) regarding “tick lists”; Perara-Cathcart v The Queen (2017) 260 CLR 595, [62], [66]-[67] (Kiefel, Bell and Keane JJ), [91] (Gaegler J), [112] (Nettle J), [138], [162] (Gordon J) and R v C, CN (2013) 117 SASR 64.
The trial Judge warned the jury that they could not speculate about the reason why police attended at the appellant’s premises on 10 December 2017 and that the reason for the police attendance that evening was “completely irrelevant to [your] deliberations”. A similar warning was given about the basis for the appellant’s belief that he was to be deported in 2016.
The trial Judge gave a direction regarding consciousness of guilt in connection with the evidence that the appellant did not initially return to the hotel but, on the prosecution case, sent others to make enquiries about the bag at the hotel. Emphasising that the principal issue was that the jury was being invited to infer that the appellant had possession of the methylamphetamine, the trial Judge explained that this was based on the following evidence:
1The methylamphetamine was found in a black bag the accused was carrying in which there were other items associated with him. Whilst the accused admitted carrying the bag, and admitted that some of his items were in it, he denied knowing anything about other items from which his DNA could not be excluded, being the reading glasses and the straws;
2The accused’s fingerprint was found on the lid of a tub which contained 72.1 grams of a substance containing methylamphetamine; and
3Others, not the appellant, initially made enquiries about the appellant’s bag and the appellant did not initially contact police which, the prosecution said, the accused would have done had his concern been merely with the money left inside the bag.
Ground 1: The broken chain of custody
The appellant contended that the jury must have entertained a reasonable doubt because the prosecution could not prove that third parties did not have access to the bag for 12 or so hours between the time it was found as lost property and when it was opened the next morning after the manager came on duty.
The appellant emphasised that Mr Demasi initially lied about entering the manager’s office when Mr Amos put the bag inside it, and that Mr Amos refused to cooperate with police and did not give evidence. No attempt was made to prove whether or not Mr Amos had criminal antecedents and, in the circumstances, it could not be excluded as a reasonable possibility that he or someone else had accessed the bag, taken the cash and left the drugs.
The arguments concerning Mr Demasi and Mr Amos have already been addressed.
The appellant relied upon older authorities concerned with proof of the chain of custody of evidence. For example, in the unreported decision of Barron v Valdmanis, Meares J said the following about proof of the “chain of custody” in connection with charges concerning the possession and supply of Indian hemp:[19]
In a criminal prosecution where it is necessary to establish that material found in the accused’s possession is identical with materials subsequently analysed, there are, as was pointed out by Brereton, J. in Young v. Commissioner for Railways (1962) N.S.W.S.R. 647 at p. 651 two ways of doing so. The first is to trace it from hand to hand and to this end it is usually necessary to call every person who had it in custody from the point of origin to the end of its journey. The second method is to identify that which was found in the possession of a person charged by its physical characteristics with that which was analysed. But in this case there was no evidence that the vegetable matter which was analysed was identical with that found in the bags allegedly in the plaintiff’s possession since there is a complete hiatus as to what happened to the bags from the time they reached the Central Police Station on 3rd June, 1977, until they were taken from there to the analyst on 7th September, 1977, and there was no evidence to establish that the psychical characteristics of the material analysed was identical with that found in the plaintiff’s possession.
[19] Barron v Valdmanis (Supreme Court of New South Wales, Meares J, 2 May 1978) 2-3 Similarly, the appellant relied on Anglim & Cooke v Thomas [1974] VR 364, 368 (Harris J) another case involving the admissibility of a certificate.
The appellant also relied on Director of Public Prosecutions v Spencer, another case concerning an analyst’s certificate following testing of items located in the defendant’s home.[20] It was suggested that there was “no evidence of continuity which would allow the magistrate to be satisfied beyond reasonable doubt that the items referred to on the Certificate of the Botanist were, in fact, the items that were located during the search of the respondent’s premises”.[21]
[20] [1999] VSC 301.
[21] Director of Public Prosecutions v Spencer [1999] VSC 301, [18] (Eames J).
Importantly, Eames J said that though the argument was “couched in terms of it being a question of law, it seems to me to be a thinly disguised example of a question of fact”.[22] Eames J found that the Magistrate had not been shown to be wrong in law in concluding that there was insufficient evidence of continuity to prove that case beyond reasonable doubt. This conclusion was reached after reviewing the various authorities on the admissibility of “labels”, and the potential difference between the status of hearsay evidence admitted without objection in civil proceedings,[23] as distinct from its admission without objection in criminal proceedings.[24]
[22] Director of Public Prosecutions v Spencer [1999] VSC 301, [27].
[23] Re Lilley [1953] VLR 98; Walker v Walker (1937) 57 CLR 630; Stunzi Sons Ltd v House of Youth PtyLtd [1960] SR (NSW) 220; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Re Miller [1979] VR 381 and Ritz Hotel Ltd v Charles of The Ritz Ltd (1988) 15 NSWLR 158.
[24] R v Radford (1993) 66 A Crim R 210, 232-234 (Phillip CJ and Eames J) suggesting that hearsay evidence relied on by the accused without objection from the Crown could be led which may be compared with cases where it is the Crown who relies on hearsay evidence “exceptional and limited situations” apart, see Walton v The Queen (1989) 166 CLR 283, 293 (Mason CJ), 308 (Deane J) and Pollitt v The Queen (1992) 174 CLR 558. Reference was also made to s 70 of the Evidence Act 1995 (Cth), designed to overcome the decision in Commissioner for Railways (NSW) v Young (1962) 106 CLR 535, see generally the decision of Eames J at [53]-[60].
The question of possession by the appellant was a question of fact for the jury. Unlike the cases to which the appellant referred, this case was not concerned with demonstrating that what was seized from the appellant was proved beyond reasonable doubt to be that which was analysed and the subject of a certificate. The question for the jury in this case was different. The appellant admitted possession of his bag and a number of the items inside it. The question was whether there was some reasonable explanation consistent with innocence for the other, incriminating items also found inside it, including those with his DNA on them, and with which he denied any association.
In evaluating that proposition of fact, whether there remained a reasonable inference consistent with innocence was framed, at least in part, by the appellant’s admissions and the conduct of the trial before the jury.[25] It was a matter of the jury evaluating all of the circumstances so as to determine whether it was satisfied that guilt was the only rational inference. In Barca v The Queen the proper approach to the evaluation of circumstantial evidence was explained:[26]
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”: Peacock v. The King.[27] To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw”: Plomp v. The Queen;[28] see also Thomas v. The Queen.[29]
(Citations in original.)
[25] R v Baden-Clay (2016) 258 CLR 308, [47]-[48] (the Court).
[26] (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ).
[27] (1911) 13 CLR 619, 634 (Griffith CJ).
[28] (1963) 110 CLR 234, 252 (Menzies J).
[29] (1960) 102 CLR 584, 605-606 (Windeyer J).
In Coughlan v The Queen the High Court has recently emphasised the necessity for an appeal court to weigh all of the circumstances when determining whether the jury could draw the “ultimate inference” that guilt had been proved beyond reasonable doubt:[30]
An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard.[31] That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.
(Original citations.)
[30] Coughlan v The Queen (2020) 94 ALJR 455, [55] (the Court).
[31] Shepherd v The Queen (1990) 170 CLR 573, 579 (Dawson J); R v Hillier (2007) 228 CLR 618, [46] (Gummow, Hayne and Crennan JJ) and Fennell v The Queen (2019) 93 ALJR 1219, [82].
Coughlan v The Queen concerned an appeal against convictions for arson and attempted fraud associated with an insurance claim following the destruction of a holiday home which had just been renovated. The convictions were upheld in the Court of Appeal of the Supreme Court of Queensland. The High Court said that the focus by the Court of Appeal on the unrepresented accused’s “second man hypothesis” as an explanation for the fire which it was alleged had been started for financial gain, “was apt to distract attention from the capacity of the evidence, viewed as a whole, to establish that the explosion was caused by a deliberate act and that the appellant was the actor”.[32] The High Court allowed the appeal and directed that verdicts of acquittal be entered on each count because, on the whole of the evidence, it was not open to the jury to be satisfied of guilt beyond reasonable doubt where the expert evidence could not exclude that the fire was caused by an electrical fault and the accused had no financial motive.
[32] Coughlan v The Queen (2020) 94 ALJR 455, [36] (the Court).
Nonetheless, in R v Baden-Clay the High Court eschewed conjecture when determining whether there remains a reasonable inference consistent with innocence:[33]
For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”[34] (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence”[35] (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[36]
Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, “parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue”.[37]
(Emphasis in original.) (Citations in original.)
[33] R v Baden-Clay (2016) 258 CLR 308, [47]-[48] (the Court).
[34] Peacock v The King (1911) 13 CLR 619, 661 (O’Connor J), quoted in Barca v The Queen (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ).
[35] R v Hillier (2007) 228 CLR 618, [46] (Gummow, Hayne and Crennan JJ) (footnote omitted).
[36] R v Hillier (2007) 228 CLR 618, [48] (Gummow, Hayne and Crennan JJ). See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535 (Gibbs CJ and Mason J).
[37] Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ). See also Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ) and Doggett v The Queen (2001) 208 CLR 343, [1] (Gleeson CJ).

To the extent that the issue is framed as whether there was continuity of the appellant’s possession of the black bag and its contents, that remained a question of fact for the jury, albeit one that depended on drawing a number of inferences. Both parties referred to R v Gum and the following passage from the reasons of Vanstone J:[38]
I acknowledge that the “chain of evidence” on the appellant’s reference sample could have been more perfectly proved. It could readily have been done by admissions of specific facts … however, there is no rule that requires conclusive proof of a chain of evidence any more than of any other fact in issue. Whether a jury is prepared to draw relevant inferences is for it to say: see Dimitriou v Samuels (1975) 10 SASR 331 per Bray CJ. Consequently I consider that there was sufficient proof …
[38] R v Gum (2007) 108 SASR 77, [22].
It must be kept firmly in mind that the issue confronting the jury here was not merely whether there existed a reasonable possibility that a person or persons unconnected with the accused had taken access to his bag. Access was merely a necessary first step. Likewise, this issue was not confined to whether a person or persons unconnected with the accused had left incriminating drugs and drug implements inside his bag, however unlikely that possibility seems.
The key point was whether, in the course of taking that access, all of the contents remaining in the bag could be explained.
When evaluating whether there remained a reasonable inference of innocence, the jury was entitled to have regard to the veracity of that proposition in light of the following matters (amongst others) concerning the contents of the bag:
1The appellant’s thumbprint was on the lid of a tub with 72.1 grams of a substance which contained methylamphetamine. Looked at in isolation, the jury was perfectly entitled to reject as fanciful the notion that whoever had left the drugs inside that tub had also taken the time to first remove the potato salad and clean the tub.
2Some cash was left. Whoever took the money determined not only to leave some of it, but also to leave other denominations apart from $50 notes. Whilst the theory of a dishonest hotel employee with access to the manager’s office might account for the theft of money, why that thief did not take all of the money and, in addition, bothered to leave drugs and add the smaller denomination notes is difficult to fathom.
3The absence of any explanation for the appellant’s DNA being on the reading glasses and the red straws. Having denied all knowledge of these, and conjecture aside, the appellant could not explain the presence of his DNA on the reading glasses found inside the glasses case and the straws found inside the Ted Baker purse.
As well, the jury had before it the evidence of the incriminating photographs taken with the iPhone when it was in the appellant’s possession before February 2017 and which could not be explained by the appellant or his witness, Mr Colley.
Finally, the jury had the appellant’s explanation as to why he personally did not initially return to the hotel to collect his bag, but instead sent others. Though perhaps in itself equivocal, taken with the other evidence it undermined the notion that the appellant had no knowledge that there was anything incriminating left inside his bag.
As the verdict demonstrates, the jury simply disbelieved the appellant about these matters. They were entitled to do so. Having disbelieved the appellant, and on an independent evaluation of the circumstances before them, the jury was perfectly entitled to reason that the only rational inference was that guilt was proved beyond reasonable doubt.
It cannot be said, consistently with M v The Queen, that on the evidence in this case the jury must have entertained reasonable doubt.[39] On the contrary, it was a strong prosecution case.
[39] M v The Queen (1994) 181 CLR 487, 492-493 (Mason CJ, Deane, Dawson and Toohey JJ).
Ground 2: Evidence was hearsay — no first-hand knowledge
The appellant explained that this ground was merely a variation on the first ground concerning what was said to be an unsafe or unsatisfactory verdict.
Because the appellant maintained that there was no evidence “of a first-hand nature” showing that he had any knowledge at any time of the subject drugs or drug paraphernalia, it was not open to the jury to be satisfied beyond reasonable doubt that he was in possession of them, with the result that the jury must have entertained a reasonable doubt.[40]
[40] SKA v The Queen (2011) 243 CLR 400, [11]-[14] (French CJ, Gummow and Kiefel JJ); M v The Queen (1994) 181 CLR 487 and Libke v The Queen (2007) 230 CLR 559.
The appellant relied upon the same submissions, including the possibility of “transference” of DNA from items belonging to him to the implicating items found inside the bag. These submissions must be rejected: it is difficult to maintain the hypothesis of DNA transfer over items found inside the reading glasses case and inside the Ted Baker purse, both of which the appellant disavowed.
Ground 3: The iPhone evidence was hearsay
This ground was addressed only briefly at the hearing. The submission appeared to be that it was not open to the prosecution to rely upon photographs which had been downloaded from the iPhone by a detective and not by an expert.
Quite apart from the fact that there was no challenge at trial to the means by which the photographs were downloaded,[41] the photographs were themselves relevant and admissible evidence.
[41] Brevet Sergeant Stevens was cross-examined by counsel who first appeared for the appellant.
There was no challenge to the source or timing of any of the photographs. The critical issue was the absence of any explanation consistent with innocence as to how the appellant’s iPhone came to contain photographs that the appellant denied taking, during the same timeframe as photographs that the appellant admitted taking when the iPhone was in his possession.
Extension of time
After his conviction on 26 June 2019, the appellant did not lodge a Notice of Appeal until 9 April 2020.
Accordingly, he requires an extension of time in which to appeal.
The appellant’s handwritten grounds of appeal explain that he needs an extension of time because he was informed on 13 March 2020 that he had been denied legal aid. He also said that he had no access to a legal library and he struggled to complete the relevant appeal form.
The Crown, however, says that following conviction an application to revoke bail was refused. The appellant was remanded on home detention bail to appear in the District Court in August 2019 for submissions in mitigation of penalty. The trial Judge warned the appellant that he should be prepared for his bail to be revoked. The trial Judge told the appellant that she was giving him “some time to organise your affairs”.
The appellant failed to appear when the matter was called on in August 2019. On the morning of his scheduled appearance he cut off his electronic ankle bracelet and absconded. A bench warrant was issued.
The appellant was not arrested until 14 November 2019. He was sentenced in February 2020.[42]
[42] The appellant received a head sentence of five years and a non-parole period of three years backdated to commence from 14 November 2019.
On 18 May 2020 Stanley J granted permission to appeal on grounds 1 and 2, refused permission to appeal on ground 3,[43] and referred the application for an extension of time to this Court.
[43] Although the standard Form 51 was not before us, we were told that the appellant had prepared it and provided it to his new legal advisors. No issue was taken.
The principles applicable to an extension of time are well known.[44] The relevant considerations include the length of the delay, the reasons for it, whether there is an arguable case and the extent of any prejudice to the respondent.
[44] The authorities are discussed in R v Jones (2017) 129 SASR 522, [89]-[101] (Peek J).
In this case all grounds of appeal fail. In the circumstances, there is no utility to an extension of time. The application for an extension of time should be refused.
Had the question of an extension arisen prior to, or separately from, the substantive hearing of the appeal, the fact that the appellant had absconded would have been a factor, though not necessarily decisive, telling against the favourable exercise of discretion.[45]
[45] R v Jones (2017) 129 SASR 522, [23] (Kourakis CJ, with whom Nicholson J agreed at [23]): “the circumstances of this case may be compared with the position if the applicant was convicted in his presence but had absconded after being granted bail pending his appeal. The appeal may have been stayed whilst he was at large, but it is doubtful that it could have been dismissed because there is no requirement for the presence of an accused on appeal” cf [72]-[101] (Peek J, contra). That, however, was a case where a majority of the Court of Criminal Appeal ruled in favour of the case of the appellant who required an extension of time.
Conclusion
For these reasons the jury’s verdict of guilt was neither unreasonable nor unsupported having regard to the evidence.[46]
[46] Criminal Procedure Act 1921 (SA), s 158(1)(a).
I would order that the extension of time in which to pursue the appeal dated 9 April 2020 be refused.