Mercanti v Whitehead - [2001] WASCA 59

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MERCANTI -v- WHITEHEAD [2001] WASCA 59

CORAM: McKECHNIE J

HEARD: 21 FEBRUARY 2001

DELIVERED : 2 MARCH 2001

FILE NO/S: SJA 1148 of 2000

BETWEEN: TROY DESMOND MERCANTI
Appellant
AND
DAVID WHITEHEAD
Respondent

FILE NO/S :SJA 1192 of 2000

BETWEEN :KEVIN ASHLEY WOODHOUSE
Appellant
AND
DAVID WHITEHEAD
Respondent

Catchwords:

Criminal law - Circumstantial evidence - Burden of proof

Supply cannabis - Whether sufficient evidence - Case turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Appeal dismissed

Representation:

SJA 1148 of 2000

Counsel:

Appellant: Mr P Tehan QC
Respondent: Mr K P Bates

Solicitors:

Appellant: Amidzic & Co
Respondent: State Director of Public Prosecutions

SJA 1192 of 2000

Counsel:

Appellant: Mr P Tehan QC
Respondent: Mr K P Bates

Solicitors:

Appellant: Amidzic & Co
Respondent: State Director of Public Prosecutions

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

Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Shepherd v The Queen (No 2) (1990) 170 CLR 573
Vrisakis v Australian Securities Commission (1993) 9 WAR 395

Case(s) also cited:

Ladd v Debnam, unreported; SCt of WA (Miller J); 23 November 1998
Mayhew v Glover [1999] WASCA 307
Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998

McKECHNIE J:

Background to appeal

On 12 and 13 September 2000 the two appellants stood trial in the Perth Court of Petty Sessions on a charge that on 5 November 1998 they supplied a quantity of cannabis to another.
On 19 September 2000 the learned Stipendiary Magistrate convicted each of them.
On 1 November 2000, each appellant was granted leave to appeal on grounds common to both:
"(a)The evidence was incapable, as a matter of law, of permitting an inference of guilt to be drawn against the applicant.
(b)Alternatively, the verdict was unsafe and unsatisfactory.
Particulars
Even if an inference of guilt was capable of being drawn against the applicant it was not the only rational inference that was open on the evidence, there being other reasonable inferences consistent with innocence."

The relevant law

The Crown case at trial was a circumstantial case in that the Crown sought to prove the guilt of each appellant as an inevitable inference from proven facts. The principles as to the proper approach to circumstantial evidence are well settled and require no exegesis on this occasion. It is sufficient to refer to the oft quoted passage in Shepherd v The Queen (No 2) (1990) 170 CLR 573 per Dawson J at 579.
The duty of an appellate court in undertaking a review of a case is conveniently set out by Ipp J in Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 447.
The test for an appeal court in determining whether a conviction should be allowed to stand has been the subject of judicial differences of opinion. However the test laid down by the majority in M v The Queen (1994) 181 CLR 487 at 493 now represents the law in Australia: Jones v The Queen (1997) 191 CLR 439.
In essence, the test to be applied by an appeal court following an independent review of the evidence is whether, on the whole of the evidence, it was open to the Magistrate to be satisfied beyond reasonable doubt as to the guilt of each appellant.
In this case, the facts were not materially in dispute. The appellants did not give evidence at trial. No significant issues of credibility arose. So, in substance, the real issue is whether it was open to the Magistrate to draw an inference of guilt as against each appellant, there being no other inference reasonably open on the facts.

The Crown case at trial

The Crown case was that on 5 November 1998, Mercanti and Woodhouse, as principals or acting in concert, supplied a quantity of 392 gms of cannabis to Bernadette Hurley who collected it from Unit 7 at the Dianella Hotel.
The Crown case at trial comprised four main parts. The first part was of surveillance evidence given by police officers as to the movements of certain people around the Dianella Hotel on 5 November 1998.
The second part was evidence of the apprehension of Ms Hurley on the morning of 5 November 1998 after she had visited the Dianella Hotel and the discovery of a quantity of cannabis in a clear plastic bag, that bag itself being enclosed in a white plastic bag in the boot of her vehicle behind the spare tyre.
The third part was evidence of fingerprint identification of Mercanti's fingerprints on the white bag.
Finally, there was evidence of the interception of telephone conversations between the appellants speaking to each other and Woodhouse speaking to other people, including Ms Hurley's son Daniel and a solicitor Ms Vesna Amidzic.

Events of 5 November 1998

On 4 November 1998, Tammy Cherie Kingdon, a girlfriend of Mercanti, hired Unit 7 at the Dianella Hotel for two adult guests.
On the guest registration card in the place for particulars of vehicles, she used registration number 6HL779 which is registered in the name of Mercanti.
The events leading to the charge were initiated on the following morning, 5 November 1998, by Mercanti, who telephoned Woodhouse at 7.28 am. After introductions, Mercanti said: "Um, well I got a job for you if you're interested." He then indicated that he was at the "Dianella Pub, number seven" and asked Woodhouse to "… come down here uh, check this bloke out", a suggestion to which Woodhouse agreed.
At 8.10 am Mercanti called Woodhouse again to enquire as to his progress. A blue Commodore, identified as belonging to Woodhouse, was observed arriving at the Dianella Hotel about 8 am. There is a minor discrepancy because at 8.10 am it appears from a telephone call that Woodhouse had not yet arrived at the unit. However this is a minor discrepancy.
From Mercanti's telephone conversation with Woodhouse at 8.10 am, I infer that Mercanti was still in Unit 7. This inference is not really disputed.
It would therefore appear that shortly before arriving at the unit, Woodhouse telephoned Bernadette Hurley. Hurley commenced by saying: "Hello hurry up." She was asked by Woodhouse: "What time are you going to get that thing from them cunts?" to which she answered: "Oh, I just, today." Woodhouse then said: "Make sure you park" to which she responded. Woodhouse gave her instructions to park the car "away from there, wear a hat and everything, put your hair up, … cover them marks on your arms … and your fingers ..."
At 8.24 am Woodhouse telephoned Hurley. There is a short conversation ["BH is Hurley. "KW" is Woodhouse]:
"BHI don't know it's up to you. I did in respect it's you know, if it picks back up it's paying the other thing, now I'm back to paying (inaudible) fucken (inaudible) so, yeh.
KWAlright, um come across and see me then.
BHOh well, I've just got to go to the bank at nine thirty mate because I got to get about fifteen hundred bucks out to add to it.
KWYeah that's right, well just head across and see me now.
BH(inaudible).
KWGo to, come down to, listen to me, come down to the bottom of Grand Prom and turn into uh.
BHWhat you mean, go, start at the beginning of Tri, of (inaudible) Road, (inaudible).
KWYeh that's it, that's it, just come down the bottom of Grand Prom, you know where the shopping centre is, down the bottom there on the right.
BHNup.
KWBefore Alexander, you'll find it.
BHAlexander Drive?
KWYeh that's right.
BHOh Dianella.
KWYep.
BHYeah.
KWYeah, uh number 7 at Dianella, alright, come now.
BHIs that the, is that the name of the street?
KWThat's the pub there.
BHOh at number 7.
KWYep.
BHRoom 7?
KWAlright, see ya.
BHOK bye."
At 8.39 am, Woodhouse rang Hurley to enquire of her progress in a manner suggesting that she should hurry.
At 8.56 am he rang again. At the commencement of the call Woodhouse was overheard speaking to somebody in the background. As it is a reasonable inference that Woodhouse was still in Unit 7, he was not alone. Woodhouse enquired as to Hurley's whereabouts. A similar call was made at 9.13 am, at which point Hurley was in Morley Drive on the way to the Dianella Hotel.
At about 9.20 am Hurley was observed to drive her vehicle, in which she was alone, into the Dianella Hotel car park, alight from it and move inside a motel unit.
Shortly thereafter, she and Woodhouse were observed walking from Unit 7 to the right hand side of Hurley's vehicle, a burgundy Ford Falcon. Hurley was observed going to the front driver's door, which she opened, leaned inside the vehicle and then walked to the rear of the vehicle to the boot which was open. It is a reasonable inference that she leaned inside the vehicle to unlock the boot. Woodhouse was standing somewhere near the right rear of the vehicle. He was not seen going to the rear of the burgundy Ford.
Hurley then left. Almost immediately she was telephoned by Woodhouse to be warned about the presence of police. Woodhouse telephoned Hurley again four minutes later. At that point Hurley thought she was being followed by a burgundy station wagon:
"BHOh no it's not a wagon, its just fucken like a flash Falcon with the headlights in, yeah it might just be fucken some yuppy cunt.
KWMight not be so be careful mate.
BHYeh I know, fuck I didn't realise you were doing that so.
KWWhatever I don't want to talk on this phone.
BHOoh, ooh I don't want to fucken talk period."
Woodhouse telephoned again at 9.33 am:
"KWHow close are you to getting to where you need to go?
BHWhat?
KWHow close are you?
BHJust run under Great Eastern. Half way."
The officers conducting surveillance at the Dianella Hotel were unable to say whether or not either Hurley or Woodhouse had anything in their hands at any material time, that is when Hurley arrived, went into the hotel and when she and Woodhouse came out of Unit 7.
The evidence to this point discloses that Mercanti rang Woodhouse early in the morning requesting his attendance at Unit 7. Woodhouse arrived shortly after 8.10 am, having already received one call as to his whereabouts. Shortly after his arrival, Woodhouse telephoned Hurley seeking her attendance at Unit 7 and telephoned her at various times seeking to hurry her up and seeking updates as to her progress. She arrived at about 9.20 am and went inside the motel, and I infer Unit 7, for a very short time before she emerged with Woodhouse and went to the boot of her car.
Almost immediately after she left the hotel, Woodhouse thought that she may be under observation and telephoned her on a number of occasions.
At about 9.40 am, shortly after the last telephone call, Hurley's car was intercepted on Tonkin Highway. Hurley was known to the police officer who intercepted her. He had conducted a search of her premises some days earlier and found items and equipment commonly used for the purpose of cultivating cannabis hydroponically; and also located in a cupboard were traces of cannabis leaf material. In the boot, hidden under a towel behind the spare wheel, police located the quantity of cannabis sealed inside a plastic bag which itself had been placed in a white plastic bag. Mercanti's fingerprints were on the white bag.
Whilst the car was being searched, Ms Hurley's mobile phone was ringing constantly.
A series of telephone calls then followed, commencing with a call from Mercanti to Woodhouse.
It is evident from that call that Mercanti was aware of police surveillance. Woodhouse obviously harboured suspicions as to Hurley's fate ["TM" is Mercanti]:
"TMAre they still around?
KWI don't know mate, I think they got me dirty girl though.
TMDid they?
KWYeah. She hasn't answered her phone since she's left.
TMYeah they followed her there mate."
Woodhouse then phoned Hurley's son to enquire as to her whereabouts, saying in the course of the conversation ["DH" is the son]:
"KWAlright I think there's been a bit of bother aye. Alright I'll ring you back.
DHOkay."
At 10.17 am Woodhouse telephoned Mercanti:
"TMHello.
KWYeah mate, no good.
TMYeah what'd they pick her up for drink driving or somethin or, yeah?
KWYeah, alright.
TMSpeeding? Alright buddy.
KWNo good mate aye.
TMAlright champ.
KWSee ya.
TMSee ya."
At 10.18 am Woodhouse rang Hurley's house again and spoke to Ms Hurley's mother, advising her to say nothing on the phone. He then said:
"Ah, they've got her for something, I don't know what they've got her for, but they've got her for something."
He gave instructions to Ms Hurley's mother to ring a series of numbers to ascertain Hurley's whereabouts.
At 10.41 am Woodhouse was telephoned by Hurley's son. Hurley's son had not been advised by the police as to possible charges which Hurley faced and therefore was unable to advise Woodhouse of any details.
This fact is significant because the next telephone call, some three minutes later, is a call from Woodhouse to a solicitor, Vesna Amidzic ["VA" is the solicitor]:
"KWHello.
VAHello.
KWYeah, it's me.
VAYeah, what?
KWAhm, Bernadette's in a bit of bother apparently.
VAWhy?
KWAh I think they've done her for possession.
VAYeah.
KWOf ahhm couple of hundred grams.
VACouple of hundred?
KWYeah.
VAWhere from?
KWI don't know mate, I just know they've got her on the side of the road going somewhere or coming from somewhere. She had it with her.
VAOh, okay, so this is nothing to do with the other night.
KWNo this is a new one today, can you ring up? She's in Beaufort Street. I don't know who.
VAAhhm, what's her last name?
KWBernadette Joy HURLEY.
VAShe might have already rung someone.
KWNo she hasn't mate, cause I had fucken Daniel ring there to find her, and ah.
VAYeah.
KWI got a phone call that her car was fucken on Albany ah on the Freeway, so I went down there and got it, pulled it up, got it towed back somewhere and it's been pulled to pieces.
VAMmmmm.
KWI assume that they've got her for something."
Immediately after termination of that call, at 10.50 am, Woodhouse received another call from Hurley's son. Woodhouse was not told details of the charges because the son did not know.
At 11.11 am Woodhouse received a call from the solicitor Amidzic, who advised him:
"VAAh, being processed through Curtin House, depending how much the quantity is, what did you? What did ah.
KWOh, no one even knew mate, so.
VAYeah, well they're probably sorting all that out now, if it's, if it's something minor like Petty Sessions, she'll just get personal bail, if it's like a kilo above, ah, it'll probably be District Court and (inaudible) surety.
KWAlright what'll happen to her if it's above that?
VAAh, well they'll hold her in I guess, but it doesn't sound at the moment like that's going to happen.
KWNo, no, no, but what happens to her, if that's the situation, what's she get first time up for any of this?
VAWell if she's pleading guilty, I think she'd get a fine.
KWGood.
VADepending how much like I say.
KWYeah.
VAIf it's ten bags ready to sell well obviously it's a different kettle of fish, but.
KWYeah, but if it's one whole fat fucken ball, you never know do you?
VANo.
KWBit easier on her that way isn't it.
VAYes."
At 2.14 pm, Mercanti rang Woodhouse. It is obvious from that call that Mercanti knew at that stage Hurley was in custody.
At 5.31 pm Mercanti telephoned Woodhouse again. During the course of the conversation, Mercanti said: "Could be a lot worse". Woodhouse answered:
"KWOh mate, huh, no doubt about that.
TMYep.
KWYou know.
TMYep, yep.
KWAnyway we come out of it alright you know.
TMYeah, alright well we'll catch up with you um cause of, maybe tonight hey?"
A little further on in the conversation, Woodhouse after laughing said:
"KWMate, well things aren't so bad champ, we're still here aren't we.
TMYeah there's no drama there.
KWIt could be a lot fucken worse couldn't it mate.
TMFuck."

Conclusions

It was upon the evidence I have outlined that the Magistrate was able to be satisfied beyond reasonable doubt as to guilt of each appellant.
The evidence of the telephone intercepts prior to Ms Hurley's arrival at Unit 7 were open to the inference that Mercanti wished to utilise Woodhouse for a particular job. Woodhouse in turn contacted Ms Hurley and urged her to get to Unit 7.
The surveillance evidence at Unit 7 is that she was in the motel for a very short time and then, accompanied by Woodhouse, went to the boot of her vehicle. The circumstances of the telephone call and the shortness of her visit, leave the inference open to be drawn that she went to the unit for a specific reason, not for social purposes.
Her apprehension a short time later with a large quantity of cannabis placed within a bag containing Mercanti's fingerprints, leaves open the inference that the purpose of her trip to Unit 7 was to obtain the cannabis. It was discovered in the boot, a place to which she had resort after leaving the motel unit. It was wrapped in the white bag.
The telephone calls subsequent to her apprehension, and particularly Woodhouse's telephone calls to Hurley's son and to the solicitor Ms Amidzic, give rise to the inference that he knew Hurley had been in possession of a couple of hundred grams as one package. The indication of Woodhouse's involvement by Mercanti, together with Mercanti's link to Unit 7, leave open the inference that he was acting in concert with Woodhouse.
The essence of the appeal is that there was a reasonable explanation on the facts consistent with innocence and that the Magistrate was in error in failing to accept such a reasonable inference.
The hypothesis put forward was that Hurley may have brought the cannabis to the Dianella Hotel. She is a person associated with cannabis. The presence of the white shopping bag with Mercanti's fingerprints on it, is explained by the fact that he may have given it to her, or else she may have asked for it, her purpose being to disguise or better hide the cannabis in her vehicle. While it is conceded that it was open for the Magistrate to conclude that Woodhouse, from the telephone conversations subsequent to Hurley's apprehension, knew that she was in possession of a quantity of cannabis, that knowledge may have been acquired by him at the Dianella Hotel in circumstances other than the supply of cannabis to Hurley by Mercanti or him.
With all respect to the careful manner in which this hypothesis was advanced, I regard this theory as fanciful, not rational.
There is a concatenation of circumstances which renders the drawing of an inference of guilt beyond reasonable doubt inevitable.
The morning's events were initiated by Mercanti who telephoned Woodhouse. Woodhouse went to the unit and thereafter directed Hurley to the unit. Hurley arrived and stayed no more than a few minutes before going to the right hand rear part of her boot. This was the place where a short time later the cannabis was discovered with Mercanti's fingerprints on the outer bag. If Hurley had brought the cannabis from elsewhere, there was no reason for her to wrap it in a bag. The length of time spent at the unit indicates that this was not a social visit, but a visit with a purpose. Woodhouse's knowledge afterwards is precise. Furthermore, he had accompanied her to the vehicle.
The only rational inference is that within Unit 7 Mercanti and Woodhouse, acting in concert, supplied the bag of cannabis to Hurley.

This appeal must be dismissed.