Mickelberg v The Queen - [2000] WASCA 219

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MICKELBERG -v- THE QUEEN [2000] WASCA 219

CORAM: KENNEDY ACJ
IPP J
ANDERSON J

HEARD: 24 JULY 2000

DELIVERED : 18 AUGUST 2000

FILE NO/S: CCA 87 of 2000

BETWEEN: RAYMOND JOHN MICKELBERG
Applicant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 94 of 2000

BETWEEN :RAYMOND MICKELBERG
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Possessing cannabis with intent to sell or supply - Whether issue of appellant's intention to supply to another should have been left to the jury - Whether intention to return cannabis to person leaving it with appellant for safe-keeping

Legislation:

Misuse of Drugs Act 1981(WA), s 6(1), s 11(a), s 34(2)(a)

Result:

Appeal allowed

Representation:

CCA 87 of 2000

Counsel:

Applicant: Mr S D Hall
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Laurie Levy Barristers & Solicitors
Respondent: State Director of Public Prosecutions

CCA 94 of 2000

Counsel:

Appellant: Mr S D Hall
Respondent: Mr R E Cock QC

Solicitors:

Appellant: Laurie Levy Barristers & Solicitors
Respondent: State Director of Public Prosecutions

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

Driscoll v The Queen (1977) 137 CLR 517
Manisco (1995) 79 A Crim R 213
Manisco v R (1995) 14 WAR 303
R v Carey (1990) 20 NSWLR 292
Urbano (1983) 9 A Crim R 170

Case(s) also cited:

Atholwood v The Queen [1999] WASCA 256
Lowndes v The Queen (1999) 195 CLR 665
Mans v The Queen, unreported; CCA SCt of WA; Library No 9085; 1 October 1991
R v Carey (1990) 50 A Crim R 163
R v Liberti (1991) 55 A Crim R 120
R v Pelham (1995) 82 A Crim R 455
R v Stol (1989) 44 A Crim R 137
R v Tuckey (1991) 57 A Crim R 468
R v Urbano (1983) 9 A Crim R 170

KENNEDY ACJ: I have had the advantage of reading in draft the reasons to be published by Ipp J. I am in agreement with those reasons and with the orders which his Honour proposes.
IPP J: The appellant was convicted after trial of two counts of possessing cannabis with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981. He was sentenced to 2 years' imprisonment on each count, the second sentence of 2 years being ordered to be served concurrently with the first. The appellant was ordered to be eligible for parole. He appeals against his convictions and applies for leave to appeal against the sentences.
From the time of his arrest, the appellant admitted possessing the cannabis, but denied any intent to sell or supply. The quantity of cannabis in the appellant's possession was greater than that specified in Sch V of the Misuse of Drugs Act, and accordingly, by s 11(a) of the Act, the appellant was deemed to have the intent to sell or supply unless the contrary was proved.
The offences were alleged to have been committed in May 1997. At that time, the meaning of "supply" under the Misuse of Drugs Act did not include possession of the drug as a bailee for the owner: Manisco v R (1995) 14 WAR 303. The appellant admitted that he had obtained the cannabis from one Lindsay Treby. His argument at the trial (and on appeal) was that he had received the cannabis from Treby and had retained it in his possession in response to a request by Treby to do him a favour. It was submitted that it was open to the jury to find that the appellant intended to return the cannabis to Treby. On that basis it was contended in reliance on Manisco v R that the appellant had no intent to sell or supply. This was disputed by the Crown at the trial and the fundamental issue was whether the appellant, on a balance of probabilities, had so rebutted the s 11(a) presumption.
The appellant relied on the testimony of Treby and himself. According to Treby he asked the appellant to store the cannabis and told him that it would be collected by one George Laurenson. Whether Treby's evidence was to the effect that he told the appellant that Laurenson would become the owner of the cannabis was less than clear, and its effect was the subject of dispute (albeit that the Crown accepted that Treby was a witness of truth). The appellant's evidence on this issue was also vague and its effect, too, was disputed.

The Crown contended at trial and on appeal that while, on the evidence, it was open to the jury to find that the appellant intended to pass the cannabis on to Laurenson, it was not open to the jury to find that the appellant believed that Laurenson would receive the cannabis as an agent for Treby and that, by delivering the cannabis to Laurenson, the appellant believed that he would be returning it in effect to Treby.
The appellant was charged with his son who was a co‑accused. At the trial, the appellant represented himself and his son was represented by counsel who subsequently represented the appellant on the appeal. There was an identity of interests between the appellant and his son. Prior to the learned trial Judge delivering his charge to the jury, and in the absence of the jury, counsel for the appellant's son submitted that while there was evidence of an intention to supply the cannabis to Laurenson, that intention was Treby's and not the appellant's. Further, it was said that while there was evidence that Laurenson was to collect the cannabis, the appellant (on his evidence) believed that Laurenson was simply acting as an agent for the true owner, Treby. It was submitted, further:
"[I]t cannot be said on the strength of Mr Treby's evidence that Mr Mickelberg knew that Mr Laurenson was doing anything other than picking the cannabis up."
The learned Judge then delivered his charge to the jury. His Honour referred to various passages from the evidence of Treby and the appellant as to the basis on which the appellant was given possession of, and retained the cannabis. The learned Judge proceeded:
"If it were to have been given back to Treby, then that would not be a supply and the requisite intention wouldn't be there and you would find Mr Raymond Mickelberg not guilty of the offence of possession with intent to sell or supply. On the other hand, it's a matter for you, members of the jury, to determine, having regard to the evidence as to whether or not the cannabis was to be returned to the owner, Mr Treby, or whether or not, applying the description of the word 'supply' to the circumstances, it was to be supplied to a person other than the owner of the cannabis."
His Honour explained, in effect, that if the jury decided that the cannabis "was to be supplied to a person other than the owner", then the verdict should be guilty.
By this charge the learned Judge put the issue on the basis that the critical decision to be made by the jury was either a finding that the cannabis was to be given back to the owner, Treby, or a finding that the cannabis was "to be supplied to a person other than the owner." It seems to me that in context his Honour was saying that the jury was required to decide only whether the cannabis was to be returned to Treby or whether it was to be given to Laurenson. If the former, a not guilty verdict would follow. If the latter, a guilty verdict. The jury were not directed that, should they decide that the cannabis was to be given to Laurenson, they were then required to decide whether the appellant believed that Laurenson would receive the cannabis as agent for Treby. In effect, therefore, the learned Judge withdrew this issue from the jury. Counsel for the appellant's son drew this to the attention of the learned Judge after the charge had been completed, but his Honour refused to say more. This, essentially, was the appellant's complaint on appeal.
The same complaint was made at the trial. Counsel for the appellant's son, after his Honour had completed the charge, observed:
"I understand the way that your Honour set that out and you didn't mention, I don't think, Laurenson specifically. You did refer to 'the owner'. I am concerned that the jury might be left with the impression that unless it was Mr Mickelberg's intention to return it to Treby personally that it would not be possible for him then to have effectively discharged the onus which was on him on the balance of probabilities as to the intention to sell or supply.
It might be that his state of mind was that it was Treby or someone appointed by Treby to accept it on Treby's behalf and that's something that is left open by Mr Raymond Mickelberg's evidence, 'that someone was going to collect it', and I think he says at one stage Lindsay or someone, 'for him, one of his friends.' I wouldn't like the jury to be left with the impression that unless Mr Treby in the flesh turned up that defence was not available to Mr Mickelberg …"
The learned Judge then remarked:
"Yes, but if it were one of Treby's friends to pick it up it's not then being returned to the owner, or it's not the owner picking it up."
Counsel proceeded to point out:
"If Mr Mickelberg's state of mind was that Treby or someone who was acting on Treby's behalf, picking it up for Treby, then it doesn't have to be the owner in the flesh and blood, it has to be the owner who is getting it back …"
His Honour then refused to make any further remarks on the issue to the jury.
In the light of the appellant's argument and the Crown's contention to the contrary (namely, that on the evidence it was not open for the jury to find that the appellant believed that Laurenson would receive the cannabis as agent for Treby), it is necessary to examine the relevant evidence.
The appellant called Treby to testify before he, himself, gave evidence. In answer to the appellant's question "Who owns the cannabis?" Treby replied that he, Treby, was the owner. Treby said that he asked the appellant to look after the cannabis as a "favour", and he delivered it to the appellant's house.
At the commencement of Treby's cross‑examination by the Crown Prosecutor, the following exchange occurred:
"So what did you say to Raymond Mickelberg at the Raffles Hotel?---I asked him if he could store the cannabis.
That was it?---About the cannabis?
Yes. You asked him, "Can you store the cannabis"?---Yes. I asked him if he could store the cannabis. Do you want to know like who for? Is that what you're asking?
Yes?---a guy named George Laurenson.
You told him that, did you?---Yes.
So whose cannabis was it, yours or George Laurenson's--At that particular time it was mine. It was going to be George Laurenson's.
When?---When he picked it up.
And did you tell Raymond Mickelberg that George Laurenson was going to pick it up?---Yes.
So you told Raymond Mickelberg to store cannabis on your behalf so that it could be given to a George Laurenson?---I didn't tell him. I asked him to, yes.
And he agreed to do that?---Yes, he did.
So he was just another cog in the distribution chain, was he, Raymond Mickelberg?---I don't know if that's the correct terminology. If you're trying to work out why George Laurenson, because Ray knows George Laurenson, that's why."
Although Treby intended that the cannabis "was going to be George Laurenson's" when he picked it up, he did not testify that he told the appellant this. According to Treby, he asked the appellant to store the cannabis so that it could be given to Laurenson, and Treby chose Laurenson as the collector of the cannabis because the appellant knew him. While Treby accepted that the cannabis was being stored "for" George Laurenson, it is by no means clear that this meant that Laurenson had become the owner of the cannabis. This was, after all, inconsistent with Treby's remarks, made a few seconds before, that he was the owner of the cannabis. Treby's replies were also consistent with his intending to mean only that he asked the appellant to store the cannabis (which was owned by him, Treby) until it was collected by Laurenson. The cannabis was arguably only in this sense stored "for" Laurenson. On the other hand, the statement by Treby that the cannabis was being stored "for" Laurenson is open to the construction that the cannabis was being stored on Laurenson's behalf, Laurenson being the owner thereof. In the end, it was a matter for the jury to determine what was to be made of it all.
Later, the following exchange occurred during the Crown Prosecutor's cross‑examination of Treby:
"In this instance you passed on cannabis to Raymond Mickelberg?---Mm.
You being the source?---Yeah.
Knowing, and he knowing, that it was to be ultimately supplied to Mr Lawrenceson [sic]?--- Ray knew it was going to Mr Lawrenceson [sic], knew he was going to pick it up, yeah.
And Mr Lawrenceson [sic] could do whatever he liked with the cannabis?---Definitely.
Did Ray know that?---I can't honestly recall having that conversation with Ray, but, you know, in my belief, yeah, he'd know that. It wasn't Ray's to make a decision about it, it was just – that was nothing to do with him.
He would know that, what, through conversations you'd had with him. Is that ‑ ‑ ‑?---Well, he would just know the fact that I asked him to hang onto the grass, I was going to get George to pick it up, so where's Ray's sudden involvement? He's a managing director, he can say this, he can say that? That part's got nothing to do with him. I doubt he would even know what George's plans were for it."
In this passage, Treby emphasised that all the appellant knew from what he, Treby, had told him was that he, the appellant, was to "hang onto the grass" and Laurenson was going to collect it. Treby did not say that he told the appellant that Laurenson "could do whatever he liked with the cannabis".
Treby was asked whether the appellant "was aware that he was taking cannabis from you to be passed on to George Laurenson", and replied:
"My evidence is Ray was looking after that cannabis and George Laurenson was going to pick it up from his house. I don't know where the 'passed on' comes from, but yes."
This testimony suggests that while Treby told the appellant that Laurenson would collect the cannabis, he did not say anything to the appellant to the effect that the cannabis would be "passed on" to Laurenson. It is arguable that Treby thereby meant that he did not say anything to the appellant to the effect that Laurenson would become the owner of the cannabis.
When the appellant testified, he stated that Treby had asked him to store the cannabis. He was asked whether he had any intention to sell or supply any of the cannabis to another person, and replied, "No, none whatsoever." When asked what his understanding was about Laurenson, he replied:
"It was fairly vague. When I turned up he [Treby] said he wanted a favour and he wanted to know did I know George Laurenson. I said yes. He asked me what I thought of him. I said, 'Well, I don't know a lot about him. I know him. He drinks a lot,' and he really didn't say much more than that. No, not much more about Laurenson was said."
Later, the appellant asserted that he was told to keep the cannabis "and someone would pick it up. I assumed Lindsay [Treby] would pick it up or he'd get some of his friends to pick it up." According to the appellant, "It may have been [Treby's] intent to have Laurenson pick it up, I don't know." He accepted that, when he was asked to keep the cannabis, Treby spoke to him about Laurenson. The appellant denied, however, that Treby said that "it was George Laurenson's cannabis at all".
When Treby's evidence about what was said to the appellant concerning the cannabis and Laurenson was put to the appellant (and, in particular, that Treby had told the appellant that Laurenson would collect the cannabis), the appellant replied:
"I don't see a problem with that. He may well have said it, but I can't remember back to specifically what he said, what, three years ago. He may well have. There's no disputing I know Laurenson, there's no disputing that Treby asked me to look after it and he may well have said, 'Laurenson's going to pick it up,' but I don't remember."
Under cross‑examination by the Crown Prosecutor, the appellant stated that he was told by Treby to keep the cannabis "and someone would pick it up". He said, "I assumed Lindsay would pick it up or he'd get some of his friends to pick it up." The following exchange then occurred:
"Didn't Mr Treby testify yesterday that he told you that the cannabis was going to be picked up by George Laurenson?---I don't remember exactly what he said. When we met at the Raffles he certainly asked me about George.
Yes?---And although he didn't – no, he didn't say it was George Laurenson's cannabis at all, but he raised the name of George Laurenson. It may have been his intent to have Laurenson pick it up, I don't know."
Later, the following exchange occurred:
"Right, but in any event you knew that someone was going to pick it up?---I would hope so. I didn't want it there any longer than it had to be there.
Yes, and if Mr Treby's right, George Laurenson was going to pick it up?---Well, someone would have, yes. Whether it be Laurenson or any of his other friends, I didn't really care."
The latter answer was consistent with an earlier exchange when the appellant was asked whether Laurenson was going to pick up the cannabis, and he replied:
"Well, someone would have, yes. Whether it be Laurenson or any of his other friends, I didn't really care."
It was suggested that the appellant's testimony that he did not care whether it was Laurenson or any of Treby's other friends who picked up the cannabis was inconsistent with a belief on his part that Laurenson would receive the cannabis as an agent for Treby. In context, however, the appellant's testimony is open to the construction that he believed that Treby at all times was the owner of the cannabis (Treby having told him this), that he had agreed to store the cannabis for Treby for a limited time, and that he believed that Laurenson or any of Treby's other friends would eventually collect the cannabis for Treby. The appellant knew that Treby might well ask Laurenson to do the collecting as the appellant knew Laurenson.
In response to a question from the prosecutor, the appellant reiterated that Treby had spoken to him about Laurenson, "but he wasn't specific in, 'hey, Laurenson's going to pick this up'". The following exchange then occurred:
"So you dispute Mr Treby's evidence, do you?---He may have said that, but I don't remember him having said it. He certainly raised the name of Laurenson, and wanting to know what I thought – what I thought about him, and I told him.
What did you understand, from your discussions with Mr Treby, was going to happen to all this cannabis?---He was just going to come and get it at some stage, or he would get someone to come and get it.
And do what with it?---I don't know. I don't know what he's going to – obviously he's going to sell it."
This passage is open to the construction that Treby had told the appellant, and the appellant believed, that Treby or someone appointed by him would collect the cannabis from the appellant and then Treby (and not the collector ‑ if the collector was not Treby) would sell it.
Towards the end of the appellant's cross‑examination by the Crown Prosecutor the following exchange occurred:
"Whichever version you gave – the police version or the Treby version – you knew at the end of the day you were going to pass these drugs on to someone else. Isn't that right?---No.
You didn't know you were passing – what did you have them there for, Mr Mickelberg?---Is that not clear? Treby asked me to look after them for him as a favour.
To be passed on to Mr Laurenson, according to you and Mr Treby?---No."
This passage, in context, is open to the construction that the appellant accepted that Treby asked the appellant to store the cannabis, but that the appellant denied that he was to pass the cannabis on to Laurenson on the basis that Laurenson was to be the owner (the appellant having earlier on several occasions agreed that he knew that Laurenson might be a person asked by Treby to collect the cannabis).

In summary, in my opinion, the following aspects of the evidence led on the appellant's behalf are of significance on this issue:
(a)Treby's evidence that he was the owner of the cannabis and the absence of evidence that he told the appellant that Laurenson would become the owner of the cannabis;
(b)Treby's evidence that, while Laurenson was going to pick up the cannabis from the appellant's house, he did not say anything to the appellant to the effect that the cannabis would be "passed on" to Laurenson;
(c)the appellant's statement that he had no intention to sell or supply any of the cannabis to another person;
(d)the appellant's denial that Treby told him that the cannabis was Laurenson's property; and
(e)the appellant's statement that he assumed that Treby or one of his friends (including Laurenson) would collect the cannabis, and the possible inference open from the appellant's evidence that Laurenson would pick up the cannabis merely because he was a friend of Treby's;
(f)the appellant's statement that he understood that Treby would come and get the cannabis at some stage, or would get someone else to collect it, and ‑ importantly ‑ that he believed that Treby would then sell the cannabis.
In my opinion, when regard is had to all the evidence and, in particular, the matters listed above, I consider that it was open to the jury to find that the appellant handed over the cannabis to Laurenson on the basis that he believed that Laurenson was an agent for Treby. Therefore, in my opinion, a defence was available to the appellant in accordance with Manisco v R. It follows, in my opinion, that the learned Judge erred in omitting to direct the jury in these terms and in withdrawing this issue from the jury.
Senior counsel for the Crown argued, somewhat faintly, that no miscarriage of justice had occurred, as the appellant had admitted stripping the cannabis and had also admitted transporting it from his own home to bushland over the road. It was said that this evidence could have formed the basis of a guilty verdict on a charge of assisting in the supply of the cannabis. This, however, was not an issue properly investigated at the trial and counsel for the Crown did not then submit that it was open to the jury to find the appellant guilty of assisting. In any event, the appellant's actions may well be explicable on some innocent basis. In my opinion, the proviso does not apply.
Before deciding whether to uphold the appeal against conviction, consideration needs to be given to whether the Court, pursuant to s 693(2) of the Criminal Code, should substitute for the verdict found by the jury a verdict of guilty of possession of cannabis. In this regard, the learned trial Judge, in the course of his charge to the jury, said:
"That leaves … the alternative charge of simple possession. You see, whilst the accused are charged with being in possession with intent to sell or supply, if you are not satisfied that either of the accused were in possession with intent to sell or supply, it is open to you to convict on account of simple possession. Mr Ray Mickelberg admits that he was in possession of it, and so at the very least it is open to you to convict him of simple possession in respect of counts 2 and 3."
Later, his Honour said:
"So although it's not specified in the indictment, it is an offence to possess cannabis and it's what we describe as a lesser offence than having cannabis with intention to sell or supply, and when you return with your verdict, if it is necessary – if you're not

guilty insofar as Ray Mickelberg is concerned as to count 2, then you would be asked whether or not you find him guilty of the lesser offence of simple possession of cannabis."

Further, should the verdict of the jury be so substituted, it would remain for this Court to impose a sentence for the conviction of simple possession of cannabis. I would hear submissions from counsel in regard to all these matters.
I now turn to the question whether a retrial should be ordered in respect of the two counts of possessing cannabis with intent to sell or supply.
The appellant was sentenced on 18 April this year and it seems that he has been in prison since then. On the assumption that he will be granted parole, he is due to be released in December this year. By the date that these reasons will be delivered, the appellant would have served between 3 and 4 months' imprisonment. On the basis that parole would be granted, that equates to a sentence, very nearly, of 12 months' imprisonment. When regard is had to the fact that the value of the cannabis was the subject of dispute and on one view was worth very little, the limited involvement the appellant is alleged to have had in the offences, the fact that he stood to earn no financial gain and was assisting Treby merely because Treby had contributed to his legal expenses in another matter, and other mitigating matters concerning the appellant's personal circumstances, I would think that an appropriate sentence for the two offences in question would be in the order of an aggregate of 12 months' imprisonment. A further factor, possibly relevant, is an offer by the appellant at an earlier stage to plead guilty to the two offences subject to certain conditions. I have concluded, however, that it is unnecessary to express any view on this question. My conclusion that 12 months' imprisonment (with eligibility for parole) would be an appropriate sentence is sufficient to dispose of the issue whether a retrial should be granted. As the appellant has in effect completed such a sentence (on the basis that parole would be ordered) I consider that there should be no retrial.
ANDERSON J: On 3 April, the appellant was presented in the District Court, together with his son, Ross Alexander Mickelberg, on an indictment containing three counts. By the first count, they were charged that between 15 April 1997 and 15 May 1997 they conspired together to possess cannabis with intent to sell or supply it to another. By the second and third counts, they were jointly charged with possession of cannabis

with intent to sell or supply. They pleaded not guilty. The appellant was unrepresented. Ross Mickelberg was represented by counsel.

The appellant and Ross Mickelberg were both acquitted of the offence charged in count 1, that is, conspiracy. The appellant was convicted of the offences of possession with intent which were charged in counts 2 and 3. Ross Mickelberg was convicted of a single offence of simple possession. The conviction of the appellant of the offence charged in count 2 related to 2.743 kilograms of cannabis material found in the garage of the appellant's residence in Duart Road, Trigg, a northern Perth suburb. The conviction on count 3 related to 4.039 kilograms of cannabis material and 2.82 kilograms of cannabis seed found hidden in bushland opposite the appellant's house. The conviction of Ross Mickelberg was in relation to some cannabis which was found in his own room at the appellant's residence. His conviction did not relate to any of the cannabis found in the garage or the bushland. He is not an appellant in this appeal.
The charges against the appellant arose out of a police surveillance operation which was initially concerned with people other than the appellant. One of the people who had been under surveillance was a convicted drug dealer by the name of Lindsay Treby. It was not in dispute that the appellant and Treby were acquainted, having met in prison some years earlier. The appellant gave evidence that in late 1996, the appellant was trying to raise money to pay for legal proceedings which were part of his campaign to clear his name with respect to his conviction in the early 1980s of a major gold theft. The appellant's evidence was that he had been informed by those assisting him with his campaign that Treby had offered some financial assistance. The appellant gave evidence that he agreed to meet Treby, who he had not seen for some time, to discuss that matter. They met in the car park at the Raffles Hotel in Applecross on 15 March 1997. The appellant's evidence was that at this meeting Treby confirmed his willingness to help with the appellant's fundraising. At the same time, according to the appellant, Treby made a request of the appellant that the appellant do him a favour, that favour being to "look after" some cannabis (t/s 645). The appellant's evidence was that he reluctantly agreed.
The meeting between the two was observed by drug surveillance officers who were watching Treby. In this way, the appellant came to the attention of police as a person of interest in connection with drugs.
Although it was not part of the Crown case as opened to the jury, it seems not to have been in dispute by the end of the trial that in late April 1997 Treby arrived at the appellant's house in Duart Road with a number of large plastic bags containing whole dried cannabis plants. He unloaded these from his vehicle into the appellant's garage. The appellant gave evidence, which appears to have been accepted by the Crown, that he decided to get the cannabis off his premises and hide it in the bushland opposite. He said that, to reduce the bulk of material so as to make it easier to hide, he got Treby's permission to strip the dried plants down. He said it was this stripped material that he rebagged and hid in the bushland under the fronds of two or three grass trees or "blackboys", as they were called in evidence. The appellant's evidence was that Treby turned up again on 8 May with two more bags of dried plants. These were also unloaded into the garage. Although the appellant's evidence on this particular matter is not very clear, it seems to have been accepted that the appellant intended to deal with this material in the same way, that is, he intended to strip the dried plants of usable material and hide that material in the bushland. At about 5.10 pm on 14 May 1997, a team of police officers descended on the garage to execute a search warrant. There was evidence that the appellant and his son were in the garage, apparently in the process of stripping down the dried plants. The police evidence was to the effect that the appellant's house and the bushland opposite had been under surveillance since 6 May 1997. There was evidence which was not contested by the appellant that he had been seen to visit the bushland on at least two occasions and move some of the bags of cannabis which he had earlier hidden there. At least one of these bags was taken back to the house by the appellant on one occasion. There was evidence that in one of the hiding places there was a bag containing numerous valves and tap fittings. With this bag, there was a soft drink bottle filled with cannabis seed.
The offence of possession of drugs with intent to sell or supply is created by s 6(1) of the Misuse of Drugs Act 1981 (WA) which provides:
"6. (1) Subject to subsection (3), a person who -
(a)with intent to sell or supply it to another, has in his possession;
…
a prohibited drug commits an indictable offence."
As to the element of intent to supply, there is a deeming provision in the Act. It is s 11 which provides:
"11. Presumption of intent to sell or supply
For the purposes of -
(a)section 6 (1) (a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug."
In the case of cannabis, the quantity specified in Sch V is 100 grams. The quantities seized from the appellant's premises and retrieved from the bushland opposite entitled the Crown to rely on the deeming provision in s 11(1)(a) to establish intent to sell or supply. As possession was not in issue, it was inevitable that the appellant would be convicted of the offences charged in counts 2 and 3 unless he proved absence of intent to sell or supply.
In his defence, the appellant called Treby who gave evidence of the circumstances under which the cannabis was in fact delivered by him to the appellant. It was Treby's evidence that he at all times intended that the delivery to the appellant was to be a step in his disposal of the cannabis to a man called Laurenson. It was never Treby's intention that the cannabis be returned to him. According to Treby, it was to be collected from the appellant by Laurenson, who, he presumed, would then sell it. Of course, the jury were not concerned with Treby's intentions but with the appellant's intentions. It is contended on behalf of the appellant that, notwithstanding the uncontradicted evidence of Treby's intention that this cannabis be supplied to Laurenson for sale, there was evidence upon which the jury might have concluded, on the balance of probabilities, that the appellant did not in fact have any such intention. It is submitted on behalf of the appellant that on that question the jury were not given proper direction. That is the single, short ground of appeal which is expressed in the following terms:
"The trial of the appellant miscarried as a result of the learned trial Judge's [failure] to properly direct the jury in relation to the law on possession of cannabis with intent to sell or supply."
In fact, the trial Judge did give what has come to be known in this State as a standard Manisco direction. This is a reference to Manisco (1995) 79 A Crim R 213, a decision of this Court, differently constituted. In that case, the defendant was charged with possessing methylamphetamine with intent to sell or supply. His counsel told the trial Judge that his explanation would be that he had been holding the drug "on the basis that it was handed to him by one or two persons with a view to returning it to those persons at a later date". The trial Judge indicated that he did not regard that as a defence. He informed counsel that he would direct the jury that, even if they accepted that explanation, there was a contravention of the section, nonetheless. The defendant thereupon pleaded guilty and later appealed on the ground that the guilty plea was entered only because of the trial Judge's ruling which, it was contended, was wrong. This Court allowed the appeal, holding that the word "supply" was not appropriate to include the mere return of physical control of drugs to the owner of them.
In this case, the learned trial Judge gave a clear direction to that effect. The direction is to be found in two places. His Honour said (at t/s 854):
"However, the word 'supply' in this context does not include the return of something to its owner. In this case Mr Raymond Mickelberg has denied that he intended to sell or supply the cannabis in his possession. If it were the case that Raymond Mickelberg or separately Ross Mickelberg was minding or looking after the cannabis on behalf of the person or persons who owned it on the basis that in due course he would return the cannabis to the owner of it, then it could not be said that he was in possession of the cannabis with intent to sell or supply it to another.
In other words, the mere return of the cannabis to its owner or owners in appropriate cases would not constitute supply … if having regard to the whole of the evidence you are satisfied on the balance of probabilities that the cannabis belonged to someone else and that it was the accused's intention to return the cannabis found in his possession to the owner of it, then the appropriate verdict would be not guilty as charged of intent to sell or supply."
His Honour then read to the jury the evidence of both Treby and the appellant relevant to that issue and said (at t/s 859):
"If it were to have been given back to Treby, then that would not be a supply and the requisite intention wouldn't be there and you would find Mr Raymond Mickelberg not guilty of the offence of possession with intent to sell or supply. On the other hand, it's a matter for you, members of the jury, to determine, having regard to the evidence as to whether or not the cannabis was to be returned to the owner, Mr Treby, or whether or not, applying the description of the word 'supply' to the circumstances, it was to be supplied to a person other than the owner of the cannabis.
That is a matter of fact and it's a matter which you, members of the jury, will have to consider and determine insofar as counts 2 and 3 are concerned in the context of considering those charges against Raymond Mickelberg."
On the face of it, that would appear to be both a correct and a complete direction. The complaint made at trial and on appeal by Mr Hall (who was counsel for Ross Mickelberg at trial and counsel for the appellant in this appeal) was that this amounted to a direction to the jury to convict the appellant unless satisfied on the balance of probabilities that the appellant intended personally to return the drugs to Treby himself; that an intention to deliver the drugs to someone for delivery to Treby would not be sufficient.
In my opinion, the jury could not reasonably have understood the direction in such a limited way. The jury were clearly told that "supply" did not include "the return of something to its owner". There was nothing in the words of the charge which could give the jury to understand that, whilst "supply" did not include a return to the owner, handing the drugs to a carrier for delivery to the owner was a "supply". No reasonable jury would reason in that manner. The jury must have understood his Honour's direction to mean, and it did mean, that however the drugs were to be got back to Treby, if the appellant's intention was that the drugs should be returned to Treby as the owner of them, they must acquit of possession with intent to sell or supply. In my opinion, there was no misdirection.
I am, in any event, of the opinion that there is no evidence upon which the jury could reasonably have been satisfied on the balance of probabilities that the appellant's intention was simply to hold these drugs as bailee for Treby, with a view to returning them to Treby. The appellant's evidence was that he was to hold (hide) the drugs and await further developments. According to him, he did not know and did not care what those developments might be, as long as someone eventually came for the drugs. Specifically, it is quite clear from his evidence that he was prepared to hand over the drugs to anyone nominated by Treby. It is sufficient to refer to the following passage from his evidence (at t/s 664):
"According to your witness, Mr Treby, you were to pass on the drugs to Mr Laurenson?‑‑‑Yes, he may have said that, he may have, but I wasn't aware that it had to be Laurenson. It could have been Treby turn up in 3 days' time and say, 'Hey, I want it.' It could have been you turn up, for all I know, or anyone. I would have been happy to have got rid of it to anyone. I simply didn't want it there."
On that evidence, it was not open to the jury to find, and indeed I think it would have been perverse to find, that the appellant's positive and sole intention was that the drugs be returned to Treby. That was, in his mind, simply one of the things (I would have thought the least likely thing) that might or might not happen.
In my opinion, there was no evidence capable of displacing the statutory presumption created by s 11(a) as to intent.
In the light of these conclusions, there is no need to consider whether this is an appropriate case for the application of the proviso in s 689(1) of the Criminal Code. That provision places an "onus on the Crown to establish that a reasonable jury after being properly directed would on the evidence properly admissible without doubt convict": Driscoll v The Queen (1977) 137 CLR 517 per Barwick CJ at 524 ‑ 525; Urbano (1983) 9 A Crim R 170 per Burt CJ at 174. I should say, however, that if there was a misdirection as contended for on behalf of the appellant, it is a case in which the court should apply the proviso and hold that "no substantial miscarriage of justice has actually occurred". This is because on the appellant's own evidence he was aiding Treby in the business of supplying the cannabis. He knew that Treby was a convicted drug dealer. He knew that Treby's intention was to sell the cannabis in question. He knew that Treby had a present need and a seemingly urgent need to find a safe place for the drugs, pending their sale. His purpose in taking delivery of the drugs and in hiding them, and in otherwise dealing with them as he did, was to assist Treby in that regard. This evidence is contained in the following passages which are taken from the appellant's cross‑examination:

Transcript 666:

"Did you ask him, 'Why do I have to store it at my place?'?‑‑‑No. He said, 'Will you do me a favour? I need a favour.'
Did you ask him - - - ?‑‑‑No, I didn't.
Why?‑‑‑Simply because he asked me for the favour, he knew I wasn't happy about doing it, but I said, 'Yeah, all right'. Obviously, if he asked me there had to be some reason why he didn't want it at his own place.
Yes, it crossed your mind, didn't it, Mr Mickelberg?‑‑‑It did.
Because he is a drug dealer?‑‑‑I didn't know that at the time.
You knew that, Mr Mickelberg?‑‑‑I think I told you he was in prison at the time I was in prison in 86. I got out of prison in 91, I met him when he was with one of his kids somewhere near Fremantle, had a chat with him. I didn't see him again till that time.
You knew Treby from his 86 convictions, did you? Is that - you came across him in 86?‑‑‑I think it was 1986 in, yeah, Fremantle Prison, yeah.
He was convicted at that time of being a heroin dealer?‑‑‑Yeah, you mentioned that yesterday.
You were aware of that?‑‑‑Well, of course. You mentioned it yesterday. I was sitting there and I heard you say that.
But were you aware of that?‑‑‑Yeah, I was."

Transcript 671

"Did you ask him, 'Why do I have to store this stuff at my house'?‑‑‑Well, it was clear he had a problem.
Did you ask him his problem?‑‑‑No, I didn't, but I knew there was - there was urgency in his voice, that he didn't want it near him.
Why should his problem be your problem, Mr Mickelberg?
‑‑‑Well, he had offered Frank Perry to help fund my appeal.
I see. So you were - - -?‑‑‑Although I wasn't strapped for cash, as you said.
For a $1000 pledge you were prepared to accommodate a drug dealer, were you, Mr Mickelberg?‑‑‑As I said to you, it was a stupid thing to do. I thought it was a small amount, I thought it was for a couple of weeks. I had no idea how much it would stink.
And you didn't know how much work you had to do to it either, I suppose?‑‑‑No."

There was evidence that the appellant placed the stripped‑down material into hessian bags. It was these bags which he hid in the grass trees in the bushland across the road. There was evidence which has already been mentioned, that he was later seen to move the cannabis about. On one occasion, he retrieved one of the hessian bags and took it back to the house. On that occasion, or another occasion, he rearranged the material that had been hidden by placing two hessian bags of material into a plastic bag. His explanation for this was to the effect that the weather was threatening and the hessian bags may not be waterproof and so he decided to further secure the material by placing two of the hessian bags into a plastic bag at the hiding place and by transferring some material which was in a hessian bag into a plastic bag. At t/s 676 there is the following evidence:
"All right, so you took the hessian bags across?‑‑‑Yep.
…
Where did you take the hessian bags to, please?‑‑‑Some of them ended - ended up down here [pointing to a photograph].
That's in location 2?‑‑‑Yeah. I think there was a small one there, but later on I put it into a plastic bag when the rains came, or when the rains looked like coming. I just thought I'd better put them into plastic bags."
At t/s 682 ‑ 683, the following appears:
"Did you take in that knapsack some plastic bags?‑‑‑I did.
One of which you used to bag what was in the two hessian bags at blackboy 2. Is that what happened?‑‑‑I think so. I'm not sure, from memory, when I did that. I mean, it's too long ago. It's not the type of thing that you - you remember exactly. All I know is the weather looked a bit overcast, it was early May, and I thought I'd better put them in plastic bags.
You had better protect the merchandise. Is that what you were thinking?‑‑‑Not merchandise. I'd been asked to look after something, I took it across the road because I didn't want it in the house. I put it in hessian bags originally, and I thought, 'Well, I'd better put it in plastic bags', and that's what I did.
Better look after it for this man that you hadn't seen for 5 or 6 years?‑‑‑That's right."
At t/s 695, the following passage appears:
"What did you understand, from your discussions with Mr Treby, was going to happen to all this cannabis?‑‑‑He was just going to come and get it at some stage, or he would get someone to come and get it.
And do what with it?‑‑‑I don't know. I don't know what he's going to - obviously he's going to sell it."
As Burt CJ pointed out in Urbano at 175, on that evidence "the appellant stands exposed as a person to be 'deemed to have taken part in committing the offence and to be guilty of the offence' " within the meaning of s 7 of the Code. It is the kind of case which Hunt J had in mind in R v Carey (1990) 20 NSWLR 292 and which Pidgeon J (at 307) and Steytler J (at 316) had in mind in Manisco. It is quite clear that at all material times the appellant knew that Treby was in possession of the cannabis for the purpose of sale or supply and needed assistance to overcome a "problem" with respect to its concealment. In agreeing to hide the cannabis for Treby and in keeping it safe from damage by rain by packaging it in a certain way and by standing ready to either hand it back or pass it on according to Treby's wishes, the appellant came squarely within the accessory provisions of s 7 of the Code. Therefore, like Burt CJ in Urbano, I cannot see how it could be said that the verdict of the jury convicting him resulted in any, or any substantial, miscarriage of justice. Had it been necessary to do so, I would have applied the proviso.
I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

As the other members of the Court would allow the appeal against conviction, I will not proceed to consider the application for leave to appeal against sentence.