Miechel v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2006 772

DAVID ANTHONY MIECHEL	Applicant
	v
THE QUEEN
	Respondent

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JUDGES	MAXWELL P, NEAVE JA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 September 2009; 1 June 2010
DATE OF JUDGMENT	9 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 225
JUDGMENT APPEALED FROM	R v Miechel (Unreported, Supreme Court of Victoria, King J, 26 May 2006 (date of conviction), 18 August 2006 (date of sentence))

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CRIMINAL LAW – Appeal – Conviction – Burglary – Theft – Trafficking in drugs of dependence (5 counts) – Accused police officer part of team investigating drug trafficking – Drugs stolen from property under police surveillance – Failure to direct jury as to complicity – Admission of ‘no comment’ record of interview – Use of mitochondrial DNA evidence – Manner in which DNA evidence led – Failure to eliminate other individuals from DNA evidence – Circumstantial case – Whether verdict unsafe and unsatisfactory – Application refused.

CRIMINAL LAW – Appeal – Sentence – Burglary – Theft – Trafficking in large commercial quantity of drug of dependence (2 counts) – Police officer – Breach of trust – 15 years’ imprisonment with non-parole period of 12 years – Whether manifestly excessive – Whether prison conditions more onerous than sentencing judge appreciated – Application refused.

CRIMINAL LAW – Drug offences – Trafficking – Drugs of dependence – Large commercial quantity – Mixed substances containing two or more drugs – Whether separate counts involved double counting of quantities – Whether counts independently supportable by separate quantities – Whether miscarriage of justice – R v Ahmed (2007) 17 VR 454 considered – Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 70, 120, Schedule 11 Part 3.

WORDS AND PHRASES – ‘mixed with another substance’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Papas SC with Ms S Keating and Mr S Brown	Victoria Legal Aid
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
NEAVE JA
LASRY AJA:

After a month-long trial, the applicant, David Anthony Miechel, was found guilty by a Supreme Court jury of one count of burglary, one count of theft and five counts of drug trafficking. He was sentenced as set out below:

Count

Offence

Maximum penalty

Sentence

Cumulation

1

Burglary

10y

5y

2y

2

Theft

10y

5y

−

3

Trafficking in a large commercial quantity of MDMA

Life imprisonment

13y

BASE

4

Trafficking in a large commercial quantity of methylamphetamine

Life imprisonment

13y

−

5

Trafficking in a commercial quantity of amphetamine

25y

8y

−

6

Trafficking in dimethylamphetamine

15y

18m

−

7

Trafficking in ketamine

15y

1m

−

Total effective sentence: 15y

Non-parole period: 12y

The applicant now seeks leave to appeal against both conviction and sentence. For reasons which follow, we would refuse both applications.

Circumstances of the offences

The applicant joined Victoria Police on 24 April 1989. At the time of these incidents in 2003, he was attached to the Major Drug Investigation Division (‘MDID’) and held the rank of Detective Senior Constable.

On 24 August 2001, the applicant was the informant in relation to charges of trafficking in a drug of dependence brought against one Mandie Hodson, the daughter of Terrence Hodson (now deceased) (‘Hodson’). Approximately a month later, Hodson became a registered police informer.

The applicant and his colleague, Detective Sergeant Paul Dale (‘Dale’), became Hodson’s ‘handlers’ on behalf of Victoria Police. In that capacity they were required to inform their supervisors, in advance, of any contact they proposed to have with Hodson. On several occasions the applicant was cautioned by his unit leader about his undue familiarity with Hodson. At the end of 2002, the applicant began a relationship with Mandie Hodson.

In June of 2003, MDID commenced ‘Operation Gallop’, which investigated the trafficking of ecstasy and other drugs by a number of people. Subsequently, Operation Gallop was re-allocated to Dale, for whom the applicant was already working.

On 25 August 2003, one of the targets of Operation Gallop, Abby Haynes, signed a rental agreement for a 12 month lease of a property at 23 Dublin Street, Oakleigh. She moved in on 28 September 2003. She lived there alone with two dogs. Ms Haynes said in evidence that a large pill press was kept wrapped up on a trailer in the car port area and that she engaged in the trafficking of drugs from the premises. She maintained as much as $1,000,000 in cash there.

23 Dublin Street was under police surveillance from 10 September 2003 onwards. That surveillance included the placement of a covert video camera across the road at 36 Dublin Street. From 19 September 2003 onwards, the camera recorded the people coming and going from 23 Dublin Street. The camera was monitored at 22 State Street, which adjoins the rear boundary of 23 Dublin Street. Those premises were occupied by Rodney Windebank, who was a witness at the applicant’s trial. It was a daily process for police to attend at 22 State Street to change videotapes. The surveillance and the interception of telephones indicated that the syndicate operating the drug trafficking enterprise from 23 Dublin Street was dealing in very large quantities of drugs and that very large amounts of money were involved.

Detective Senior Sergeant Gary Barker was the acting officer in charge of Operation Gallop between 21 September and 11 October 2003. He was aware that the applicant was the handler for Hodson and was required to give prior notice of any proposed meeting with Hodson. The applicant gave no notice of any proposed meeting in the critical period between 21 and 27 September 2003.

At a meeting of police involved in Operation Gallop on Friday, 26 September 2003, there was a discussion as to what each member of the crew would do over the coming weekend. The applicant volunteered for the task of changing over the surveillance video tapes at 22 State Street. This had to be done on Saturday, 27 September 2003, at midday.

On that Saturday, the applicant and another woman with whom he was having a relationship, Dorothy Roper, travelled from the applicant’s home in Essendon to Oakleigh to change the tapes. On the way they stopped at Dale’s home. At about 12.30 pm the applicant went to 22 State Street and checked the monitoring equipment. The applicant and Roper later returned to the applicant’s house. In the early evening, the applicant left his house on his motorcycle, telling Roper that he would not be very long.

At about 6.10 pm the applicant’s motorcycle was seen parked in the vicinity of Curran Street in East Oakleigh. Curran Street runs into Dublin Street. Between 6.00 pm and 6.30 pm, Ms Haynes left 23 Dublin Street to visit a friend in Prahran. Her dogs were locked inside the house. The porch light was on and the front screen door was not locked.

For the purpose of concealing the relationship between herself and the applicant, Mandie Hodson had obtained pre‑paid mobile telephones for herself, the applicant and Hodson. In total, she obtained five telephones. Two were in false names, being ‘Tabatha Turlington’ and ‘Michelle McSherry’.

These two phones, the evidence suggested, were the means by which the applicant communicated with Terrence Hodson. On 27 September 2003 (the day of the alleged offences), there were phone calls between those phones at 2.13 am, 2.48 am and 5.41 pm. The Crown case was that the applicant and Hodson committed the burglary at 23 Dublin Street and stole drugs from the house, and that the phone calls had been made for the purpose of arranging the burglary.

In the early evening of Saturday 27 September, witnesses observed two people in the vicinity of 23 Dublin Street. One witness observed two men walking along State Street, one of whom was carrying a torch. At the intersection of Dublin Street they crossed the street, one stopping opposite 23 Dublin Street while the other stopped at 21 Dublin Street. The same witness later saw two people standing on the porch of 23 Dublin Street, the porch light being on. The light went out and the witness heard the sound of breaking glass and what he took to be the sound of a door being kicked. The witness then rang 000. Other witnesses also saw two men, wearing beanies, carrying an object which was about a foot long. This could have been a pinch bar or a torch. The covert video camera at 36 Dublin Street recorded two men entering 23 Dublin Street at 7.15 pm but, as we understand it, the men could not be identified from the video.

Ms Haynes gave evidence that the following drugs were inside 23 Dublin Street at the time she left the house that evening:

·a large Tupperware container full of MDMA powder;
·a large red and white bag full of various kinds of pills;
·a sealed bag of ecstasy tablets; and
·a floral bag containing:

(a) one kilogram of ‘ice’ (methylamphetamine) in crystalline form, packed in quantities of 100–150 grams, ready to be sold; and

(b) various types of ecstasy tablets.

Following the call to 000, police attended, including two police dog handlers, Senior Constables Stow and Bonniwell, with their dogs. Stow’s dog apprehended Hodson. Bonniwell’s dog intercepted the applicant. Bonniwell’s evidence was that he saw a tall man in dark clothing run out from the front yard of 12 State Street, Oakleigh. He shouted, ‘Police, don’t move’. When that instruction was ignored, he released the dog, which took hold of the applicant’s lower left leg. On instruction from Bonniwell, the dog let go.

The applicant said to Bonniwell, ‘I’m in the job. I’m in the job’, to which Bonniwell replied, ‘We’ll see about that later’. After a period of 20 or 30 seconds, the applicant jumped to his feet and jumped onto the nearest fence, whereupon Bonniwell ordered his dog to grab the applicant’s left leg. The applicant broke free again, and was again apprehended. Bonniwell struck the applicant with his torch and then handcuffed him. The applicant had injuries to his face and dog bites to his legs. He was wearing a black jacket and he had a ‘Leatherman’ multipurpose tool and a small ‘Maglite’ torch.

According to one of the police witnesses, the applicant gave the following explanation for what had happened:

The [applicant] had been to a “friendly’s” house in State Street to change tapes. He was working on a job in Dublin Street. The [applicant] was uncertain of the house number which he said was 23, 25 or 27. He worked in the Drug Squad. He saw a suspicious male near the target. He approached the male and asked for details or what he was doing. The male then ran off and the applicant chased him through the school grounds. The next thing he knew was that a Dog Squad member was behind him and a dog was biting him. He told the Dog Squad member five times that he was in the job. The Dog Squad member stood about ten feet away and did not call off the dog. He was not going to lie there and get bitten. He got up and started to run away. The Dog Squad member hit him with his torch and he was handcuffed.

Another police officer said he had asked the applicant whether he was an undercover police officer. The applicant said: ‘I’ve been changing the tapes in an observation point. I saw the van and I saw someone run through the school. I chased him and the dog chased me.’

Later, the applicant told Senior Sergeant Alan Manhire that he had changed the tapes earlier and had been sitting in the observation post watching the premises. ‘I was at the friendly’s. I saw a van go past then I saw a man run past the address. I thought he was the guy the van was after so I chased him. The next thing I know I was bitten by the dog.’

The following day, Mr Windebank, the occupier of 22 State Street, was putting out his washing in his back yard, which shares a fence with 23 Dublin Street. He saw two sports bags near the fence. One of those bags had a floral pattern and the other was black with blue handles. Windebank looked into one of the bags and saw bags of pills. He telephoned Dale’s private number and left a message with Dale’s wife. Ten minutes later a police van arrived.

On 10 October 2003 the applicant was interviewed by police. After giving a ‘no comment’ answer to a large number of questions, the applicant read out a prepared statement, the substance of which was as follows. He had attended 22 State Street at about 1.30 pm to change the surveillance tape. At about 7.00 pm he went for a ride on his motorcycle and he decided he would check 23 Dublin Street. He said he parked his motorcycle in a side street off State Street and walked toward Dublin Street. He saw a police van with a spotlight covering the school. He looked into the school grounds. He saw people walking westward toward the rear of the school. He entered the school grounds and looked around. He saw someone jump over the rear fence. He started pursuing this person and jumped over fences to do so. He ran out along Oakleigh Road but could not see anyone. He then saw a German shepherd dog behind him and heard someone say, ‘Get down, get down on the ground’. The dog jumped on top of him. He tried to get away from the dog but the dog continued biting and the dog handler would not call the dog off. He said he had not informed anyone at MDID that he was conducting a ‘recce’ of 23 Dublin Street that night, but it was not uncommon for him to do that kind of thing.

The following month (November 2003) the applicant was at a café in Camberwell where Mandie Hodson worked. According to her evidence at the trial, she asked him why he had done such a stupid thing, referring to the burglary in Oakleigh. He shrugged his shoulders and said, ‘Oh, this is going to sound silly but I probably did it more for you than I did for your Dad’. He then handed over a brown paper bag which contained a card bearing an image of Al Pacino as ‘Scarface’. The back of the card said: ‘I’ve never fucked anyone over in my life who didn’t have it comin’ to ‘im, jou got dat? All I had in this world is my balls and my word, and I don’t break ‘em for no‑one, jou understand?’ Hodson had originally given this card to the applicant. The applicant told Mandie Hodson to give the card to her father saying, ‘This now has a double meaning. He’ll know what it means.’

The applicant did not give evidence but called his father as a witness. His father lived on a property in Cobram. He described items used by him and the applicant on the property, including a ‘leadlight’ to illuminate the undersides of vehicles they worked on. The applicant spent ‘virtually every weekend’ in Cobram and worked on cars at night. He had shoulder length hair which he kept in a pony tail. Since there was no heating in the shed, he wore a black beanie to protect his hair from dirt and to keep him warm.

Grounds 1 and 2: counsel’s concession and the question of complicity
Grounds 1 and 2 were in these terms:
1. The conviction in relation to the count of burglary was dependent upon a concession by counsel for the accused that two men entered the house at 23 Dublin Street.
2.The learned trial judge failed to direct the jury as to complicity.

The defence accepted that there had been a burglary at the premises at 23 Dublin Street, but denied that the applicant had been involved. The applicant’s defence was that, at the time of his apprehension, he had simply been doing his duty as a police officer, attempting to apprehend an offender who had participated in that very burglary.

The defence also accepted that there were two offenders, of whom Hodson was one, but contended that the second offender was someone other than the applicant. Thus, in final address, defence counsel said to the jury:

The tape speaks for itself. Absolutely clearly. The Crown don’t like it and the police don’t want … that tape and they don’t want to see what’s on that tape, because when you look at it, it is so clear (a) there are two people, and the two people who went in there, one was Hodson and one was not my client.

Counsel for the applicant accepted that ground 1 could not be maintained. He acknowledged that the statement in final address was not really a concession but was, rather, an assertion which fitted with the manner in which the trial had been conducted. Even on the defence case, there had to be two offenders. Other police had apprehended Hodson and the applicant’s claim was that he had been pursuing the other.

The complaint in ground 2 was that the trial judge failed to direct the jury as to complicity. It was submitted that such a direction was necessary because the judge had told the jury that the issue in the trial was whether the applicant was one of the people who had entered the premises, collected the drugs from the premises and put them over the fence for later collection. The problem with that direction, counsel submitted, was that it assumed both men had entered the premises whereas, on the evidence, an alternative hypothesis was open, namely, that one man entered the premises while the other remained outside. For the person remaining outside to be criminally liable for the acts of the other, the jury needed to be instructed as to the law of complicity.

In our view, this ground must be rejected. The defence advanced no such alternative hypothesis and, given the way the trial was conducted, none was reasonably available. Adapting what the Court said in R v Luhan:[1]

The vice inherent in [this ground] of appeal is that [it is] premised on a different trial having been conducted from that which was actually conducted on [the applicant’s] behalf. Those who seek to challenge the result of a trial will be treated as bound by the manner in which the trial was conducted, and confined to the matters actually put in issue by them or by their counsel (except where a matter, though not raised, can reasonably be seen to have emerged as a real question from the evidence actually adduced at the trial).

[1][2009] VSCA 30, [37] (Maxwell P, Vincent and Neave JJA).

As noted earlier, defence counsel in final address accepted – unreservedly – that the evidence clearly demonstrated that two offenders entered the premises.[2] The central issue in the trial was whether the applicant was one of them.
[2]See [27] above.

The judge directed the jury accordingly:

But there is, however, no direct evidence of [the applicant] having been one of the persons who entered the house at 23 Dublin Street on that night or of him having stolen the drugs contained in the four bags which were placed over the fence at 22 State Street. The Crown rely upon you, the jury, drawing inferences in this case to prove those matters. The issues that you will ultimately have to consider is whether it was the accused man who was one of the two persons who entered into 23 Dublin Street that night and collected the drugs, placed them in bags and put them over the fence at 22 State Street.

And again, concerning the count of theft:
Once again, it appears that the real issues here are two-fold this time. Firstly, was it the accused man or his accomplice or both together, that is Mr Hodson, Mr Miechel and Mr Hodson, together, or separately, who took the property identified being the four bags that were found over the back fence or was it Abbey Haynes who packed those four bags and placed them over the fence?[3]
…
The Crown puts it that he is the person who has gone into the property with Terry Hodson and that together they have stolen these goods whilst in the property. So, if he’s not the person who has gone into the property, then this charge would fall, there would be a “not guilty”, because the person who has gone in is the one who has done the theft, on the Crown’s allegations. So the first thing you have to decide is that same issue again, is the accused man one of the two people who entered into the house on that night?

The second aspect, if you do determine that he is one of those people, is did he and Mr Hodson together, jointly, steal the drugs or were the drugs put over the back fence by Abbey Haynes, which is something that the defence have talked about being a possibility. Because if Abbey Haynes has put them over the back fence then no-one has stolen them. So that charge again would result in a “not guilty” because they would not have committed the crime of theft.

[3]Emphasis added.

Plainly enough, her Honour identified only two alternatives. These were the only alternatives open on the evidence. The first was that the accused, acting together with another person, took the bags from the house and put them over the fence. The second was that it was Ms Haynes, the occupier of 23 Dublin Street, who had done so. If the latter possibility could not be excluded, the applicant was entitled to be acquitted of the offence of theft. Thus her Honour went on to say:

So, you have to be satisfied, firstly, that it was the accused man who entered into the house with another person and, secondly, that either he or his co-offender packed and/or removed those bags and placed them over the rear fence at 22 State Street.

Subsequently she said:
What is disputed in this case is that the accused man was ever in the house at 23 Dublin Street or had any dealings with the persons who were in the house.
So, for you to convict the accused man on this count, you would have to be satisfied that he was in the house at 23 Dublin Street and that either he or his co‑offender removed the four bags of drugs and put them over the back fence at 22 State Street.

It follows that there is an insurmountable difficulty for the argument which counsel for the applicant sought to construct. That argument could only have had merit if the applicant had tried to conduct his case first on the basis that he was not part of the burglary at the premises but was in fact pursuing the second offender other than Hodson and, in the alternative, on the basis that if the jury found to the contrary, the Crown could not prove an actual entry to the premises by the applicant. Such an approach is, and was in the trial that was conducted, out of the question. The question of the proof of entry was irrelevant to the case the applicant conducted.

This ground accordingly fails. As we have said, it is premised on the applicant having conducted a different trial from the one which he actually conducted.

Ground 3: record of interview
Ground 3 states:
3.The learned trial judge erred in allowing a no comment record of interview to be admitted into evidence.

This ground was not the subject of oral argument. As noted earlier, the applicant made no comment in relation to the questions asked of him, before proceeding to make a ‘verbal statement’. In essence, the submission was that the admission of the record of interview ‘erode[d] the accused man’s right to silence’. The effect, so it was put, was to ‘encourage ... the jury to draw adverse inferences’.

This ground is without merit. First, the trial judge gave the jury the following relevant instruction about the use to be made of the record of interview:

Contained within that interview are a number of questions to which the accused made no reply. The portions of the interview were led to place what the accused said in context. That is, that he had been asked a series of questions and then he made his statement. You heard him say also during the statement that he made that there were a couple of reasons why he did not intend to answer the questions. The first is that he had legal advice that he ought not answer the questions. Can I tell you, that is something that exists in this State certainly, and really around this country. No person, if they are picked up, arrested, or being dealt with by the police, are obliged as a matter of law to answer any questions. You will hear at the start there is always a caution given. The caution by the police is that you have the right to not answer questions. It is a right that you have, I have, everyone has. And you cannot draw any inferences, as I have just indicated to you, from that because it is a legal right.
Equally, he said that he was concerned about the bias of the investigators. So he gives those two reasons during that time.
What you must not do, and accordingly I give you a direction to this effect, is that you must not infer guilt from the accused man's silence because it is everyone's right, legal right to remain silent, and to draw any adverse inference from that would be a most improper process of reasoning.
What you can do in respect of that interview is consider, as I have just indicated to you, what the accused man had to say to the police at that time. He put forward material that you can assess and make determinations about in the same way as you would in dealing with any witness who gives evidence or material that is put in front of you.

These directions were said to be contradictory. On the one hand, the jury were told they could not use the material to infer guilt, but on the other hand they were told that they could contrast the material in the record of interview with other evidence in the trial. We disagree. Her Honour’s direction quite clearly deals with the two separate components of the record of interview. She gave appropriate directions concerning those portions where no answers were given by the applicant and then dealt with those portions of the interview where the applicant ‘put forward material’. The directions were appropriate.

Secondly, and more importantly, the record of interview was admitted by consent. Counsel for the applicant at the trial had wanted the unanswered questions in the record of interview to be before the jury, in order to demonstrate what was said to be the hostile attitude of the investigating police. Aspects of the questioning in the record of interview were said to demonstrate that investigating police had prejudged the applicant’s guilt and were unfairly biased against him. In final address, moreover, defence counsel contended that propositions put to the applicant in that interview were inconsistent with other evidence.

In short, the record of interview was before the jury as the result of a forensic decision made by the defence. In making that decision, the applicant was exercising his right to a fair trial.[4] This ground fails.
[4]Jansz v The Queen [2010] VSCA 137, [27], [38] (Nettle JA with whom Harper JA and Hansen AJA agreed).

Ground 4: mitochondrial DNA
Ground 4 states:
4.The applicant’s trial miscarried due to the introduction and use of expert evidence concerning mitochondrial DNA test results.

The mitochondrial DNA evidence related to the hair found in a ‘beanie’ which had been located in the vicinity of 180 Huntingdale Road, Oakleigh, where the applicant was finally apprehended. The beanie was found with a pair of gloves. The applicant accepted that the gloves belonged to him but did not accept that the beanie was his. The finding of the beanie was consistent with what witnesses had seen the two alleged offenders wearing shortly prior to the burglary occurring.

At the trial, it was argued that the DNA results which appeared to inculpate the applicant were the product of contamination, because the beanie had been recovered by Mr Bonniwell, the police officer who had struggled with the applicant after he was intercepted by the police dog. It was therefore submitted that these DNA results should not be admitted into evidence. The trial judge ruled as follows:

Mr Lincoln, I have to say to you it seems to me that these are submissions for a jury, not questions of admissibility in relation to that. There are arguments as to why a jury ought not draw the inference, but in my view the beanie is clearly admissible.

Expert evidence on mitochondrial DNA was given by Ms April Smith. She said she received samples in the form of six hair samples which apparently came from the beanie. Ms Smith explained the difference between mitochondrial DNA and nuclear DNA. The difference, she said, was where the information was located in the cell. Mitochondrial DNA is maternally inherited. As to two of the samples analysed, the witness said she could not detect any differences between those samples and the control sample from the applicant. The witness was briefly cross-examined about the risks of contamination.

In his final address, the prosecutor put the following argument to the jury:

The mitochondrial DNA in these two hair samples obtained from the inside of the beanie have the mitochondrial DNA that match Mr Miechel's mitochondrial DNA, that is the mitochondrial DNA that he inherited from his mother. What's the chances of that hair being inside a beanie that wasn't Mr Miechel's when compared with and contrasted with the DNA analysis done by Ms McCall, and contrasted with the DNA analysis done by Ms McCall that relates to the gloves? What are the chances that that beanie isn't Mr Miechel's?

At trial, the defence raised no issue about the reliability of mitochondrial DNA. None of the propositions now advanced was raised with the trial judge. In his final address to the jury, defence counsel made no direct mention of mitochondrial DNA but put to the jury that contamination via Mr Bonniwell was an explanation as to why there was a scientific connection between the applicant and the ‘beanie’. Apart from summarising the evidence of Ms Smith, the trial judge did not otherwise refer to mitochondrial DNA.

Ground 4 was not elaborated in the oral submissions. The following matters were argued in the written submissions:

·the weakness in the mitochondrial DNA results was not fully explained to the jury, and they were not properly instructed about the weight to be given to the evidence;
·the possibility of unrelated individuals sharing the same mitochondrial DNA was not explained to the jury;
·because the evidence was unreliable, the Crown’s use of it made the trial unfair; and
·counsel for the applicant failed to properly test the expert witness’s evidence and should have taken exception to the trial judge’s directions on the topic.

This ground must be rejected. Like ground 2, it is premised on an approach to the evidence quite different from the approach actually taken by the defence at trial. As we have said, defence counsel did not attack the reliability of mitochondrial DNA as such, but sought merely to identify cross-contamination as an explanation for the scientific results.

It is unsurprising that there was no attack on the expert evidence concerning the mitochondrial DNA. What was said by Kellam JA (with whom Vincent JA and Whelan AJA agreed) in R v Rye[5] could equally have been said of this evidence:

The evidence given by Ms Smith was clear and unambiguous. It was not misleading or confusing. The difference between the analysis of nuclear DNA and mitochondrial DNA was explained clearly by her. She made it clear that her evidence did no more than not exclude the applicant as being a source of the DNA material, and that the evidence did not identify him as being the source of it. Indeed, the PowerPoint display she used to assist the jury, a copy of which was marked as an exhibit before them, contained as its last line the sentence: “This does not identify the accused as being the source of the evidence”.
The evidence in chief sets out in clear detail the fact that mitochondrial DNA differs from nuclear DNA in that mitochondrial DNA is passed by mothers to their children and that a considerable number of people who are in the same maternal genetic line may have the same DNA mitochondrial type.
[5][2007] VSCA 247, [51]–[52].

Ground 5: fresh evidence

Ground 5 states:

5. Fresh evidence obtained since the trial establishes that DNA samples relied upon by the Crown were contaminated.

We referred earlier to the discovery by Mr Windebank of two sports bags. When police arrived, the bags were photographed where they had been found. Detective Senior Constable Telley observed the bags in situ and recorded a detailed description of them. He also recorded their transport into safe custody.

The applicant sought to introduce as fresh evidence a statement sworn by Paul Dale on 8 August 2008. As noted earlier, Dale was working with the applicant on Operation Gallop. He was subsequently charged with offences arising out of the burglary the subject of the present appeal, and later with the murder of Hodson. Those charges have now been withdrawn.

The Dale statement relevantly said:

In September 2003 I was in charge of a team of investigators running an investigation code named Operation Gallop which involved the targeting of large‑scale drug manufacturers/traffickers in the Melbourne area.
As a result of information received on 27 November 2003 this operation entered the arrest phase at which time numerous search warrants were executed at target addresses and arrests made.
This phase of the operation took many man hours and lasted throughout the night and into the following day. I was co‑ordinating many of the search warrants and crews executing same. I attended at a number of target addresses during this phase of the operation however without access to my official diaries from this period I am unable to recall exact time and addresses etc.
I do recall attending at the main target address in Oakleigh at some stage to assist the crew that was executing the search warrant at that address, which from memory was Detective Sergeant Graham Sayce’s crew.
At some point in time during this phase of the operation I recall the bag/s of drugs located at the rear of the main target address being brought into the main offices of the MDID. I recall there were a large number of staff in the office at the time and the large amount of drugs and the bright colours of the tablets were of great interest to the staff, who I observed handling these items. I was aware that the bag/s of drugs were located over the rear fence of the main targeted address, an area where I along with other members of my team including David Miechel spent many hours conducting covert surveillance on the target premises.
I recall the drugs being spread out onto a table opposite my crew’s cluster of desks. I certainly handled these bag/s and drugs as a matter of interest at the time. I can further recall a large amount of seized property and the drugs being taken into the mess room of the MDID where all staff ate their meals on a daily basis.
I had no further dealings with the drugs or bag/s after this time. It was not always required to bring evidence such as this back into the office or into the mess room for that matter however on operations such as this one where many matters were required to be done unplanned evidence would be brought back to the office.
At the time of the seizure of the bags and drugs from the rear of the target address, they would have been conveyed back to the office in a vehicle most likely used by David Miechel. They were brought into the office and handled by members who had previously been seated at David Miechel’s desk. They were placed onto desks and at one point onto the ground approximately two metres from where David Miechel sat, walked and worked on a daily basis. They were placed onto the mess room table, a table that was used by David Miechel to consume his meals on a daily basis. Most staff were not wearing gloves when handling these exhibits at the office.
From my knowledge of DNA and the potential for cross‑examination, there were many occasions that could have caused cross‑contamination of these evidentiary items with David Miechel’s DNA.

After hearing argument, we refused the application to admit the Dale statement as fresh evidence. These are the reasons for that decision.

The principles governing the admissibility of fresh evidence on appeal were conveniently summarised by Kenny JA (with whom Winneke P and Callaway JA agreed) in R v Nguyen and Tran:[6]

An appellate court cannot set aside a verdict on a “fresh evidence” ground unless it is satisfied that there has been a miscarriage of justice because the fresh evidence was not put before the jury at the trial: see Gallagher v R (1986) 160 CLR 392 at 395, 402, 410 and Mickelberg v R (1989) 167 CLR 259 at 301. If this ground is made out, the plea of guilty will be quashed and, depending on the evidence considered as a whole, the appellate court may direct a retrial or discharge the appellant: see Ratten v R (1974) 131 CLR 510 at 518‑9 per Barwick CJ. Ordinarily a court will not be satisfied that the “fresh evidence” ground is made out unless:
(a) the evidence was not available, or could not with reasonable diligence have become available, at the trial;
(b) the evidence is relevant and otherwise admissible;
(c) the evidence is apparently credible (or at least capable of belief); and
(d) there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial: see Gallagher at 399, 402, 410, 421 and Mickelberg at 273, 288, 301.

[6][1998] 4 VR 394, 400 (‘Nguyen and Tran’).

We approached the issue on the basis that, prior to the trial, the applicant was unaware of the Dale evidence. It was equally clear, however, that once questions arose concerning continuity of exhibits and possible contamination, no enquiry was made of Dale at any time.

In our opinion, the evidence now sought to be relied on did not qualify as fresh evidence. It was available before trial and could have been discovered with reasonable diligence. Dale was working in the same group of police as the applicant. He was someone who might reasonably have been expected to have information about the manner in which these items had been dealt with. There was no obstacle to the making of the necessary enquiries.

Counsel for the applicant argued that fresh evidence will always be received if to do otherwise would result in an unjust conviction being left to stand. Reliance was placed on what was said by Eames JA (with whom Warren CJ and Batt JA agreed) in R v Kucma,[7] as follows:
[7](2005) 11 VR 472 (‘Kucma’).

In R v AHK[8] the President (with whose reasons Brooking JA agreed; O’Bryan AJA agreeing, with separate reasons) noted that there had been some difference in judicial opinion as to the appropriate test to be adopted when assessing suggested fresh evidence, but in common with the court in R v Nguyen and Tran, adopted the test as stated by Mason and Deane JJ in Gallagher v R, namely, that the court will intervene where there is “a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial”. Consistent with that authority, the President held that in approaching that decision the appellate court should be guided by three general considerations. First, whether the evidence truly constituted fresh evidence; secondly, whether the evidence was apparently credible or plausible or was at least capable of belief; thirdly, whether the evidence had sufficient relevance and cogency to justify appellate intervention.
The President placed emphasis on the overriding duty of the court, in observing that:
[W]here there has been no wrong decision on any question of law or other irregularity at the trial and the verdict of the jury is not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the Court can only allow the appeal if it considers that a miscarriage of justice has occurred by reason of the fact that the fresh evidence was not adduced at the trial. The fundamental question for the Court in each such case is whether it perceives that a miscarriage of justice has occurred.

Again, and after discussing the different statements of courts as to the test to be adopted, the President returned to this bedrock proposition:
However, at the end of the day, it should not be forgotten that the expressions of judicial opinion to which I have referred are practical guidelines which do not detract from the force of the fundamental principle that an appellate court must allow an appeal if a miscarriage of justice is shown to have occurred. An appellate court will always receive “fresh evidence” if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand.[9]

[8][2001] VSCA 220 (‘AHK’).

[9]Kucma (2005) 11 VR 472, 483 (emphasis added, citations omitted).

Eames JA concluded:

As those cases disclose, the fresh evidence must first meet that description but will not of itself produce a new trial unless in the circumstances of the case it would amount to a miscarriage of justice to permit the verdict to stand in light of that evidence. In determining whether evidence constitutes fresh evidence and is of such character as to justify the quashing of the conviction the appellate court is not concerned to evaluate what would be the effect of the evidence if a new trial was ordered. Rather, the court is concerned with the question of what effect the new evidence would have had on the jury at the trial under appeal had that evidence been placed before it. As Batt JA observed in Roberts⁴⁴ the appeal court in considering fresh evidence ‘is required to make its assessment of a hypothetical past jury verdict’.[10]

[10]Ibid 487 (emphasis added).

On analysis, what was said in Kucma[11] – and in the passages from AHK[12] quoted by Eames JA – is entirely consistent with the principles summarised in R v Nguyen and Tran.[13] As Kenny JA made clear, the requirements for the admission of fresh evidence are cumulative. In the present case, the evidence sought to be relied on simply did not qualify as fresh evidence, for the reasons we have given. No question arose, therefore, of its likely effect on the jury.
[11](2005) 11 VR 472.
[12][2001] VSCA 220.
[13][1998] 4 VR 394.

For completeness, however, we should add that we saw no reasonable possibility that, if Dale had been called in the defence case and had given evidence in accordance with the statement before us, such evidence would have led the jury to acquit the applicant. The evidence would have been non-specific, speculative and implausible. For example, the suggestion that drug exhibits were taken into a mess room where meals were eaten defied credulity. In the circumstances, we think it most unlikely that defence counsel, acting responsibly, would even have called Dale as a witness to give the evidence.

Additional grounds regarding DNA evidence and further fresh evidence

Evidence based on DNA analysis was used to support the Crown case that the applicant was a participant in the burglary. The results can be summarised as follows:

·A black beanie was found in a black BMW which belonged to Hodson and which contained a number of items behind a false partition including a firearm, the beanie and a false number plate. The DNA profile from the beanie could not exclude Hodson.
·A large torch was found in a garden bed between two school buildings. Hodson could be excluded from the DNA profile found on it but it was not possible to exclude the applicant or two police officers.
·As mentioned earlier, a black beanie and a pair of gloves were found outside 180 Huntingdale Road, Oakleigh.[14] A partial DNA profile was obtained from the outside of the beanie, which positively excluded the applicant and Hodson. Three DNA profiles were obtained from the inside, from which Hodson could be excluded but the applicant could not.
·Thirteen hairs were found inside the black beanie. Eleven produced no DNA and the twelfth came from neither the applicant nor Hodson. The remaining hair was sent for mitochondrial analysis, which produced a match with the applicant, as already mentioned.
·At least three DNA profiles were obtained from the gloves, from which Hodson could be excluded but the applicant could not.
·From the three cigarette butts found in the school grounds, a DNA profile was obtained which matched Hodson’s.
·A red Holden bag was found inside the black and blue bag found in Windebank’s back yard, near the fence line with 23 Dublin Street. DNA profiles from at least three people, including one male, were obtained. There was no clear indication whether or not Hodson and the applicant were contributors.
·From the fabric handles of the floral bag found in Windebank’s back yard, DNA profiles were obtained from at least three people, including at least one male. There was no clear indication that Hodson was a contributor but the applicant, Haynes and others could not be excluded.
·A ‘So-Fresh’ bag found in the floral bag provided DNA profiles from four people including at least one male. The applicant could not be excluded.
·The red and white striped bag taken from 23 Dublin Street provided DNA profiles from at least three people, including at least one male. There was no clear indication that the applicant was a contributor. Hodson and O’Reilly could be excluded.

[14]See [41] above.

After the Court had reserved its decision on 28 September 2009, public controversy arose about the reliability of DNA evidence and about possible contamination of DNA evidence. The Office of Public Prosecutions then reviewed a number of criminal proceedings, including the present, where DNA evidence was part of the Crown case. As a result, the further consideration of these applications had to be suspended for a period of 6 months, from December 2009 to June 2010.

Ultimately, the parties and the Court were provided with a statement prepared by Dr John Buckleton, who is employed in New Zealand at the Mount Albert Science Centre of ESR as a principal scientist, and who had assisted the OPP in the general review of DNA evidence. On 1 June 2010, we granted the applicant leave to argue three further grounds of appeal against conviction, based on Dr Buckleton’s report, as follows:

(a)There has been a serious miscarriage of justice caused by the manner in which the evidence of DNA was led. The evidence of DNA relied on by the respondent at the trial has been subsequently called into serious doubt by the matters raised in the Buckleton Report.
(b)The evidence of Julie Margaret McCall should not have been introduced at all leading to a serious miscarriage of justice.
(c)In the absence of matters raised in the Buckleton Report, any conclusions that may have been drawn by the jury were unreasonable and not open.

These grounds must also be rejected, for the following reasons. We are prepared to treat the Buckleton report as fresh evidence, even though the exercise of reasonable diligence before the trial might well have identified Dr Buckleton as a potential defence witness, given the volume of material that he has published, commencing in or about 1986. We do not consider, however, that there is any ‘significant possibility’ that this evidence, had it been presented at the trial, would have led the jury, acting reasonably, to acquit the applicant.

Dr Buckleton was asked by the OPP to comment on DNA results in relation to several items of evidence in this case. The relevant expert evidence had been given by Ms Julie McCall, a forensic scientist employed at the Victoria Police Forensic Science Services Centre. It is convenient to deal with each item by first setting out evidence given by Ms McCall in relation to that item and then the comments of Dr Buckleton.

(a) The torch

Ms McCall said that from the ‘mid section’ of the torch, including the grip area, a mixture of DNA from at least three individuals was found. Hodson was excluded but the applicant and officers Manhire and Jarvis could not ‘be excluded as possible contributors’. Under cross-examination, however, Ms McCall accepted that the applicant’s DNA could have been innocently transferred to the torch as a result of his having given his bloodied mobile phone to Officer Manhire, who then picked up the torch.

Dr Buckleton describes the DNA profile associated with the torch as a ‘non-concordance’. He explains that in the following terms:

A non-concordance is where an allele present in the profile from Mr Miechel does not have a corresponding peak in the EPG. Where the DNA level is low this may be explainable, for example by drop out, and hence the profile is not an exclusion. However it is not beneficial to think in an exclusion/inclusion dichotomy for non‑concordances. Such non-concordances tend to support the defence hypothesis. In addition the peak areas for these EPGs are not a good fit for the prosecution hypothesis. I know of no model that could interpret these profiles reliably at this time.

The submission for the applicant was that, on the basis of Dr Buckleton’s report, the evidence about the torch should not have been before the jury at all.

(b) The beanie and gloves

Hodson and the applicant were excluded from the DNA sample obtained from the exterior of the beanie; but the applicant could not be excluded from the sample obtained from inside the beanie. In relation to this result Ms McCall said that the DNA results obtained would be at least 680 times more likely to occur if the sample originated from the applicant and two others as opposed to three others chosen at random.

As noted earlier, the separate mitochondrial DNA analysis established a scientific connection between the applicant and the beanie.

The applicant’s admission that the gloves were his was supported by the DNA analysis of the inner surface of the gloves. A DNA sample from at least three individuals was found, one of those individuals being male. The applicant could not be excluded. According to the evidence, it was 130,000 times more likely that the DNA originated from the applicant and two unknown persons than that it originated from three unknown persons selected at random.

In relation to that item, Dr Buckleton identified a likelihood ratio expressed as 4.7 x 10⁴, using an Australian Caucasian database. In his view, ‘this likelihood ratio gives very strong support to the suggestion that Mr Miechel is a donor to the DNA on this item’.

(c) The three bags

Three bags were subjected to DNA analysis, as follows:

·the ‘So-Fresh’ bag;
·the ‘Holden’ bag; and
·the floral bag.

As to the ‘So-Fresh’ bag, Ms McCall concluded that DNA came from four individuals, one of whom was a male. The applicant could not be excluded as a contributor. There was no likelihood ratio.

In relation to the ‘Holden’ bag, Ms McCall said that there was a mixture from at least three individuals, one of whom was male, and that there was no clear indication that the applicant was one of them. Finally, as to the floral bag, Ms McCall said that it was not possible to exclude the applicant, Ms Haynes, or either of the two other individuals. There was no likelihood ratio.

Dr Buckleton commented on those items as follows: the results from the ‘So- Fresh’ bag could not be interpreted; the results from the ‘Holden’ bag represented a non‑concordance and could not be interpreted, and the fabric handles of the floral bag likewise represented a non‑concordance and could not be interpreted.

Discussion

It was submitted for the applicant that the evidence of Dr Buckleton would have significantly weakened the Crown case. Specifically, it was said:

·without a connection to the beanie, the applicant could not have been linked to being on the verandah of the premises (broken glass found in the beanie being said to have come from the globe shattered there);
·without the applicant’s DNA on the ‘So-Fresh’ bag, the applicant could not have been directly linked to the removal of drugs from 23 Dublin Street; and
·without the applicant’s DNA on the torch, the link between the applicant and Hodson would have been weakened, since both men had been seen holding torches.

It was further contended that the Crown had placed inappropriate reliance on the three bags, in relation to which the evidence was that the applicant could not be excluded as a contributor to the DNA but no accompanying likelihood ratio was done. This was the relevant part of the final address to the jury by the Crown prosecutor:

They can’t fall into the class of persons who did not contribute to that DNA mixture. The evidence is led so that, so far as the Crown is concerned, Mr Miechel still falls within the class of persons that may have contributed. It is not evidence that he did. It is led, I suppose, as the reverse side of a coin. Evidence was led concerning the DNA mixture found on the outside of the beanie. Evidence was led that the DNA mixture, Mr Miechel was excluded from being the contributor. Well, the results of the testing are such that it excluded Mr Miechel then Mr Miechel is excluded from being the contributor to the outside of that beanie and you ought to know about that. But that evidence falls within a body of evidence that deals with his inclusion as to other DNA information that was found on that beanie. Likewise, when the experts spoke in terms of persons not being excluded it is merely that they have exactly that, not been taken out of the mix, and that’s all it is.

Senior counsel for the applicant submitted that, had Dr Buckleton’s expert opinion been before the trial judge, the DNA evidence with respect to the three bags would not have been admitted. With respect, this is clearly right, but it overstates the importance of the Buckleton report. Quite independently of Dr Buckleton’s comments, the ‘non-exclusion’ DNA evidence relating to the torch and the three bags was wholly lacking in probative value and should have been ruled inadmissible. It seems remarkable that there was no defence application for such a ruling.

That said, however, we are altogether unpersuaded that the wrongful admission of the ‘non-exclusion’ evidence resulted in a miscarriage of justice. Having reviewed the whole of the evidence, we agree with the Crown’s submission that the circumstantial case against the applicant was a very strong one and that the ‘non-exclusion’ evidence was of marginal significance when viewed as part of the case as a whole.

Central to the case, of course, was the applicant’s highly incriminating behaviour: his presence at the crime scene; his repeated attempts to evade capture; and the sheer implausibility of his purported explanation of his conduct. In addition, the Crown relied on each of the following matters:

·the presence of Hodson, a person known to be ‘deeply’ involved in drug crime;
·the relationship between the applicant and Hodson, his sexual relationship with Hodson’s daughter and his admissions to her about his involvement;
·the telephone contact between Hodson and applicant, including on the day the offences were committed;
·the applicant’s familiarity with the house where the surveillance was being conducted;
·his knowledge that the occupier of 23 Dublin Street would be absent on 27 September when these events occurred;
·the mitochondrial DNA evidence linking the beanie to the applicant, combined with the evidence that the beanie had traces of glass from a broken light globe at the front door of 23 Dublin Street, and traces of a chemical used in the globe;
·the admission by the applicant that the gloves found close to the beanie were his;
·the applicant’s knowledge that 23 Dublin Street was an important drug supply house and that the police surveillance operation was due to conclude within a matter of days;
·the fact that drug bags were thrown over the back fence in circumstances where the applicant knew that if the men left the house with the bags under their arms, they would have been recorded on the surveillance tape; and
·the fact that Ms Haynes had two dogs and that both Hodson and the applicant were found to have dog repellent on their clothing.

In our view, it was well open to the jury to be satisfied beyond reasonable doubt of the applicant ‘s guilt. These grounds must be rejected.

Ground 6: other suspects and the DNA evidence
Ground 8: failure of the Crown to supply information re the witness Komiazyk
Ground 6 states:
6.The trial miscarried because of the Crown’s failure to eliminate other likely individuals from DNA samples that were relied upon.

Ground 8 states:
8. The trial miscarried in that the Crown failed to provide the defence with information concerning the police investigation of the alleged involvement of a suspect in the burglary, namely Peter Komiazyk.

Ground 6 first refers to evidence from the occupier of 22 State Street, Mr Windebank, that he had touched the plastic bags which contained the drugs by pulling the zip seal apart and then, upon realising what they were, had desisted. No control sample was taken from him. The applicant’s written submissions make no effort to identify what flowed from this circumstance. Windebank was not an alternative suspect. Even if he had left enough material by touching the bag to produce a DNA profile, it would not have been identified. His having handled the bags did not affect the identification of the applicant’s DNA.

Secondly, it was said, the defence case was that the second offender was Peter Komiazyk. There was no control sample taken from Komiazyk for comparison with the DNA samples on which the Crown case relied.

Komiazyk was a Crown witness. He gave evidence that he was married to Hodson’s daughter, Nicola. He said that he had minimal contact with Hodson, because of a family disagreement. He and his wife had swapped BMW vehicles with the Hodsons. He described what he did on the day of the offences were committed. He was cross-examined about his numerous previous convictions. It was put to Komiazyk that he had committed the offences with Hodson. He denied this.

The submissions on behalf of the applicant contend that Komiazyk was a ‘likely alternative suspect’. But there was simply no material which suggested that he was involved in the commission of the offences. His evidence about his prior convictions, and his relationship by marriage with the Hodson family, provided no support for the contention.

In cross-examination, the informant gave evidence that he had received an anonymous telephone call implicating Komiazyk in the burglary with Hodson. He agreed that Komiazyk was a career criminal but said that, by the time of the committal proceedings, he had satisfied himself that Komiazyk had not been involved.

Little was made of this issue in final address. The prosecutor pointed out – correctly – that there was no evidence of any kind to indicate that Komiazyk was involved in the offences. Defence counsel could do no better than argue from propensity, that is, that a person with Komiazyk’s criminal record was the kind of person who would have committed offences such as these. This, it might be thought, was a case of clutching at straws.

In short, there was no issue litigated before the jury about these matters. There was no breach of duty by the Crown, and no miscarriage of justice. This ground must fail.

As to ground 8, the written submissions simply refer to two authorities. There is no factual outline, nor argument formulated. No oral argument was put before us. The ground was thus effectively abandoned, and we need say nothing further about it.

Ground 7: initial responses of the applicant on arrest
Ground 7 states:

7.The trial judge erred in allowing evidence to be given of the accused’s responses to police questions asked of the accused after he was under arrest but prior to the applicant being given a caution, save for the accused’s immediate and spontaneous answers to the first questions asked of him by one of the attending police officers.

No oral submissions were made in support of this ground. The written submissions, importantly, fail to refer to the following relevant matters. The topic of the applicant’s initial responses was first raised by counsel for the applicant during cross-examination of the police witness, Rayburn, when counsel sought to establish that on arrest the applicant was confused. He also sought to elicit what the applicant had said to Rayburn, at which point objection was raised by the prosecutor. This exchange led to a debate before the trial judge and, subsequently, to agreement between the prosecutor and counsel for the applicant, following which Rayburn was recalled and gave evidence in cross-examination about what she was told by the accused shortly after his apprehension.

In answer to a question from Lasry AJA, senior counsel for the applicant accepted that these matters were placed before the jury by consent, in order that the jury could assess the first response of the applicant. Counsel eschewed any submission on this ground, acknowledging – properly – that when such material is placed before a jury by consent, the accused must accept the disadvantages as well as the advantages.

There is no merit in this ground.

Ground 9: unsafe and unsatisfactory
Ground 9 states:
9.Each of the above individual grounds has the potential to lead the jury into error. Therefore the verdict is unsafe and unsatisfactory.

No oral argument was addressed on this ground, although counsel for the applicant made clear that it was not abandoned.

Because of our conclusions on the other grounds, this ground must fail.

Ground 10: aggregate of errors
Ground 10 states:
10. In the alternative, a combination or aggregate of the above errors resulted in a miscarriage of justice.

Given that all of the individual grounds have been rejected, this ground must also fail.

The ‘R v Ahmed’[15] ground of appeal

[15](2007) 17 VR 454 (‘Ahmed’).

A further ground of appeal was added by leave, at the beginning of the hearing, as follows:

There was a serious miscarriage of justice occasioned by counts 3–7 on the presentment each alleging trafficking in a drug of dependence derived from the same mixed substance.

The argument was based on the decision of this Court in Ahmed,[16] which we discuss below. Counsel focused on counts 3–5 on the presentment, which made the following allegations against the applicant:
[16]Ibid.

Count 3 On 27 September 2003, trafficked in MDMA in not less than the large commercial quantity applicable to that drug of dependence.

Count 4 On 27 September 2003, trafficked in methylamphetamine in not less than the large commercial quantity applicable to that drug of dependence.

Count 5 On 27 September 2003, trafficked in amphetamine in not less than the commercial quantity applicable to that drug of dependence.

Under s 70 and Schedule 11 Part 3 of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’), what constitutes a ‘commercial quantity’ or a ‘large commercial quantity’ of a drug is defined in alternative ways, the first by reference to the drug in its pure form, the second by reference to the drug when ‘contained in or mixed with’ another substance. At the time the offences were committed, the relevant quantities were as follows:

·MDMA – large commercial quantity: 750 grams (pure); 1,000 grams (mixture);
·Methylamphetamine – large commercial quantity: 750 grams (pure); 2.5 kilograms (mixture); and
·Amphetamine – commercial quantity: 250 grams (pure); 1.25 kilograms (mixture).

In order to understand this ground of appeal it is necessary first to describe what occurred in Ahmed.[17] In that case, police had seized powder and tablets containing various drugs of dependence (to which we will refer, for simplicity, as drugs A, B and C). The powder and tablets weighed, in total, 14.3 kilograms. Scientific analysis showed that, within the 14.3 kilograms of pills and powder, there was a percentage of drug A, a percentage of drug B and a percentage of drug C. The accused was presented on three separate counts of trafficking in a large commercial quantity, one count relating to each drug. The basis of these counts was that the quantity of the undifferentiated mixture exceeded, in relation to each drug, the amount specified in column 2A of Part 3 of Schedule 11 as the large commercial quantity applicable to that drug (when in a mixture).
[17]Ibid.

In other words, the same quantity of pills and powder was used to support three separate trafficking counts, each referable to a different drug within that aggregate quantity. Buchanan JA (with whom Nettle JA agreed) said this was impermissible:

This method of dealing with the mixtures of drugs of dependence found in the possession of the applicant is not consonant with the [DPCS] Act. The Act contemplates that trafficking in a mixed substance will not lead to the commission of as many offences as there are drugs of dependence present in the mixture.[18]

[18]Ibid 457–8.

Their Honours referred to the alternative course of aggregating quantities of different drugs, so as to constitute an ‘aggregate commercial quantity’ or an ‘aggregate large commercial quantity’, as defined in s 70(1) of the DPCS Act. The process of aggregation involves calculating the fraction of a (large) commercial quantity of each drug found, and then aggregating those fractions.

Nettle JA identified three different bases of charging, as follows:

Consequently, as it seems to me, where an offender is found trafficking in a mixture containing two or more drugs of dependence (whether or not the mixture contains any other substance), the Crown has three options:
(a)The Crown may ascertain the quantity of each drug of dependence within the mixture and present the offender on individual counts (each count relating to only one of the drugs of dependence so found) of trafficking in the quantity of that drug of dependence ascertained to be within the mixture.
(b)Alternatively, the Crown may select just one of the drugs of dependence within the mixture and, if the quantity of the mixture is a commercial quantity or a large commercial quantity in relation to that drug of dependence, the Crown may present the offender on a single count of trafficking in a commercial quantity or a large commercial quantity, as the case may be, of that selected drug of dependence.
(c)Alternatively, the Crown may aggregate the quantity of each drug of dependence within the mixture and, if the aggregate quantity of those drugs of dependence is not less than an “aggregated commercial quantity” or an “aggregated large commercial quantity”, as defined in s 70 of the Act, the Crown may present the offender on a single count of trafficking in that aggregated commercial quantity or aggregated large commercial quantity, as the case may be.[19]
[19]Ibid 462 (citation omitted).

The meaning of ‘mixed with’

The distinction drawn in s 70 of the DPCS Act is between the quantity of a drug of dependence in its pure form, and the quantity of a drug of dependence which ‘is contained in or mixed with another substance’. What is here referred to is the physical mixing of substances (at least one being a drug of dependence) to make a composite substance. An example would be a powder or tablet which was shown to include both drug A and starch.

As Ahmed[20] and the present case both illustrate, the composite substance may contain more than one drug of dependence. It is that circumstance to which Nettle JA’s three options apply. What Ahmed made clear was that, where a single quantity of ‘mixture’ in the relevant sense contained more than one drug of dependence, the quantity of mixture required to reach the relevant weight could support only one trafficking count. In that circumstance, the prosecution must decide which of the drugs contained in the mixture was to be the relevant drug for the purposes of identifying the (large) commercial quantity applicable to a mixture containing that drug. This is the second of the three options identified by Nettle JA. (Each of the other options would also be available.)
[20]Ibid.

The statutory phrase ‘mixed with’ does not, however, comprehend the circumstance where tablets containing drug A are found mixed together in a bag with tablets containing drug B, since the two drugs are not part of a composite substance. There would be only two options here: separate trafficking counts relating to drug A and drug B respectively; or one count of trafficking in an aggregate quantity.[21] The choice would depend on the respective quantities of drug A and drug B found.
[21]The aggregate quantity provisions may apply both to a mixture in the sense described above, and to the situation where the drugs are not part of a composite substance.

In the present case, as the defence admitted, there were more than 120 separate items (of pills and powder) on which the drug trafficking counts were founded. Let it be assumed, for the purposes of the discussion, that items 1–40 were shown on analysis to contain MDMA; items 41–80 to contain methylamphetamine; and items 81–120 to contain amphetamine. There could be no objection to the first group of items being used as the basis for a count of trafficking in MDMA, the second for a count of trafficking in methylamphetamine, and the third for a count of trafficking in amphetamine. If, as here, each drug is present not in the pure form but mixed with other substances (including other drugs within the same tablets or powder), then the applicable quantity will be that quantity specified in the Schedule for a mixture of that drug and other substances.

The present case

The complaint in the present case was that counts 1–5 had all been based on the same ‘method of dealing with the mixtures of drugs of dependence’ as the Court in Ahmed[22] had declared to be unlawful. It was said that the Crown had here relied on the same quantity of mixed substance to lay separate counts, each referable to one of the drugs found within the mixture.
[22](2007) 17 VR 454.

That this was so – at least in part – appeared to be confirmed by the ‘Certificate of Analyst’, prepared in accordance with s 120 of the DPCS Act and tendered by the Crown as part of its case against the applicant (‘the Certificate’). (The content of the Certificate was admitted by the defence.) The analyst certified that she had examined and analysed more than 120 separate items. These items were identified, variously, as bags containing tablets or powder, and as substances in the form of tablets or powder.

The analyst first tabulated the items which contained a percentage of MDMA. For each item, the quantity of ‘substance’ found was specified and the approximate purity of MDMA found in the substance. When the weight of these items was aggregated, the total quantity of substance containing a percentage of MDMA was 12.4 kilograms. The Certificate then noted that the large commercial quantity applicable to MDMA was one kilogram.

The Certificate then listed the items which contained a percentage of methylamphetamine. As for MDMA, the analyst’s tabulation identified for each item the quantity of substance and the approximate purity of methylamphetamine. The total quantity of substances found to contain a percentage of methylamphetamine was 11.6 kilograms. Relevantly, however, a number of items included in the MDMA table were also included in the methylamphetamine table. There was also a degree of overlap with the separate tabulation for amphetamine.

In short, there was a significant measure of double counting. For example, item 11, consisting of 269.9 grams of ‘substance’, was taken as contributing its full weight both to the large commercial quantity of MDMA and to the large commercial quantity of methylamphetamine. The analysis of item 11 had shown it to contain both MDMA of 20 per cent purity and methylamphetamine of 0.8 per cent purity.

It was equally apparent, however, that each of the tables included a number of items which appeared in no other table. That is, the quantity of substance represented by each of those items had been counted in relation to one drug only. Accordingly, the Court asked senior counsel for the Crown whether, if the double counting of items was removed, there were sufficient, separately identifiable, mixed quantities of each drug to constitute a large commercial quantity of that drug.

In a supplementary submission, the Crown confirmed that this was so. The following table was provided, showing ‘the amount of the mixture which may be attributed to each count without double counting’:

Count

Drug of Dependence

Quantity

(grams)

3

MDMA

5398.8

4

Methylamphetamine

4156.0

5

Amphetamine

2097.8

This calculation, which was not disputed by the applicant, shows that the drugs seized after the robbery included – separately from each other – the following quantities of drugs:

·5.4 times the large commercial quantity of MDMA (in a mixture);
·1.7 times the large commercial quantity of methylamphetamine (in a mixture); and
·1.7 times the commercial quantity of amphetamine (in a mixture).

Are the counts in the presentment supportable?

As we have noted, the applicant did not dispute the accuracy of the Crown’s recalculation of the quantities. This is unsurprising, as the Crown’s supplementary submission identified quite clearly each of the discrete items relied on to support the calculation referable to each drug. It is not in doubt that, on this calculation, no item has been counted more than once. Thus, while the recalculation shows that the count of trafficking in a large commercial quantity of MDMA is supported by aggregating items each of which contains a percentage of MDMA, it also shows that none of these items is now taken into account in the calculation of the aggregate quantities referable to methylamphetamine and amphetamine respectively.

The applicant’s submission, instead, was that it was simply not open to the Crown to ‘recalculate’ in this manner. It was submitted that, on the authority of Ahmed,[23] an offender

is not to be charged with multiple offences for what in effect is one instance of trafficking in a mixed substance, notwithstanding [that] the substance contains two or more drugs of dependence.

The submission continued:
It is not open to the Crown to split quantities of a mixture in order to charge an offender in relation to two or more drugs of dependence contained in it, where the residual mixture would be sufficient to bring both amounts up to a commercial quantity.

[23]Ibid.

While the first proposition is clearly correct, the second misunderstands the statutory concept of ‘mixture’. As we have explained, there is no obstacle to the identification of separate groups of items (tablets or powder consisting of mixed substances), each group being referable to a different drug. In the present case, the total quantity of the group of items which contain MDMA (as part of a mixed substance) is 5398.8 grams. The total quantity of the (quite separate group of) items containing methylamphetamine (also in a mixture) is 4156 grams. Finally, the total quantity of another separate group of items containing amphetamine (also in a mixture) is 2097.8 grams.

It is simply not correct to describe this as ‘a single act of trafficking’. A simple analogy would be one large bag containing three separate bags, each of which contains a large commercial quantity of a different drug. There is, separately, an offence of trafficking committed in relation to each separate drug, the relevant quantity of each having been shown to be present.

Irrevocable election?

The final argument for the applicant was that the prosecution had made an irrevocable election, by presenting the analyst’s (undisputed) evidence in the form in which it did in the Certificate. According to the argument, the prosecution had ‘elected’ to adopt the approach made impermissible by Ahmed,[24] and could not now seek to uphold the counts on a different basis.
[24]Ibid.

We disagree. There is no meaningful ‘election’ in a case such as this.[25] What occurred was that the analyst’s undisputed evidence was aggregated, and presented, according to a method of calculation which the subsequent decision in Ahmed showed to be impermissible. But the very same evidence has now been shown, by the use of a different and perfectly permissible method of calculation, to provide incontestable support for each of the counts of which the applicant was convicted.
[25]Cf Sargent v ASL Developments Ltd (1974) 131 CLR 634; Immer(No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26.

The position might have been different had there been any issue at trial about the contents of the bags seized or about the accuracy of the analysis of the weight or drug content of any of the items. But there was none. As we have already pointed out, the defence admitted everything in the Certificate. There is, in our view, no unfairness of any kind to the defence in the Crown being permitted, in response to the late raising of the ‘Ahmed’ ground on this appeal, to point out that the evidence before the trial court amply supported each of the counts of which the applicant was convicted, consistently with the provisions of the DPCS Act.

If we were wrong about this, and it should instead be concluded that the ‘double punishment’ ground succeeded because of the form of the Certificate, we would nevertheless dismiss the appeal. For reasons which follow, we do not consider that a different sentence should have been passed. In those circumstances, s 568(4) of the Crimes Act 1958 (Vic) requires that the appeal against sentence be dismissed.

We therefore reject this ground of appeal.

Appeal against sentence

There are two grounds of appeal against sentence. The first is that the sentence is manifestly excessive. The second is that there is:

fresh evidence which relates to events which have occurred since sentence demonstrating the true significance of facts in existence at sentence to be harsher to the Applicant than had then been understood.

In support of ground 1, it was submitted that the sentencing judge failed to give proper weight to the applicant’s good character and the destruction of his career as a police officer. It was further submitted that, because the applicant was a serving police officer, he would have to spend his term of imprisonment in protection, such that the sentence would bear more harshly upon him.

Counsel submitted that the sentencing judge had paid too much attention to the breach of trust represented by the conduct of the applicant and had ‘closed her mind’, at least to some extent, to the applicant’s good character. Reliance was placed on the judgment of McHugh J in Ryan v The Queen,[26] where his Honour said:

In considering a prisoner’s good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.[27]

[26](2001) 206 CLR 267.

[27]Ibid 278.

In her reasons, the judge expressly accepted that, until his involvement in these matters, the applicant was a man of good character. Having recited – without adverse comment – the evidence of good character, her Honour said:

As a result of the material put to me, I accept that you were, prior to these offences, a man of good reputation, a dedicated police officer and hardworking.

She also noted that these offences represented the applicant’s complete fall from his previously respected position in the community.

There is nothing in the sentence imposed to suggest that her Honour failed to accord to these matters the weight which they warranted. Put another way, we are not persuaded that the sentence was outside the range reasonably open to the judge in this case, full weight being given to mitigating factors.

As earlier noted, the total effective sentence imposed on the applicant was 15 years, with a non-parole period of 12 years. The maximum sentence for trafficking in a large commercial quantity is life imprisonment. The applicant was convicted on two separate such counts. It is difficult to imagine a more extreme breach of trust.[28] The applicant was a police officer who, for his own benefit, was stealing drugs from premises which were the target of his own unit’s surveillance. By any measure, this was lawbreaking of the most audacious and flagrant kind. It clearly involved premeditation. General deterrence is a very important consideration when a sentence is imposed for an offence such as this, committed by a member of the police force.
[28]See also R v Ferguson, Sadler & Cox [2009] VSCA 198, [401]:
The undoubted seriousness of the offence was to be viewed in the light of the fact that it was committed by a member of the Victorian police force who was working in that part of the police force charged with preventing and detecting trafficking in illicit drugs. As the judge said, Ferguson “flagrantly breached the trust” which the community had placed in him and “unconscionably took advantage of his position” to advance his criminal enterprise. Ferguson’s offending cast a shadow upon the work and lives of his fellow police officers. It was a “blight on the administration and enforcement of justice in this State”.

In relation to ground 2, reliance is placed on an affidavit of the applicant sworn on 22 September 2009. The content of the affidavit is as follows. After his sentence was imposed on 18 August 2006, the applicant was taken back to the Melbourne Assessment Prison (‘MAP’), where he had been held since May 2006. He remained there until September 2006. At the MAP he was in 23 hour per day lock down and – he claims – was woken every hour for observation. In September 2006 he was moved to Barwon Prison where he stayed until February 2007. Due to building works he moved back to the MAP in February 2007 and remained there until September 2007 when he was returned to Barwon and to the Melaleuca Unit. He was, he said, in a ‘super max’ high security facility and was regularly abused by fellow prisoners. In February 2008 he was moved to the prison at Ararat. The abuse has continued and on one occasion he was placed in a work place with a person he had charged.

On the basis of this affidavit, it was submitted that the reality of the applicant’s treatment had turned out to be far more onerous than her Honour contemplated, such that some adjustment of the sentence imposed should be made by this Court. In her reasons for sentence, her Honour said:

Further I accept that prison will be more harsh for you than the average prisoner but not that it will be served in conditions such as you have been undergoing. There are prisons where persons who may be at some peril from other prisoners are housed which is usually a place such as Ararat. As I say, I do accept that your time in prison may be more difficult than the average prisoner but it will not be so difficult such that you will be in maximum security or isolation but you will be with other protected prisoners and I will take that into account when imposing sentence.

In our view, these observations appropriately reflected the evidence before the sentencing judge. The question therefore arises as to whether what has occurred subsequently is materially worse than her Honour anticipated. It was submitted that there were two material differences. First, there was a substantial delay before the applicant was transferred to Ararat. Secondly, there was now evidence of actual hostility displayed toward him since the imposition of his sentence.

During the plea, submissions were made on this issue on behalf of the applicant. The sentencing judge indicated in the course of her reasons for sentence that she accepted that the applicant had been under very difficult conditions to that point, including spending long periods of ‘lock down’ and being spat upon by other prisoners. Her Honour then said that she expected that the applicant would be transferred to Ararat.

Clearly, the progress of the applicant from very restrictive and oppressive conditions to less severe and more flexible arrangements within the prison system was slower than the judge assumed it would be. Nevertheless, her Honour clearly took into account the burdens of imprisonment which the applicant was expected to face.

As part of the argument concerning the difference between the contemplation of the sentencing judge and the reality, the applicant relied on what he described as a high level of threat from prisoners whom he had charged or whose family member(s) he had charged. As already noted, there was one occasion to which the applicant deposes in which he was required to share a workplace in that prison with a person he had charged. That was, however, a single occasion over a period of 18 months and does not, in our opinion, evidence any substantial risk of a continuing nature. We do not consider that on the material it could be concluded that he is, for example, at daily risk of reprisal.

As Lasry AJA said to counsel in the course of submissions, there is no gaol in Victoria where the applicant could completely escape the kind of treatment about which he complains. The circumstances may not have been quite as expected by the sentencing judge but this is not unusual. Sentenced prisoners often find their conditions of incarceration different from that which had been anticipated. The control of the conditions is in the hands of the executive and, unless there is a stark difference between the contemplation of a sentencing judge and reality of what unfolds, there is no reason to interfere with the sentence imposed.

In our opinion the appeal against sentence must be dismissed.

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Citations

Miechel v The Queen [2010] VSCA 225

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Count	Offence	Maximum penalty	Sentence	Cumulation
1	Burglary	10y	5y	2y
2	Theft	10y	5y	−
3	Trafficking in a large commercial quantity of MDMA	Life imprisonment	13y	BASE
4	Trafficking in a large commercial quantity of methylamphetamine	Life imprisonment	13y	−
5	Trafficking in a commercial quantity of amphetamine	25y	8y	−
6	Trafficking in dimethylamphetamine	15y	18m	−
7	Trafficking in ketamine	15y	1m	−
Total effective sentence: 15y Non-parole period: 12y

Count 3	On 27 September 2003, trafficked in MDMA in not less than the large commercial quantity applicable to that drug of dependence.
Count 4	On 27 September 2003, trafficked in methylamphetamine in not less than the large commercial quantity applicable to that drug of dependence.
Count 5	On 27 September 2003, trafficked in amphetamine in not less than the commercial quantity applicable to that drug of dependence.

Count	Drug of Dependence	Quantity (grams)
3	MDMA	5398.8
4	Methylamphetamine	4156.0
5	Amphetamine	2097.8

[2010] VSCA 225

9 September 2010