Momand v The State of Western Australia
[2014] WASCA 116
•5 JUNE 2014
MOMAND -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 116
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 116 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:187/2013 | 10 APRIL 2014 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 5/06/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MOHAMMED MASOOD MOMAND THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Appellant convicted after trial of possessing a prohibited drug with intent to sell or supply it to another Misuse of Drugs Act 1981 (WA), s 11 Whether the trial judge misdirected the jury that there was no evidence to rebut the presumption under s 11 Leave to appeal refused |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11(a) |
Case References: | Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 R v Birks (1990) 19 NSWLR 677 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MOMAND -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 116 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAUDE DCJ
File No : IND 534 of 2011
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of possessing a prohibited drug with intent to sell or supply it to another - Misuse of Drugs Act 1981 (WA), s 11 - Whether the trial judge misdirected the jury that there was no evidence to rebut the presumption under s 11 - Leave to appeal refused
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D J McKenzie
Respondent : No appearance
Solicitors:
Appellant : David McKenzie Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
R v Birks (1990) 19 NSWLR 677
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
1 McLURE P: I agree with Buss JA.
2 BUSS JA: This is an application for leave to appeal against conviction.
3 On 14 August 2013, the appellant was convicted, after a trial in the District Court before Staude DCJ and a jury, of one count in an indictment.
4 The count alleged that on 27 July 2010, at Burswood, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).
The State's case at trial
5 The State's case at trial was, in summary, as follows.
6 On 27 July 2010, at about 4.30 pm, several police officers went to a block of apartments at 96 Bow River Crescent, Burswood. The appellant lived in one of the apartments.
7 The police officers were in the basement car park of the building when the appellant entered the car park from one of the lifts. The officers detained the appellant. Detectives arrived at the scene at about 5.15 pm.
8 The detectives searched the appellant and a bag he was carrying. In the bag were $5,250 cash and a herbal supplement called Cobra-X. In the appellant's clothing were a number of items. The right hand pocket of the jeans he was wearing contained two sets of car keys, a Nokia mobile telephone that did not have its 'back cover', a SIM card, a Vodafone recharge receipt and $35.85 cash. In the left hand pocket of the jeans were a clipseal bag containing a yellow crystalline substance and some Cobra-X herbal supplement. The yellow crystalline substance was chemically analysed and found to be methylamphetamine. As the detectives removed the clipseal bag from the appellant's pocket, he looked away and said, 'here we go'.
9 A little later, the appellant told the detectives he had not previously seen the clipseal bag. Upon being asked why the clipseal bag was in his pocket, the appellant said the jeans he was wearing were not his. He had found the jeans on the floor of his apartment and put them on. The State asserted that the jeans were in fact the appellant's and the methylamphetamine was his.
10 The Cobra-X herbal supplement found in the jeans was identical to the supplement found in the appellant's bag.
11 The two sets of car keys found in the jeans operated two motor vehicles parked in the basement. One was a Mercedes and the other was a Holden Rodeo. The appellant admitted that he had recently driven both cars. The police searched the cars. In the Mercedes they found a Vodafone recharge receipt similar to the one found in the right hand pocket of the jeans. They also found the 'back cover' of a Nokia mobile telephone which fitted the Nokia mobile telephone found in the right hand pocket of the jeans.
12 After searching the motor vehicles, the police searched the appellant's apartment. They located a video camera and recording equipment that were not operational. They also located a glass implement used to smoke methylamphetamine. The appellant said he had seen the pipe previously but had not used it. Some of his friends who had been at the apartment that day had used the pipe. The appellant denied using methylamphetamine.
13 The appellant was arrested and taken to a police station. He participated in a video-recorded interview. During the interview the appellant denied that the methylamphetamine in the clipseal bag was his. The State asserted that this denial was knowingly false.
14 The methylamphetamine in question weighed 14.6 g and had a purity of 31%. A swab of part of the outside of the clipseal bag identified DNA which matched the appellant's DNA profile. The DNA was obtained from that part of the clipseal bag that is used to seal or close the bag.
15 The State relied on three recorded telephone conversations between the appellant and a relative, Farouk Olomi, made on 15, 21 and 23 March 2012. During the conversations the appellant and Mr Olomi discussed Mr Olomi being a witness for the defence at the appellant's trial. The State asserted that a plan was made between the appellant and Mr Olomi which involved Mr Olomi giving false evidence at the appellant's trial to the effect that the drugs belonged to Mr Olomi and not the appellant.
16 The prosecutor submitted that the jury should be satisfied beyond reasonable doubt that the appellant knew the drugs were in his pocket and that he intended to control and possess them.
The appellant's case at trial
17 The appellant gave sworn evidence at the trial.
18 The appellant said he did not know the methylamphetamine was in his pocket and it did not belong to him.
19 He admitted telling lies to the police. For example, he admitted that his statements to the police that he did not use methylamphetamine and that the glass smoking implement was not his were false. The appellant explained that he told the lies because he was ashamed of his drug use. He said he was a chronic methylamphetamine user and he and others had used the pipe to smoke the drug in his apartment.
20 The appellant gave evidence to the following effect:
(a) He was uncertain whether the jeans were his or not. However, he did not know, when he went to the basement car park, just before being apprehended by the police, that the jeans contained the clipseal bag of methylamphetamine.
(b) He had seen the clipseal bag of methylamphetamine a few days earlier when he smoked the drug in his apartment with his cousin, Mr Olomi.
(c) The fact that relevant items, including the keys and the mobile telephone, were found in the right hand pocket of the jeans did not mean he knew the clipseal bag of methylamphetamine was in the left hand pocket. He had put the items he needed to take with him in the right hand pocket.
(d) The Cobra-X herbal supplement found in the left hand pocket of the jeans was not his. It was not associated with the identical supplement found in his bag.
(e) His DNA could have adhered to the clipseal bag when he handled it on the previous occasion Mr Olomi had brought the bag to his apartment and they had smoked methylamphetamine taken from the bag.
(f) The $5,250 cash in his bag was for the purpose of paying for the acquisition of the Holden Rodeo. He had privately purchased the vehicle. He had withdrawn the cash in early June 2010 for a purpose which did not eventuate and he had put the cash in his safe. He was about to deliver the cash to an associate in payment for the Holden Rodeo when he was apprehended by the police. It would make no sense for him to have a large quantity of cash and drugs in his possession at the same time.
(g) His bank statements showed that he had withdrawn the cash in early June 2010 from his bank account. Also, the bank statements showed that he had used savings in his bank account to fund his living expenses. His lack of an income did not suggest that he relied on cash derived from drug dealing.
(h) Methylamphetamine for his personal use was acquired in small quantities. He never acquired methylamphetamine in the quantity contained in the clipseal bag (that is, 14.6 g). He invariably bought 1 g or half a gram. The most he would ever buy was 2 g.
(i) There were no indicia of drug dealing in his apartment.
(j) He had installed the video camera and recording equipment in his apartment because he was concerned about the possibility of an intruder. The camera had nothing to do with any business he was carrying on in the apartment.
(k) The recorded conversations he had with Mr Olomi did not involve the appellant arranging for Mr Olomi to give false evidence. Rather, he was endeavouring to get Mr Olomi to make a true statement, namely that the methylamphetamine in question was his.
21 Defence counsel submitted that the jury could not be satisfied beyond reasonable doubt that the appellant knew the drugs were in his pocket.
Section 11 of the Act
22 Section 6(1)(a) of the Act provides, in essence, that a person who has in his possession a prohibited drug with intent to sell or supply it to another commits a crime. The elements of the crime comprise possession of the prohibited drug with the requisite intention.
23 Section 11(a) of the Act provides that, for the purposes of s 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 of the Act in relation to the prohibited drug.
24 Schedule V specifies the amounts of particular prohibited drugs giving rise to the presumption, under s 11(a), of an intention to sell or supply. The prohibited drugs listed in Schedule V include methylamphetamine in an amount of 2.0 g.
25 In Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186, Steytler P said in relation to s 11(a):
Once the fact of possession of more than the specified quantity is proved beyond reasonable doubt or, as in this case, admitted, the prosecution has no other onus to discharge. The very purpose of s 11(a) of the Act is that of putting upon the accused, in such a case, the onus of establishing on the balance of probabilities that, on the whole of the evidence at the trial, he or she did not intend to sell or supply the drug to another [4].
The proposed ground of appeal
26 The proposed ground of appeal alleges that the trial judge made a material error in directing the jury that there was no evidence to rebut the presumption under s 11(a) of the Act that 'the appellant intended to sell or supply the prohibited drug, which deprived the jury of the ability to consider whether or not, in all the circumstances, it was satisfied that the element of the charge was proven beyond reasonable doubt'.
The appellant's submissions
27 Counsel for the appellant submitted:
(a) The trial judge erred by stating in his summing up that 'there is no evidence to rebut … the statutory presumption of intention' and that 'there is [no] evidence that would show that [the appellant] did not have an intention to sell or supply' (ts 661).
(b) There was evidence at trial that was relevant to whether the appellant had an intention to sell or supply the methylamphetamine. The relevant evidence comprised the appellant's bank account statements and the absence of any drug dealing paraphernalia in the appellant's apartment (appeal ts 9).
(c) Although defence counsel conceded (incorrectly, so it was submitted) that there was no evidence to rebut the presumption under s 11(a) of the Act, his Honour had a duty to direct the jury correctly as to the law and the facts applicable to that issue.
(d) The impugned direction 'deprived the jury of the ability to consider the element [of intention to sell or supply] and the presumption [under s 11(a)] in light of all the circumstances of the case'.
(e) His Honour's error occasioned a miscarriage of justice.
The merits of the proposed ground of appeal
28 The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).
- See also TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).
29 An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then, or later on appeal, that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [16] - [17] (Gleeson CJ), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).
30 An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).
31 In the present case, as I have mentioned, the appellant gave sworn evidence at the trial. His defence was that he did not know the methylamphetamine was in his pocket and the drugs did not belong to him. Accordingly, the defence related to the issue of possession. It was not relevant to intent to sell or supply the drugs to another.
32 As I have mentioned, the appellant said in evidence that he only acquired small quantities of methylamphetamine for his personal use. He never acquired methylamphetamine in the quantity contained in the clipseal bag (that is, 14.6 g). He invariably bought 1 g or half a gram. At most, he would buy 2 g.
33 Defence counsel made a rational forensic decision to conduct the defence on the issue of possession. Defence counsel also made a rational forensic decision not to run the appellant's case on the basis that if the jury rejected the appellant's sworn evidence that he did not know the 14.6 g of methylamphetamine was in his pocket, that the drugs did not belong to him and that he only ever acquired methylamphetamine in much smaller quantities, then the whole of the 14.6 g was for his personal use. These decisions were, no doubt, driven by the appellant's sworn evidence that he only ever acquired methylamphetamine in much smaller quantities than the 14.6 g found in his pocket.
34 If the trial judge had directed the jury in the manner now contended for by counsel for the appellant (who was not defence counsel at the trial) there would have been a substantial risk that his Honour's direction would have undermined defence counsel's strategy.
35 Defence counsel conceded at the trial that there was no evidence on the question of intent to sell or supply. The concession was necessary to accommodate the appellant's evidence that he only ever acquired small quantities of methylamphetamine for his personal use. His evidence was positively inconsistent with a defence based on no intent to sell or supply. It is of significance that defence counsel did not request his Honour to redirect the jury or give an additional direction.
36 In any event, the evidence relied on by counsel for the appellant had no real connection with the 14.6 g of methylamphetamine found in the appellant's pocket. The state of the appellant's bank account and the absence of any drug dealing paraphernalia in his apartment were incapable, in the context of the whole of the evidence at the trial, of discharging the appellant's onus under s 11(a) of the Act. That is, if the State proved beyond reasonable doubt that the appellant was in possession of the methylamphetamine in question, then the evidence relied on by counsel for the appellant was incapable, in the context of the whole of the evidence at the trial, of establishing on the balance of probabilities that the appellant did not intend to sell or supply any of the drugs to another.
37 The matters relied on by counsel for the appellant, and the submissions he made in support of them, do not make out a reasonably arguable case that the trial judge made the alleged error or that a miscarriage of justice occurred at the trial. The proposed ground of appeal does not have a reasonable prospect of success.
Conclusion
38 Leave to appeal should be refused and the appeal dismissed.
39 MAZZA JA: I agree with Buss JA.
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