Nuhana v The State of Western Australia
[2018] WASCA 79
•21 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NUHANA -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 79
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 11 APRIL 2018
DELIVERED : 11 APRIL 2018
PUBLISHED : 21 MAY 2018
FILE NO/S: CACR 11 of 2017
BETWEEN: AHMET NUHANA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SCOTT DCJ
File Number : IND 102 of 2016
Catchwords:
Criminal law - appeal against conviction - judgment of acquittal entered - possession of methylamphetamine with intent with intent to sell or supply it to another - trial judge's direction to jury - where trial judge leaves case to jury on basis not put by prosecution - whether direction deprived appellant of fair trial - whether constituted a miscarriage of justice - aider - joint possession
Legislation:
Criminal Code (WA) s 7
Misuse of Drugs Act 1981 (WA) s 6(1)
Result:
Appeal allowed
Conviction set aside
Judgment of acquittal substituted
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Patti Chong Lawyer |
| Respondent | : | Director of Public Prosecutions for Western Australia |
Case(s) referred to in decision(s):
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Collins v The Queen [2018] HCA 18
Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Jiminez v The Queen (1992) 173 CLR 572
Kalbasi v The State of Western Australia [2016] WASCA 144
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
Lai v The Queen [1990] WAR 151
Parker v The Queen (1997) 186 CLR 494
R v GAS [1998] 3 VR 862
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Wilkes (1948) 77 CLR 511
Ritchie v The State of Western Australia [2016] WASCA 134
Robinson v The Queen [2006] NSWCCA 199; (2006) 162 A Crim R 88
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Sheriff v The State of Western Australia [2017] WASCA 185
Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47
Taylor v The State of Western Australia [2016] WASCA 210
Waters v The Queen [2011] VSCA 415
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
REASONS OF THE COURT:
At the hearing of this appeal on 11 April 2018, the court granted the appellant leave to appeal on all grounds, allowed his appeal, set aside his conviction and substituted a judgment of acquittal. What follows are our reasons for making those orders.
Summary
At about 4.30pm on 9 April 2015, police officers executed a search warrant at a house in Mount Richon occupied by Christopher Rowson. At the time of the execution of the search warrant, in a back room of the house, methylamphetamine was being 'cut' with MSM and placed in clip‑seal bags for sale. As police forced entry into Mr Rowson's house, they observed Shaun Mather dumping methylamphetamine into a spa, which was located adjacent to the back room in an enclosed rear patio area. About 2.131 kg of methylamphetamine was subsequently recovered from the spa and its surrounds. An unspecified amount of additional dissolved methylamphetamine remained in residual spa water which was not taken by police but poured onto the lawn.
As police entered Mr Rowson's house, one of the officers observed the appellant standing with Mr Rowson near an empty fish tank in the enclosed rear patio area. The fish tank was located some distance away from the spa and back room. The appellant and Mr Rowson were directed out of the enclosed patio area, where they were taken into custody. The only evidence of the appellant's involvement with the methylamphetamine was his presence near the fish tank at Mr Rowson's house when the search warrant was executed and the detection of his DNA on the outer and inner surfaces of a plastic glove located on the floor near the spa.
The appellant was tried jointly with Mr Rowson on one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. That is an offence against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Mr Rowson was also indicted on other offences which are not presently material.
The prosecutor at trial (who did not appear as counsel in the appeal) opened the case against the appellant on the basis that he was 'involved' in the 'processing' of the methylamphetamine. The prosecutor indicated that the State's case was that the appellant assisted in the 'processing' of the drugs in some way. When asked for clarification in the absence of the jury, the prosecutor disavowed a case which contended that the appellant and Mr Rowson jointly possessed the methylamphetamine. Rather, the trial was run and defended on the basis that the State's allegation was that the appellant aided Mr Rowson in the possession of the drugs by his involvement in the processing of the drugs.
After the evidence was adduced and counsel's closing addresses were completed, the trial judge expressed the view to counsel that the only basis on which the appellant could be criminally responsible was if he jointly possessed the methylamphetamine. Over the objection of the appellant's trial counsel, the trial judge directed the jury that the appellant would be guilty of the charged offence if he was jointly in possession of the methylamphetamine.
The decision by the trial judge to leave the case against the appellant to the jury on a basis not put by (and indeed expressly disavowed by) the prosecutor deprived the appellant of a fair trial and constituted a miscarriage of justice.
The appellant had no real opportunity to address submissions to the jury that, even if they accepted that the appellant was involved in the processing of the methylamphetamine, they should not be satisfied, beyond reasonable doubt, that the appellant possessed the methylamphetamine. The absence of that opportunity deprived the appellant of a real chance of acquittal. Further, the loss of the opportunity to address those submissions to the jury meant that the appellant did not receive a fair trial. The nature of the miscarriage and its possible effect on the jury's verdict prevents this court from being able to assess whether guilt was proved, beyond reasonable doubt, on the admissible evidence at the appellant's trial. In these circumstances, the 'proviso' cannot be applied to dismiss the appeal on the basis that this court considers that no substantial miscarriage of justice has occurred. The appeal must be allowed and the appellant's conviction set aside.
In the circumstances of this case, the available options for this court are to either order a new trial or enter a judgment of acquittal of the charged offence. It is not appropriate to order a new trial. The trial judge correctly concluded that the case advanced by the State at trial was fundamentally flawed. The evidence led at trial was incapable of satisfying the jury that the appellant aided Mr Rowson or Mr Mather to possess the methylamphetamine with the relevant intent. There is no utility in ordering a new trial for the State to re-run its fundamentally flawed original case. Further, the State should not be permitted to run a new and different case based on an allegation of joint possession which was expressly disavowed at the first trial. The appropriate order is that a judgment of acquittal be entered on count 1 of the indictment.
The course of the trial
The State's opening
In the course of addressing some general matters, the prosecutor dealt with the issue of criminal responsibility. The prosecutor read s 7(a) -s 7(c) of the Criminal Code,[1] which provide:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a)Every person who actually does the act or makes the omission which constitutes the offence;
(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)Every person who aids another person in committing the offence;
[1] Trial ts 41 - 42.
The prosecutor explained that the State's case was that Mr Rowson and the appellant were 'both involved in processing the larger amount of drugs'. The prosecutor said that:[2]
Mr Rowson lives there. He's the person who's processing the drugs. He's the main party there.
[2] Trial ts 42.
After referring to the presence of Mr Mather, the prosecutor said:[3]
And Mr Nuhana is a smaller party.
So here's the aider. He's assisting in what's going on, in the processing of these drugs.
[3] Trial ts 42.
The prosecutor then referred to various aspects of the evidence he intended to adduce, including the location of the appellant's DNA on the inside and outside of a glove located by the spa.[4] The prosecutor continued:[5]
So again that's why I suggest he was assisting in the processing of the drugs in some way and that's why his DNA is on the inside and the outside of that glove, and he's taken them off prior to the police seeing him and discarded them.
[4] Trial ts 42 - 46.
[5] Trial ts 46.
The prosecutor recognised that the State's case was circumstantial, and said that the circumstances would lead the jury to conclude that:[6]
Mr Rowson - he's the principal player, and that's because it's certain it's his house, in this drug enterprise and Mr Nuhana was helping Mr Rowson in the processing of the larger amounts of drugs.
Appellant's opening
[6] Trial ts 47.
The appellant's trial counsel contended that the appellant was in the wrong place at the wrong time. He said the appellant was in the patio area when police entered and was not coming from any room and was not near the spa. Counsel said that the appellant never touched the glove and suggested that traces of the appellant's DNA on the glove may have been the result of secondary transfer.[7] Counsel concluded:[8]
Be careful with the prosecutor because he's trying to wrap my client up with all the evidence that's there. He's not an aider and they have to prove beyond reasonable doubt when you aid that you know what the other people are up to. This - whatever was happening in that room, it was a locked room (indistinct). But my client's in the house. He doesn't see what's happening in that room, he doesn't know. And I'm not suggesting anything was happening because he simply doesn't know.
…
My client simply doesn't know who was responsible for what to do with the drugs. He's not suggesting anyone is responsible. He's saying, "I didn't do it. I didn't aid him".
First discussion about the State's case
[7] Trial ts 49 - 51.
[8] Trial ts 51.
On the morning of the second day of trial, after the first State witness had given his evidence, there was a discussion between counsel and the trial judge, in the absence of the jury, about the State's case against the appellant. The trial judge indicated that he was confused as to what the State would say constituted aiding as opposed to joint possession.[9] The prosecutor responded:[10]
Well, it can be - it can be either. But in essence, it's Mr Rowson's house of course, so there is what's regarded as processing going on, there are bags, so there's a larger amount, which obviously is tipped into the spa.
So that's the suggestion, the larger amount is there to be processed, to be mixed with - and there's MSM present, there are bags and the like to be dealt with into smaller deal bags, that's why people are wearing gloves.
So Mr Nuhana is assisting that process.
[9] Trial ts 95.
[10] Trial ts 95 - 96.
The trial judge asked how the appellant assisted Mr Rowson to be in possession of the methylamphetamine, to which the prosecutor responded:[11]
Yes, well - he's there, he's processing, he's involved in the processing.
[11] Trial ts 96.
After further questions of the trial judge as to how the appellant assisted Mr Rowson to be in possession of the methylamphetamine, the prosecutor said:[12]
Mr Nuhana is there to assist in the processing, so he's aiding the processing which he's putting into deal bags and the like. That - that's the way it's put forward. And that's the reason why his - he's got gloves on. He's there, he's not - it's not his house, he's not the main man.
[12] Trial ts 96 - 97.
The trial judge observed that he understood what the appellant was not, and was most concerned about what he was. The trial judge said that he wanted to be clear as to whether the State was contending that the appellant was an aider or a person in joint possession. The trial judge observed that the appellant's trial counsel needed to be aware of that as well.[13]
[13] Trial ts 97.
The appellant's trial counsel then interjected to say:[14]
Your Honour, can I say that I was - always understood the case was my client aided by assisting, they allege, in the packaging. That's how I ran the defence.
The appellant's trial counsel explained that he understood the State's case to allege that the appellant aided by assisting in the processing in some way, and that is how he had been defending the case.[15] The prosecutor then said:[16]
Your Honour, I should say it's the way it has been discussed within the DPP and of course [defence counsel] has been informed of that. So I am not seeking to change that.
The trial judge then indicated that, while it was not clear to him from the prosecutor's opening, he was now aware of what the State's case specifically was.[17]
State's evidence at trial
[14] Trial ts 97.
[15] Trial ts 97 - 98.
[16] Trial ts 98.
[17] Trial ts 98.
The State adduced evidence of various police officers who participated in the execution of a search warrant at Mr Rowson's house at about 4.30pm on 9 April 2015.[18]
[18] Trial ts 54.
Officer Lee was one of the police officers who forced entry through the front door of the house. He noted the door of the main bedroom was locked, and proceeded to the dining area where he observed a silhouette of a person running right to left across the back door and shouted 'runners'.[19] Officer Cope entered the dining room after Officer Lee shouted 'runners' and, through the kitchen window, observed Mr Rowson running in a direction which was away from the back room.[20]
[19] Trial ts 57 - 60.
[20] Trial ts 142 - 143.
Officers Lee and Cope went out the back door and observed Mr Mather, who was wearing disposable plastic gloves, standing by the spa tearing bags and pouring a crystalline substance into the spa.[21] Mr Mather ran into the back room where he was arrested by Officers Lee and Cope.[22]
[21] Trial ts 61-62, 144 - 145.
[22] Trial ts 62 - 63.
Officer Ford entered the premises through the carport. After seeing Michael Gerondal near a cement mixer in the rear yard and directing Officer Barber to secure him,[23] Officer Ford observed the appellant and Mr Rowson standing stationary by a fish tank in the enclosed patio area. At that stage, the appellant and Mr Rowson were looking in Officer Ford's direction. Officer Ford yelled at them to come outside and ordered them to the ground. The men immediately complied with these instructions and were taken into custody.[24] Officers Lee,[25] Steens,[26] Cope[27] and Barber[28] first saw the appellant and Mr Rowson where they were being detained outside the enclosed patio area.
[23] Trial ts 177 - 178, 353.
[24] Trial ts 179 - 180, 183 - 187.
[25] Trial ts 64 - 65.
[26] Trial ts 105.
[27] Trial ts 146 - 147, 161, 167.
[28] Trial ts 353.
Neither the appellant nor Mr Rowson were wearing gloves when they were detained.[29] A search of the appellant's vehicle and person did not locate any indicia of drug-dealing.[30]
[29] Trial ts 133 - 134, 158, 180.
[30] Trial ts 164 - 167, 397 - 398.
Evidence was led as to the setup of Mr Rowson's house for the purposes of drug dealing, including in the following respects. The back room had a combination lock on its solid door. A person standing by the fish tank could not see inside if the door were closed.[31] The air in the back room was hazy and had a strong ammonia-like smell.[32] An air rifle and sword were located by the door of the back room.[33] Items in the back room included a large mixing bowl, clip-seal bags, a box of disposable gloves, a set of scales, bottle of acetone (used as a bleaching agent for methylamphetamine[34]), MSM powder (used as a cutting agent for methylamphetamine[35]) and a black spoon.[36] A camera detector, radio frequency detector and signal jammer were also located in Mr Rowson's House.[37] CCTV cameras were located at the front of the house and a CCTV monitor was in the back room.
[31] Trial ts 128 - 130.
[32] Trial ts 145.
[33] Trial ts 62 - 63, 75, 145 - 146, 299 - 301, 354 - 355.
[34] Trial ts 343.
[35] Trial ts 297, 322 - 324.
[36] Trial ts 146, 301 - 303.
[37] Trial ts 329 - 332.
Officer Cope located a set of white gloves near the spa and a single glove near a water feature in the enclosed patio area.[38] A pair of white gloves were also on the table of the back room.[39] The location of these gloves was depicted on a plan by Officer Barber.[40]
[38] Trial ts 148.
[39] Trial ts 299.
[40] Exhibit 35, see trial ts 361 - 366.
Evidence was led as to the recovery of the drugs from the spa and its surrounds, which it is unnecessary to detail. 2.131 kg of methylamphetamine was recovered from the spa water, the ground beside the spa and plastic bags in the spa. There was an unascertained quantity of methylamphetamine dissolved in residual spa water that was not collected by police.
The State led evidence that the whole of the exterior surface of the single white glove found on the ground near the spa was rubbed with a foam swab, and analysis produced a single source DNA profile that matched the appellant's DNA profile. The same exercise was undertaken with the interior of the glove, with the same result.[41] The amounts detected were trace amounts, and the State's expert witness was unable to say from which parts of the glove the DNA came, nor how the DNA came to be on the glove.[42]
[41] Trial ts 223 - 226.
[42] Trial ts 241 - 243, 253.
There was a good deal of evidence as to how DNA might attach to a surface by direct contact and secondary transfer (without the donor coming into contact with the item). It is unnecessary to detail that evidence for the purposes of determining the appeal. That is because the appeal must be allowed even assuming, favourably to the State, that the only reasonable inference was that the appellant's DNA was located on the glove because he had worn the glove.
No case submission
At the close of the State's case, the appellant's trial counsel made a no-case submission. In essence, the submission was that the State's case depended upon the detection of the appellant's DNA on the glove found by the spa, and the evidence did not exclude the reasonable possibility of secondary transfer of the appellant's DNA onto the glove.[43] In the course of responding to that submission, the prosecutor accepted that the State's case was that the appellant had aided Mr Rowson.[44]
[43] Trial ts 413 - 423.
[44] Trial ts 425 - 428.
The trial judge rejected the no-case submission on the basis that it was open to the jury to be satisfied that the only reasonable inference capable of being drawn was that the appellant's DNA was located on the glove because he was wearing it or touched the glove.[45]
Evidence adduced by the appellant at trial
[45] Trial ts 450.
The appellant gave evidence at trial. The effect of his evidence was that he had visited Mr Rowson's house unannounced, after delivering a lounge to another friend. He arrived in his brother-in-law's van, which he had borrowed for the purpose of the delivery, about 15 minutes before police arrived. He was having a coffee, standing by the fish tank in the enclosed patio area, when police executed the search warrant. He had not seen the back room, the door of which was closed, and he did not know that Mr Mather was at the premises. He last recalled seeing Mr Rowson in the kitchen, but noticed Mr Rowson being next to him on his left when he was arrested.[46] He denied having any knowledge of, or involvement in, any dealings with drugs at the premises.
[46] Trial ts 481 - 485, 487, 501, 505, 515.
The appellant's sister, Patrice Nuhana, gave evidence to the effect that, at about 2.30 pm or 3.00 pm on 9 April 2015, the appellant drove away in her partner's van, after loading a couch which he said he needed to take to Armadale.[47]
[47] Trial ts 518 - 519.
The appellant also adduced evidence from Dr Brian McDonald in relation to the secondary transfer of DNA.[48]
[48] Trial ts 454 - 477.
Michael Gerondal was called as a witness by Mr Rowson. Mr Gerondal's evidence was that he had been at Mr Rowson's property from about 7am on 9 April 2015. Mr Gerondal was building a wall around the property. At about 9.30am a person called Shaun (Mr Mather) arrived and walked up the driveway into the garage. After letting Shaun into the garage, Mr Rowson came out and helped Mr Gerondal. After 10 - 15 minutes, Mr Rowson and Mr Gerondal went inside to get a drink. At that time the appellant arrived and came inside, and they had a chat. Mr Gerondal left out the back door to do some more work. About 5 minutes later, Mr Rowson was coming out to continue helping Mr Gerondal. Police executed the search warrant as Mr Rowson joined Mr Gerondal.[49]
[49] Trial ts 532 - 534.
Under cross-examination by the appellant's counsel, Mr Gerondal said that the appellant arrived about 15 minutes before police, and he saw Mr Rowson give the appellant a drink. That was the first time Mr Gerondal had met the appellant. The appellant was not wearing gloves. The last time Mr Gerondal saw the appellant was around the enclosed patio area. Mr Gerondal also agreed that he had never seen the back room open, and did not know where Shaun was.[50]
Discussions after the conclusion of evidence
[50] Trial ts 535 - 538, see also trial ts 552.
After the defence cases closed, there was a discussion between counsel and the trial judge, in the absence of the jury, as to the basis on which the State had put its case. The prosecutor accepted that the State's case against the appellant was that he was an aider. The prosecutor submitted that the appellant could be convicted on the basis that he aided either Mr Rowson or Mr Mather, and there was no need for the jury to be unanimous as to which of those two persons he aided. The prosecutor submitted that if the jury was satisfied that the appellant aided in the 'processing' then he was culpable under s 7 of the Criminal Code.[51]
[51] Trial ts 562 - 564, 572 - 573.
The appellant's trial counsel objected to the case being left for the jury on the basis that the appellant aided Mr Mather. He contended that the State opened only on the basis that the appellant aided Mr Rowson, and that otherwise some cross-examination may have taken place as to what occurred between the appellant and Mr Mather.[52]
[52] Trial ts 567, 573 - 579.
The question of whether the appellant might be convicted on the basis that he aided Mr Mather does not appear to have been the subject of any ruling by the trial judge at this stage. However, there was no suggestion at this stage that the State contended that the appellant was liable on the basis that he was in possession of the methylamphetamine.
State's closing address
In his closing submissions, the prosecutor argued that the only reasonable inference was that the appellant was involved in the processing of the methylamphetamine.[53]
[53] See esp closing transcript 18, 19, 20, 21.
At a point when the prosecutor's closing was interrupted by a morning tea break, the trial judge asked some questions of the prosecutor for the purpose of enabling counsel to understand what they needed to address. The prosecutor agreed that the State's case was that the appellant was an aider assisting in the processing in the back room. He also said that the appellant helped Mr Mather in pouring the drugs into the spa bath.[54]
[54] Trial ts 584.
The prosecutor's closing submissions to the jury contended that the appellant was involved in the back room in the processing of the drugs as well as getting rid of items in the spa.[55] The prosecutor concluded by submitting that Mr Rowson's house was set up as a drug dealing house and:[56]
It's there because Mr Mather and Mr Rowson are drug dealers, at different levels, different levels in the pecking order and Mr Nuhana was there, processing, assisting. Assisting in the processing to bag and assisting to get rid of the drugs in the spa. That's what he's doing, that's what he's there for.
Appellant's closing address
[55] Closing transcript 29.
[56] Closing ts 30.
The appellant's trial counsel was called on to make his closing submissions immediately after the conclusion of the prosecutor's address. In the course of his submissions, which were largely directed to factual issues, counsel advanced his understanding of the State's circumstantial case:[57]
When the prosecutor opened he said that this is a case where my - Mr Nuhana was involved in assisting what was going on in the processing of the drugs. Well, now he wants a bit of two bob each way, he wants to now say, "Oh well, he's involved in getting rid of the drugs." That's what he's suggesting to you.
[57] Closing ts 32.
The appellant's trial counsel summarised the legal position in the following terms:[58]
So ladies and gentlemen, for you to convict Mr Nuhana, you have to find that he knew the offence was being committed or might be committed by his accomplice, who he allegedly aided and when I thought we began this trial the allegation was that he was aiding Mr Rowson. The accused actually gave assistance.
This case rests and falls on that glove and there are major problems with that glove and I'll come to it shortly. The mere presence of someone there, is not guilt. You can't say, "He was there, he's guilty", because the law is very clear on that, that is not the law. The law is a person who is alleged to be an aider has to do something has to do something to aid the process and I'm going to submit to you there is no evidence or insufficient evidence that you can be satisfied beyond a reasonable doubt that he aided anyone.
Argument after closing addresses
[58] Closing ts 33.
After all counsel had completed their closing addresses to the jury, the jury were sent away until the following morning. After the jury retired, the appellant's trial counsel indicated that he maintained his objection to the case being left to the jury on the basis that the appellant was aiding by assisting in putting the methylamphetamine into the spa.[59]
[59] Trial ts 596.
In the course of further responding to that objection, the prosecutor again accepted that the State's case was not being run on the basis that the appellant was in joint possession of the methylamphetamine either in the back room or near the spa. The prosecutor indicated that the State ran its case on the basis of the appellant's aiding. The prosecutor submitted that the appellant aided to enable the continued possession of the methylamphetamine by aiding to prevent its seizure by police.[60]
[60] Trial ts 596 - 598.
After hearing submissions on the appellant's objection, the trial judge indicated that he would make a determination the following morning.[61]
Trial judge's ruling on the appellant's objection
[61] Trial ts 603.
The trial resumed at about 9.18 am on the following morning. After dealing with a presently irrelevant issue, the trial judge indicated his view in the following terms (with counsel's interjections omitted for ease of comprehension):[62]
I've ruminated overnight - thanks very much for keeping me sleepless. It seems to me that with respect to Mr Nuhana the State, having put the matter on the basis that Mr Nuhana was involved in the processing of the drugs in the backroom the label that he is an aider is just simply not correct. He has to be a joint possessor for a couple of reasons. If there are two people or if there's Mr Mather and/or Mr Rowson in the backroom and Mr Nuhana is said to be assisting in the processing … But if he's to be termed an aider there would need to be some evidence as to what he did, so that the jury could come to the view that what he did constituted aiding either Mr Rowson or Mr Mather in the commission of the offence which they had both committed or one of them had committed.
It's not enough to say that [Mr Nuhana] was involved in the … processing of the drugs without articulating what he'd done because how is it that - that's a matter for the jury to determine whether he aided Mr Rowson or Mr Mather in the commission of the offence. That's the first thing.
Secondly, how does he aid in one of those gentlemen being in possession because possession's the only issue here. How does he aid Mr Mather who's handling the drugs and processing the drugs and arguably from the State's case, Mr Rowson processing the drug? How does he aid them in possession? They've already got possession? So it seems to me without question that he's a person in joint possession of the drugs.
[62] Trial ts 609 - 610.
The trial judge expressed the view that the wrong label had been applied to the appellant at law but that 'the facts aren't going to change'. The trial judge indicated his view that the jury ought to be given a direction as to joint possession.[63] The trial judge expressed the view that the pivotal question remained whether the only reasonable inference was that the appellant was involved in assisting Mr Mather.[64]
[63] Trial ts 611.
[64] Trial ts 612.
The trial judge also ruled that the jury ought to be directed that, as a matter of law, they could not find that the appellant had aided Mr Mather at law in tipping the drugs into the spa.[65]
[65] Trial ts 615.
The appellant's trial counsel indicated his objection to the course proposed by the trial judge. He contended that the appellant would not have dominion or control of the methylamphetamine by the mere fact of helping in its 'processing'.[66] The appellant's counsel submitted:[67]
Well, your Honour, we've had this whole case run on the basis of aiding and now we're going to tell the jury it's joint possession. I've got an enormous difficulty with that.
[66] Trial ts 615 - 617.
[67] Trial ts 617.
The trial judge ruled that if the appellant was involved in the processing of the methylamphetamine in the back room, 'the jury are able to find he's in joint possession and that's the label that is appropriate for section 7'. The trial judge regarded that as consistent with the opening of the State, albeit that they referred to the appellant as aiding in the processing of the drugs. The appellant's trial counsel said:[68]
Well, we're changing the goal posts at the end of the trial, your Honour. I've got a difficulty with that, but I'm in your Honour's hands.
The trial judge's direction
[68] Trial ts 619.
The jury returned at 9.42 am and the trial judge's direction to the jury commenced.
The trial judge began his direction in relation to the elements of the offence by indicating that the appellant could not be liable on the basis that he aided Mr Mather to dump the methylamphetamine into the spa.[69]
[69] Trial ts 624.
The trial judge identified the three elements of the offence charged in count 1 on the indictment as identity, possession of the methylamphetamine and intention to sell or supply the methylamphetamine. His Honour indicated that identity was not in issue.[70] In relation to the second element of possession, the trial judge said:[71]
As a matter of law, methylamphetamine is a prohibited drug. Now, to be in possession of something requires a person to either be in actual custody of it, physical custody of it, that is to have it on his person or to have control or dominion over it and an intention to possess it. So a person can possess something by physically holding it, but a person can also possess something without physically holding it. What is required is that the person has control or dominion over the thing in the sense that he is in a position to exercise control or dominion over it and he intends to exercise that control or dominion.
The words "control or dominion" are not legal terms as such. They are ordinary English words. To have control over something is to have a say over what happens to it, to be able to direct what happens to it. dominion means really the same thing. To have dominion over something is to have control over it and to have power over it.
[70] Trial ts 625.
[71] Trial ts 625.
After explaining that control and intention to control must exist at the same time,[72] the trial judge also explained that possession need not be exclusive and that several people could have joint possession of a drug. The trial judge said:[73]
The State says that Mr Mather, Mr Rowson and/or Mr Nuhana were each involved in processing the methylamphetamine in the back room, and were therefore each in joint possession of it.
[72] Trial ts 625 - 627.
[73] Trial ts 627.
After dealing with the case against Mr Rowson, the trial judge said:[74]
Now, as to the case against Mr Nuhana, with respect to count 1, the State says that you can be satisfied beyond reasonable doubt that the only reasonable inference capable of being drawn, is that he was involved in processing the methylamphetamines in the back room, with Mr Mather and/or Mr Rowson.
And he was therefore in joint possession of the methylamphetamine, as I have explained possession to you, by the following - by reason of the following.
[74] Trial ts 631.
In both these passages, the judge told the jury that, on the State case, the appellant was involved in the 'processing' and was therefore in joint possession. As we will explain, a conclusion of joint possession does not follow from involvement in the 'processing' of the drug.
The trial judge then summarised the prosecution and defence arguments as to whether the appellant was involved in the processing of the methylamphetamine.[75]
[75] Trial ts 631 - 634.
The trial judge then directed the jury in relation to the third element of intention to sell or supply the methylamphetamine. After referring to the statutory presumption of intention to sell or supply, the trial judge said:[76]
If the State has proved beyond reasonable doubt, that the accused who's case you are considering, had in his possession not less than 2 grams of methylamphetamine in the way in which I have defined possession for you, then that in law is equivalent to proof beyond reasonable doubt, of his intent to sell or supply the methylamphetamine to another.
[76] Trial ts 634.
After retiring to consider their verdicts, the jury asked the trial judge to repeat the direction for count 1 on the indictment in relation to the appellant.[77] The trial judge repeated the substance of his relevant direction.[78]
[77] Trial ts 666.
[78] Trial ts 672 - 677.
The jury subsequently delivered verdicts that both Mr Rowson and the appellant were guilty of the offence charged on count 1 of the indictment.
Grounds of appeal
The appellant appeals against his conviction on three grounds.
Ground 1 contends that the verdict of guilty on which the appellant's conviction was based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
Ground 2 contends that the State's case was left to the jury on a different basis than opened, such as to occasion a miscarriage of justice. Ground 3 contends that there was a miscarriage of justice and/or error occasioned by the trial judge, without reasonable notice, leaving the prosecution case to the jury in a way not put to the jury by the State. Grounds 2 and 3 both relate to the trial judge leaving the case to the jury on the basis of joint possession, rather than on the basis of the appellant being criminally responsible as an aider.
The application for leave to appeal on these grounds was referred to the hearing of the appeal.
For the following reasons, leave should be granted on grounds 2 and 3 and the appeal allowed on the basis that those grounds are established. It is unnecessary to deal with ground 1.
Disposition of grounds 2 and 3
Generally speaking, in directing a jury a trial judge should not advance to the jury an argument in support of the prosecution case that was not put by the prosecution.[79] A miscarriage of justice will arise where a judge leaves the prosecution case to the jury on a basis which significantly departs from that advanced by the prosecution, in such a manner as to deprive the accused of a fair trial.[80] The unfairness of the trial may consist of the loss of an opportunity to make responding submissions, even where there is no additional evidence which the accused could have adduced.[81]
[79] Robinson v The Queen [2006] NSWCCA 199; (2006) 162 A Crim R 88 [140]; R v GAS [1998] 3 VR 862, 878 - 879; Waters v The Queen [2011] VSCA 415 [103] ([point (5)).
[80] King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 432; Robinson [149].
[81] King, (432); Robinson [146] and cases there cited.
In our view, such a miscarriage of justice arose in this case. The State disavowed the argument that the appellant was to be convicted on the basis that he was in possession of the methylamphetamine. Defence counsel responded to the State's case on that basis. The prospect that a case based on joint possession would be left to the jury was raised only after the conclusion of counsel's closing addresses.
We respectfully differ from the trial judge's view that what was involved was simply a change in the label applied to liability based on the appellant's alleged involvement in the 'processing' of the methylamphetamine in the back room. On either the prosecutor's assistance case or on the joint possession case articulated by the judge, criminal liability was not established by a finding that the appellant was involved in the 'processing' of the methylamphetamine in the back room. On either case, the appellant's criminal responsibility required the drawing of further inferences.
On the State's assistance case, the appellant would only be criminally responsible if the requirements of s 7(b) and/or s 7(c) of the Criminal Code were satisfied. This required the jury to be satisfied, beyond reasonable doubt, that:[82]
(1)Either or both Mr Rowson and Mr Mather possessed the methylamphetamine with intent to sell or supply it to another person;
(2)The appellant had actual knowledge that they possessed the methylamphetamine with that intent;
(3)The appellant did or omitted to do something with the intention of aiding or assisting them to possess the methylamphetamine with that intent; and
(4)What the appellant did or omitted to do actually aided or assisted either or both Mr Rowson and Mr Mather to possess the methylamphetamine with that intent.
Assisting in the 'processing' of the drugs does not, of itself, establish the fourth of these requirements, as it does not necessarily assist the principal offender to obtain or retain possession of the drugs. Further, satisfaction of these requirements did not require any conclusion that the appellant was himself in possession of the methylamphetamine with the relevant intent. A conclusion that the appellant was in possession of methylamphetamine would not suffice to establish that he aided another person to do be in possession of the drug.
[82] As to the elements of aiding see Ritchie v The State of Western Australia [2016] WASCA 134 [84] and cases there cited; Taylor v The State of Western Australia [2016] WASCA 210 [58], [310], [316] - [317] and Sheriff v The State of Western Australia [2017] WASCA 185 [119].
On the joint possession case, the appellant would only be criminally responsible if the requirements of s 7(a) of the Criminal Code were satisfied. This required the jury to be satisfied, beyond reasonable doubt, that the appellant knowingly had physical custody of, or exercised dominion or control over, the methylamphetamine with the relevant intent.[83] This did not require any conclusion that the appellant assisted either Mr Rowson or Mr Mather to obtain or maintain possession of the methylamphetamine.
[83] Lai v The Queen [1990] WAR 151, 155; Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [179]; Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31 [35] - [39]; Kalbasi v The State of Western Australia [2016] WASCA 144 [91] ‑ [92], [105] - [107].
It is difficult to see what additional evidence the appellant could have sought to adduce in order to rebut the joint possession case. The appellant's evidence was that he had no knowledge of or involvement with the drugs, and that evidence would presumably not have changed if he had been responding to a case based on joint possession. None of the police officers observed the appellant prior to the point in time when Officer Ford observed the appellant standing with Mr Rowson by the fish tank in the enclosed patio area. Subsequent observations of the appellant occurred as he was being detained or following his detention.
However, counsel could have advanced submissions in response to the joint possession case of the kind anticipated in the appellant's trial counsel's objection to the case of joint possession being left to the jury. Counsel could have submitted that, even if the jury was satisfied that the appellant had worn the glove and was somehow involved in the 'processing' of the drugs, they could not be satisfied that the appellant himself possessed the drugs. He might have put the glove on but not touched the drugs before police arrived, or he might have assisted merely by handing clip-seal bags or MSM to Mr Mather or Mr Rowson. In neither case would the appellant have physical custody of the drugs. Given that the appellant did not occupy Mr Rowson's house, and there was no evidence that the appellant had been at the house for more than 15 minutes before the police entered the premises, it could reasonably be contended that inferences that the appellant did not exercise dominion or control over the drug could not be excluded as reasonable possibilities.
We do not accept the State's submissions that the appellant was given an opportunity to address submissions to the question of his alleged criminal responsibility on the basis of joint possession. The trial judge indicated that the case would be left to the jury on the basis of joint possession only minutes before commencing his direction to the jury. All counsel had completed their submissions, and the appellant's trial counsel was not invited by the trial judge to make any supplementary submissions. The appellant's trial counsel had no reason to prepare submissions addressing the question of whether the appellant should be convicted on the basis that he jointly possessed the methylamphetamine. Further, any submission that counsel might have advanced would not have been responding to any case which had been advanced by the State. Rather, the submission would need to anticipate and deal with a case which had not been advanced by anyone at that point, but which was to be advanced by the trial judge in his direction to the jury (with the additional authority carried by the judge's directions). It is hard to see how counsel might have done so with the same force and effect as would be possible in responding to a case which had been advanced by the prosecutor.
In our view, the appellant was deprived of any real opportunity to advance submissions as to the sufficiency of the evidence adduced by the State to establish that he jointly possessed the methylamphetamine. Even if the appellant had been given that opportunity, he would have been placed at a significant tactical disadvantage in seeking to make separate supplementary submissions in anticipation of a case to be advanced by the judge, rather than in response to the case that had been advanced by the State. Leaving the case to the jury on a basis not advanced (and indeed disavowed) by the prosecutor, which was raised by the trial judge only after the conclusion of the evidence and addresses, was procedurally unfair, deprived the appellant of a fair trial and resulted in a miscarriage of justice.
Proviso
The State also contends that the court should apply the proviso in s 30(4) of the Criminal Appeals Act, to dismiss the appeal on the basis that, despite the above grounds being determined in the appellant's favour, it considers that no substantial miscarriage of justice has occurred.
For the following reasons, we do not accept that submission.
The application of the proviso was recently considered by the High Court of Australia in Kalbasi v The State of Western Australia (Kalbasi HC).[84] The majority's approach, affirming that taken in Weiss v The Queen,[85] involves the following elements:
(1)Any irregularity or failure to strictly comply with the rules of evidence and procedure is a miscarriage of justice within the meaning of s 30(3)(c) of the Criminal Appeals Act.[86]
(2)The task of determination of whether, notwithstanding the error, there has been no substantial miscarriage of justice within the meaning of s 30(4) of that Act is committed to the appellate court.[87]
(3)It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is satisfied that the guilt of the appellant was proved, beyond reasonable doubt, on the admissible evidence on the trial that was had.[88] That is because the conviction of a person whose guilt has not been proved, beyond reasonable doubt, on admissible evidence will always be a substantial miscarriage of justice.[89]
(4)The appellate court is required to consider the nature and effect of the error in every case, as some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. In such cases, Weiss does not disavow the utility of the concepts of lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved.[90]
(5)The appellate court's satisfaction that guilt has been proved to the criminal standard on the admissible evidence will in many instances support the conclusion that there has been no substantial miscarriage of justice notwithstanding a wrong decision on a question of law or a miscarriage of justice. (This confirms the negative proposition in Weiss as a necessary but not sufficient condition for the application of the proviso.) It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt.[91]
(6)The fundamental question remains whether there has been a substantial miscarriage of justice. That question is not answered by trying to identify some classes of case in which the proviso can be or cannot be applied. Classifications of that kind are distracting and apt to mislead.[92]
[84] Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305 [15].
[85] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.
[86] Kalbasi HC [12].
[87] Kalbasi HC [12].
[88] This is the negative proposition stated in Weiss [44].
[89] Kalbasi HC [12] - [13].
[90] Kalbasi HC [15]; see also Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [34]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 [126] - [127] and Collins v The Queen [2018] HCA 18 [36] - [37].
[91] Kalbasi HC [13], [16].
[92] Kalbasi HC [16].
In the present case, the miscarriage of justice consisted of the appellant being deprived of any real opportunity to respond by way of submissions to the joint possession case that was left to the jury. Conviction on the joint possession case was not inevitable, even if the jury were satisfied that the appellant had worn the glove and was somehow involved in 'processing' the methylamphetamine. To find the appellant guilty, the jury needed to draw the further inference that the appellant either had physical custody of, or exercised dominion or control over, the methylamphetamine. Further, the jury needed to be satisfied that other possible inferences, such as those identified at [75] above, were not reasonably open on the evidence considered as a whole.
The appellate court's consideration of the proviso is undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict.[93] In this case little weight can be given to the jury's verdict in assessing whether the only inference reasonably open on the evidence considered as a whole was that the appellant must have possessed the methylamphetamine. Following the trial judge's direction, the jury must have been satisfied that the only reasonable inference was that the appellant's DNA was on the glove because he had worn it. The jury must also have been satisfied that the only reasonable inference was that the appellant was somehow involved in the 'processing' of the methylamphetamine. The jury's assessment of those questions would not have been affected by the miscarriage. However, the jury's consideration of whether to take the further step of concluding that the only reasonable inference was that the appellant possessed the methylamphetamine was undertaken without the benefit of submissions identifying alternative inferences or reasons why the evidence did not exclude those alternative inferences as reasonable possibilities. Further, the jury could well have understood the trial judge's directions referred to at [57] - [60] above as equating involvement in processing the methylamphetamine with possession of the methylamphetamine.
[93] Weiss [43]; Cesan [128]; Kalbasi HC [14].
The effect of the miscarriage was to deprive the appellant of a fair trial. There was a failure to accord procedural fairness to the appellant in that the appellant was deprived of the opportunity to advance submissions against some aspects of the case against him. Those submissions could have advanced reasonable arguments as to why the jury should not conclude that his possession of the methylamphetamine was the only reasonable inference to be drawn from the evidence as a whole, even if they were satisfied that he had worn the glove and somehow been involved in its 'processing'. The absence of that opportunity deprived the appellant of a chance of acquittal that was fairly open to him.
In our view, the nature of the miscarriage of justice in this case and the possible impact that the error may have had on the outcome of the trial preclude a conclusion that there was no substantial miscarriage of justice in this case. The nature of the miscarriage and its possible effect on the jury's verdict prevents this court from being able to assess whether guilt was proved, beyond reasonable doubt, on the admissible evidence at the appellant's trial.
Retrial or acquittal
It follows that the appeal must be allowed. Section 30(5) of the Criminal Appeals Act requires this court to set aside the appellant's conviction. The available options for the court in the circumstances of this case are to either order a new trial or enter a judgment of acquittal.
The principles governing the exercise of the discretion to order a new trial were stated in Director of Public Prosecutions (Nauru) v Fowler:[94]
The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case … Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.
[94] Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630.
An important consideration in determining whether a new trial should be ordered is the public interest in the prosecution of persons accused of serious crime.[95] However, it will generally not be in the interests of justice to order a retrial for the purpose of allowing the State to supplement a case which proved to be defective or give the State an opportunity to make a new case which was not made at the first trial.[96] The difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial.[97]
[95] Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47 [80]; R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49].
[96] R v Wilkes (1948) 77 CLR 511, 518; King (429 - 430), (433); Jiminez v The Queen (1992) 173 CLR 572, 590; Parker v The Queen (1997) 186 CLR 494, 520.
[97] Taufahema [67].
Ordinarily, in the case of a miscarriage of the present kind, it would be appropriate to order a new trial having regard to the public interest referred to above. However, such an order is not appropriate in the circumstances of the present case for the following reasons.
There is no utility in this court ordering a new trial of the case that the appellant was criminally responsible on the basis that he aided Mr Rowson and/or Mr Mather to possess the methylamphetamine with intent to sell or supply that drug to another. The trial judge correctly concluded that the case advanced by the State at trial was fundamentally flawed. To establish liability as an aider, it was not sufficient to show that the appellant assisted in the processing of the drugs in some unspecified way. Rather, it was necessary to show that the appellant did something, or omitted to do something, that actually aided or assisted either or both Mr Rowson and Mr Mather to possess the methylamphetamine with intent to sell or supply it to another person.
The evidence did not support the inference that the appellant provided the drugs to Mr Rowson or Mr Mather. The only evidence as to when the appellant arrived at Mr Rowson's house was of the appellant and Mr Gerondal, to the effect that he arrived 15 minutes before the police. There was nothing to exclude the inference that Mr Rowson and Mr Mather already had custody of the drugs when the appellant arrived at Mr Rowson's house. It was therefore necessary to approach assessment of the appellant's liability on the basis that Mr Rowson and Mr Mather were already in possession of the methylamphetamine when the appellant arrived.
The evidence of the appellant's presence at Mr Rowson's house and the evidence of his DNA on the glove were incapable of supporting the conclusion that the appellant necessarily did anything to assist Mr Rowson or Mr Mather to obtain or maintain possession of the drugs. Even if the jury were satisfied that the appellant assisted them to prepare the drugs for sale, that would not necessarily involve the appellant aiding them to possess the drugs. Mr Rowson and Mr Mather may have had possession of the drugs when the appellant arrived, and the evidence did not point to anything which the appellant did to assist them to obtain or maintain that possession with the relevant intent. To say that the appellant may have been assisting Mr Rowson or Mr Mather to give effect to their intent is not to establish that the appellant assisted them to possess the methylamphetamine with that intent.
Therefore, the State's case as formulated at trial was doomed to fail. It is not in the interests of justice to order a retrial for the purpose of enabling the State to re-run a fundamentally flawed case.
Further, in our view the court's discretion to order a new trial should not be exercised to give the State an opportunity to make a new case based on joint possession, which it disavowed at the first trial. This was not a case, such as Taufahema, where a new legal basis for criminal responsibility not considered at trial is identified by the prosecution on appeal. It is not just that the case based on joint possession was not run at trial. It was expressly disavowed by the prosecutor, who indicated that his approach had been formulated in consultation with the Office of the Director of Public Prosecutions.[98] The State made a considered and deliberate decision not to run a case based on joint possession at the first trial.
[98] Trial ts 98, in a passage set out at [20] above.
In our view it would be unjust to make the appellant stand trial again to enable the State to reverse that decision. In Taufahema,[99] Gleeson CJ and Callinan J said:
The general rule that litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence
While their Honours were in dissent in the result in Taufahema, we consider that observation to be apposite here. In the present case the State should be bound by the decision of the prosecutor, evidently made in consultation with the Office of the Director of Public Prosecutions, to disavow a case based on joint possession.
[99] Taufehama [37].
It is true that the State would not seek to adduce further evidence, which is a factor counting in favour of ordering a new trial. However, in our view the admissible evidence given at the original trial did not compel a conviction on the basis of joint possession. There was, as already explained at [75], room for reasonable arguments to the contrary. In the circumstances, the State should not be given an opportunity, by an order for a retrial, to run a case it expressly disavowed at trial. In these circumstances, the appropriate order is that a judgment of acquittal be entered for the offence of possession of methylamphetamine with intent to sell or supply to another.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL22 MAY 2018
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