Owen v The State of Western Australia - [2024] WASCA 165

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   OWEN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 165
CORAM:   BUSS P
VANDONGEN JA
DAVID AJA

HEARD:   11 SEPTEMBER 2024
DELIVERED          :   23 DECEMBER 2024
FILE NO/S:   CACR 118 of 2023
BETWEEN:   NICHOLAS JOHN OWEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WALLACE DCJ
File Number            :   IND 1044 of 2021

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of attempting to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another - Whether the appellant's previous convictions for attempting to possess other prohibited drugs with intent to sell or supply them to another were admissible as propensity evidence at the appellant's trial - Whether the verdict of guilty on which the conviction was based was unreasonable or could not be supported because the evidence adduced at the trial was incapable of establishing that the appellant attempted to possess the methylamphetamine in that the acts relied upon by the State as acts of attempt were no more than merely preparatory to the commission of the offence

Legislation:

Criminal Code (WA), s 4
Misuse of Drugs Act 1981 (WA), s 3, s 4, s 6, s 33

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M T Trowell KC & T M Andrews
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Andrews Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Chuguna v The State of Western Australia [2024] WASCA 134
Deutsch v The Queen [1986] 2 SCR 2
Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
Kalbasi v The State of Western Australia [2016] WASCA 144
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
Lia v The State of Western Australia [2020] WASCA 216
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
Milenkovski v The State of Western Australia [2004] WASCA 85
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
R v Barker (1924) NZGLR 393
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56
R v Cline (1956) 115 CCC 18
R v English (1993) 10 WAR 355
R v Williams; Ex parte Minister for Justice and Attorney-General [1965] Qd R 86
R v Yusuf [2005] VSCA 69; (2005) 11 VR 492
Reid v Director of Public Prosecutions (WA) [2012] WASCA 190; (2012) 224 A Crim R 100
Sandy v The State of Western Australia [2024] WASCA 109
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Sheriff v The State of Western Australia [2017] WASCA 185
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105
Weggers v The State of Western Australia [2014] WASCA 57; (2014) 240 A Crim R 205

Index

BUSS P & DAVID AJA

The propensity evidence relied upon by the State in relation to count 1

Overview of the evidence relied upon by the State at trial (in addition to the propensity evidence)

The appellant's electronically recorded interview with police

The evidence at the trial

Evidence of Paul Speake

Examination-in-chief

Cross‑examination

Re‑examination

Evidence of Detective Senior Constable Adrian Baker

Evidence of Detective Sergeant Bradley Marron

Examination‑in‑chief

Cross‑examination

Re‑examination

Evidence of Detective Loki Psaila‑Borrie

Examination‑in‑chief

Cross‑examination

Re‑examination

The witness statement of Wayne Liedermoy

The witness statement of Ian Sheppard

Evidence of David Harmes

Evidence of Detective Senior Constable Barbara Salgado

Examination‑in‑chief

Evidence of Jessica John

Examination‑in‑chief

Cross‑examination

Re‑examination

Evidence of Darran Brown

Examination‑in‑chief

Cross‑examination

Re‑examination

Evidence of Sarah Stephens

Examination‑in‑chief

Cross‑examination

Exhibit 4

The appellant's case at trial

Ground 1: the trial judge's directions to the jury on the propensity evidence

Ground 1: the appellant's submissions in the appeal

Ground 1: the State's submissions in the appeal

Ground 1: its merits

Ground 2: the trial judge's directions to the jury on the elements of count 1

Ground 2: the appellant's submissions in the appeal

Ground 2: the State's submissions in the appeal

Ground 2: unreasonable or unsupportable verdict: applicable principles

Ground 2: attempting to possess a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the MD Act: applicable principles

Ground 2: its merits

Conclusion

VANDONGEN JA

Ground 1

Ground 2

Introduction

The issues

The appellant's video record of interview

Was it open to the jury to be satisfied that the only rational inference was that the appellant provided the address of the Banksia Grove unit to the sender of the methylamphetamine, either directly or indirectly?

Was it open to the jury to be satisfied that the only rational inference was that the appellant tracked the parcel that contained the methylamphetamine in the early hours of the morning of 4 June 2020 using the APCN in Ms John's name?

Was it open to the jury to be satisfied beyond reasonable doubt that either or both acts relied on by the State were more than merely preparatory to an offence contrary to s 6(1)(a) of the Misuse of Drugs Act?

Was it open to the jury to be satisfied beyond reasonable doubt that the appellant intended to commit an offence contrary to s 6(1)(a) of the Misuse of Drugs Act?

Conclusion in relation to ground 2

BUSS P & DAVID AJA:

The appellant has appealed against conviction.
The appellant was charged on indictment with 13 counts.
Count 1 alleged that between 2 June 2020 and 6 June 2020, at Banksia Grove, the appellant attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
Each of counts 2 to 13 alleged that on 4 June 2020 (in the case of counts 2 to 12) and 5 June 2020 (in the case of count 13), at West Perth, the appellant attempted to possess a prohibited drug (being in the case of some of the counts a human growth hormone and in the case of the other counts an anabolic steroid) with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the MD Act.
The appellant pleaded not guilty to all of the charged offences. A trial was listed to begin on 1 March 2022.
On 1 March 2022, being the first day of the trial, the appellant pleaded guilty to counts 2 to 13. On that date judgments of conviction were entered on those counts.
On 1 March 2022, the appellant maintained his plea of not guilty on count 1 and his trial on that count began. However, on 2 March 2022 the trial was aborted.
On 4 March 2022, MacLean DCJ granted the State's application to adduce evidence of the appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based as propensity evidence at the appellant's new trial on count 1.
The appellant's new trial on count 1 began on 17 July 2023 before Wallace DCJ (the trial judge) and a jury and ended on 21 July 2023. The appellant was convicted. We will refer to the new trial as the trial.
On 22 September 2023, the trial judge sentenced the appellant to 6 years' imprisonment on count 1 and to a total effective sentence of 7 years' imprisonment in respect of counts 1 to 13. A parole eligibility order was made.
The appellant relies upon two grounds of appeal.
Ground 1 alleges, in essence, that MacLean DCJ made a wrong decision on a question of law, namely that the appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based were admissible as propensity evidence at the appellant's trial on count 1; alternatively, the admission of the propensity evidence at the appellant's trial on count 1 occasioned a miscarriage of justice (appeal ts 3).
Ground 2 alleges, in essence, that the verdict of guilty on which the conviction on count 1 is based is unreasonable or cannot be supported having regard to the evidence because the evidence adduced at the appellant's trial was incapable of establishing that the appellant attempted to possess the prohibited drug, as alleged in count 1, in that the acts relied upon by the State as acts of attempt were no more than merely preparatory to the commission of the offence (appeal ts 13 ‑ 14).
Neither ground 1 nor ground 2 has a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.

The propensity evidence relied upon by the State in relation to count 1

The appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based comprised the propensity evidence relied upon by the State in relation to count 1. The material facts were agreed between the parties and set out in a document that became Exhibit 1 at the trial. The facts are as follows.

On 4 June 2020, police attended the Australia Post outlet at 1195 Hay Street, West Perth (the West Perth Australia Post outlet). They seized two packages that were waiting to be collected by a Jessica John. The two packages were subsequently examined. They contained various smaller packages, each containing a quantity of an anabolic steroid or a human growth hormone, as follows:
(a)express parcel addressed to 'Joseph Papesch, 22 Firestone Place, Meadow Springs' ‑ one box of vials of somatropin (a human growth hormone) [count 2];
(b)express parcel addressed to 'Mark Munro, 9 Castlemore Avenue, Ballajura' ‑ one box of vials of somatropin (a human growth hormone) [count 3];
(c)express parcel addressed to 'Benny Han, 91A Duke Street, Scarborough' ‑ one box of vials of somatropin (a human growth hormone) [count 4];
(d)express parcel addressed to 'Adam Williams, 7 Maplewood Place, Cooloongup' ‑ one box of vials of somatropin (a human growth hormone) [count 5];
(e)express parcel addressed to 'John Crosbie, 278 Hale Road, Woodlands' ‑ two boxes of vials of somatropin (a human growth hormone) [count 6];
(f)'eBay' envelope containing 65.8 mL of nandrolone decanoate (a steroid) [count 7];
(g)'eBay' envelope containing 46.4 mL of dromostanolone enanthate (a steroid) [count 8];
(h)'eBay' envelope containing 28.8 mL of dromostanolone enanthate (a steroid) [count 9];
(i)'eBay' envelope containing 37.6 mL of boldenone undecylenate (a steroid) [count 10];
(j)'eBay' envelope containing 48 mL of testosterone (a steroid) [count 11]; and
(k)'eBay' envelope containing 28.2 mL of nandrolone decanoate (a steroid) [count 12].
At around 2.11 pm (AWST) on 4 June 2020, CCTV from the West Perth Australia Post outlet captured the appellant arriving at the outlet in a red Mercedes vehicle and attempting to collect the packages, which were no longer there.
At around 12.40 pm (AWST) on 5 June 2020, the appellant attended at the West Perth Australia Post outlet where he collected an Express Post package addressed to a Jessica John from a parcel locker. The package contained an Express Post prepaid envelope addressed to 'Faris Roslan, 12 Hillbrook Approach, Caversham' which contained one box of vials of somatropin (a human growth hormone) [count 13].

Overview of the evidence relied upon by the State at trial (in addition to the propensity evidence)

At the trial the evidence relied upon by the State (in addition to the propensity evidence) included the following:
(a)In early to mid‑2020, the appellant was involved heavily in bodybuilding. He used various human growth hormones and anabolic steroids to assist in building his muscle mass. He also commenced selling or supplying human growth hormones and anabolic steroids to other bodybuilders.
(b)At all material times, the appellant was the part owner of a residential investment property at Unit 12, 18 Oligantha Elbow, Banksia Grove (the Banksia Grove house). The property had been leased to tenants through a property manager. The appellant had never met the tenants or attended at the property while they were in occupation. The tenants were a couple and their two young children.
(c)On the afternoon of 2 June 2020, an Australia Post delivery officer attended at the Banksia Grove house to deliver two packages. One was a small white parcel which required a signature on delivery. The other was a large box in a yellow Express Post parcel which did not require a signature.
(d)The male tenant of the house accepted delivery of the small white parcel. However, he declined to accept the Express Post parcel because it was addressed to a Brett Downs, who was unknown to him. The address of the Banksia Grove house was written on the parcel as the address for Brett Downs. The female tenant then said she was expecting delivery of an item that fitted the size and shape of the Express Post parcel. She added that the parcel could be for her and that the sender could have addressed it incorrectly to Brett Downs, who was also unknown to her. The delivery officer permitted the female tenant to open the parcel. When she did, she found a hard case containing a tray of makeup. The tray was removable. Underneath it was a vacuum‑sealed plastic bag containing a white crystalline substance. On seeing the substance, the female tenant returned the parcel to the delivery officer, told him it did not belong to her and said she believed that it contained drugs.
(e)The delivery officer returned the parcel to an Australia Post office. The parcel was recorded as 'delivery declined' on the Australia Post tracking system. A report was made to the police the next day. Police officers attended the Australia Post office and seized the parcel and its contents.
(f)The white crystalline substance was analysed and found to be methylamphetamine weighing a total of 133.74 g and having a purity of approximately 56%.
(g)The Express Post parcel had a tracking number. This enabled the parcel to be tracked by those who knew the tracking number and had registered for an Australia Post Customer Number (APCN). Inquiries using various Australia Post databases revealed that the parcel was being tracked by two individual customers with separate APCNs.
(h)One of the APCNs was registered in the name of John Sigaro. A person purporting to be John Sigaro made telephone calls to Australia Post Customer Services at 3.32 pm (AEST) on 3 June 2020 and at an unspecified time on 4 June 2020.
(i)The other APCN was registered in the name of Jessica John, who was an ex‑girlfriend of the appellant. Jessica John's driver's licence details had been used in setting up that APCN. The State alleged that the appellant had set up the APCN without the knowledge or consent of his ex‑girlfriend and had used a scanned copy of her driver's licence for that purpose, which he had retained after the relationship had ended. The APCN registration also listed a mobile telephone number for the customer. The number was connected to a SIM card that was used in a mobile telephone found by police in the appellant's possession.
(j)At 12.46 am (AWST) on 4 June 2020, someone using the APCN registered in the name of John Sigaro added the tracking number for the Express Post parcel (containing the methylamphetamine) to their watch list.
(k)At 2.07 am (AWST) on 4 June 2020, someone using the APCN registered in the name of Jessica John added the tracking number for the Express Post parcel (containing the methylamphetamine) to their watch list.
(l)At around 12.40 pm (AWST) on 5 June 2020, police arrested the appellant when he collected the Express Post package addressed to Jessica John from the parcel locker at the West Perth Australia Post outlet. That package contained the human growth hormone the subject of count 13.
(m)When he was arrested the appellant was holding a white mobile telephone. The telephone was open to the APCN registered in the name of Jessica John. The appellant was tracking the package addressed to Jessica John which contained the human growth hormone the subject of count 13. Police seized the mobile telephone.
(n)Police also found five glass smoking pipes for the use of methylamphetamine in a box in a drawer located in the study of the appellant's home. The pipes had been used.
(o)The mobile telephone seized by police from the appellant when he was arrested contained numerous photographs of various substances. Detective Sergeant Bradley Marron gave evidence at the trial that the substances in the photographs did not resemble human growth hormone. He said the substance in one of the photographs was consistent with the appearance of methylamphetamine or possibly MSN modified to mimic the appearance of methylamphetamine and the substance in another of the photographs had the appearance of cocaine.

The appellant's electronically recorded interview with police

On 5 June 2020, the appellant participated in an electronically recorded interview with police. The interview began at 9.46 pm (AWST) and ended at 11.11 pm (AWST). The State tendered the electronically recorded interview at trial. It became exhibit 14.
During the interview:
(a)The appellant said he had 'no idea' about an attempt to possess a prohibited drug; in particular, the 133.74 g of methamphetamine (EROI 11 ‑ 12).
(b)The appellant said he had never attempted to obtain or acquire methamphetamine (EROI 12).
(c)The appellant said that he and his ex‑wife, Rohannah Heath, owned the Banksia Grove house. The property was looked after by a property manager. He had nothing to do with it. The property was occupied by a tenant. He had not been to the property 'in a couple of years'. He had no contact with the tenant and did not know who the tenant was. He and his ex‑wife had owned the property since 2015. They separated in late 2018 (EROI 39 ‑ 47).
(d)The appellant said that earlier on 5 June 2020 he went to the West Perth Australia Post outlet to collect a package. He arrived at midday. The appellant went to the outlet because he was 'given a notification that there was a package to collect'. On arrival at the outlet he went to the parcel locker. He got a parcel out of the locker. That was the parcel in his possession when he was arrested. He had a code on the mobile telephone in his possession. He collected the parcel by inserting the code into a machine. The appellant then went to the counter at the outlet to see if there were any other packages. At that point he was arrested (EROI 47 ‑ 53).
(e)The appellant admitted that when he was arrested at the West Perth Australia Post outlet he was in possession of a mobile telephone. The appellant said that the telephone was not his. He added that there was 'a lot of shit that goes through that phone'. He responded 'no comment' when asked how he obtained the telephone. The appellant said he had been in possession of the telephone for a couple of months. He did not know the telephone number of the telephone. When asked who gave him the telephone he responded 'no comment'. When asked whether anyone else used the telephone he replied 'Previously, yes. But not now'. When asked who pays for the telephone he responded 'it just looks after itself. I … don't know' (EROI 53 ‑ 56).
(f)The appellant said he did not know a 'Jessica Johns [sic]'. He had never heard of a 'Jessica Johns [sic]'. When asked how many packages he had received from 'Jessica Johns [sic]' the appellant replied 'I … don't know. No comment' (EROI 57 ‑ 58).
(g)The appellant reiterated that he has 'nothing to do with methamphetamine' (EROI 61 ‑ 62).
(h)One of the interviewing police officers referred to the package that was addressed to Brett Downs at the Banksia Grove house. The appellant said he could tell the police officer nothing about the package. The appellant added that he had 'not done anything to actively acquire that package or methamphetamine'. The package had nothing to do with him (EROI 70 ‑ 72).
(i)One of the interviewing police officers said that police had been checking on the mobile telephone that was in the appellant's possession when he was arrested. The telephone number of the telephone ended in '156'. A person by the name of 'Jessica Johns [sic]', using the telephone number of the telephone in the appellant's possession when he was arrested, was recorded on the Australia Post tracking system as watching the parcel addressed to Brett Downs at the Banksia Grove house (EROI 72 ‑ 73).
(j)The following exchange then occurred between one of the police officers and the appellant (EROI 73 ‑ 74):
[APPELLANT]:        … Yes, I can explain. But … I have no idea what was in the package. … I was asked to alert somebody where that package was delivered. I was given that tracking number and I was asked to relay that information [indistinct] so the person who was asking could then go and obtain the package. This has nothing to do with me.
UNIDENTIFIED MALE OFFICER 1:        Okay. So what you're saying, you were asked to alert someone ---
[APPELLANT]:        Yes.
UNIDENTIFIED MALE OFFICER 1:        --- you were given the tracking number ---
[APPELLANT]:        Yes.
UNIDENTIFIED MALE OFFICER 1:        --- so you could alert the person who was asking ---
[APPELLANT]:        Who was asking about it.
UNIDENTIFIED MALE OFFICER 1:        --- who was asking about it so they could obtain the package.
[APPELLANT]:        Yep.
UNIDENTIFIED MALE OFFICER 1:        Explain to me why your mobile number which … no‑one else uses ‑ only you use that phone ‑ for the last 2 months no‑one else used that phone while your number is attached to that ---
[APPELLANT]:        I just told you.
UNIDENTIFIED MALE OFFICER 1:        Yeah. Why?
[APPELLANT]:        'Cause I was given a tracking number to look at and then relay the information back as to when it had been delivered.
UNIDENTIFIED MALE OFFICER 1:        Right. Okay.
[APPELLANT]:        I didn't know where it was going, I didn't know what it was, I didn't know anything like that.
UNIDENTIFIED MALE OFFICER 1:        Okay. Explain to me why ‑ when we were going through your computer ‑ you have a copy [of an] ID ‑ driver licence ‑ for a female by the name of … Jessica Johns [sic] on your computer.
[APPELLANT]:        Because I was sent that to go in ‑ to ‑ if ‑ if anything was to be collected.
UNIDENTIFIED MALE OFFICER 1:        Okay … you are telling me that you don't know a Jessica Johns [sic] ---
[APPELLANT]:        I don't know a Jessica Johns [sic].
UNIDENTIFIED MALE OFFICER 1:        Yes. You don't recognise that person, yet her ID is … on your computer. And yet, you told me earlier on today that today you collected a package in the name of Jessica Johns [sic] and you knew what was in that package …
[APPELLANT]:        Yep.
UNIDENTIFIED MALE OFFICER 1:        … You've just said ‑ you've gone there to get a package today and you're telling me that that package was for you. You don't know the name Jessica Johns [sic], that package was for you. …
[APPELLANT]:        That's right.
(k)Towards the end of the interview the following exchange occurred between one of the police officers and the appellant (EROI 75):
UNIDENTIFIED MALE OFFICER 1:        I don't have any further questions, mate, so unless you got anything you wish to say, I'll be closing off this interview.
[APPELLANT]:        I'm just gonna repeat what I just said before. I'd been given that tracking number, I was [indistinct] and I have no idea who those names ‑ the ‑ the ‑ the names, uh, the ‑ the two male names were that you read out ‑ nor did I have any idea of what the contents of that package were. I was given a tracking number and I was t ‑ uh, I was asked, 'Keep an eye on this, let me know when it gets delivered.' [indistinct] that is all I can tell you. Your ‑ you ---
UNIDENTIFIED MALE OFFICER 1:        Okay. That's fine. That's it.

The evidence at the trial

We have reviewed the evidence given at the trial.
The evidence that is relevant to the grounds of appeal relied upon by the appellant includes the following.

Evidence of Paul Speake

Examination-in-chief

Paul Speake's evidence‑in‑chief was to the following effect.
Mr Speake is employed as a security risk advisor at Australia Post and undertakes the role of police liaison (ts 268). Mr Speake gave evidence that his role includes acting on information that suggests drugs are travelling through the postal system by intercepting parcels and referring them to the police (ts 268).
Mr Speake gave evidence describing various databases used to assist in the investigation process, namely 'Salesforce', 'Event Management' and 'Parcel Locator' (ts 269):
(a)Salesforce stores communications by an inquirer, receiver or sender of a postal article who contacts Australia Post and makes a complaint or general inquiry. The information stored in Salesforce includes telephone numbers, names, addresses and details of the complaint or inquiry. These details can be linked to an APCN through the telephone number of the caller (ts 270 ‑ 271).
(b) Event Management stores the tracking event history of articles in the postal system (ts 271). The first event tracked for a parcel is typically either the post office at which it is lodged or the first processing facility that has a scanning ability (ts 271). Whether a recipient at the destination accepts or rejects a parcel is also recorded (ts 272).
(c) Parcel Locator is similar to Event Management in that it records tracking events relating to articles in the postal system (ts 272).
Mr Speake gave evidence that police contacted him on 3 June 2020 and provided him with a tracking number ending in '997' (ts 272 ‑ 273). Mr Speake conducted searches on this tracking number and provided information to police in a series of emails (ts 273 ‑ 274). The name John Sigaro, a telephone number and an incomplete address in Banksia Grove were obtained from Salesforce (ts 274). A telephone inquiry with Australia Post in relation to that tracking number had also been made in the name of John Sigaro (ts 274 ‑ 275). From Event Management, the first event message was 'processed at sortation facility' and the last was an inquiry on 3 June 2020 at 3.32 pm (AEST), which linked to the record of the telephone inquiry in Salesforce (ts 275). Mr Speake gave evidence that the audio recording of this telephone call was subsequently acquired and provided to Detective Loki Psaila-Borrie (ts 276). Parcel Locator showed that two individual APCNs, one in the name of Jessica John and the other in the name of John Sigaro, added the tracking number to their watch list (ts 278 ‑ 279).
Mr Speake gave evidence that through investigating Jessica John he identified another parcel with a tracking number ending in '994' that was delivered to the West Perth Australia Post outlet (ts 280). This information was provided to police (ts 280). An APCN in the name of Nick Owen (the appellant's name is Nicholas Owen) was also tracking that parcel. It was added to their watch list, but then quickly removed from their watch list (ts 281 ‑ 282).
Mr Speake gave evidence that a person could easily set up an APCN in the name of another person if they had the other person's identification details (ts 287).
Mr Speake gave evidence that the mobile telephone number used for Jessica John's APCN (that is, the telephone number ending in '156') was also associated with APCNs belonging to Daniel Hicks, David Harmes and Wayne Liedermoy (ts 287 ‑ 288).

Cross‑examination

Mr Speake's cross‑examination was to the following effect.
During the first telephone inquiry on 3 June 2020, the caller identified himself as John Sigaro (ts 297). During the second telephone inquiry on 4 June 2020, the caller again identified himself as John Sigaro (ts 298).
The same telephone number was used for various Post Office boxes in Perth. A Post Office box was registered to each of Jessica John, Ian Sheppard, Paul Watson and Jaaron Mahar (ts 300). Two parcels of interest were addressed to the Post Office box registered to Jessica John (ts 300).

Re‑examination

Mr Speake's re‑examination was to the following effect.
Mr Speake does not have access to IP information and so this does not usually form part of his investigation (ts 303).

Evidence of Detective Senior Constable Adrian Baker

Detective Senior Constable Adrian Baker gave evidence that on the afternoon of 5 June 2020 he and other police officers executed a search warrant at the appellant's home. The appellant was present during the search. Detective Baker located the packaging for a Telstra prepaid SIM card surround and the packaging for the mobile telephone with the telephone number ending in '156' that was in the appellant's possession when he was arrested (ts 343).

Evidence of Detective Sergeant Bradley Marron

Examination‑in‑chief

Detective Sergeant Bradley Marron's evidence‑in‑chief was to the following effect.
Detective Marron was working with the Drug and Firearm Squad at the relevant time in 2020 (ts 351).
Detective Marron gave evidence that during the afternoon of 3 June 2020 he received a communication from Detective Senior Constable Wendy Noone at Joondalup Detectives Office about a package that had been seized. Detective Marron forwarded this information and subsequent emails to Detective Loki Psaila‑Borrie and Detective Senior Constable Dan Kibo (ts 351 ‑ 352).
Detective Marron gave evidence that on 5 June 2020 he was on duty and responded to an incident at the West Perth Australia Post outlet. At the outlet, Detective Psaila‑Borrie handed him a mobile telephone and 'said things' that caused Detective Marron to take the telephone and a series of photographs of the telephone (ts 352). Detective Marron was shown photographs and identified them as the photographs he took (ts 352, 362; Exhibit 8).
One of the photographs Detective Marron took was of the mobile telephone displaying a photograph of a driver's licence in the name of Jessica John (ts 363; Exhibit 9). Another photograph was of the mobile telephone displaying information that purported to give directions to Jessica John about a delivery to a parcel locker (ts 364; Exhibit 9). Another photograph was of the mobile telephone displaying a photograph of an envelope identifying the name David Harmes as the sender (ts 365; Exhibit 10).

Cross‑examination

Detective Marron's cross‑examination was to the following effect.
Detective Marron was shown a photograph of two small clip‑seal bags containing white crystal material. He described it as consistent with the appearance of methylamphetamine or possibly MSM modified to mimic the appearance of methylamphetamine (although MSM is not typically packaged in that way) (ts 365; Exhibit 8, Photograph 1). Detective Marron was shown another photograph of a white powder and identified it as having the appearance of cocaine (ts 366; Exhibit 8, Photograph 5).
Detective Marron did not have familiarity with the appearance of peptide powder (ts 366 ‑ 367). Detective Marron did not have expertise on how steroids or peptides are converted from powder to a useable form (ts 368).

Re‑examination

Detective Marron's re‑examination was to the following effect.
Detective Marron gave evidence that MSM is a dimethyl sulphone, which is commonly used as a health supplement and is sometimes used as a cutting agent for methylamphetamine (ts 369). It is often also used by police as a substitute for methylamphetamine (ts 369).
Detective Marron had previously encountered human growth hormone in a white powder form (ts 369 ‑ 370). Detective Marron gave evidence that the photographs of a white powder he had been shown did not resemble human growth hormone (ts 370; Exhibit 8).
Detective Marron gave evidence that small sets of electronic scales are commonly searched for in drug investigations because common kitchen scales do not measure with enough accuracy (ts 372; Exhibit 8, Photographs 5 and 11).

Evidence of Detective Loki Psaila‑Borrie

Examination‑in‑chief

Detective Loki Psaila‑Borrie's evidence‑in‑chief was to the following effect.
Detective Psaila‑Borrie gave evidence that he was the investigating officer for the investigation into the appellant (ts 386). Detective Psaila‑Borrie gave evidence that the investigation began as a result of information received by the Joondalup Detectives Office that a parcel had been rejected for delivery at an address in Banksia Grove (ts 386).
On 3 June 2020, Detective Psaila‑Borrie collected the parcel from Joondalup Police Station with Detective Senior Constable Baker and then obtained and made an electronic evidence recording of the parcel (ts 387). Detective Psaila‑Borrie requested a drug analysis of the contents of the parcel (ts 387). The contents were sent to the Drug Receival Unit and then conveyed to the Chemistry Centre of Western Australia for testing (ts 387 ‑ 388). Detective Psaila‑Borrie was shown a certificate of analysis and agreed that the white powder was analysed and shown to contain a methylamphetamine content of approximately 56% (ts 388; Exhibit 11).
Detective Psaila‑Borrie gave evidence that he received an email from Mr Speake informing him that an Australia Post account in the name of John Sigaro and another account in the name of Jessica John had each added the parcel that contained methylamphetamine to a watch list (ts 389). Mr Speake also provided details of a telephone inquiry made in the name of John Sigaro in relation to the parcel that contained methylamphetamine (ts 389).
Detective Psaila‑Borrie gave evidence that he conducted further investigation into the number used in the telephone inquiry by John Sigaro. The number was subscribed to a Stephen Gerard Brown (ts 390). Detective Psaila‑Borrie was unable to identify Stephen Gerard Brown or John Sigaro (ts 390 ‑ 391).
Following the receipt of information from Mr Speake that Jessica John had two parcels waiting in a parcel locker at the West Perth Australia Post outlet, Detective Psaila‑Borrie requested a parcel stop (ts 391). The parcel stop resulted in the parcels being removed from the mailing system and undergoing electronic evidence recording (ts 391 ‑ 392). The first parcel contained three envelopes, each with a separate addressee in Western Australia and each containing human growth hormone (ts 392 ‑ 393). The second parcel contained one large eBay envelope, one small eBay envelope, and two Express Post parcels with separate addressees in Western Australia (ts 392 ‑ 393). The large eBay envelope contained three envelopes, two of which contained steroids and one of which contained steroids and testosterone (ts 393 ‑ 394). The small eBay envelope contained steroids (ts 394). The two Express Post parcels contained human growth hormone (ts 394).
Detective Psaila‑Borrie gave evidence that he received information later that afternoon that someone had attempted to collect the two parcels which had been seized (ts 394). CCTV footage from 4 June 2020 showed a male person attempting to collect the parcels (ts 397).
Detective Psaila‑Borrie gave evidence that he sent Detective Senior Constable Salgado and Detective Daniel Millson to wait at the West Perth Australia Post outlet and he later received information that they had arrested the appellant (ts 397 ‑ 398). Detective Psaila‑Borrie then attended the West Perth Australia Post outlet and conducted a search of a red vehicle and seized a red mobile telephone (ts 398). Detective Senior Constable Salgado and Detective Millson told Detective Psaila‑Borrie that at the time of the arrest the appellant had been in possession of a white iPhone (ts 398). Detective Psaila‑Borrie gave evidence that he took possession of the white iPhone from Detective Senior Constable Salgado and gave it to Detective Sergeant Marron (ts 398 ‑ 399).
Detective Psaila‑Borrie then conveyed the appellant to the appellant's home and conducted a search (ts 399). During the search, several items were seized, including smoking utensils. A computer was searched (ts 415, 422; Exhibit 13). Images of driver's licences in the names of Paul Watson, Ian Sheppard and Jessica John were found on the computer (ts 416 ‑ 417). Paul Watson was not identified (ts 416). Ian Sheppard was identified, and a statement was taken from him (ts 416 ‑ 417, 421). Jessica John gave evidence at the trial.
Detective Psaila‑Borrie and Detective Senior Constable Baker conducted an interview with the appellant on 5 June 2020 (ts 418; Exhibit 14).
The person who called Australia Post in the name of John Sigaro was never identified (ts 420).

Cross‑examination

Detective Psaila‑Borrie's cross‑examination was to the following effect.
Detective Psaila‑Borrie agreed that the parcel containing methylamphetamine that was seized from Australia Post was a makeup case with a false lid under which the methylamphetamine was secreted (ts 436). The makeup case and the Australia Post packaging were not sent for DNA analysis (ts 437).
The two parcels from the parcel locker in the name of Jessica John that contained steroids were seized on the basis of information provided by Mr Speake about the APCN in the name of Jessica John (ts 437 ‑ 438).
The APCN in the name of John Sigaro did not track any parcel apart from the parcel containing methylamphetamine (ts 439).
Cell phone tower records for the telephone inquiry to Australia Post made in the name of John Sigaro on 3 June 2020 indicated that the telephone was being used in the Mandurah area (ts 439 ‑ 440).
Sarah Stephens and her partner Jody Griffin (who were the tenants of the Banksia Grove house) were not investigated as suspects. Detective Psaila‑Borrie accepted that he told Ms Stephens that her partner was not required to make a statement (ts 440).
During the search of the appellant's house, a black Samsung Galaxy S4 mobile telephone was seized (ts 440). Detective Psaila‑Borrie was shown photographs of messages apparently from this telephone and agreed that they appeared to be showing messages of a person involved in illicit drugs (ts 453). Detective Psaila‑Borrie accepted that these messages were not relevant to the present case and related to a different case entirely (ts 453 ‑ 454).
Detective Psaila‑Borrie accepted that the appellant was a body builder and had body building competition trophies in his home (ts 457).
Detective Psaila‑Borrie accepted that there were no messages consistent with involvement in dealing in methylamphetamine on the white iPhone that was found in the appellant's possession when he was arrested (ts 459). Detective Psaila‑Borrie accepted that, apart from the used smoking utensils and a small set of scales, there was no paraphernalia associated with dealing in methylamphetamine located at the appellant's home (ts 459).
Detective Psaila‑Borrie accepted that on the red telephone seized from the red car there was a large number of images of messages and lists relating to involvement in the steroid dealing market (ts 462).

Re‑examination

Detective Psaila‑Borrie's re‑examination was to the following effect.
Detective Psaila‑Borrie was shown the physical material log from the police search of the appellant's home and clarified that a set of scales must not have been seized (ts 466).
Detective Psaila‑Borrie explained that DNA analysis of the parcel containing methylamphetamine was not done because the parcel was sent from the Eastern States and so it would relate to intelligence gathering rather than the investigation (ts 467).

The witness statement of Wayne Liedermoy

As we have mentioned, Mr Speake gave evidence that the mobile telephone number used for Jessica John's APCN (that is, the telephone number ending in '156') was also associated with an APCN belonging to Wayne Liedermoy. See [30] above.
As we have mentioned, the mobile telephone found in the appellant's possession when he was arrested had the telephone number ending in '156'.
At the trial, a witness statement of Wayne Liedermoy was, by consent, read into evidence by the prosecutor (ts 253 ‑ 254). Mr Liedermoy stated, relevantly, that he did not know of a Nicholas Owen. He had not opened any accounts or parcel lockers with Australia Post. He did not have a mobile telephone with the number ending in '156'. He did not recognise that telephone number. He had never lost or reported to police any lost property including a driver's licence or documents with any of his details on them.

The witness statement of Ian Sheppard

As we have mentioned, Detective Psaila‑Borrie gave evidence that a search of the appellant's computer revealed images of driver's licences in the names of Paul Watson, Ian Sheppard and Jessica John. See [57] above.
As we have mentioned, the mobile telephone found in the appellant's possession when he was arrested had the telephone number ending in '156'. The mobile telephone was registered in the name of Ian Sheppard.
At the trial, a witness statement of Mr Sheppard was, by consent, read into evidence by the prosecutor (ts 254 ‑ 255). Mr Sheppard stated, relevantly, that he resided in Queensland. He did not have a mobile telephone with the number ending in '156'. He did not recognise that telephone number. He did not know anyone with that telephone number.

Evidence of David Harmes

David Harmes gave evidence that he knew Nicholas Owen (that is, the appellant). Mr Harmes said that the appellant was the partner of his former wife, Michelle. Mr Harmes had been married to Michelle for 17 years. He lives in Victoria. Mr Harmes had not lived in the same State as Michelle since 2018. He had met the appellant on three or four occasions, but only very briefly in passing. Mr Harmes said that he did not have and never had had an Australia Post account. He had never used any parcel lockers in Western Australia or any other State. Mr Harmes did not recognise the mobile telephone number ending in '156'. He had never shared his personal details with any people to allow them to open any accounts in his name or in another name. He had never permitted any people to use his details to open an Australia Post account in their name or in another name (ts 265 ‑ 267).

Evidence of Detective Senior Constable Barbara Salgado

Examination‑in‑chief

Detective Senior Constable Barbara Salgado's evidence‑in‑chief was to the following effect.
Detective Salgado gave evidence that in June 2020 she was attached to the Drug and Firearms Squad (ts 248). Detective Salgado was tasked to go to the West Perth Australia Post outlet, alongside Detective Senior Constable Millson, and pretend to try and put a parcel within a parcel locker and wait for its collection (ts 248). They were not able to open the parcel locker and instead waited at the outlet (ts 248).
Detective Salgado gave evidence that after they had waited for a couple of hours, the appellant attended and accessed a parcel locker (ts 248 ‑ 249). Detective Salgado and Detective Millson then arrested the appellant near the customer service counter (ts 249). The appellant was holding a white iPhone which Detective Salgado took possession of while Detective Millson completed the arrest. The telephone was open and active to a page displaying an Australia Post barcode (ts 249).
Detective Salgado gave evidence that she ensured the phone did not lock by tapping the screen (ts 249). Detective Salgado gave the telephone to Detective Senior Constable Psaila‑Borrie once he arrived (ts 249). Detective Salgado was present when Detective Psaila‑Borrie then gave the telephone to Detective Senior Constable Baker, who was the physical material officer for that search, and the white iPhone was then entered on a physical material log and secured (ts 249 ‑ 250).
Detective Salgado gave evidence that she then attended the appellant's home with Detective Millson and remained there until a search warrant arrived and the search was executed (ts 250). Detective Salgado was the exhibits officer for that search (ts 250). This involved securing any items of interest and noting them on a physical material log (ts 250). The items seized included a land tax document, notes with Australia Post tracking numbers, a police USB drive (that is, a USB drive that belonged to police and onto which material had been copied), and smoking utensils (ts 250 ‑ 251).

Evidence of Jessica John

Examination‑in‑chief

Jessica John's evidence‑in‑chief was to the following effect.
Ms John gave evidence that on 20 August 2020 the police spoke to her about the appellant. Ms John had been in a relationship with the appellant from January to April 2018 (ts 381).
Ms John gave evidence that she had never lost her driver's licence and had never reported it lost to the police (ts 381). Ms John was shown a photograph and identified it as a photograph of her driver's licence (ts 382). Ms John gave evidence that she had never permitted another person to take images or make copies of her driver's licence (ts 382).
Ms John gave evidence that she had never had an account with Australia Post and she had never had a parcel locker (ts 382).
Ms John gave evidence that she did not recognise the telephone number ending in '156'. She said that when she tried to call the number after police asked her about it in August 2020, the call did not go through (ts 383). Ms John gave evidence that she had never applied for a Proton Mail email account (ts 383).

Cross‑examination

Ms John's cross‑examination was to the following effect.
Ms John accepted that when she was in a relationship with the appellant, he had admitted to her that he was involved in human growth hormone and steroids, but he denied ever selling illegal drugs (ts 383). Ms John was not aware of the appellant using any illegal drugs (ts 383 ‑ 384).
Ms John could not recall ever having scanned her driver's licence for the purpose of making a freedom of information request in relation to medical records at Joondalup Hospital (ts 383 ‑ 384).

Re‑examination

Ms John's re‑examination was to the following effect.
Ms John agreed that in stating that she had never known the appellant to use illegal drugs, she was not including human growth hormone or steroids (ts 384).
Ms John accepted that she had made a freedom of information request to Joondalup Hospital, but she could not recall whether she had provided her driver's licence as part of that process (ts 384).

Evidence of Darran Brown

Examination‑in‑chief

Darran Brown's evidence‑in‑chief was to the following effect.
Mr Brown gave evidence that in June 2020 he worked as a postal delivery officer at the Australia Post Joondalup distribution centre (ts 203). On 2 June 2020, Mr Brown started work at about 9 am and left the centre at about 12.30 pm to carry out a delivery run (ts 203).
Mr Brown gave evidence that between 40 minutes to one‑hour into his delivery run he arrived at the Banksia Grove house (ts 204). Mr Brown had two parcels to deliver to this address, namely one small white parcel which required a signature and one large parcel sent by Express Post which did not require a signature (ts 204). The Express Post parcel was too large to leave in the letter box (ts 204).
Mr Brown described the standard parcel delivery process as involving, first, the scanning of the parcel to determine whether it requires a signature. If the parcel requires a signature, Mr Brown gave evidence that he would then knock on the door of the house, ask for the name of the person receiving the parcel, possibly check that this was the same person as the parcel addressee, enter their initial and surname into the scanner, and, due to the COVID‑19 pandemic, sign for the parcel on their behalf (ts 204 ‑ 205). If the parcel did not require a signature and did not fit in the letter box, Mr Brown gave evidence that he would simply leave it in a safe place at the house (ts 205).
Mr Brown gave evidence that the two parcels were addressed to the same address but different addressees (ts 205). Mr Brown had previously attended the Banksia Grove house to make deliveries and had seen a female person and a child (ts 205 ‑ 206).
On his delivery run on 2 June 2020, Mr Brown gave evidence that he scanned the two parcels and then approached the door and knocked. The male tenant came to the door. Mr Brown put the male tenant's initial and surname into the scanner for the parcel that required a signature (ts 206). Mr Brown was unable to recall whether the tenant's name was the same as that on the parcel, but gave evidence that it must have been similar for him to proceed with the delivery. Mr Brown gave evidence that the male tenant's name was different from that on the Express Post parcel and so they had a conversation about the Express Post parcel (ts 206).
Mr Brown asked the male tenant whether the addressee of the Express Post parcel resided at the address and the male tenant said they did not (ts 207). Mr Brown then scanned the Express Post parcel again to cancel the delivery as the male tenant was not accepting the delivery (ts 207). Mr Brown gave evidence that the male tenant spoke to his partner about the Express Post parcel and there was some confusion about whether it might have been for someone she knew (ts 207).
The female tenant then came to the door and Mr Brown recognised her as the female person he had seen previously at that address (ts 207). The male tenant went back into the house and the female tenant proceeded to speak with Mr Brown about the Express Post parcel (ts 207). Mr Brown gave evidence that the female tenant said she had purchased a large figurine that was coming in the mail and it was consistent with the size of the Express Post parcel (ts 207 ‑ 208). She felt that the sender may have put the incorrect name on her delivery. Mr Brown gave evidence that as she wanted to accept the parcel and a signature was not required, he allowed her to keep the parcel (ts 208). The female tenant said she would open the parcel to double check that it was what she thought it was, and if not, then Mr Brown could take it back (ts 208).
Mr Brown observed the female tenant walk down the corridor to get some scissors. She was met in the corridor by the male tenant. Mr Brown gave evidence that he saw them both standing next to the parcel and then return to the front door with the parcel open, having decided that they did not want it (ts 208).
Mr Brown gave evidence that the female tenant told him that in the top of the parcel was paint that had stuck to the lid, and underneath there was something which she thought was drugs (ts 208). She said the parcel was not hers and she wanted to return it (ts 208).
Mr Brown gave evidence that he then took the parcel from her and placed it on the back of his bike. Mr Brown proceeded across the road to view the parcel 'out of prying eyes' (ts 209). Mr Brown was then shown photographs and he confirmed that they depicted the Express Post parcel and its contents (ts 209 ‑ 210). Mr Brown gave evidence that after viewing the contents of the parcel he rang his manager, Sam del Pino (ts 211). Mr Brown was instructed to leave the parcel on his bike and retain it until he returned to the distribution centre later that afternoon (ts 211).
When Mr Brown returned to the distribution centre, he was uncomfortable with leaving the Express Post parcel on his manager's desk and so he spoke to the second‑in‑charge, Russell May, and they agreed to lock the Express Post parcel in a filing cabinet in the manager's office (ts 211).

Cross‑examination

Mr Brown's cross‑examination was to the following effect.
Mr Brown accepted that when the tenants were standing in the corridor opening the parcel they were about four metres away from him and the door remained open (ts 216). They were speaking to each other, but Mr Brown could not hear what they were saying. Mr Brown did not directly observe them opening the parcel (ts 216). Mr Brown did not look at the contents of the parcel until he was across the road (ts 217). Mr Brown returned to the distribution centre at about 4 pm (ts 218).

Re‑examination

Mr Brown's re‑examination was to the following effect.
Mr Brown confirmed that he removed the Express Post parcel from the scanner because the male tenant told him that the addressee did not belong to that household (ts 219).

Evidence of Sarah Stephens

Examination‑in‑chief

Sarah Stephens' evidence‑in‑chief was to the following effect.
Ms Stephens gave evidence that in 2020 she resided at the Banksia Grove house (ts 401). Ms Stephens was at home on 2 June 2020 with her then partner (ts 402).
Ms Stephens gave evidence that there was a knock at the door and her partner answered (ts 402). Her partner called out to her, and she went to the front door and had a conversation with the postal delivery officer and her partner about an express parcel (ts 402).
Ms Stephens gave evidence that the postal delivery officer asked her if she wanted to keep the parcel and call if it was not for her. Ms Stephens said she would open it and the postal delivery officer could take it if it was not hers (ts 403).
Ms Stephens gave evidence that the parcel contained a makeup case. As soon as she opened it, the top part fell out and revealed a white substance in plastic (ts 403 ‑ 404). Ms Stephens was shown photographs and identified them as the contents of the parcel (ts 403). After opening the parcel, Ms Stephens returned it to the postal delivery officer and said she thought it contained drugs (ts 404).
Ms Stephens gave evidence that the postal delivery officer then went around the corner and made a telephone call. He then left on his bike (ts 404).

Cross‑examination

Ms Stephens' cross‑examination was to the following effect.
Ms Stephens asked the police if her then partner needed to make a statement and they said he did not (ts 406).
When Ms Stephens opened the makeup case, the clip was not shut and the tray of makeup on top of the methylamphetamine fell out (ts 407). Ms Stephens gave evidence that her guess that the substance was methylamphetamine was based on movies (ts 408).
Ms Stephens did not recognise the name on the parcel. Ms Stephens accepted that she opened the parcel because she thought it might have been a parcel that she had ordered. Ms Stephens accepted that a parcel had never previously been delivered to her address in the wrong name (ts 408).
Ms Stephens accepted that when she opened the parcel in the corridor and spoke to her partner, she was speaking quietly (ts 412).
Ms Stephens had not had any dealings with the appellant at that time, but knew he was the owner of the property from paperwork (ts 409).

Exhibit 4

The parcel with a tracking number ending in '997' (see [27] above) contained the methylamphetamine. Exhibit 4 at the trial included a document showing the event history for the tracking number ending in '997' (combined blue and green appeal book p 14). The event history recorded that the APCN registered in the name of Jessica John added the tracking number to their watch list on 4 June 2020 at 2.07 am (AWST) and that the APCN registered in the name of John Sigaro added the tracking number to their watch list on 4 June 2020 at 12.46 am (AWST).
The parcel with a tracking number ending in '994' (see [28] above) contained at least the human growth hormone the subject of counts 2 to 7. Exhibit 4 at the trial included a document showing the event history for the tracking number ending in '994' (combined blue and green appeal book p 19). The event history recorded that the APCN registered in the name of Jessica John added the tracking number to their watch list on 27 May 2020 at 10.45 am (AWST).

The appellant's case at trial

The appellant did not give evidence at the trial. Defence counsel did not call any witnesses.
Defence counsel submitted to the jury in his closing address that the State had not proved beyond reasonable doubt that:
(a)the appellant knew that the parcel in question contained methylamphetamine or another prohibited drug; or
(b)the appellant intended to possess the parcel containing the methylamphetamine.
Defence counsel suggested to the jury that the State's case was 'like a puzzle with very important pieces missing' (ts 495).
Defence counsel argued that the State's case in relation to the appellant's alleged knowledge and intention did not 'make sense' because:
(a)the parcel was sent to the Banksia Grove house;
(b)the appellant did not live at the house;
(c)the appellant had never met the tenants;
(d)on the evidence, there were several parcel lockers linked to the telephone number of the mobile telephone found in the appellant's possession when he was arrested;
(e)the appellant had no capacity to control whether or not the tenants would be at home when the parcel containing the methylamphetamine was delivered;
(f)the appellant had no way of knowing whether the tenants would accept or reject the parcel;
(g)the appellant had no capacity to control the parcel or what happened to the parcel;
(h)the quantity of methylamphetamine involved (namely 133.74 g) was large; and
(i)whoever ordered such a large quantity of methylamphetamine was not a minor operator in the drug market and, by implication, a person in the position of the appellant would not have arranged for the methylamphetamine to be delivered in the circumstances alleged by the State.

Ground 1: the trial judge's directions to the jury on the propensity evidence

The trial judge directed the jury in relation to the propensity evidence.
Neither the prosecutor nor defence counsel sought any redirection or additional direction from her Honour in connection with the propensity evidence.
The appellant does not make any complaint in the appeal about the trial judge's directions. It is therefore unnecessary to reproduce or summarise the directions.

Ground 1: the appellant's submissions in the appeal

Counsel for the appellant acknowledged that at the hearing before MacLean DCJ the appellant conceded that the evidence the subject of the State's application was 'propensity evidence' as defined in s 31A(1) of the Evidence Act 1906 (WA).
According to counsel, the relevant propensity was merely 'a propensity in a general way … to source illicit drugs' (appeal ts 4). Counsel added that, in his submission, 'the factual matrix surrounding the possession of the steroids and the human growth hormone, the modus operandi by which those drugs were obtained is noticeably different, differing from the modus operandi in relation to the allegations on count 1' (appeal ts 5).
Later, however, in discourse with the court, counsel accepted that the appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based 'showed that the appellant had a tendency to be involved in the remote sourcing of prohibited drugs, arranging the delivery of prohibited drugs to him by using the Australia Post service and using assumed identities in arranging deliveries of prohibited drugs to him' (appeal ts 5).
Counsel submitted that the evidence of the appellant having procured, through the postal system, human growth hormone and anabolic steroids for sale or supply was not significantly probative of any fact in issue in respect of count 1.
It was argued that the offending conduct the subject of counts 2 to 13 was 'too remote from the issue of possession in respect of count 1' to have significant probative value. In particular, the conduct the subject of counts 2 to 13 did not have significant probative value because of the absence of 'sufficient circumstantial evidence [creating] an evidentiary nexus' between the conduct the subject of counts 2 to 13 and the conduct the subject of count 1.
Counsel for the appellant also submitted that there was a real risk that the jury would be unfairly prejudiced against the appellant by reason of the propensity evidence. In particular, it was argued that the jury would be inclined to convict the appellant of count 1 without properly assessing the sufficiency of the totality of the evidence adduced at the trial. Counsel submitted that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must not have priority over the risk of an unfair trial.

Ground 1: the State's submissions in the appeal

Counsel for the State submitted that the appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based constituted 'propensity evidence', as defined in s 31A(1) of the Evidence Act, in that they constituted relevant 'evidence of the conduct of [the appellant]'.
The propensity asserted by the State at trial was 'a tendency … to be involved in the remote sourcing of prohibited drugs, the arranging of the delivery of prohibited drugs to him by using the Australia Post service and the use of assumed identities … in arranging deliveries of prohibited drugs to him' (ts 588).
It was argued that the convictions on counts 2 to 13 and the material facts on which those convictions were based were capable of proving the asserted propensity and, having regard to the other evidence adduced by the State in relation to count 1, would rationally affect, to a significant extent, the jury's assessment of the probability of the existence of the following facts in issue (appeal ts 42):
(a)whether the appellant had the required intention to commit the offence of attempting to possess the parcel containing the methylamphetamine; and
(b)whether the appellant knew that the parcel contained methylamphetamine or another prohibited drug.
It was also argued that the evidence of the alleged propensity, having regard to the other evidence adduced by the State in relation to count 1, would rationally affect, to a significant extent, the jury's assessment of the probability of any innocent association based on the appellant's statement in his electronically recorded interview with police that he was merely tracking the parcel containing the methylamphetamine for another person and without any knowledge of its contents (appeal ts 42).
Counsel submitted that the probative value of the convictions on counts 2 to 13 and the material facts on which those convictions were based, compared to the degree of risk of an unfair trial, was such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The trial judge's directions to the jury appropriately guarded against the risk of an unfair trial arising from any impermissible reasoning by the jury based on the propensity evidence.

Ground 1: its merits

Section 31A of the Evidence Act provides:
31A.Propensity and relationship evidence
(1)In this section —
propensity evidence means —
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers —
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The principles governing the admission of propensity evidence under s 31A of the Evidence Act are well established. They were summarised recently in Chuguna v The State of Western Australia.[1] It is unnecessary to repeat the summary. We merely note the following.
[1] Chuguna v The State of Western Australia [2024] WASCA 134 [120] ‑ [127] (Buss P & Mazza JA).

The question of whether propensity evidence has significant probative value can only have one correct answer, but it is a question about which reasonable minds may sometimes differ. In an appeal against conviction, the appellate court must determine for itself whether the evidence is of significant probative value, as distinct from deciding whether it was open to the primary judge to arrive at his or her conclusion. See R v Bauer (a pseudonym).[2]
[2] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56 [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
An assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offence.
See Hughes v The Queen.[3]
[3] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [41] (Kiefel CJ, Bell, Keane & Edelman JJ). See also McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [26] (Kiefel CJ, Bell, Keane & Nettle JJ).
In Director of Public Prosecutions v Benjamin Roder (a pseudonym),[4] the High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ) stated that tendency or propensity evidence is a 'special class' of circumstantial evidence [23]. Their Honours then referred to Hughes and Shepherd v The Queen[5] as follows [24]:
In Hughes v The Queen, the majority in this Court explained that with tendency evidence, '[t]he trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to [determining] the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue' (emphasis added) (Hughes v The Queen (2017) 263 CLR 338 at [16]; 92 ALJR 52). The process of reasoning involved is similar to the manner in which an assessment of the significant probative value of the evidence is undertaken by the trial judge for the purpose of determining its admissibility, namely, by first assessing the strength of the evidence in establishing the tendency and then considering 'the extent to which the tendency makes more likely the elements of the offence charged' (Hughes v The Queen (2017) 263 CLR 338 at [64]; 92 ALJR 52). In the language of Shepherd (Shepherd v The Queen (1990) 170 CLR 573 at 579; 65 ALJR 132), the tendency is an 'intermediate fact' that the prosecution seeks to establish and rely on as circumstantial proof of the elements of the offence.
[4] Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644.
[5] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.
As we have mentioned, in the present case the State contended at trial that the appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based established that the appellant had a tendency to be involved in the remote sourcing of prohibited drugs; in arranging for the delivery of the drugs to him by using the Australia Post service; and in using assumed identities in arranging for the delivery of the drugs to him. It was that tendency which the State asserted the appellant had, at the material time, within the definition of 'propensity evidence' in s 31A(1) of the Evidence Act.
We are satisfied, for the following reasons, that the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State, established that, at the material time, the appellant had the alleged tendency.
First, the appellant was involved in the remote sourcing of the prohibited drugs the subject of counts 2 to 13.
Secondly, the remote sourcing of those prohibited drugs related to 12 discrete quantities. The appellant was involved in attempting to possess each quantity of human growth hormone or anabolic steroid.
Thirdly, there was an extremely close temporal connection between each of the attempts to possess the prohibited drugs the subject of counts 2 to 13.
Fourthly, all of the attempted possessions the subject of counts 2 to 13 involved the attempted delivery of the prohibited drugs to the appellant by use of the Australia Post service.
Fifthly, all of the attempted possessions the subject of counts 2 to 13 involved the delivery of each prohibited drug in a parcel or envelope addressed to a name apparently unconnected to the appellant but to a place to which the appellant had access.
Sixthly, the appellant was involved in the parcels and the envelopes being addressed to names apparently unconnected to the appellant but being delivered to a place to which he had access.
Seventhly, Jessica John had been in a relationship with the appellant from January to April 2018. Ms John knew nothing about the packages or the prohibited drugs. The appellant used her identity, without her knowledge or consent, to establish the APCN registered in her name.
Eighthly, on 27 May 2020 at 10.45 am (AWST), the appellant was involved in adding the parcel with the tracking number ending in '994' to the watch list for the APCN registered in the name of Jessica John.
Ninthly, the appellant went to the Australia Post outlet at around 12.40 pm (AWST) on 5 June 2020 and collected the package addressed to Jessica John that contained the human growth hormone the subject of count 13.
Tenthly, when the appellant was arrested at the Australia Post outlet at around 12.40 pm (AWST) on 5 June 2020, the white mobile telephone in his possession was open to the APCN registered in the name of Jessica John. The appellant was tracking the package addressed to Jessica John which contained the human growth hormone the subject of count 13.
We are satisfied, for the following reasons, that the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State, had significant probative value in relation to count 1 as follows:
(a)proof by the State that the appellant intended to commit the offence of attempting to possess the parcel containing the methylamphetamine;
(b)proof by the State that the appellant knew that the parcel contained a prohibited drug; and
(c)rebuttal by the State of any innocent association based on the appellant's assertion in his electronically recorded interview with police that he was merely tracking the parcel containing the methylamphetamine for another person and without knowledge of its contents.
First, the tendency which the State asserted that the appellant had, at the material time, within the definition of 'propensity evidence' in s 31A(1) of the Evidence Act, was formulated with a reasonable degree of specificity. It was not formulated at a high level of generality.
Secondly, the appellant's propensity, at the material time, was to be involved in the remote sourcing of prohibited drugs; in arranging for the delivery of the prohibited drugs to him by using the Australia Post service; and in using assumed identities in arranging for the delivery of the drugs to him.
Thirdly, there was very close temporal proximity between the appellant's commission of counts 2 to 13 and his alleged commission of count 1. The interval between the commission of counts 2 to 13 and the alleged commission of count 1 did not deprive the propensity evidence of significant probative value or diminish its probative value.
Fourthly, the fact that counts 2 to 13 concerned human growth hormone and anabolic steroids whereas count 1 involved methylamphetamine did not deprive the propensity evidence of significant probative value or diminish its probative value. The propensity evidence related, in part, to the appellant's method of operation in attempting to possess prohibited drugs. The propensity evidence did not relate to the appellant dealing solely or exclusively with a particular kind of prohibited drug.
Fifthly, the evidence adduced by the State (in addition to the propensity evidence) in relation to count 1 included:
(a)the evidence that the appellant was a part owner of the Banksia Grove house;
(b)the evidence that the parcel containing the methylamphetamine was addressed to Brett Downs (who had no connection with the Banksia Grove house) at the Banksia Grove house;
(c)Jessica John's evidence that she had been in a relationship with the appellant from January to April 2018;
(d)Ms John's evidence that she had never permitted another person to take images or make copies of her driver's licence; she had never had an account with Australia Post; she had never had a parcel locker; and she did not recognise the telephone number ending in '156';
(e)the evidence (including the appellant's admission in his electronically recorded interview with police) that the appellant was in possession of the mobile telephone with the telephone number ending in '156' when he was arrested;
(f)Detective Marron's evidence that the mobile telephone in the appellant's possession when he was arrested included a photograph of Jessica John's driver's licence; information purporting to give directions to Jessica John about a delivery to a parcel locker; a photograph of a substance that was consistent with the appearance of methylamphetamine or possibly MSM modified to mimic the appearance of methylamphetamine; and a photograph of a white powder that had the appearance of cocaine;
(g)Detective Psaila‑Borrie's evidence that a search of the appellant's computer revealed images of driver's licences in the names of Paul Watson, Ian Sheppard and Jessica John;
(h)Detective Baker's evidence that on the afternoon of 5 June 2020 he located at the appellant's home the packaging for a Telstra prepaid SIM card surround and the packaging for the mobile telephone with the telephone number ending in '156';
(i)Mr Liedermoy's evidence that he had not opened any accounts or parcel lockers with Australia Post; he did not have a mobile telephone with the number ending in '156'; and he had never lost or reported to police any lost property including a driver's licence or documents with any of his details on them;
(j)Mr Sheppard's statement that, although the mobile telephone with the number ending in '156' was registered in his name, he did not have a mobile telephone with a number ending in '156'; he did not recognise that telephone number; and he did not know anyone with that telephone number;
(k)Mr Harmes' evidence that he had never had an Australia Post account; he had never used any parcel lockers in Western Australia; he did not recognise the mobile telephone number ending in '156'; he had never shared his personal details with any people to allow them to open any accounts in his name or in another name; and he had never permitted any people to use his details to open an Australia Post account in their name or in another name;
(l)Mr Brown's evidence to the effect that in the early afternoon of 2 June 2020 he arrived at the Banksia Grove house with two parcels including the parcel containing the methylamphetamine; the parcel containing the methylamphetamine did not require a signature; the two parcels were addressed to the address of the Banksia Grove house but to different addressees; and when Mr Brown returned to the distribution centre later in the afternoon of 2 June 2020 he and Mr May locked the parcel in a filing cabinet in the manager's office;
(m)the evidence that the parcel containing the methylamphetamine had a tracking number ending in '997';
(n)the evidence that an APCN had been registered in the name of Jessica John without her knowledge or consent and that the APCN had been set up using her driver's licence details without her permission;
(o)the evidence that the APCN registered in the name of Jessica John listed the mobile telephone with the telephone number ending in '156' for the customer and that the number was connected to a SIM card that was used in the mobile telephone that was in the appellant's possession when he was arrested; and
(p)the evidence in exhibit 4 that the event history in relation to the parcel with the tracking number ending in '997' included a record that a person had used the APCN registered in the name of Jessica John to add the tracking number to their watch list on 4 June 2020 at 2.07 am (AWST).
Sixthly, there was a significant and logical connection between the evidence of the appellant's propensity, on the one hand, and the other evidence adduced by the State (in particular, the evidence to which we have referred at [166] above), on the other, having regard to the purposes for which the State relied upon the propensity evidence. See [141] ‑ [142] above.
Seventhly, we consider that the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State (in particular, the evidence to which we have referred at [166] above), in the context of the evidence as a whole, made it more likely, to a significant or an important extent, that:
(a)the appellant intended to commit the offence charged in count 1 of attempting to possess the parcel containing the methylamphetamine; and
(b)the appellant knew that the parcel contained a prohibited drug.
Eighthly, we consider that the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State (in particular, the evidence to which we have referred at [166] above), in the context of the evidence as a whole, made it less likely, to a significant or an important extent, that there was any innocent association, based on the appellant's assertion in his electronically recorded interview with police, that he was merely tracking the parcel containing the methylamphetamine for another person and without knowledge of its contents.
We are satisfied, for the following reasons, that the probative value of the evidence which the State adduced at the trial in relation to the appellant's propensity, compared to the degree of risk of an unfair trial, was such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt on count 1 must have priority over the risk of an unfair trial.
First, the trial judge gave directions to the jury in relation to the propensity evidence having regard to the specific circumstances of the appellant's propensity and the whole of the evidence adduced at the trial. The directions ensured that any impermissible prejudice to the appellant arising from the admissibility of the propensity evidence was overcome or guarded against. As we have mentioned, neither the prosecutor nor defence counsel sought any redirection or additional direction from her Honour in connection with the propensity evidence. Further, as we have mentioned, the appellant does not make any complaint in the appeal about her Honour's directions.
Secondly, the directions which her Honour gave to the jury were not of such complexity as to be beyond the capacity of a jury to understand and apply. The jury was capable of performing the function required of them.
MacLean DCJ was correct in granting the State's application to adduce evidence of the appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based as propensity evidence at the appellant's trial on count 1.
Ground 1 fails.

Ground 2: the trial judge's directions to the jury on the elements of count 1

The trial judge directed the jury on the elements of count 1.
The prosecutor did not seek any redirection or additional direction from her Honour in connection with any of the elements of the offence.
Defence counsel discussed with the trial judge the directions her Honour had given on one of the elements of count 1 but, ultimately, defence counsel did not seek any redirection or additional direction from her Honour in connection with any of the elements of the offence.
The appellant does not make any complaint in the appeal about her Honour's directions. It is therefore unnecessary to reproduce or summarise the directions.

Ground 2: the appellant's submissions in the appeal

Counsel for the appellant submitted that the evidence adduced at the trial did not establish that there had been an 'attempt' within the meaning of s 4 of the Code.
Counsel noted that at the trial the State relied upon two acts to prove that the appellant attempted to possess the methylamphetamine. First, the State relied upon an inference that the appellant must have provided the address of the Banksia Grove house to the sender of the parcel containing the methylamphetamine or to another person who provided the address to the sender. Secondly, the State relied upon an inference that the appellant was the person who had used the APCN registered in the name of Jessica John to add the tracking number ending in '997' to their watch list on 4 June 2020 at 2.07 am (AWST).
It was argued that the evidence relied upon by the State was insufficient to exclude a reasonable inference that the appellant's acts were merely preparatory to the commission of the offence; alternatively, to exclude a reasonable inference that the appellant's intention was other than to possess the parcel containing the methylamphetamine.
Counsel submitted that an inference that the appellant must have provided the address of the Banksia Grove house to the sender of the parcel containing the methylamphetamine or to another person who provided the address to the sender was not the only inference reasonably open on the evidence. Counsel referred to the appellant's assertions in his electronically recorded interview with police that he had 'not done anything to actively acquire that package or methamphetamine' (EROI 71) and that he had used the Australia Post tracking system at the request of another person who had asked him to relay information to assist the other person to 'go and obtain the package' (EROI 73).
It was submitted that even if the jury rejected the appellant's assertion in his electronically recorded interview, there was an available inference that the parcel containing the methylamphetamine was delivered to the Banksia Grove address 'for the purpose of somebody other than the appellant to take sole possession of it'. Counsel referred to the telephone calls made by the person who identified himself as John Sigaro which enquired about the non‑delivery of the parcel containing the methylamphetamine. The first call was made on 3 June 2020 at 3.32 pm (AEST). The second was made at an unspecified time on 4 June 2020. Counsel also referred to the person who had used the APCN registered in the name of John Sigaro to add the tracking number of the parcel containing the methylamphetamine to their watch list. That occurred at 12.46 am (AWST) on 4 June 2020. Counsel noted that Detective Psaila‑Borrie gave evidence that the APCN account in the name of John Sigaro did not track any parcel apart from the parcel containing methylamphetamine.
Counsel emphasised that there was no evidence that the appellant knew the parcel in question contained methylamphetamine or that he knew the quantity of the methylamphetamine. Counsel also emphasised that there was no evidence that the appellant had ordered the methylamphetamine or had caused it to be ordered. Counsel reiterated that the propensity evidence did not bear upon the likelihood that the appellant would intend to possess methylamphetamine specifically, but merely established that he had a tendency to source other prohibited drugs through the postal system using pseudonyms.
According to counsel for the appellant, having regard to the evidence as a whole, an inference that the appellant provided the address of the Banksia Grove house for the purpose of the delivery of the methylamphetamine was not the only inference reasonably open. The alternative inference reasonably open was that a person other than the appellant, who knew that the appellant was a part owner of the Banksia Grove house, had asked the appellant to track the parcel containing the methylamphetamine without the appellant knowing the destination of the parcel. Further, according to counsel, having regard to the evidence as a whole, an inference that the appellant was the person who had used the APCN registered in the name of Jessica John to add the tracking number ending in '997' to their watch list on 4 June 2020 at 2.07 am (AWST) was not the only inference reasonably open. The alternative inference reasonably open was that the person who, on the appellant's assertion in his electronically recorded interview, had asked the appellant to track the parcel containing the methylamphetamine, without the appellant knowing the destination of the parcel, had used the APCN registered in the name of Jessica John to add the tracking number to their watch list.

In the interview, the appellant was asked about the mobile telephone he had in his possession upon his arrest, which was at that time being used to track one of the parcels containing human growth hormones and steroids. The appellant responded that it was not his telephone, that he had only had it for a 'couple of months', and that he did not know its number.
This was plainly untrue.
The packaging for that telephone was later found by police when they searched the appellant's home. Further, the telephone number for that telephone was linked to the APCN in the name of his former girlfriend, Ms John.
The same telephone number was also registered in the name of Mr Sheppard, without his knowledge. It may be recalled that the police found a copy of Mr Sheppard's driver's licence on a computer at the appellant's home, and Mr Sheppard's name had been used to register an APCN without his knowledge.
The telephone number was also linked to other APCNs in the names of David Robert Harmes, Daniel Hicks and Wayne Stephen Liedermoy. Mr Harmes was previously married to the appellant's partner, but barely knew the appellant himself. Mr Liedermoy did not know the appellant. None of those people had ever opened an account with Australia Post, or had anything to do with the relevant mobile telephone number.
The appellant also said he knew nothing about how the mobile service connected to the telephone was being paid for, stating that 'it just looks after itself'. The appellant himself agreed with the officer conducting his interview that this was 'a bit unusual'.
The appellant's credibility was further undermined to a significant extent by his repeated false assertions that he did not know of Ms John, in response to being told that the parcel he had attempted to collect earlier that day was addressed to 'Jessica Johns [sic]'. The appellant's explanation for why he had a copy of Ms John's driver's licence, namely, that it had been sent to him to be used 'if anything was to be collected', was also a blatant lie.
Having regard to these matters alone, it was well open to the jury to reject the appellant's exculpatory explanation that he had been given a tracking number for the parcel that was later found to contain methylamphetamine, and that he had merely been asked by an unnamed person to relay information about the movement of that parcel. Acting in accordance with the trial judge's Liberato direction, it was then open to the jury to put the appellant's innocent explanation to one side and to determine whether the State had proved the appellant's guilt based on the rest of the evidence adduced at the trial.

The State's case was that the evidence considered in its entirety, and not on a piecemeal basis, established that the only rational inference was that the appellant directly or indirectly provided the address of the Banksia Grove unit to the sender of the methylamphetamine.
At the hearing of the appeal, senior counsel for the appellant accepted that an inference that the appellant directly or indirectly provided the address of the Banksia Grove unit to the sender of the methylamphetamine was one of the inferences that was open on the evidence adduced at the trial. Having conducted my own review of the evidence, I am of the view that it was open to the jury to conclude that it was the only rational inference.
The obvious starting point is to note that the methylamphetamine was to be delivered to a unit of which the appellant was a part owner. Although the appellant was not living at the Banksia Grove unit at the time the delivery was attempted, there was no evidence that the female tenant who initially discovered the methylamphetamine hidden in the parcel, or her husband, were in any way involved in the delivery of that substance to their home.
The female tenant who was present at the Banksia Grove unit at the time the postal officer attempted to effect delivery of the parcel gave evidence that she had nothing to do with the parcel or with its illicit contents. There is nothing in the evidence that I have independently reviewed that causes me to have any doubt about the truthfulness and reliability of the female tenant's account generally, or in relation to her denials of involvement with the methylamphetamine.
The male tenant did not give evidence. However, the evidence given by the postal officer who attempted to effect delivery of the parcel was consistent only with both tenants having no connection with the parcel or its contents. In that respect, the postal officer's evidence established that the male tenant behaved in a manner that clearly indicated that he had not been expecting the parcel and knew nothing about it. Further, when the female tenant opened the parcel to examine its contents, and discovered what she thought were prohibited drugs, she immediately disclaimed ownership and returned the parcel.
The jury had the advantage, not available to this court, of seeing and hearing both the female tenant and the postal officer give evidence. Having had that advantage, and in light of the evidence as a whole, it was open to the jury to conclude that both of the tenants who were present at the Banksia Grove unit at the relevant time had nothing whatsoever to do with the methylamphetamine or the parcel in which it was contained.
The postal officer gave evidence that the parcel did not require a signature to be provided upon delivery and explained that in those circumstances it would ordinarily have been left in a safe place at the Banksia Grove unit for collection. It appears the only reason there was an attempt made to deliver the parcel to the tenants in person was because another parcel was to be delivered at the same time, and that parcel required a signature.
In my view, it was open to the jury to conclude that arrangements had deliberately been made to have Australia Post deliver the parcel to the Banksia Grove unit in a manner in which a signature would not be required so that the parcel would be left in a safe place outside the Banksia Grove unit without involving the tenants. The parcel would then have been available to be collected later, thereby reducing any risk of detection. As a part owner of the Banksia Grove unit, the appellant, or anyone else attending to collect the parcel based on information provided by the appellant, would also have had a plausible innocent explanation for being at the Banksia Grove unit if one was ever required.
The uncontroverted documentary evidence, and the evidence about the appellant's previous relationship with Ms John, also established that the appellant added the parcel containing the methylamphetamine to a watch list using the APCN in Ms John's name, and that he did this after delivery of the parcel had been rejected by the tenants. The appellant also made admissions in his video record of interview that he was, in effect, tracking the parcel, albeit for someone else.
Accordingly, it was open to the jury to conclude that the appellant had been expecting the parcel to be delivered to the Banksia Grove unit. Further, it was open to the jury to find that the appellant had this expectation because he knew where the parcel was supposed to be delivered as he had directly or indirectly supplied the address to the person who sent the methylamphetamine in the mail.
There was evidence that another person had added the parcel to a watch list for an APCN associated with a 'John Segaro' just over one hour before the appellant added the parcel to a watch list. There was also evidence that telephone enquiries had been made to Australia Post by a person using that name after the failed delivery of that parcel. However, the fact that someone other than the appellant may also have been interested in following the movements of the parcel after the failed delivery does not logically affect the capacity of the evidence to support the inference that the appellant provided the address of the Banksia Grove unit to the sender of the methylamphetamine, either directly or indirectly.
As I have explained in the context of ground 1, the relevant tendency was also significantly probative of the fact that the appellant provided the address of the Banksia Grove unit to the sender of the methylamphetamine, either directly or indirectly. In that regard, it must be appreciated that the relevant tendency relied on by the State was not just a tendency for the appellant to be involved in the remote sourcing of prohibited drugs. The relevant tendency extended to a tendency to use Australia Post and assumed identities to arrange for the delivery of prohibited drugs to him.
After conducting my own assessment of the evidence in its entirety, I am of the opinion that the only rational inference was that the appellant directly or indirectly provided his address to the sender of the methylamphetamine. I am not persuaded that the jury, acting reasonably, must have decided that the State had failed to prove that the appellant had done that act.

The unchallenged evidence adduced at the appellant's trial demonstrated that there was a clear link between the appellant and Ms John. The evidence also proved that the appellant had previously used Ms John's identity without her permission to make arrangements for Australia Post to effect the delivery of prohibited drugs to him. Standing alone, that evidence overwhelmingly supported an inference that it was the appellant who added the tracking number for the parcel containing the methylamphetamine to a watch list for an APCN in Ms John's name in the early hours of the morning of 4 June 2020.
In any event, in his video record of interview the appellant essentially admitted that he had done as much. Towards the end of that interview, the appellant told police that although he had 'no idea what was in the package',[43] he had been given a tracking number and was asked to 'alert somebody where that package was delivered'.[44] The appellant explained that he 'was asked to relay that information … so the person who was asking could then go and obtain the package',[45] although it had 'nothing to do with [him]'.[46]
[43] Video record of interview ts 73.
[44] Video record of interview ts 73.
[45] Video record of interview ts 73.
[46] Video record of interview ts 73.
The appellant later said:[47]
'Cause [sic] I was given a tracking number to look at and then relay the information back as to when it had been delivered… I didn't know where it was going, I didn't know what it was, I didn't know anything like that.
[47] Video record of interview ts 74.
In my view, the only rational inference based on the evidence adduced at the appellant's trial was that the appellant was tracking the parcel that contained the methylamphetamine in the early hours of the morning of 4 June 2020, after he added the parcel to the watch list associated with the APCN in Ms John's name.

I agree with what Buss P and David AJA have written at [206] ‑ [219] of the joint reasons about what amounts to an act that is 'more than merely preparatory to the commission of an offence', for the purposes of s 4 of the Code. In particular, I respectfully agree with what their Honours have said at [218] ‑ [219] of the joint reasons.
Where a person is charged with attempting to commit an offence contrary to s 6(1)(a) of the Misuse of Drugs Act, the question for the tribunal of fact is whether a specific act (or acts) of the accused relied on by the State as constituting the particular attempt that is alleged is, as a matter of fact, more than merely preparatory to having in the person's possession a prohibited drug with intent to sell or supply it to another.
In my view, the appellant's proved act of directly or indirectly providing the address of the Banksia Grove unit to the person who was responsible for sending the methylamphetamine in the mail, was an act that was more than merely preparatory to the commission of an offence contrary to s 6(1)(a) of the Misuse of Drugs Act. In the circumstances of this case, it was open to the jury to conclude that the appellant needed to do little else for the parcel containing the methylamphetamine to have ultimately been delivered into his control.
The appellant's act of providing the sender with the address of the Banksia Grove unit was sufficient to have led to the postal officer leaving the parcel outside the unit. Had the parcel been left outside the Banksia Grove unit, the appellant would then either have had the parcel under his control because it had been left in a place to which he had a relatively easy and explicable degree of access, or he would have had the ready ability to exercise control over the parcel and its contents, including but not limited to by taking it into his physical custody.
Because the appellant was charged with attempting to commit an offence contrary to s 6(1)(a), the presumption in s 11 of the Misuse of Drugs Act regarding intention did not apply.[48] However, 133 g of methylamphetamine was contained in the parcel. Had the parcel been delivered to the Banksia Grove unit, the appellant would then either have exercised control, or been able to readily exercise control, over a relatively significant quantity of a prohibited drug.
[48] Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 [15] - [18].
On that basis, it was open to the jury to conclude that the appellant did not need to do anything further other than simply make the drugs 'available'[49] at the Banksia Grove unit, or for him (or someone on his behalf) to take physical custody of the drugs, for a completed offence contrary to s 6(1)(a) of the Misuse of Drugs Act to have been committed.
[49] See the extended definition of 'to supply' in s 3(1) of the Misuse of Drugs Act, reproduced at [198] of the joint reasons, which includes 'to … make available'.
It was therefore also open to the jury to find that the appellant's act of directly or indirectly providing the sender with the address of the Banksia Grove unit was more than merely preparatory to being in possession of the methylamphetamine in the parcel with intent to sell or supply it to another.
When considered in isolation, the other act relied on by the State as constituting an attempt to commit an offence contrary to s 6(1)(a) of the Misuse of Drugs Act, namely tracking the parcel that contained the methylamphetamine, was not an act that was more than merely preparatory to the commission of that offence. Of itself, adding the parcel to the watch list for the APCN in Ms John's name, and then tracking its movements, could only have provided the appellant with information about the parcel's location. The appellant's purpose for tracking the package at that point would necessarily be to discover its location in order to exercise control over it.
However, the act of adding the parcel to the watch list for the APCN in Ms John's name, and then tracking its movements, occurred after the appellant had already done an act which was more than merely preparatory, by providing the address of the Banksia Grove unit to the sender of the methylamphetamine.
Having concluded that the appellant's anterior act of directly or indirectly providing the sender with the address of the Banksia Grove unit was more than merely preparatory to committing an offence, it follows that it was open to the jury to find that the appellant's later act of tracking the parcel was, in combination with his earlier act of providing the address of the Banksia Grove unit, more than merely preparatory as well.

Was it open to the jury to be satisfied beyond reasonable doubt that the appellant intended to commit an offence contrary to s 6(1)(a) of the Misuse of Drugs Act?

Based on my review of the evidence, I am not left with any reasonable doubt that the appellant intended to commit an offence contrary to s 6(1)(a) of the Misuse of Drugs Act, both at the time he directly or indirectly provided the address of the Banksia Grove unit to the person who sent the methylamphetamine in the mail, and later, when the appellant added the parcel containing that drug to the watch list for the APCN in Ms John's name.
In the absence of any direct evidence that the appellant had the requisite intent, the question for the jury was whether the evidence established that this was the only rational inference. In my view, it was well open to the jury to reach that conclusion.
The jury were entitled to infer that the appellant had the necessary intent based on findings that were open to the jury to make that the appellant had directly or indirectly provided the address of the Banksia Grove unit to the person who sent the parcel and that he had then taken steps to track the parcel after the failed delivery. It was also open to the jury to think that this logical inference was significantly strengthened on account of the appellant's relevant tendency at the time.
The fact that the parcel was addressed to a place the appellant had access to, but which was not his home address, using what the jury were entitled to think was an assumed name, was also strongly supportive of the appellant's intent. The same can be said for the appellant's underhanded use of Ms John's name to track the parcel after the failed delivery. It was open to the jury to conclude that the appellant had taken these steps because he intended to reduce the risk of detection.
It was not necessary for the jury to be satisfied that the only rational inference was that the appellant intended to take physical possession, or even sole possession, of a prohibited drug. It was sufficient for the jury to be satisfied that the appellant intended to exercise control or dominion over the drugs, either on his own or jointly with others. It was open to the jury to infer, as the only reasonable inference, that by arranging for the parcel to be delivered to an address to which he had access, the appellant at least intended to exercise control over the prohibited drugs inside that parcel.
There was no issue at the trial that if the State established to the requisite standard that the appellant intended to possess a parcel containing a prohibited drug, the jury would then also be satisfied that he intended to sell or supply it to another. In any event, the evidence adduced at the appellant's trial was sufficient in nature and quality to remove any reasonable doubt that the appellant intended to sell or supply the methylamphetamine contained in the parcel that was to have been delivered to the Banksia Grove unit. Having regard to the relatively organised way in which the drugs were sent in the mail (in a manner designed to veil the appellant's involvement) together with the quantity, purity and nature of those drugs, it was open to the jury to conclude that the only rational inference was that the appellant had an intention to sell or supply the drugs at all relevant times.
It was not necessary for the State to prove that the appellant had an intention to sell the methylamphetamine. It was enough for the jury to be satisfied that the appellant intended to supply the drugs contained within the parcel simply by making it available for someone else to collect from the Banksia Grove unit. In that regard, while it was open to the jury to reject the appellant's exculpatory statements in his video record of interview, it was also open to the jury to conclude that there was a measure of truth in what the appellant had said, namely, that he had been asked to provide information 'so the person who was asking could then go and obtain the package'.[50]
[50] Video record of interview ts 73.

An intention to exercise control over the prohibited drug in the parcel that was to have been delivered to the Banksia Grove unit, and to provide information to someone upon its delivery so that they could then collect the parcel from the unit, amounts to an intention to commit an offence contrary to s 6(1)(a) of the Misuse of Drugs Act.
Ms John gave evidence, under cross-examination, that the appellant had previously admitted to her that he was involved in human growth hormones and steroids. However, she also agreed that he had previously denied being involved in selling 'illegal' drugs and said that she was not aware of the appellant using any such drugs during their relationship.
Ms John's evidence in this regard does not leave me with any reasonable doubt about the appellant's guilt, based on my review of all of the evidence. The fact that the appellant's previous girlfriend of only a few months was, in effect, unable to say whether the appellant's prohibited drug activities had, on at least one occasion, extended to substances other than human growth hormones and steroids was not an obstacle to a finding of guilt having regard to the combined weight of the whole of the evidence.

Conclusion in relation to ground 2

Having carried out my own independent review of the evidence, nothing has given rise to a reasonable doubt in my mind about the appellant's guilt. I am not satisfied that there is a significant possibility that an innocent person has been convicted.
It was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the charged offence of attempting to possess the methylamphetamine that was in the parcel addressed to the Banksia Grove unit, with intent to sell or supply it to another.
In my view, ground 2 has no reasonable prospects of succeeding. Accordingly, leave to appeal on this ground should also be refused.
For these reasons, I agree that the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
23 DECEMBER 2024