R v RUSSO - [2017] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RUSSO
[2017] SASCFC 78
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Lovell)
6 July 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
Appeal against conviction by a jury for trafficking in methylamphetamine in relation to 27.6 grams of the drug located at the appellant’s residence. The appellant was jointly tried for the same offence with Giovanni Vartuli, however the jury did not return a verdict in respect of Mr Vartuli.
The prosecution case was that the appellant and Mr Vartuli had organised a delivery of methylamphetamine by Mr Vartuli with the intention that the appellant would on-sell the drugs. At trial the appellant pleaded guilty to the alternative offence of possession but pleaded not guilty to the charge of trafficking. He gave evidence that he did not acquire the methylamphetamine from Mr Vartuli but purchased the drugs from a dealer for his personal use. He denied any intention to sell or supply the drugs to others.
On appeal, the appellant argued that on the whole of the evidence the appellant’s conviction was unsafe or unreasonable. Second, that in any event, the verdict of guilty was unsafe or unreasonable as it is inconsistent with the jury’s failure to reach a verdict in relation to the trafficking charge against Mr Vartuli. Third, that the verdict of guilty was unsafe or unreasonable as it cannot be supported given the jury’s failure to reach a verdict on the trafficking against Mr Vartuli which logically must have been reached on a different factual basis from that alleged by the prosecution.
Held: Permission to appeal on grounds 1 and 2 is refused and the appeal is dismissed.
1. The verdict of guilty on the trafficking charge was open on the evidence; in particular, the jury was entitled to reject the appellant’s evidence regarding his intention that he possessed the drug solely for personal use given the quantity he admitted to possessing. In these circumstances it cannot be said that the jury must have entertained a doubt as to his guilt. A fortiori it cannot be said that the jury must have been persuaded on the balance of probabilities that the appellant did not possess the methylamphetamine for sale (at [18]).
2. While it is possible for a verdict to be set aside as unsafe or unsatisfactory where it cannot be reconciled with a jury’s inability to reach a verdict on other counts, a failure to reach a verdict is not the same as an inconsistent verdict. Further, a guilty verdict will only be set aside where it is an affront to logic and common sense. In this case the critical difference is that the prosecution had to prove beyond reasonable doubt that Mr Vartuli possessed the drugs with the intention that they be sold, whereas the appellant admitted to possession and had to satisfy the jury on the balance of the probabilities that he did not possess it for sale (at [25] to [28]).
3. The verdict of guilty in this case rested entirely upon whether the constitutional tribunal of fact was prepared to find, on the balance of probabilities, that the appellant was not in possession of methylamphetamine, at least in part, for the purposes of sale. There was evidence before the jury that is consistent with its verdict. Even if that evidence was not sought to be relied upon by the prosecution, a proper basis is not established justifying appellate intervention. It would be a serious step to conclude that the jury’s assessment of the evidence, that leaves it in no doubt with respect to the charge against the appellant but in some doubt in relation to the charge against Mr Vartuli, is reason enough to set aside the verdict of guilty against the appellant (at [33]).
Controlled Substances Act 1984 (SA) s 34, referred to.
R v Robertson [2016] SASCFC 133, applied.
M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; MacKenzie v R (1996) 190 CLR 348; Pillay v R (2014) 43 VR 327; R v Formhals [2014] 1 WLR 2219; R v R, GJ (2009) 105 SASR 506; MFA v The Queen (2002) 213 CLR 606, discussed.

R v RUSSO
[2017] SASCFC 78
Court of Criminal Appeal: Stanley, Parker and Lovell JJ
STANLEY J.
Introduction

This is an appeal against conviction.
The appellant was found guilty by jury verdict of trafficking in methylamphetamine in relation to 27.6 grams of the drug located by police at his domestic residence at Hackham. The appellant was jointly tried for the same offence with Giovanni Vartuli.
The prosecution case was that the appellant and Mr Vartuli had organised a delivery of methylamphetamine by Mr Vartuli with the intention that the appellant would on-sell the drugs.
The prosecution case was that police officers attended at the appellant’s residence where they found the appellant and Mr Vartuli. A search was conducted and in a shed located on the property the methylamphetamine was found in a foam box. There was also found a set of digital scales in a wooden crate and an ice pipe in a cardboard box. Police also found fireworks and Viagra tablets.
At trial evidence was led of telephone intercepts between the two accused as well as telephone conversations and text messages between the appellant and at least one other person alleged to be the intended buyer.
Evidence was also adduced of a police search of Mr Vartuli’s home where a tub with a crystalline substance which reacted positively to the presumptive test for methylamphetamine was located along with a cutting agent, an ice pipe and a set of digital scales. A further ice pipe was found inside the house.
At the trial the appellant pleaded guilty to the alternative offence of possession but pleaded not guilty to the charge of trafficking. He gave evidence that he did not acquire the methylamphetamine from Mr Vartuli but purchased the drugs from a dealer for his personal use. He said he paid $6,000 for the drugs. He denied any intention to sell or supply the drug to others. He denied that any of the intercepted telephone calls with Mr Vartuli related to the supply of methylamphetamine. He explained that the discussions concerned fireworks or Viagra.
At trial Mr Vartuli elected not to give evidence although the interview he gave police on the night he was arrested was admitted into evidence.
The jury found the appellant guilty of the charge of trafficking but was unable to reach a verdict in relation to Mr Vartuli.
Grounds of appeal
The appellant seeks to argue three grounds of appeal. First, that having regard to the whole of the evidence the appellant’s conviction on the trafficking charge was unsafe or unreasonable. Second, that, in any event, the verdict of guilty on the trafficking charge was unsafe or unreasonable as it is inconsistent with the jury’s failure to reach a verdict in relation to the trafficking charge against Mr Vartuli. Third, in addition the verdict of guilty in relation to the trafficking charge was unsafe or unreasonable as it cannot be supported given the jury’s failure to reach a verdict on the trafficking against Mr Vartuli, which logically must have been reached on a different factual basis from that alleged by the prosecution.
Permission to appeal on the first two grounds was refused by a judge of this Court. Permission to appeal in relation to ground 3 was granted. Accordingly, the appellant requires permission to appeal in relation to grounds 1 and 2.
Ground 1: Unreasonable or unsafe verdict
The appellant seeks permission to appeal the trafficking conviction on the ground that the verdict was unreasonable or unsafe.
I do not accept this submission.
On the basis of the appellant’s plea of guilty to the lesser charge of possession of a trafficable quantity and his evidence of possession of the methylamphetamine, a statutory presumption arose pursuant to s 32(5)(b) of the Controlled Substances Act 1984 (SA) (CSA) that the appellant possessed the methylamphetamine intending it for sale. Accordingly he bore the evidential onus of satisfying the jury on the balance of probabilities that he did not possess the drug with the intention of selling it.
The test for whether a verdict of guilty returned by a jury is unreasonable or unsafe was formulated by the High Court in M v The Queen.[1]The test is whether the Court of Criminal Appeal thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[2] The majority of the Court in M v The Queen pointed out that, “In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.”[3] The High Court recognised that an appellate court may nonetheless conclude that there has been no miscarriage of justice, “where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal.”[4] The majority judgment underlined the constitutional role of the jury in deciding the question of guilt. In answering the question whether it was open to the jury to be satisfied beyond reasonable doubt the appeal court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. Nonetheless, they said:[5]
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
[Citation omitted.]
[1] (1994) 181 CLR 487.
[2] (1994) 181 CLR 487 at 493.
[3] (1994) 181 CLR 487 at 494.
[4] (1994) 181 CLR 487 at 494.
[5] (1994) 181 CLR 487 at 494.
In Libke v The Queen[6] Hayne J, with whom Gleeson CJ and Heydon J agreed, said that the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[7] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
[6] [2007] HCA 30, (2007) 230 CLR 559.
[7] [2007] HCA 30 at [113], (2007) 230 CLR 559 at 596-597.
The appellant submits that the jury should have been satisfied on the balance of probabilities that he did not intend to sell the drug. He submits that the jury should have been so satisfied because of the finding by police of a recently used ice pipe in the shed consistent with possession for personal use, the lack of security in relation to the storage of the drug in the shed is inconsistent with a commercial enterprise and the absence of the discovery of items in his possession generally related to trafficking such as substantial quantities of cash, tick lists or the ownership of substantial assets. In addition, he submits that the evidence of the telephone intercepts of the discussion between the appellant and Mr Vartuli allegedly in relation to meeting the buyer was inconclusive. He also points to evidence of Mr Vartuli in relation to him bringing a watermelon to the property which he submits casts doubt on the prosecution case that Mr Vartuli was the supplier of the methylamphetamine to the appellant.
The verdict of guilty on the charge of trafficking faced by the appellant was open on the evidence. The evidence was that the appellant had in his possession 27.6 grams of methylamphetamine with a value in the vicinity of $9,000 to $12,000. The jury was entitled to reject his evidence regarding his intention that he possessed the methylamphetamine solely for personal use, particularly having regard to the quantity of the drug which he admitted to possessing. The factors identified by the appellant might have been a basis for the jury to have entertained a doubt concerning the appellant’s guilt but it cannot be said those factors must have led the jury to do so given the quantity of the drug in his possession. In the circumstances it cannot be said that the jury must have entertained a doubt about the appellant’s guilt. A fortiori it cannot be said that the jury must have been persuaded on the balance of probabilities that the appellant did not possess the methylamphetamine for sale.
It is apparent that the jury did not believe the appellant’s evidence in relation to his intention. They were entitled to reject that evidence. This ground is not reasonably arguable. I would refuse permission to appeal on ground 1.
Ground 2: Verdict is inconsistent and therefore unsafe
The appellant seeks permission to appeal on the ground that there is no logical reason for the jury to have found the appellant guilty of the trafficking charge while failing to find Mr Vartuli guilty. Accordingly, the appellant submits that the verdict of guilty is unreasonable and unsafe and cannot stand.
The appellant puts that submission on the basis that the prosecution alleged a single course of conduct in charging the appellant and Mr Vartuli with trafficking. As the jury was unable to be satisfied on the evidence that Mr Vartuli was guilty of the charge, the verdict of guilty in relation to the appellant cannot stand. The submission is founded in the principles relating to inconsistent verdicts. This ground is predicated on the fact that the jury did not find Mr Vartuli guilty of the trafficking charge he faced.
I do not accept this submission.
The principles that govern the setting aside of a guilty verdict for inconsistency are enumerated in the joint reasons in MacKenzie v R[8] where Gaudron, Gummow and Kirby JJ said:[9]
[8] (1996) 190 CLR 348.
[9] (1996) 190 CLR 348 at 366 – 368.
1.A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.
2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of "differences in the evidence presented at the two trials" or "the different views which the juries separately take of the witnesses".
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin) observed:
"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."
We agree with these practical and sensible remarks.
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case."
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.
[Citations omitted].

In this case the Court is not dealing with a verdict which is said to be inconsistent but with an inability to reach a verdict. Pillay v R[10] is authority for the proposition that a verdict can be set aside as unsafe or unsatisfactory if logically, and factually, that verdict could not be reconciled with a jury’s inability to agree on other counts. In Pillay the Victorian Court of Appeal cited[11] with approval the following passage from the reasons of the English Court of Appeal in R v Formhals[12] where the Court said:[13]
Overall in this context what the Court of Appeal ultimately has to consider is whether or not a conviction is safe. The failure of a jury to agree on a verdict is, as we have said, self-evidently not a verdict. But in our view, in a context such as the present, linguistics should not be allowed to triumph over justice. It thus may be that where a jury fails to reach a verdict that cannot be said to give rise, strictly, to an inconsistent verdict when set against another verdict. But that is labelling; and in our view, the principles applicable to inconsistent verdicts are capable of applying by analogy where it simply is logically inexplicable as to how a jury could not reach a verdict on one count when set against a verdict of guilt they had reached on another count. We thus think it would be going too far to preclude a defendant in such a situation from even being permitted to argue that the resulting situation gives rise to an unsafe conviction. Accordingly, it is open to the defendant to raise this point in this appeal.
[10] (2014) 43 VR 327.
[11] (2014) 43 VR 327 at 330-331.
[12] [2014] 1 WLR 2219.
[13] [2014] 1 WLR 2219 at 2225.
However, while it is possible for a verdict to be set aside as unsafe or unsatisfactory where it cannot be reconciled with a jury’s inability to reach a verdict on other counts, a failure to reach a verdict is not the same as an inconsistent verdict. Further, it remains the case that a guilty verdict will only be set aside as inconsistent where it is an affront to logic and common sense. As Kourakis J (as he then was) explained in R v R, GJ:[14]
… a mere failure to reach a verdict should not be treated in the same way as a verdict of not guilty. Where a jury has failed to reach a verdict there is not, “on the public record”, an inconsistent verdict which is “an affront to logic and commonsense”. The very fact that the jury has been discharged before and without reaching a verdict means that all that can be said is that no verdict was reached. There is very little if any force in the proposition that a verdict of guilty is rendered illogical by the failure of a jury to reach a guilty verdict on another count within the same period of time. I am, however, prepared to deal with the appellant’s appeal as if the jury had returned a verdict of not guilty on the second count.
[14] [2009] SASC 371 at [32], (2009) 105 SASR 506 at 517.
In this case the critical difference is that the prosecution had to prove beyond a reasonable doubt that Mr Vartuli possessed the drugs with the intention that they be sold, whereas the appellant admitted to possession and he had to satisfy the jury on the balance of probabilities that he did not have the methylamphetamine in his possession for the purposes of sale.
The failure of the jury to reach a verdict on the trafficking charge against Mr Vartuli does not indicate that the guilty verdict against the appellant was unreasonable or unsafe. The position of each of them was obviously different. Once possession was not seriously in issue in the appellant’s case he had to persuade the jury that his possession of the methylamphetamine was not for the purpose of sale. By contrast, the prosecution had to prove Mr Vartuli not only possessed the drug but supplied it to the appellant with the intention that the appellant would seek to sell the drug to others. The fact that in those circumstances some members of the jury were not satisfied beyond reasonable doubt of those matters does not mean that the jury must have accepted the evidence of the appellant that his possession of the methylamphetamine was purely for his own use and that he had no intention to deal with it commercially. Those propositions do not follow logically.
The jury’s inability to reach a verdict on the trafficking charge against Mr Vartuli, while arriving at a verdict of guilty in the trafficking charge against the appellant, is not an affront to common sense and logic. The appellant gave evidence that the methylamphetamine was not supplied to him by Mr Vartuli. There was no forensic evidence linking Mr Vartuli to the possession of the methylamphetamine. The methylamphetamine was located on the appellant’s property. While there was some evidence consistent with the possibility of methylamphetamine having been at Mr Vartuli’s home, the evidence of possession did not rise so high as to establish the rebuttable presumption found in s 32(5)(b) of the CSA. The hung jury in relation to the trafficking charge against Mr Vartuli does not cast doubt on the safety of the guilty verdict against the appellant. The possibility that some members of the jury might have accepted the appellant’s evidence that Mr Vartuli did not supply him with the methylamphetamine found in his possession does not mean it was unsafe for them to reject his evidence that he did not have the drugs in his possession for the purpose of sale. As the judge directed them it was open to them to accept some evidence given by a witness and reject other evidence given by the same witness.
This ground also is not reasonably arguable. I would refuse permission to appeal on ground 2.
Ground 3: Inconsistent verdicts and the prosecution case at trial
The appellant submits that the guilty verdict is unsafe or unreasonable as it was incapable of being supported by the way in which the prosecution conducted the trial. At trial the prosecution alleged that the appellant obtained possession of the methylamphetamine from Mr Vartuli. However, the appellant gave evidence the methylamphetamine was not supplied by Mr Vartuli. Accordingly the appellant submits it was not open to the jury to reach a verdict of guilty on the trafficking charge in circumstances where it did not find Mr Vartuli guilty. The appellant submits that in these circumstances it is not open to the jury to reason to a verdict of guilty on a basis not run at trial, namely, that the methylamphetamine was supplied to the appellant by somebody other than Mr Vartuli.
I do not accept this submission.
The submission is founded on an argument rejected by the Court of Criminal Appeal in R v Robertson.[15]Lovell J, with whom Kelly J agreed, said:[16]
What weight an appellate court should give to the manner in which the case was presented before the jury was discussed in R v Gbojueh. Although the Court in that case was divided on the question, its resolution of that question was not strictly necessary to the decision: the remarks on that issue are strictly obiter. Logically, the approach of the parties will affect the way in which the evidence is produced and therefore it has relevance in that sense. I accept that an appeal is not an “academic or intellectual exercise to be conducted in a vacuum”. However as Kourakis J (as he then was) stated:
I acknowledge that some of the matters of differentiation between the counts to which I have referred did not receive prominent attention at trial. However, that is of no consequence for two reasons. First, the general rule of appellate practice that a party cannot put a case on appeal that was not presented at trial has no application to the very different question that is presented by an appeal on the ground that verdicts are inconsistent. In considering whether there is a logical explanation for the jury’s verdict, the Court of Criminal Appeal is not bound to look only at the points made by counsel, precisely for the same reason that a jury’s consideration of the facts is not constrained by the addresses of counsel and the charge of the trial judge. To declare a jury’s verdict irrational because, although it can be explained by applying common sense and human experience to the evidence, it cannot be explained by reference to a point made by counsel or the trial judge, would be a significant and unjustified intrusion into the exclusive fact-finding function of the jury. The second reason is that, as a practical matter, prosecuting counsel should not be obliged to make a submission along the lines “even if you have a doubt about count 1 you should not have a doubt about count 2 for these reasons”.
I agree with the remarks of the Chief Justice.
[15] [2016] SASCFC 133.
[16] [2016] SASCFC 133 at [34] – [35].
Those remarks of Kourakis J, approved by the majority in Robertson, adumbrate the appropriate limitation on a court of criminal appeal in considering a submission that a guilty verdict is unsafe or unsatisfactory for inconsistency. That limitation is based on the constitutional function of juries in the system of criminal justice. The jury is the constitutional tribunal for deciding contested facts in a criminal trial.[17] The statutory function entrusted to the Court of Criminal Appeal to protect a person against a wrongful conviction is to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.[18] The verdict of guilty in this case rested entirely on whether the constitutional tribunal of fact was prepared to find, on the balance of probabilities, that the appellant was not in possession of the methylamphetamine, at least in part, for the purposes of sale. It was not. Where, as is the case here for reasons explained above, there was evidence before the jury that is consistent with its verdict, even if the evidence was not sought to be relied upon by the prosecution, a proper basis is not established justifying interference by a court of criminal appeal with the jury verdict. It would be a serious step to conclude that the jury’s assessment of the evidence, that leaves it in no doubt with respect to the charge against the appellant, but in some doubt in relation to the charge against Mr Vartuli, is reason enough to set aside the verdict of guilty in respect of the appellant. For the reasons explained in relation to ground 1 this is not a case of inconsistent verdicts, even allowing for the jury failing to return a verdict, in the sense of verdicts being logically inconsistent factually.
[17] MFA v The Queen (2002) 213 CLR 606 at 621.
[18] MFA v The Queen (2002) 213 CLR 606 at 624.
I would dismiss ground 3.
Conclusion
I would refuse permission to appeal on grounds 1 and 2, and I would dismiss the appeal.
PARKER J: I agree with the reasons of Stanley J and the orders he proposes.
LOVELL J: I agree.