R v Valesic
[2018] SASCFC 136
•17 December 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VALESIC
[2018] SASCFC 136
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Hinton)
17 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - IN GENERAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
Appeal against conviction for trafficking in a controlled drug.
The applicant was found guilty by a jury of one count of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the Act).
On 2 April 2013, a police patrol stopped to examine a parked vehicle. The officers found the applicant reclined in the driver’s seat and three resealable plastic bags each containing a white crystalline substance. The contents of each of the bags, which in total weighed 7.5 grams, was analysed and found to contain methylamphetamine. Officers also found other items, including a number of glass pipes and unused syringes, a ‘tick list’ and cash in the amount of $710.
The prosecution adduced expert evidence as to typical indicia of participation in drug trading and the usual street level purity of methylamphetamine. At the close of the Crown case, defence counsel submitted that there was no case to answer. The Judge dismissed the application and found the substance to be a controlled drug within the meaning of s 4 of the Act.
On 11 September 2015, the applicant was sentenced to imprisonment for one year, three months and three weeks, which was suspended upon him entering into a good behaviour bond for a two-year period.
The applicant’s first notice of appeal was filed on 28 May 2018, more than three years out of time, only after the applicant breached the bond imposed in 2015. The applicant sought an extension of time within which to appeal.
Held, per Peek J (Stanley and Hinton JJ agreeing), refusing the application to extend time and dismissing the appeal:
1. Despite its very low level of purity, the trial Judge did not err in directing the jury that the 7.5 grams of mixed substance constituted “methylamphetamine”. The relevant consideration is the total weight of the mixed substance, not a calculated weight of the pure methylamphetamine contained within the mixture. Paul v Collins Jnr [2003] WASCA 238 applied. Williams v The Queen (1978) 140 CLR 591 distinguished.
2. The trial Judge did not err in finding that there was a case to answer; 7.5 grams of mixed substance is not small, constituting almost four times the trafficable quantity.
3. No appellable error arises in connexion with the trial Judge’s decision not to leave an alternative verdict of attempted trafficking to the jury. In the circumstances, there was no room for such an alternative basis of liability. James v The Queen (2014) 253 CLR 475 discussed.
4. Having regard to the whole of the evidence, it was open for the jury to reject the appellant’s contentions of innocent contamination and return a verdict of guilty. It is not unreasonable, unsafe or unsatisfactory to allow the conviction to stand. M v The Queen (1994) 181 CLR 487 applied.
5. The applicant has not satisfied the requirements pertaining to reception of fresh evidence on appeal. The appellant could have obtained the evidence of Professor White prior to trial; and, in any event, the evidence does not give rise to a significant possibility of acquittal. Rodi v Western Australia [2018] HCA 44 applied.
6. The allegation that trial counsel was incompetent was not established. There was no miscarriage of justice in the present case. Nudd v The Queen (2006) 80 ALJR 614 discussed.
7. No substantial grounds have been demonstrated to give rise to an apprehension that, by refusing to extend time, a miscarriage of justice might occur. R v Jones (2017) 129 SASR 522 discussed.
Controlled Substances Act 1984 (SA) s 4, s 32, s 32(5); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA); Supreme Court Criminal Rules 2014 (SA) r 107, referred to.
M v The Queen (1994) 181 CLR 487; Paul v Collins Jnr [2003] WASCA 238; Rodi v Western Australia [2018] HCA 44, applied.
Williams v The Queen (1978) 140 CLR 591, distinguished.
Bourke v Reid [1993] QCA 83; Donnelly v Rose [1995] 1 Qd R 148, not followed.
Benbolt v The Queen (1993) 60 SASR 7; He Kaw Teh v The Queen (1985) 157 CLR 523; James v The Queen (2014) 253 CLR 475; Nudd v The Queen (2006) 80 ALJR 614; R v Jones (2017) 129 SASR 522; R v Nguyen (2010) 108 SASR 66; Smith v Western Australia (2014) 250 CLR 473, discussed.
Gikas v Police (1999) 202 LSJS 301; Jackamarra v Krakouer (1998) 195 CLR 516; R v Armstrong (1983) 35 SASR 356; R v Balchin (1974) 9 SASR 64; R v Brown [1963] SASR 190; R v Foster (1996) 187 LSJS 135; R v Gray [2004] SASC 218; R v Khajehnoori (2005) 156 A Crim R 197; R v Trotter (1979) 22 SASR 64; R v Young (2016) 126 SASR 41; SKA v The Queen (2011) 243 CLR 400; Tabe v The Queen (2005) 225 CLR 418, considered.
R v VALESIC
[2018] SASCFC 136Court of Criminal Appeal: Peek, Stanley and Hinton JJ
PEEK J.
Introduction
The applicant was charged with the offence of trafficking in the controlled drug methylamphetamine on 2 April 2013 contrary to s 32(3) of the Controlled Substances Act 1984 (the Act). The maximum penalty is a fine of $50,000 or ten years imprisonment, or both. The count on the Information was as follows:
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Nedeljko Valesic on the 2nd day of April 2013 at Andrews Farm, knowingly trafficked in a controlled drug, namely methylamphetamine.
The corpus of the charge was 7.5 grams of crystalline material (the subject substance), a mixed substance, which had a very low concentration of methylamphetamine. The amount of 7.5 grams was significantly more than the minimum trafficable amount for a mixed substance containing methylamphetamine (2 grams).
The applicant was convicted by unanimous jury verdict on 2 April 2015. The 21 calendar day time limit within which to appeal against conviction commenced the following day, 2 April 2015, and expired on 23 April 2015. On 11 September 2015, the Judge sentenced the applicant to imprisonment for one year, three months and three weeks. The sentence was suspended upon the applicant entering into a bond to be of good behaviour for a period of two years.
The applicant first filed a notice of appeal on 28 May 2018, more than three years out of time. On 5 July 2018, the following amended grounds of appeal were supplied:
1.The learned trial judge erred in finding that the material containing less than 0.01 per cent of methylamphetamine was a controlled drug and that therefore there was a case to answer with respect to possession. (Transcript page 92)
2.The learned trial judge erred in directing the jury that, “despite it being only a minute amount of methylamphetamine… the material in question is a controlled drug.” (Summing Up page 4)
3.The learned trial judge erred in omitting to direct the jury that if they were not satisfied that the accused knew that the substance was methylamphetamine, or a controlled drug, that an alternative verdict of attempt was available to the jury.
4.The learned trial judge failed to give adequate directions, with reference to the facts, on the issue of circumstantial evidence.
5.The verdict is unsafe and unsatisfactory for the reasons given above, and also, as it was not possible for the jury to exclude as a reasonable hypothesis consistent with innocence that the substance in question contained a trace of methylamphetamine due to contamination.
On 9 July 2018, the permission Judge granted permission to appeal on amended grounds 1, 2, 3 and 5 and refused permission on ground 4.[1] Her Honour did not deal with the application for an extension of time that was also made and accordingly that responsibility now devolves upon this Court.
[1] The applicant later requested that the application for permission to appeal on ground 4 be referred to and determined by the Full Court; however, at the hearing counsel indicated that ground 4 was no longer pressed and no more will be said about it.
On 15 October 2018, this Court heard full submissions concerning: the various applications for extension of time; permission to appeal on a further ground of appeal (proposed ground 6); an application to adduce fresh evidence; and, the substantive contentions that were to be relied upon should the necessary preliminary applications be granted. The Court reserved judgment on all matters.
I would refuse the applications to extend time. My reasons follow.
The prosecution case at trial
A brief summary of the prosecution case follows. On the evening of 2 April 2013, police officers investigated a car parked on the side of the road in Andrews Farm. They found the appellant lying reclined in the driver’s seat. The officers discovered that the appellant was disqualified from driving and he was arrested. The vehicle was searched and the officers found, amongst other items, the subject substance, namely three resealable plastic bags each containing a crystalline substance. The content of each bag was analysed and found to contain methylamphetamine in the amounts of 4.46 grams, 2.86 grams and .18 grams respectively, with a total weight of 7.5 grams.
A mobile phone was seized from the appellant. It had recorded a number of received text messages (from 6 February 2013 to 2 April 2013) consistent with drug trafficking, a selection of which were tendered as exhibit P2 and appendix A to exhibit P5. The following messages (in reverse chronological order) appear to refer to dealing with highly diluted illicit drugs:
1.4.2013
He not answer. Dont chase it up nan. he wont pay now. I know him too well. He will be looking again sooner or later and we will give him a dose of straight cutter. He will be on his way back to ardrossan by now.
27.3.2013
Babey helen didnt like it she said had heap chop in it n wants to know if u can swap 4 dif stuff cos she wants more 2moro nite
25.2.13
Hey do u have stuff? Stuff thats not tailored that other u gave me was tailored a bit 2 much….have u got but betta. :)
19.2.13
Need 10 can’t be shit and must be good price
(Emphasis added)
Other items found in the vehicle included the following:
-a further three resealable plastic bags, each of which contained traces of a crystalline substance which was analysed and found to be methylamphetamine;
-a further number of empty small resealable plastic bags with “black lady” and “stay high” motifs;
-a number of glass smoking pipes;
-a plastic container which contained a number of unused syringes;
-a working set of electronic scales, upon which methylamphetamine residue was detected;
-a “tick list” of apparent drug transactions agreed to be in the applicant’s handwriting; and
-cash in the amount of $710.
The course of the trial
Detective Brevet Sergeant Everett gave evidence of the significance of the various items referred to above. As to the matter of concentration, he stated that a general street level concentration was about 10 to 20 percent and, accordingly, the present levels were very, very low. He stated that he had seen dealers selling methylamphetamine of this quality before, but it is uncommon:
a drug dealer who is passing off drugs with such a low purity in it is not going to remain dealing… for very long … but I do know, as I explained before, that if the supply of drugs is scarce, or funds aren’t available to the dealer to purchase drugs, then they will actually deal very low quality drugs to their customers to try and make ends meet.
In summing up, the Judge gave lengthy directions concerning the elements of the offence including that the prosecution had to prove that the applicant possessed the methylamphetamine with the requisite specific intent. His Honour also gave lengthy circumstantial evidence directions and put the defence case to the jury, including various defence criticisms of the evidence. After a deliberation of just over one hour the jury unanimously convicted the applicant of the charge.
Applications to extend time within which to appeal generally
In Smith v Western Australia, the High Court stated:[2]
[52] The first point to be made here is that the question with which this case is concerned does not stand on the same plane as an issue raised by the parties for decision at trial; it is a question which, though it may affect the way in which the controversy between the parties should be resolved, is a question as to the integrity of the trial process. The institutional integrity of the system of justice is at stake in a way that is not the case where the issue is solely one between the parties.
[2] (2014) 250 CLR 473, 485.
The context was an appeal against conviction asserting that a juror had been unlawfully intimidated during deliberations, hence raising “a question as to the integrity of the trial process”. In my view, the same sort of question concerning the integrity of the appellate process is here raised in the present context of an application to extend time. As to the general principles applicable to such applications in criminal appeals, in my recent judgment in R v Jones I first referred to the civil litigation principles and then stated: [3]
[3] (2017) 129 SASR 522, 545-547. The majority in Jones granted the application for an extension of time on the basis that it was established that the trial Judge had made a clear error of law which had prevented the appellant from adducing admissible evidence before the jury.
[90] The same tension between the goal of finality of litigation and the goal of avoiding injustice (or miscarriage of justice) exists in the context of criminal litigation. Rights of appeal in criminal cases are relatively recent creatures of statute which favour the latter goal. However, such appellate rights cannot rise above the limits of the statutory grant; and the time limit within which to appeal is an integral part of the appeal right, it favouring the goal of finality of litigation. Thus in 1963, this Court stated in R v Brown:[4]
[4] [1963] SASR 190, 191 (Napier CJ, Millhouse and Hogarth JJ).
The practice is that, if any reasonable explanation is forthcoming, and if the delay is, relatively, slight, say for a few days or even a week or two, the Court will readily extend the time, provided that there is a question which justifies serious consideration. … where the delay is substantial an application to extend the time is by no means a matter of course. It is not sufficient that there would have been a question calling for serious consideration, if the appeal had been instituted in due time. When the time prescribed by the Act has expired, the party convicted has lost his right to appeal, and it is for the Court to say whether, taking all the circumstances into account, it is in the interests of justice that he should be permitted to institute and pursue his appeal.
(Emphasis added)
[91] Similarly, in 1974, this Court stated in R v Balchin:[5]
[5] (1974) 9 SASR 64, 65-66 (Hogarth ACJ, Bright and Walters JJ).
In the first place, it is not inappropriate to point out that an application for leave to appeal must be made within ten days of the conviction or sentence. Although the Court may extend this period, normally the Court will refuse to grant an application for extension of time within which to appeal, except in a case where, on the merits, the appeal would be likely to succeed (R v Marsh), or where through exceptional circumstances or some untoward vicissitude, the applicant has been prevented from applying his mind to the question of appeal (R v Hatfield). The practice of this Court in relation to the granting of an extension of time within which to appeal was stated in R v Tame as follows:
This Court has held, from time to time, that when a sentence is passed or a conviction is recorded, the right of appeal, or to apply for leave to appeal is one which, according to the Act, must be made promptly, that is, within the ten days allowed by the Act. If it is not, the right of appeal is gone, and the time will not, in the ordinary course of things, be extended, unless there is some ground for apprehending that justice has miscarried.
[92] More recently, in 1996 in R v Foster[6] and in 1999 in Gikas v Police,[7] Lander J expressed the view that, in cases of significant delay, the applicant must demonstrate an apprehension that a miscarriage of justice might occur due to a refusal to extend time.
[6] (1996) 187 LSJS 135.
[7] (1999) 202 LSJS 301, 306.
[93] In 2004 in R v Gray, Nyland J held that the test postulated by Lander J was insufficiently stringent in one respect. Her Honour stated:[8]
[8] [2004] SASC 218, [16]-[20].
Mr Hinton, who appeared for the respondent on the hearing of the present application, submitted however that to the extent that Lander J’s approach indicated that a party only needed to establish a real possibility that a miscarriage of justice might occur where the delay was substantial, it was inconsistent with authority in this State. He submitted that where the right to appeal is lost due to non-compliance with the time within which to institute the appeal, and non-compliance is not due to some “exceptional circumstance or untoward vicissitude”[9]) that has prevented compliance, it must be shown that there are grounds for apprehending that a miscarriage of justice has occurred, or substantial grounds on the merits, or a question that justifies serious consideration irrespective of the length of delay: R v Brown[10] (per the court at 191); R v Balchin (at 65-66); R v Trotter[11] (at 65); R v Armstrong.[12]
[9] R v Balchin (1974) 9 SASR 64.
[10] [1963] SASR 190.
[11] (1979) 22 SASR 64.
[12] (1983) 35 SASR 356.
Mr Hinton also referred to Jackamarra v Krakouer[13] in which Brennan CJ and McHugh J in a joint judgment (at 521) said:
[13] (1998) 195 CLR 516.
Cases such as Palata (Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946) are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where the applicant’s right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.
In their joint judgment, Gummow and Hayne JJ (at 531) referred to the necessity that it be demonstrated that the argument on appeal might succeed.
Having considered these authorities I consider that the submission put by Mr Hinton is correct, that is, that when an appeal is instituted pursuant to s 352(1)(a)(ii) CLCA out of time, the reasonably arguable test no longer applies. The right of appeal having been lost, the question whether or not leave to appeal should be granted is subsumed in the principles to be applied in determining whether or not an extension of time in which to seek leave to appeal should be granted. As Mr Hinton pointed out, in his written outline, this was necessarily so because:
(a) the principles to be applied in determining whether or not an extension of time should be granted include determining whether or not the grounds of appeal have some prospects of success in that they disclose reason for apprehending that a miscarriage of justice might occur in the event that time is not extended. This test imposed a higher threshold than the test applied on the hearing of an application for leave to appeal made within time, and
(b) it would be anomalous to apply different principles depending upon whether the application for an extension of time is made under s 352(1)(a)(i) or 352(1)(a)(ii).
In my opinion, therefore, the proper approach with respect to an application for an extension of time in which to appeal, absent exceptional circumstances, is for the court to consider the grounds and determine whether they disclose reason for apprehending that a miscarriage of justice has occurred, substantial grounds on the merits, or a question that justifies serious consideration, irrespective of the length of the delay.
As stated in Jones, I consider that the approach adumbrated by Nyland J immediately above is correct.
The present application for an extension of time
The applicant was convicted by the jury on 2 April 2015. The 21 calendar day time limit within which to appeal pursuant to rule 107 of the Supreme Court Criminal Rules 2014 commenced the following day, 2 April 2015, and expired on 23 April 2015. The notice of appeal was filed on 28 May 2018, more than three years out of time, and a very substantial extension of time is therefore required. In the notice it was simply stated (in response to the standard question as to “the reasons for the delay and the grounds upon which the court will be asked to extend time”): “The applicant lacked the funds to prosecute an appeal.”
The affidavit material
In his first affidavit (sworn on 8 October 2018) the applicant stated that he had wished to appeal at the time of conviction but could not meet the price quoted for a private appeal and that “an application for Legal Aid was not made”; no further elaboration as to this last matter was made. At paragraphs 5 and 6 he stated:
5.Thereafter I took no action with respect to the appeal until about the first half of 2017 when I consulted Adam Richards. Mr Richards advised that he would look into the conviction. However, no action was taken. After I raised the question of an appeal with Mr Richards I was charged with a breach of a bond and any further discussions with Mr Richards related to the bond issue.
6.In about February 2018 I contacted Nicholas Vadasz of Vadasz Lawyers and on 5 March 2018 I received a letter from Vadasz Lawyers dated 1 March 2018 providing an authority to my previous lawyers to transfer the file. I signed and returned this authority on 8 March 2018.
The wording of these paragraphs does not make clear that the real cause for the belated decision to appeal against conviction was that the authorities had recently taken steps to prove that the applicant had breached the suspended sentence bond imposed by Judge Soulio on 11 September 2015.
However, on direct questioning by the Court, counsel for the applicant conceded that the words “breach of a bond” did in fact refer to a breach of the suspended sentence bond imposed by Judge Soulio on 11 September 2015 in relation to the offence the subject of the present applications.
Of interest, the affidavit of Susan Reid (an employee of Mr Vadasz) exhibits an email dated 9 October 2018 from Ms Ursula Matson (the applicant’s trial counsel) to Mr Vadasz, the salient portion of which is as follows:
I will concede that I never discussed the need to call our own expert or their expert for the agreed evidence was simply that there was a trace of meth within the substance found in his possession. That wasn’t in dispute. The expert didn’t from memory go on to say that it fits the definition of a controlled drug for the purposes of the Act. Calling the expert didn’t appear to necessary.
I most definitely discussed the option of appealing the conviction with the client however because he received a suspended sentence he chose not to bother. I most certainly backed any appeal in light of the VD ruling.
(Emphasis added)
This very strongly militates against an extension of time being granted. It is quite unacceptable for a defendant to take the attitude that he will not proceed with an appeal against conviction due to the lenient imposition of a suspended sentence but, some years later when he breaches the bond, to eventually commence appellate proceedings.
Prosecution counsel had not indicated that he wished to cross-examine the applicant on these matters. However, I accept without reservation his explanation at the appeal hearing that, “The penny has only just dropped on my part and I apologise that the entire case appears to have been triggered by a breach in relation to this particular bond which I apologise I hadn’t turned my mind to that.”
Finally, it may be noted that the Court gave the appellant the chance of providing further affidavit material thus:
PEEK J:Mr Vadasz, … as to your application for your client to file another affidavit … we would grant that application, but only on the basis that you also file an affidavit from Mr Richards as to what his version of the events is, and obviously you’ll need to supply to him all material that bears on that. Now, we appreciate that you can’t compel Mr Richards, obviously, but we would want to see the copies of correspondence between you and he, to make sure that he’s exercising his choice as to the matter of whether or not he is prepared to assist this court in providing an affidavit of his version of events.
MR VADASZ: Yes, I follow.
After reserving judgment on 15 October 2018 the Court received no such material or any communication from the appellant in this regard and prepared judgment accordingly. On Tuesday, 11 December 2018 at 3.39 pm an email was sent from my associate notifying counsel that judgment would be delivered on Monday, 17 December 2018 at 2.00 pm. On the next day, Wednesday, 12 December 2018 at 3.51 pm, an email was received by my associate from a secretary employed by Mr Vadasz enclosing an affidavit (and annexures) sworn by Ms Lisa Tehan, a paralegal employed by Mr Vadasz on Wednesday 12 December 2018; this material did not advance the applicant’s position.
On Friday, 14 December 2018 at 2.36 pm an email was received by my associate from Ms Lisa Tehan enclosing an affidavit sworn by the applicant on Thursday, 13 December 2018. The applicant therein accepts the version of Ms Ursala Matson and that he may have said “she need not bother”; he states that his reason for not pursuing an appeal was because of the advice that she gave “that Legal Aid would not fund the appeal and I would need to fund the appeal in a private capacity.” The applicant confirms that when in early 2017 he instructed Mr Adam Richards it was in relation to the application by the DPP to breach the relevant bond (which application he asserts was laid in late March 2017). The applicant further states that he is presently imprisoned because he was arrested on about 17 November 2017 on a further charge of trafficking in a controlled drug to which he pleaded guilty in the Magistrates Court and for which he will be sentenced in the District Court on 20 February 2019. None of this material significantly advances the applicant’s application for an extension of time or the argument on the substantive appeal.
I now turn to consider the merits of the proposed grounds of appeal and the various applications described above.
Consideration of grounds 1 and 2 of appeal
Grounds 1 and 2 assert that, on a charge of an offence of trafficking contrary to s 32(3) of the Act, there must be some minimum level of purity of a controlled drug such as methylamphetamine when it constitutes only a very small percentage of the mass of a mixed substance found in the defendant’s possession. However, it was not suggested, at trial or on appeal, that the above contention was made out by reference to the correct construction of any of the relevant legislative provisions and regulations which may be briefly summarised as follows.
The relevant legislation and regulations
A reverse onus provision is created by s 32(5) of the Act which provides:
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a) in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b) in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
The meaning of a “trafficable quantity” is defined in s 4 of the Act as follows:
trafficable quantity of a controlled drug or controlled plant means—
(a) in relation to a controlled drug contained in a mixture—
(i)a quantity of the drug that equals or exceeds the amount prescribed as a trafficable quantity for the drug in its pure form; or
(ii)a quantity of the mixture that equals or exceeds the amount prescribed as a trafficable quantity for any mixture containing the drug; or
(iii)a number of discrete dosage units of the mixture that equals or exceeds the number of discrete dosage units prescribed as a trafficable quantity for any mixture containing the drug; or
(b) in relation to a controlled drug that is not contained in a mixture—a quantity of the drug that equals or exceeds the amount prescribed as a trafficable quantity for the drug in its pure form; or …
As to the prescribed amount of a “trafficable quantity” in the present circumstances, Regulation 6 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 and Part 2 of Schedule 1 of those Regulations provides that two grams of methylamphetamine is the mixed trafficable amount for the purposes of the presumption in s 32(5) of the Act.
The concept of “a mixture” is based on the recommendations of chapter 6 on ‘Serious Drug Offences’ of the Model Criminal Code (1998), which underpinned the ‘important change’ in our legislation that came into effect in 2007;[14] it established a spectrum or ‘continuum’ of controlled substances, the concentration of which may range from extremely high to extremely low. The definition of what constitutes a trafficable quantity in relation to a quantity of a mixture that equals or exceeds the prescribed amount of two grams would appear to be clear. In R v Nguyen, White J explained the operation of the presumption in relation to the possession of at least 2 grams of a mixture containing methylamphetamine or heroin thus:[15]
[63] In summary, the quantity prescribed in the Regulations for a mixture containing either heroin or methylamphetamine is 2 grams. The effect of s 32(5) and of the Regulations therefore is that if a trier of fact is satisfied that a defendant had possession of at least 2 grams of a mixture of which part was either heroin or methylamphetamine, the defendant is to be presumed to have possession of that drug with the intention of selling it, unless the defendant proves the contrary. This would be so even if the controlled drug comprised a relatively minor proportion of the overall mixture.
[64] The Regulations do not contain any specification of a “trafficable quantity” of either heroin or methylamphetamine in their pure form, which probably reflects the fact that these drugs are invariably adulterated when sold in small quantities.
[14] R v Young (2016) 126 SASR 41, [169]-[177]; South Australia, Parliamentary Debates, House of Assembly, 21 September 2005, 3504 (MJ Atkinson); Model Criminal Code Officers Committee, Parliament of Australia, Model Criminal Code – Chapter 6: Serious Drug Offences (October 1998), 273.
[15](2010) 108 SASR 66, 69-70.
The decision of the High Court in Williams v The Queen
Rather than relying on the correct interpretation of the legislation, the appellant submitted that the present case comes within an over-arching principle established by the High Court in Williams v The Queen.[16]
[16] (1978) 140 CLR 591.
In Williams, Gibbs J (with whom Mason and Jacobs JJ agreed) constituted the plurality. Gibbs J summarised the facts as follows:[17]
[17] (1978) 140 CLR 591, 594.
[3] The relevant evidence for the Crown was given by Constable Guild and Mr Kleinschmidt, a botanist. Constable Guild found fragments of green leaf material in the pockets of two coats belonging to the applicant. When asked, “What is the green leaf material?” the applicant replied, “Probably cannabis.” In response to the further question, “Is it yours?”, he said, “If it’s cannabis, it would be.” The pockets of the coats were subsequently examined microscopically by Mr Kleinschmidt and found to contain cannabis sativa (Indian hemp). He said that there were fragments adhering to the bottom of the pockets. He gave the following evidence:
Q Now, you’ve examined that material microscopically? - Yes.
Q Are you able to say what quantity of the offending material is there?
Q Are you able to say whether the . . . the grain or the fine material there, is that substance alone or is it combined with dirt and dust? - There is a lot of other debris there. Yes.
Q Would you agree with me that perhaps the amount of pure cannabis there might be of the order micrograms? - Yes.
Q Do you agree that both those pockets have sufficiently rumpled linings so that the material can easily be lost between the folds of the … the pockets, themselves? - Yes. Yes.
Q Would you agree that from the point of view of the user of the drug, cannabis, there is not a usable quantity in those coats? - This is a moot point, actually. Any quantity is usable but it isn’t … isn’t very much. No. It’s a very small quantity.
Q Would you agree, however, that for practical purposes it’s not a practical possibility for someone to extract any usable quantity of the … - I agree. Yes.
Q drug? Yes. You’re not able, when you pinch out some of the material to sort it out on your hand and say this is … is dust and this is cannabis and so on? - No, not without the aid of a microscope would I attempt this sort of thing.
I add a reference to two matters of present importance. First, Williams was concerned only with the drug cannabis (which is seldom encountered as being mixed or diluted with other substances); it did not address drugs such as methylamphetamine (which are seldom encountered as being other than mixed or diluted with other substances to a greater or lesser extent). Secondly, Williams was concerned with the question of possession of the corpus of the charge in circumstances where that very corpus was a minute amount by reference to mass, weight and appearance. It was against this background that Gibbs J stated:[18]
[16] All the cases to which we have referred reflect a common approach in rejecting the notion that it is sufficient to ground the offence of having possession of a drug that the defendant is found to be in possession of a microscopically or scientifically detectable quantity of it, even though that quantity is not visible to the naked eye. In adopting this approach the courts have applied different criteria, no doubt influenced by the nature and scope of the legislation under consideration in the particular case.
…
[18] We are left, then, with the general question of what is meant by possession of a drug or a prohibited plant when it is made the foundation of an offence. Could it be rationally intended by Parliament that a person commits an offence where he is found to have in his clothes or effects a quantity of the offending material so minute that it is invisible to the naked eye? The answer must be in the negative. If it were otherwise, countless examples might be given of circumstances in which innocent persons might be found guilty of an offence, without knowing that they were in possession of the drug or plant in question. A person whose container or clothing has been used temporarily to hold a prohibited material would be guilty of the offence merely because specks or fragments of the material measurable only in micrograms continue to adhere to the container or clothing after the contents have been removed and it is, to all intents and purposes, empty. To say that a person in the position of the applicant has possession of the prohibited material merely because by scientific means it is possible to conclude that there are some specks or fragments measurable in micrograms in the pocket of his coat is in reality to penalize him for a possession of the material in the past, for all that remains are the vestigial remnants of a past possession. Indeed, if, as the Crown urges, possession is made out when the slightest traces of a material are discovered in a container, on clothing or on a utensil by scientific means, extraordinary situations may arise, so advanced are the techniques and processes of modern science. For all we know, it may be that there are techniques capable of detecting the most minute trace of a material in the pocket of a coat, long after the quantity of which the traces are a residue has been removed from the coat, notwithstanding that the coat has been cleaned in the meantime. Reg v Warner (1969) 2 AC 256 does not provide a defence in all the situations of this kind which may arise. (at p600)
[19] A consideration of these situations confirms us in thinking that when the Act creates the offence of having possession of a dangerous drug or a prohibited plant, without adverting to quantity, it contemplates possession, not of a minute quantity incapable of discernment by the naked eye and detectable only by scientific means, but a possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession. …
[18] (1978) 140 CLR 591, 598-600.
In my view, Williams governs the approach to be taken when the material alleged to constitute the corpus of possession is very small; but it is to be emphasised that the matter of the purity of that corpus material is really not under consideration in such situations. In the present case, the subject substance is not small; it is 7.5 grams (almost four times the trafficable quantity) and clearly does not fall within the Williams doctrine.
The applicant seeks to extend the Williams doctrine to the quite different matter of the concentration of the methylamphetamine in the subject substance, and then to argue that here the concentration is so low that it should be equated with a finding of zero percent. In effect, he argues that one should visualise what the amount of pure methylamphetamine present in the subject substance would look like if it were to be extracted and then apply the Williams doctrine to that amount of pure methylamphetamine.
I note that the decisions of the Queensland Court of Appeal in Bourke v Reid[19] and Donnelly v Rose[20] may be said to appear to support this approach, but I consider that the relevant Queensland legislation there under consideration was very different to the current South Australian legislation. In any event, I consider that the correct approach is that taken in the later decision of the Western Australian Court of Appeal in Paul v Collins Jnr.[21]
[19] [1993] QCA 83 (Fitzgerald P, McPherson JA and Shepherdson J).
[20] [1995] 1 Qd R 148 (Fitzgerald P, Pincus and Davies JJA).
[21] [2003] WASCA 238. The decision of the ACT Supreme Court in R v Khajehnoori (2005) 156 A Crim R 197 is to the same effect as that in Paul v Collins Jnr.
In Paul v Collins Jnr, the single issue to be decided under comparable Western Australian legislation was “whether, in order to ground the offence of having possession of a prohibited drug, an admixture must contain a real proportion of the prohibited drug being more than simply a trace or scientifically detectable proportion of the prohibited drug”.[22] Johnson J referred to the facts in Williams and noted that:[23]
[4] … The cannabis could not be separated from the dust without a microscope and it would not have been practicable to extract a usable quantity of the plant. It is immediately apparent from this brief statement of the facts that the Court was not there considering possession of a drug as a minute component of an admixture.
[22] Ibid, [2].
[23] Ibid, [4].
Johnson J further noted that the judgments in Williams,[24] Bourke and Donnelly “make no reference to the existence or the effect of any admixture provisions in the relevant legislation”[25] and observed that the effect of those provisions in the Western Australian legislation is as follows:[26]
[24] In Tabe v The Queen (2005) 225 CLR 418, there is discussion of Williams but it is not directly in point.
[25] [2003] WASCA 238, [8].
[26] Ibid.
[11] Giving the statutory wording its normal meaning, the combined effect of these provisions of the MD Act, the Poisons Act and the SUSDP is that a person who is found in possession of a preparation or an admixture containing a prohibited drug is taken to be in possession of that quantity of the prohibited drug comprised by the preparation or admixture. That interpretation was adopted by the Court of Criminal Appeal of this State in Fursman v The Queen, unreported; CCA SCt of WA; Library No 7414; 5 December 1988. The Court there considered the effect of the statutory provisions creating the offence of possession of a prohibited drug with intent to sell or supply and concluded that the relevant quantity of prohibited drug was the weight of the admixture “since amphetamine has to be treated as being not only the pure drug but also an admixture of it”: at [2].
…
[13] … What was said in Fursman was this [2]:
By reason of the provisions to which I have earlier referred, the relevant weight is 25.6 grams since amphetamine has to be treated as being not only the pure drug but also an admixture of it, and that is so even though 4.7% of 25.6 grams is less than two grams.
[14] It is clear that the Court were taking into account the fact that the actual amount of the drug might be small indeed, but, however small, the relevant amount was the amount of the admixture.
[15] The decision in Fursman has been followed in a number of decisions of the Full Court, although in the context of the relevance of purity in the sentencing process: R v Mahasay [2002] WASCA 336 at [5]; Kirby v The Queen [2003] WASCA 164. As Roberts-Smith J observed in Kirby, citing Fursman as authority for the proposition [137]:
It must be borne in mind that the question of intent aside, the offence is the possession of a preparation or admixture of the prohibited drug. The relevant weight therefore is the weight of the admixture, not the weight of the pure drug contained in it. This applies also to the presumptive quantity.
Johnson J later made the valid point that if there is to be a minimum level of concentration, it would be very easy for the legislation to stipulate a particular minimum concentration; and that, in the absence of such stipulation, an acceptance of a quasi de minimis approach advocated by the present appellant would lead to endless debate and uncertainty in particular cases. Thus his Honour observed:
[21] In my view, the inclusion in the various schedules of quantities of prohibited substances undermines the appellant’s position. If it were intended that more than a trace of a drug be required to establish possession, the legislature could easily have added a schedule identifying the amounts of pure drugs which would sustain a conviction for possession. If the term “any proportion” is taken to mean more than a trace, without any assistance as to what constitutes a trace in relation to each of the scheduled drugs, significant difficulties of proof would arise. Expert evidence would almost inevitably be required in relation to specific drugs and to the quantities required to have an effect, and possibly even the potential effect in relation to a particular accused. …
I conclude that, in the present case where the total mixed quantity in the three bags was 7.5 grams, and the presence of methylamphetamine was detected in each of the three bags, the Judge was correct in, first, finding that there was a case to answer; secondly, in directing as a matter of law the 7.5 grams of material was in fact “methylamphetamine” irrespective of its very low level of purity; and thirdly, in directing that the possession of that material enlivened the reverse onus of proof in s 32(5) of the Act.
Consideration of ground 3 of appeal – An alternative verdict of attempt?
Attempted drug offences may be charged where the defendant’s conduct falls short of committing a substantive offence but he or she intends to commit that substantive offence and performs acts that are more than merely preparatory. However, in the present case there was, as a matter of law, no room for such an alternative verdict. The Judge correctly directed the jury that the 7.5 grams of material in the three bags was in fact methylamphetamine irrespective of its very low level of purity; it was not open to the jury to disregard that direction of law and to decide that the 7.5 grams of material was, as a matter of law, not methylamphetamine, and thus opening a route to a verdict of attempt. Further, it is important to note that neither counsel addressed the jury as to an alternative verdict of attempted trafficking and neither counsel asked the judge to leave such an alternative verdict to the jury.
On the hearing of the appeal, both appellate counsel treated the decision of this Court in Benbolt v The Queen[27] as the operative authority, apparently being unaware of the decision of the High Court in James v The Queen.[28] In James, the plurality stated:[29]
[26] Plainly enough the fair trial of the accused may require that an alternative verdict be left, including in a case in which the accused disavows reliance on it. However, the proposition for which the appellant contends is the adoption of a rule requiring that every viable alternative verdict be left in every case.
[27] Reference should here be made to the decision of the House of Lords in R v Coutts, upon which the appellant relies. Coutts, like Gillard, was concerned with a trial of murder at which, with the concurrence of the parties, manslaughter was not left although that verdict was open. Lord Bingham of Cornhill endorsed the reasoning of the majority in Gilbert. His Lordship went on to propose that at any trial on indictment, irrespective of the wishes of trial counsel, any obvious alternative verdict for which there is evidence should be left. Two features of the proposed rule may be noted. First, its confinement to an “obvious” alternative verdict is by way of contrast with alternative verdicts “which ingenious counsel may identify through diligent research after the trial”. Secondly, the interest that the proposed rule serves is the public interest in the administration of justice: in some cases application of the rule would benefit the accused, protecting against an excessive conviction, and in other cases it would benefit the public, providing for the punishment of a lawbreaker who is deserving of punishment.
(Emphasis added; citations omitted)
[27] (1993) 60 SASR 7.
[28] (2014) 253 CLR 475.
[29] (2014) 253 CLR 475, 487.
Their Honours later contrasted the requirement of leaving to the jury all available defences and the decision concerning what alternative verdicts should be left to the jury and stated:
[33] However, it is wrong to equate leaving a defence or partial defence with leaving alternative verdicts. The two are distinct. Where there is evidence to support a defence or partial defence it is incumbent on the prosecution to negative it. Satisfaction that the defence or partial defence has been negatived will be an issue in the trial and almost always will require the trial judge to so direct the jury. Where the prosecution does not seek the jury’s verdict for an offence not charged, the circumstance that in law the evidence may support conviction for a lesser offence does not without more make guilt of that lesser offence an issue in the trial. Fairness in such a case may favour that the accused’s chances of outright acquittal on the issues joined not be jeopardised by the trial judge’s decision to leave an alternative verdict.
[34] Consideration of fairness to the accused led the New South Wales Court of Criminal Appeal to hold that it was unwise for the trial judge to direct on an alternative verdict in a case in which the parties had not raised that matter. The Queensland Court of Appeal has similarly held that fairness may require that the accused’s chances of acquittal are not jeopardised by leaving an alternative verdict. These remarks were approved by Kiefel J in R v Keenan with the concurrence of Hayne, Heydon and Crennan JJ. Keenan holds that the duty to ensure a fair trial does not require that a lesser charge is left in every case: the test is what justice to the accused requires.
…
[37] The importance under Australian law of maintaining the separation between prosecutorial and judicial functions has been stated in a number of this Court’s decisions since Benbolt. The view that it is the duty of the trial judge to invite the jury to determine the accused’s guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of those functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury's verdict. At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused's guilt of that offence is not a real issue. In such an event, it would be contrary to basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence. [Citations omitted]
No appellable error arises in the present case in connexion with the Judge’s decision not to leave an alternative verdict of attempt to the jury.
Consideration of ground 5 of appeal: Unsafe and unsatisfactory verdict?
The appellant gave evidence that he was a user of methylamphetamine and that he thought that he had smoked “the last of the ice I had” before the attendance of the police. He agreed that he had possession of the subject substance (as well as the other items found in the car). However, he said that he did not believe the drug packets contained methylamphetamine, but rather that they contained MSM, a health shop joint formula which he used to alleviate discomfort in his arms and fingers. He said that he packed the formula in his “old methylamphetamine bags” which he had used to store and use methylamphetamine. He said that the cash found in his possession had been given to him by his mother to assist with accommodation; that the notebook was his but the incriminating notes only recorded the activities of his casual partner, Nena; and, that the mobile phone was Nena’s phone, which she had given to him at a friend’s place about an hour before he was arrested and that he was quite unaware of any of the incriminating text messages. It was entirely open to the jury to reject these explanations.
As to the required mental element, the High Court in He Kaw Teh v The Queen[30] held that the word “possession” itself necessarily imports a mental element and that a statutory offence of having possession of an item requires proof of an intent to possess that item. There are refinements concerning the required extent of knowledge as to the exact nature of the item, but it is not suggested that the summing up here was other than accurate. In Paul v Collins Jnr, Johnson J referred to He Kaw Teh and stated:[31]
[26] … The decision in He Kaw Teh overcomes the concerns as to potential unfairness expressed by the majority in Williams and has been applied by the Court of Criminal Appeal of Western Australia in many cases including Evans v The Queen [2003] WASCA 194. I note that in Bourke and in Donnelly v Rose the Court was not taken to, and did not consider, the decision of the High Court in He Kaw Teh and the potential impact of it on the decision in Williams.
[30] (1985) 157 CLR 523.
[31] [2003] WASCA 238.
In the present case, the Judge correctly directed the jury that the prosecution must prove that the applicant knew that the subject substance “was methylamphetamine, or at least a controlled drug”, and that the jury must acquit if in doubt as to whether the applicant knew that methylamphetamine was present. His Honour referred to the appellant’s evidence on this topic, including his evidence about packaging MSM formula in bags that previously contained methylamphetamine and directed:
So if you accept that it is a reasonable possibility that the accused thought that what he had was an anti-inflammatory powder and that, in effect, it only accidentally contained methylamphetamine, the ingredient would not be established and you would necessarily find the accused not guilty.
Applying the precepts in M v The Queen,[32] it is clear that the verdict is not unreasonable, unsafe or unsatisfactory. On the whole of the evidence, it was well open to the jury to return a verdict of guilty and I have no doubt of his guilt.[33]
[32] (1994) 181 CLR 487, 493.
[33] M v The Queen (1994) 181 CLR 487, 493; SKA v The Queen (2011) 243 CLR 400, 405-406.
The application to introduce fresh evidence
In addition to the application for an extension of time within which to appeal on the proposed grounds of appeal before the permission Judge, the applicant also seeks an extension of time within which to file a further ground of appeal to introduce fresh evidence (dated 9 October 2018). It is as follows:
The appellant Nedeljko Valesic
Seeks to tender fresh evidence in the form of a statement of Professor Jason M White, Adjunct Professor, School of Pharmacy and Medical Sciences, University of South Australia, dated 5 October 2018 in the proceedings before the learned court.
Grounds
The grounds relied upon are as follows:
I.The appellant was not advised of the possibility, or necessity, to adduce such evidence at the trial.
II.The evidence is credible and could have resulted in an acquittal.
III.The evidence was a necessary part of the trial proceedings given the questions to be decided by both the judge and the jury and neither the prosecuting, nor defence, counsel adduced the evidence.
IV.The failure to call the evidence has resulted in a miscarriage of justice.
The affidavit of Lisa Tehan (an employee of Mr Vadasz) exhibits a short report supplied by Professor White to Mr Vadasz as follows:
In response to your questions regarding this matter:
1.A trace (defined as less than 0.01 grams) may be discernible to the naked eye, depending on the form of the methamphetamine and exactly how much was present, but would be a very small amount. By comparison, 1.0 gram of pure crystalline methamphetamine is about the volume of a 20 cent piece. A trace is less than one hundredth of this volume so would be barely visible. If the methamphetamine is in a powder form then 1.0 gram will occupy about two tablespoons. Again, less than one hundredth of this is a very small quantity that may be just visible.
2.An amount less than 0.01 grams would produce little or no effect if consumed. By comparison, a ‘point’ of relatively pure illicit methamphetamine would contain around 0.08 grams of the drug and an amount around 0.01 grams is a threshold level for most people to obtain a mild degree of stimulation. Thus, the effects of a trace amount could range from no effect to a very mild degree of stimulation.
One major problem for the applicant is that the report replies to questions from Mr Vadasz which are predicated on the assumption that the decision of the High Court in Williams v The Queen[34] governs the present case. But, for the reasons stated above, that assumption is incorrect.
[34] (1978) 140 CLR 591.
I should add, that even if the contention that the Williams doctrine applies to the notional amount of extractable methylamphetamine were to be accepted (contrary to the views expressed above), the report here would tend to suggest that the present amount of pure methylamphetamine here would not correspond very closely at all with the minute amount of cannabis under consideration in Williams. I accept the following submission of prosecution counsel:
… the report of Professor White in my submission would not have assisted the no case submission in a manner favourable to the appellant. That submission really assumes the court finding in favour of the prosecution on grounds 1 and 2, but even for the sake of the argument if we accept Mr Vadasz’s Williams submission about visibility, well in the abstract apparently it is still visible. Secondly, the fact that it might still have a mild stimulant effect in my submission is still plainly relevant to the objects of the Act and s 32(3) applying to trace or small quantities of the drug. So in a very real sense in my submission the proposed fresh evidence paradoxically would have assisted the Crown case and not the other way around in relation to Mr Valesic.
In the recent decision of the High Court in Rodi v Western Australia, the court summarised the applicable principles pertaining to the receipt of fresh evidence on appeal thus.[35] First, the evidence must be fresh evidence insofar as it was evidence which was not available to or obtainable by the appellant with the exercise of reasonable diligence; and second, that the fresh evidence, when viewed in combination with the evidence given at trial, must show that there is a “significant possibility that the jury, acting reasonably, would have acquitted the accused” had the fresh evidence been before the jury.
[35] [2018] HCA 44, [28].
For the reasons given above, it is clear that the applicant has not satisfied either of those requirements in the present case.
Application to add a further ground 6 of appeal (dated 11 October 2018)
In addition to the applications already discussed there is a further application dated 11 October 2018 for an extension of time within which to file a further amended ground of appeal (as to which permission to appeal is also sought from this Court). This is proposed ground 6 of appeal and is as follows:
The applicant seeks leave to add the following, further, ground of appeal;
1.The trial miscarried as a result of the failure of the applicant’s counsel to adequately prepare and present the applicant’s defence.
Particulars
Counsel failed to;
I. Cross examine the Forensic Science Centre analyst in relation to the drug.
II. Obtain an opinion from, and call, an independent pharmacologist or other appropriate expert.
III. Advise the applicant of appropriate steps to be taken in his defence.
In Nudd v The Queen, Gummow and Hayne JJ stated:[36]
[24] As four members of this Court explained in TKWJ v The Queen, describing trial counsel’s conduct of a trial as “incompetent” (with or without some emphatic term like “flagrantly”) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (Q). “Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.
[25] Pointing to the fact that trial counsel did not take proper instructions from the accused, did not properly understand the statutory provisions under which the accused was charged, or had not read the cases that construed those statutory provisions, would reveal that counsel was incompetent. Showing all three of these errors would reveal very serious incompetence. But an appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused’s counsel. Was what happened, or did not happen, at trial a miscarriage of justice?
…
[27] Ten acts and omissions were specified in the appellant’s notice of appeal to the Court of Appeal. Several focused upon what was said to be the ignorance of counsel about the elements of the offence with which the appellant was charged and a consequent failure to give proper advice to the appellant. Others focused upon what were said to be other failures of trial counsel to give proper advice to the appellant, both for want of proper instructions and otherwise. But a failure to give proper advice to the appellant would be significant only if, as a result of that failure, something was done or not done at trial that was, or occasioned, a miscarriage of justice. For the reasons given in TKWJ, the inquiry about miscarriage must be an objective inquiry, not an examination of what trial counsel for an accused did or did not know or think about. The critical question is what did or did not happen at trial, not why that came about.
[Footnotes omitted]
[36] (2006) 80 ALJR 614, 622-623.
Those remarks apply here. It is demonstrated above that no miscarriage of justice occurred and this proposed additional ground takes matters no further. The “particulars” give no indication of what “the Forensic Science Centre analyst”, or the “independent pharmacologist”, or the “other appropriate expert” might say; or what the “appropriate steps to be taken in his defence” were (and these matters were not expanded upon at the appeal hearing). Presumably, it was recognised that these matters cannot rise further than the content of Professor White’s report discussed above. Both permission to appeal and an extension of time should be refused in relation to proposed ground 6 of appeal.
Disposition
The delay of more than three years here is very substantial. The applicant has no valid excuse for that delay. On the contrary, having received the benefit of a suspended sentence he elected not to pursue an appeal against conviction and has only now belatedly attempted to do so because of the threatened enlivening of that prison sentence. The appellant has not demonstrated an error of law and has failed, by a considerable margin, to demonstrate that there are substantial grounds for apprehending that a miscarriage of justice has actually occurred. I would refuse the application for an extension of time within which to appeal, and, as a consequence, dismiss the appeal.
STANLEY J: I would refuse the application for an extension of time within which to bring the appeal. I agree with the reasons of Peek J.
HINTON J: I agree with Peek J for the reasons he gives that the applicant should be refused an extension of time in which to appeal.
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