Rajakovic v The State of Western Australia
[2020] WASCA 98
•23 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RAJAKOVIC -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 98
CORAM: QUINLAN CJ
BUSS P
MAZZA JA
HEARD: 16 DECEMBER 2019
DELIVERED : 23 JUNE 2020
FILE NO/S: CACR 160 of 2018
BETWEEN: ZORAN RAJAKOVIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BOWDEN DCJ
File Number : IND 2273 of 2016
Catchwords:
Post-offence conduct - Whether evidence relevant and admissible
Post-offence conduct - Adequacy of trial judge directions - Failure to make clear the permissible and impermissible uses of the post-offence conduct evidence - Miscarriage of justice - Section 30(4) Criminal Appeals Act 2004 proviso - Potential for substantial miscarriage of justice
New evidence - Section 30(3)(a) Criminal Appeals Act 2004 does not apply to new evidence - Whether new evidence establishes a miscarriage of justice pursuant to s 30(3)(a) Criminal Appeals Act 2004 - Stringent approach to Court's discretion under s 40(1)(e) Criminal Appeals Act 2004 - New evidence does not establish appellant's innocence - New evidence does not raise a doubt such that the appellant should not have been convicted
Legislation:
Criminal Appeals Act 2004 (WA)
Firearms Act 1973 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Appeal allowed
New trial ordered
Category: B
Representation:
Counsel:
| Appellant | : | Mr D Grace QC |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Terry Dobson Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Allami v The State of Western Australia [2013] WASCA 230
Ardrey v The State of Western Australia [2016] WASCA 154; (2016) 261 A Crim R 251
Austic v The State of Western Australia [2010] WASCA 110
Broadhurt v The Queen [1964] AC 441
Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449
Clarke v The State of Western Australia [2018] WASCA 14
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Edwards v The Queen (1993) 178 CLR 193
Evans v The State of Western Australia [2020] WASCA 26
Huggins v The State of Western Australia [2018] WASCA 61
Impicciatore v The State of Western Australia [2020] WASCA 33
Johnstone v The State of Western Australia [2019] WASCA 67
Kalbasi v State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Krencej v The State of Western Australia [2019] WASCA 82
Martinez v The State of Western Australia [2007] WASCA 143; 172 A Crim R 389
OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268
Pennington v The State of Western Australia [2013] WASCA 98
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Dupas (No 3) [2009] VSCA 202; (2009) 28 VR 380
Shepherd v The Queen (1990) 170 CLR 573
Smart v State of Tasmania [2013] TASCCA 15
Wark v The State of Western Australia [2010] WASCA 110
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
Table of Contents
QUINLAN CJ
Introduction
The Prosecution Case at Trial
6 February 2016 - Count 1
8 June 2016 - Counts 2, 3, 4 and 5
21 June 2016 - Counts 6 and 7
Surveillance Evidence
The Appellant's Case at Trial
The Post-Offence Conduct
The DNA Evidence
The Grounds of Appeal
Broad Summary of my Conclusions
Grounds 1 and 2 - Post-Offence Conduct
Grounds 3 and 4 - DNA Evidence
The Additional Evidence of Ms Taupin
Grounds 3 and 4 - Disposition
Application of the Proviso
Conclusion
The grounds of appeal
The appellant's application for leave to adduce additional evidence in the appeal
The merits of grounds 1 and 2
The merits of grounds 3 and 4
The appropriate disposition of the appeal
Grounds 1 and 2
Ground 3
Ground 4
QUINLAN CJ:
Introduction
On 20 June 2018, the appellant, Zoran Rajakovic, was convicted after trial on indictment of the following seven offences:
1.that on 6 February 2016 at Rockingham he supplied a prohibited drug, namely methylamphetamine to another (count 1);
2.that on 8 June 2016 at Kwinana he had in his possession a prohibited drug, namely cannabis with intent to sell or supply it to another (count 2);
3.that on 8 June 2016 at Kwinana he was in possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to be unlawfully obtained (count 3);
4.that on 8 June 2016 at Kwinana he, not being a person exempted under the Firearms Act 1973, possessed a firearm, namely a Stevens .243 Winchester bolt-action rifle, whilst not being the holder of a firearms licence or permit entitling him to do so (count 4);
5.that on 8 June 2016 at Kwinana he, not being a person exempted under the Firearms Act 1973, possessed ammunition, whilst not being the holder of a firearms licence or permit entitling him to do so (count 5);
6.that on 21 June 2016 at Kwinana he had in his possession a prohibited drug, namely 3,4-methylenedioxy-N, A‑Dimethylphenylethylamine (MDMA), with intent to sell or supply it to another (count 6); and
7.that on 21 June 2016 at Kwinana he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another (count 7).
At the commencement of his trial, the appellant had pleaded guilty to an eighth count on the indictment, namely that between 29 June 2016 and 2 July 2016 at Perth he failed to obey a Data Access Order dated 24 June 2016 in respect of a BlackBerry device that was served on him on 29 June 2016.
The State's case on counts 1 to 7 was a circumstantial one, which I have summarised below. Relevantly, two of the circumstances relied upon by the State were:
(a)certain post-offence conduct, including what the prosecutor described in opening as 'evidence of flight', being evidence that the appellant absconded while on bail (the evidence of flight); and
(b)the discovery of the appellant's DNA on a towel, which was wrapped around the rifle the subject of count 4 on the indictment (the DNA evidence).
The amended grounds of appeal relate to these two circumstances. In particular:
(a)grounds 1 and 2 concern the basis upon which the post-offence conduct, particularly the evidence of flight, was left to the jury and whether the learned trial judge gave adequate directions in relation to that evidence. Grounds 1 and 2 challenge the appellant's convictions on counts 1 to 7 on the indictment;
(b)grounds 3 and 4 concern the reliability of the DNA evidence, in particular having regard to new evidence that the appellant seeks leave to adduce on the appeal. Grounds 3 and 4 challenge the appellant's convictions on counts 2 to 7 on the indictment. For reasons that will become apparent, the DNA evidence was not relevant to count 1.
Before turning to the grounds of appeal, I will first summarise the prosecution and defence cases at trial.
The Prosecution Case at Trial
Leaving aside, for the moment, the evidence of flight and the DNA evidence, the prosecution case may be summarised as follows.
On 9 February 2016, police executed a search warrant on a room at a hotel in Perth. Located in the room was a suitcase containing 14 packages, each containing approximately 2 kg of methylamphetamine.[1] The appellant was not charged with any offences in relation to those drugs.
[1] Ts 192-193.
Present at the scene on 9 February 2016 was an adult male, Kwan Yu Chan. Mr Chan was arrested and the police seized from him a BlackBerry mobile device.[2]
[2] Ts 215; Exhibit 3.
Mr Chan was called as a prosecution witness and the downloaded messages on the BlackBerry were tendered in evidence.[3]
[3] Exhibit 4.
Mr Chan gave evidence that he came to Perth in January 2016, from Melbourne, for the purpose of distributing drugs. His evidence was that he received instructions from a person introduced to him by a friend in Perth, Kha Ho. The person, referred to only as Shawn, was unknown to Mr Chan.[4] Following instructions via his mobile phone, Mr Chan collected a suitcase, containing drugs, from a house in Perth and checked into a hotel.
[4] Ts 197-198.
Mr Chan was met by another person at the hotel who provided him with a BlackBerry. He then received email messages on the BlackBerry to make various deliveries of drugs from the suitcase over the course of 3 or 4 days, before returning to Melbourne.[5] The suitcase and the BlackBerry were left with Mr Ho.
6 February 2016 - Count 1
[5] Ts 201-202.
Mr Chan returned to Perth at the beginning of February 2016. He met with Mr Ho at a hotel, who gave him back the suitcase and BlackBerry.[6] Mr Ho gave Mr Chan instructions to carry out a transaction involving drugs at the carpark of the Cockburn Shopping Centre.[7] Mr Chan gave evidence that he misunderstood the instructions that had been given to him and thought that he was to exchange drugs with another person at the shopping centre. He said that he met a man at the shopping centre carpark, where he gave the man the bag of drugs that he had in his possession and, in turn, took a bag of drugs from the man. Mr Chan gave evidence that he looked in the bag that he received and that it contained drugs. When he returned to the hotel, Mr Chan realised that he should not have given the drugs to the man and made contact with him by email on the BlackBerry. Mr Chan arranged to meet the man a second time at the Cockburn Shopping Centre carpark to retrieve the drugs, which he did.
[6] Ts 203.
[7] Ts 204.
The prosecution case was that the man that Mr Chan met at the Cockburn Shopping Centre carpark was the appellant. The supply of the drugs to Mr Chan on this occasion formed the basis of count 1 on the indictment.
The messages downloaded on the BlackBerry included communications between three email addresses: [email protected] (Bloomy), [email protected] (Youngthug) and [email protected] (Wiz Khalifa). The first address, Bloomy, was that from which messages were sent by the BlackBerry. Mr Chan identified a number of the entries having been written by him. The appellant accepted at trial that he was the person using the address Youngthug.[8] The true identity of the person using the address Wiz Khalifa has not been identified, and so he was referred to during the trial as Wiz Khalifa.[9]
[8] Ts 183.
[9] And is not to be confused with Cameron Jibril Thomaz, the American hip-hop artist who uses the same pseudonym.
The BlackBerry included the following messages on 6 February 2016:[10]
[10] Exhibit 4.
| Date | Time | From | To | Message |
| 6/02/2016 | 1.31pm | [email protected] | [email protected] | Hey where a u? |
| 6/02/2016 | 1.34pm | [email protected] | [email protected] | Hey can I call ur drive I should not give 4 to him |
| 6/02/2016 | 1.36pm | [email protected] | [email protected] | Sorry I should only get 4 back The bag can u give me back? |
| 6/02/2016 | 1.43pm | [email protected] | [email protected] | Hey am here |
| 6/02/2016 | 1.43pm | [email protected] | [email protected] | Still in same place? |
| 6/02/2016 | 1.44pm | [email protected] | [email protected] | Yeah am 20min away |
| 6/02/2016 | 1.45pm | [email protected] | [email protected] | Wait me 30 mins ok? I am in the hotel! |
| 6/02/2016 | 1.46pm | [email protected] | [email protected] | Yeh bro are u gunna come pick them back up |
| 6/02/2016 | 1.46pm | [email protected] | [email protected] | Ok |
| 6/02/2016 | 1.46pm | [email protected] | [email protected] | Thank you |
| 6/02/2016 | 1.47pm | [email protected] | [email protected] | Are you comin back to get the 4 bro |
| 6/02/2016 | 1.47pm | [email protected] | [email protected] | Yup |
| 6/02/2016 | 1.48pm | [email protected] | [email protected] | Ok I tell my guy meet u same place. |
| 6/02/2016 | 1.56pm | Just message my guy when ya close bro he come meeet u ATTACHMENT Mr jewball - [email protected] | ||
| 6/02/2016 | 1.59pm | [email protected] | [email protected] | Yup thank you ur help |
| 6/02/2016 | 2.00pm | [email protected] | [email protected] | Cool bro. |
| 6/02/2016 | 2.16pm | [email protected] | [email protected] | Here? I arrive |
| 6/02/2016 | 2.17pm | [email protected] | [email protected] | OK 1min |
Earlier messages on the BlackBerry included a message from Wiz Khalifa to Bloomy on 2 February 2016 saying:
10am Cockburn central shopping centre park in pub carpark. My driver will be there this his bb below. ATTACHMENT Mr jewball - [email protected].
There was evidence that the attachment referred to in the message was the 'contact' for Youngthug.[11] There were also messages between Bloomy and Youngthug on that date referring to a proposed meeting in the carpark on that day.
[11] Ts 238.
Detective Sergeant Andrew Coen, the police officer who obtained the BlackBerry in the course of the execution of the search warrant on 9 February 2016, gave evidence as part of the prosecution case. He gave evidence in relation to the features of BlackBerry devices and their use in the course of criminal activity.[12] In addition, as a result of the information on the BlackBerry, he obtained the CCTV footage for the carpark referred to in the messages for 2 February 2016. That CCTV footage was tendered in evidence, and showed a BMW X5 vehicle.
[12] Ts 234-235.
Following enquiries, Detective Sergeant Coen identified two vehicles that he suspected of being used by the appellant, a BMW X5 and a Mitsubishi Triton utility. In late March 2016, the appellant was placed under physical and covert police surveillance.[13] As a result of that surveillance, the police identified a place of interest visited by the appellant, being bushland in the Kwinana area (the bushland). Time lapse cameras were placed in that area from 3 June 2016 to 8 June 2016.
[13] Ts 255-256.
The CCTV footage, including still images, from both 6 June 2016[14] and 8 June 2016[15] were tendered in evidence. The footage depicts a person meeting the appellant's general description present in the bushland. Detective Sergeant Coen gave evidence that the person had been present at a site in the bushland where cannabis was later located.[16]
8 June 2016 - Counts 2, 3, 4 and 5
[14] Ts 260-262. Exhibit 8.1-8.3.
[15] Ts 263-264. Exhibit 8.4-8.6.
[16] Ts 259.
On 8 June 2016, a search warrant was executed at the appellant's address in Parmelia. A woman was present at the premises.[17] Federal agent Christopher Lilburn of the Australian Federal Police was the warrant officer for the search at the appellant's premises at Parmelia. He gave evidence of having located the following items during the search:[18]
(a)kitchen scales;
(b)a 'food saver' vacuum-sealing device; and
(c)blue plastic tubs.
[17] Ts 266.
[18] Ts 361-363. Exhibits 20.1, 20.2 and 20.3.
Following the search at those premises, the police conducted a search of the bushland. Detective Sergeant Coen gave evidence that various items were found at the bushland, including a long rectangular shaped item, black garbage bags in bushes and a blue tub with a black lid, which was buried in the ground.[19] The blue tub had money in it.
[19] Ts 270-271.
After the search of the bushland, the police went to premises under construction in Wandi, being developed by the appellant. Detective Sergeant Coen gave evidence that he searched a BMW vehicle at the premises and located a roll of black garbage bags in the boot of the car.
Detective Sergeant David Knight also gave evidence in relation to the events of 8 June 2016. He was present at a vehicle stop in which the appellant was a passenger. Detective Sergeant Knight arrested the appellant and had a conversation with him.
Detective Sergeant Knight then took the appellant to the bushland where Detective Sergeant Knight was involved in the search as the exhibits officer. Video recordings of the search were tendered in evidence.[20] Detective Sergeant Knight identified the following items located in the course of the search of the bushland:
(a)a number of black bin bags containing a number of cryovac bags, each containing cannabis;[21]
(b)a sum of money ($99,850);[22]
(c)a rifle (a .243 bolt-action rifle), which was wrapped in a purple towel within a cryovac bag;[23] and
(d)ammunition (.243 bullets).[24]
[20] Exhibit 17.1.
[21] Ts 318-319; Exhibit 17.1.
[22] Ts 322-323.
[23] Ts 322, 325, 326; Exhibit 17.1.
[24] Ts 322; Exhibit 17.1.
The four items identified above (the cannabis, the money, the rifle and the ammunition) formed the basis of counts 2, 3, 4 and 5 on the indictment respectively. Certificates were tendered confirming that the material the subject of count 2 identified above was indeed cannabis.[25] I will return to evidence concerning the rifle in more detail later.
21 June 2016 - Counts 6 and 7
[25] Exhibit 27.
A further search of the bushland took place on 21 June 2016.
Detective Sergeant Coen was present at that search. On that occasion the police located, buried in the bushland, a light blue bucket with a black lid similar to the container found on 8 June 2016. The blue‑coloured container contained white powder substances, some ammunition and some tablets.[26]
[26] Ts 272-273.
Lucas Anderson, a federal agent with the Australian Federal Police, also gave evidence in relation to the search of the bushland conducted on 21 June 2016. He was also present at the 8 June 2016 search.
Federal agent Anderson gave evidence that in the course of the search they located a blue barrel similar to the one located on the earlier search. He gave evidence that inside the blue barrel were the following items:[27]
(a)a quantity of MDMA tablets;
(b)approximately 4 kgs of methylamphetamine;
(c)a box of clipseal bags; and
(d)a box of handgun ammunition.
[27] Ts 518. Exhibit 19.2. See also Detective Sergeant Knight at ts 325.
The two items referred to in [30(a) and (b)] above (the MDMA tablets and the methylamphetamine) formed the basis of counts 6 and 7 on the indictment respectively. Certificates were tendered confirming that the material the subject of count 6 was MDMA[28] and that the material the subject of count 7 was methylamphetamine.[29]
Surveillance Evidence
[28] Exhibit 29.
[29] Exhibit 28.
A number of covert operatives gave evidence in relation to surveillance undertaken of the appellant. The evidence of those operatives included observations of the appellant travelling between various locations in March, April and May 2016, including the Parmelia address,[30] the Wandi address[31] and the bushland.[32]
[30] Ts 417, 423, 432, 440, 453, 462, 466.
[31] Ts 419, 424, 433, 442, 465.
[32] Ts 423-424.
Evidence was also given that the appellant was observed travelling from the Parmelia address to the bushland, with unidentified items in his utility, on 8 June 2016. He entered the bushland at 11.11 am and exited at 11.25 am.[33] This timing accords with the timing of the CCTV footage taken on 8 June 2016, referred to at [20] above.
[33] Ts 469, 472.
The Appellant's Case at Trial
The appellant gave evidence at trial.
He gave evidence that in June 2016 he was residing with his partner at the Parmelia address and had been working as a taxi driver for six years prior to that time.[34] The appellant gave evidence that, while working as a taxi driver he met the person with the BlackBerry name Wiz Khalifa. He declined to name the person.[35]
[34] Ts 564-565.
[35] Ts 565.
The appellant became Wiz Khalifa's driver while the latter was in Perth. The appellant gave evidence that Wiz Khalifa asked him to pick up and deliver money for him.[36] He said that he would get text messages on a BlackBerry with pick up and drop off points and was paid around $1,000 for every $100,000 delivered.[37]
[36] Ts 573.
[37] Ts 576.
The appellant gave evidence that, following an occasion upon which money had gone missing from a delivery, he requested that padlocks be put on the suitcases, so that he could not be accused of taking any money. He also said that sometimes the person he was to meet for deliveries would contact him directly.[38]
[38] Ts 577
The appellant gave evidence in relation to the exchange of suitcases with Mr Chan on 2 February 2016 and 6 February 2016 (see Mr Chan's account referred to at [12] to [16] above). The appellant said that he thought he was handling money on both occasions.[39]
[39] Ts 579-580.
The appellant gave evidence that, due to Wiz Khalifa having problems with his 'store', the appellant suggested the bushland as a potential storage site. The appellant met with another person at the site, who asked the appellant to buy containers. The appellant bought the blue tubs from Bunnings. He was told that they would be used to bury money. These events occurred around February 2016.[40]
[40] Ts 580.
The appellant accepted that he was the person observed by surveillance going into the bushland on 23 March 2016. He said he was asked to go there to have a look to see if everything was normal.[41]
[41] Ts 581.
The appellant gave evidence that he was present at the search of the bushland on 8 June 2016. He said that he had no knowledge of the cannabis, the money, the rifle or the ammunition.[42]
[42] Ts 582.
The appellant also gave evidence that he had no knowledge of the MDMA tablets or the methylamphetamine discovered on 21 June 2016.[43]
[43] Ts 583.
The appellant gave evidence in relation to the black garbage bags referred to at [23] above (which he said were for rubbish) and the kitchen scales and vacuum sealer referred to at [21] above (which he said that his partner used for food preparation).[44]
[44] Ts 584.
In relation to his presence at the bushland site on 8 June 2016 (see [33] above), the appellant said that he was retrieving a sawn off shotgun that he had hidden in the bushland a couple of days earlier.[45]
[45] Ts 585.
As will be apparent from this summary, the primary issue at trial, in relation to all of the counts, was the appellant's knowledge of the various items the subject of each count. The appellant said that he had no knowledge of any of them (and in the case of count 1, thought he was in possession of money). The primary issue was, therefore, whether the State had proven, to the required standard, that the appellant had knowledge of the existence of each of the items: the drugs (counts 1, 2, 6, and 7), the money (count 3), the rifle (count 4) and the ammunition (count 5).
The State's case was a circumstantial one. That is, the State sought to prove that the only reasonable inference to be drawn from all of the facts and circumstances established by the evidence was that the appellant knew of the existence and nature of the each of the items the subject of counts 1 to 7.
I turn now to the evidence and directions at trial concerning the two circumstances raised by the grounds of appeal: the post-offence conduct and the DNA evidence.
The Post-Offence Conduct
The prosecutor opened the State case on the basis that it would be leading evidence of the appellant's post-offence conduct as consciousness of guilt. It was the final matter referred to in his opening. The prosecutor said:[46]
The State will also call what's called 'evidence of flight.' Mr Rajakovic was due to stand trial last year on these - well, on charges, State count 8. Count 8 has been added to the indictment. But he was due to stand trial on counts 1 to 7. He was on bail, and he'd breached his bail and went missing.
And the State leads that evidence as what’s called 'evidence of flight.' The State contends that from that evidence you may infer that he knew he was guilty of these offences, and so he took off. And for you it's an inference based on the circumstantial evidence, and his Honour will give you a direction about that sort of evidence. But that is the reason why the State is leading that evidence.
Police located Mr Rajakovic, re-arrested him, and have brought him to court for you to determine whether the State has proved its case beyond reasonable doubt.
[46] Ts 182.
In due course, the State led evidence of the appellant's post-offence conduct, including:
(a)that an arrest warrant for the appellant was issued on 1 September 2017 as a consequence of the appellant going 'missing' before the original trial date;[47]
(b)that the appellant was arrested on 15 November 2017 in Margaret River; [48]
(c)that the appellant was served with a Data Access Order dated 6 January 2017, in relation to a BlackBerry device found at the appellant's premises that month;[49]
(d)that when the appellant was arrested on 15 November 2017, the police located two mobile phones, in relation to which they obtained Data Access Orders;[50]
(e)that, at the time of his arrest on 15 November 2017, the appellant placed one of the mobile telephones in a toilet bowl in an attempt to damage or destroy it;[51] and
(f)that the appellant did not respond to the Data Access Orders.[52]
[47] Ts 519.
[48] Ts 519.
[49] Ts 274; Exhibit 10.1.
[50] Ts 521-522; Exhibit 10.2.
[51] Ts 520.
[52] Ts 521.
The appellant's failure to comply with the Data Access Orders and the disposal of the mobile phone in the toilet bowl were not referred to in the prosecutor's opening address. Consistent with the approach to the evidence of flight, however, it appears that evidence of this conduct was led by the State as evidence of consciousness of guilt.
Following the appellant's evidence in chief, but prior to cross-examination, the appellant's counsel applied for, and was granted, leave to reopen the appellant's evidence, on the basis that he had not given evidence in relation to 'flight'. The prosecutor did not oppose that application and, indeed, it appears from the transcript that it was prompted by the prosecutor having raised the absence of such evidence with defence counsel.[53]
[53] Ts 589.
In relation to his having breached bail the appellant said:[54]
Can you explain to the jury, please, why you failed to report and what you did?---I - I was under a lot of stress and drinking and I was going to trial and I was thinking all these drugs, I'm going to gaol for, you know, something that’s not mine and I just had enough and took off, you know.
When you say 'took off' where did you go to?---Well, the first couple of days I was in Perth and then - then I had a fight with my brother and then he said he’s going to cancel bail for me and all that kind of stuff, I’ve got to pull my head in and then I just left -left his house and then I got a driver, Wiz Khalifa got me a driver, and then drove me to Victoria so I just decided to cool off over there.
[54] Ts 590.
He said that he stayed in Victoria for two months before returning to Margaret River.
The appellant was cross-examined in relation to his having absconded, including the fact that he had turned to Wiz Khalifa for assistance, in relation to both the driver and the accommodation in Victoria.[55] He was also cross-examined in relation to his failure to comply with the Data Access Orders and disposing of the mobile telephone in the toilet bowl.[56] He denied that it was because he knew it would reveal that he was dealing in drugs.[57]
[55] Ts 631.
[56] Ts 637-638.
[57] Ts 639.
It was not directly put to the appellant in cross-examination that he had absconded out of a consciousness of guilt for the offences charged.
At the close of the defence case, the learned trial judge raised with the prosecutor and defence counsel the use to which the evidence of flight was sought to be relied upon. It is appropriate to set out the entirety of those exchanges:[58]
[58] Ts 651-654.
BOWDEN DCJ: … The other point that worries me, or concerns me sufficiently, is in relation to, I think, two pieces of evidence, the first of which we can use as the example being the absconding, or the failure to appear in court, and as I understood the opening, it might be suggested by the State that that’s going to be used as consciousness of guilt or an implied admission of guilt.
All right. Well, look, I’ve got some notes that are relevant to this in my chambers so I'll just adjourn for a moment, because it seems to me, Mr Dobson, that this piece of evidence is properly admissible as part of the State’s case. It can be used for a variety of reasons. It can be used to show an implied admission of guilt, it can be used to show consciousness of guilt, it can be used as a circumstance of circumstantial evidence, which when taken with other pieces of evidence can lead then to the inevitable conclusion that the accused is guilty. It can be used to rebut a potential defence or to rebut some evidence that the accused has given.
It also seems to me that the cases relating to consciousness of guilt say this, that if you were using post-offence conduct whether it be a failure to appear in court or lies, for example, as consciousness of guilt or an implied admission of guilt as opposed to just one limb in a circumstantial case, the use of the phrase 'Consciousness of guilt', the use of the phrase 'Implied admission of guilt' may lead the jury to believe that that's an implied admission of guilt of the offence that they are then considering and that requires an Edwards direction to be given in relation specifically to that evidence.
Whereas if, in fact, it's being used simply as consciousness of guilt a Edwards type direction, sorry, if it's being used simply as a limb in the circumstantial case an Edwards type direction is not required to be given. The reason I raise that the recent authority of Dupas, D-u-p-a-s, went through the schedule of Edwards directions. I think in 83 trials where Edwards directions had been the subject of appeal 28 of the appeals were allowed. And I just need to know whether the State are going to rely on that evidence and address the jury on the basis that this is consciousness of guilt and implied admission or whether they're simply addressing the jury on the basis of, look, it's post-offence conduct, which when put with other pieces of circumstantial evidence can lead to the conclusion that the accused is guilty of the offence.
COGIN, MR: Yes. No, I understand the point and it's a very fine line. The case that I'm more familiar with was it's not Dupas but [Allami] is the one I'm more - - -
BOWDEN DCJ: Yes, yes, yes. McKechnie J - - -
COGIN, MR: Yes. I know it well.
BOWDEN DCJ: - - - where he specifically said to the jury words to the effect of, look, this evidence taken by itself cannot justify a conviction of the accused. It's only to be used as one circumstance in the combination of circumstances.
COGIN, MR: That's right.
BOWDEN DCJ: See that's my concern, that the phrase - - -
COGIN, MR: And that's the way I would be putting it, your Honour. It's part of - - -
BOWDEN DCJ: No, there's no difficulty with that at all. But the use of implied admission of guilt or consciousness of guilt - and there's a number of authorities which say consciousness of guilt ought not be used, because it leads the jury to conclude that you're talking about consciousness of guilt or implied admission of guilt of this offence and that's what brings in the Edwards warning. Now, you're not required to tell me, of course you're not, but I'm simply - - -
COGIN, MR: No, no - - -
BOWDEN DCJ: - - - indicating that if those phrases are used it seems to me I'm bound to give an Edwards type direction relating to that particular evidence.
COGIN, MR: Well, I thought you would anyway. The negative Edwards direction, if you like, if there's another explanation that is consistent with non-consciousness of guilt.
BOWDEN DCJ: A reasonable possibility - - -
COGIN, MR: Yes.
BOWDEN DCJ: - - - of another explanation that - - -
COGIN, MR: That's right.
BOWDEN DCJ: - - - he didn’t run away or abscond himself - - -
COGIN, MR: Or there's another reason for him doing it, which is not consistent with a consciousness of guilt.
BOWDEN DCJ: Well, I don't use the phrase of consciousness of guilt for those reasons. If that's so, then the evidence can form no part of the State's case whereas if you're running it on the basis of it's a limb, then the jury are required to assess it for what it is.
COGIN, MR: Yes.
BOWDEN DCJ: And that with all the other evidence but that's - - -
COGIN, MR: Yes.
BOWDEN DCJ: All right. Well, perhaps I can hear from Mr Dobson. Mr Dobson, it seems to me that the areas that this relates to is, of course, the post-offence conduct constituted really by two things. There's the absconding from the trial and then there's the failure to provide the pin numbers or the passwords to the phones. Now, are you urging me to give an Edwards type direction in relation to each of those?
DOBSON, MR: No, your Honour. I'd submit that it be dealt with in exactly the manner that you suggested and it seems my friend wants to do. These things are just a couple more pieces of circumstantial evidence upon which they do their job.
BOWDEN DCJ: You see there's a number of authorities which say if an Edwards direction isn't called for it's wrong to give the Edwards direction because it adds too much weight to it. But it just seems to me, look, the point I'm simply seeking to make, Mr Cogin, is that it just seems to me that if phrases like implied admissions of guilt, consciousness of guilt are used it may well be that I feel that I'm obliged to give the Edwards type direction in relation to those two pieces of evidence. It's not for me to instruct you how to address or anything like that but I've foreshadow my concern to you, that's a matter for you entirely.
COGIN, MR: Yes. No, I'm appreciative.
In his closing address to the jury, the prosecutor addressed the evidence of flight in the following terms:[59]
Mr Rajakovic is in a whole world of trouble, confronting a District Court trial. Who does he go to? Well, in his words, the bloke that’s dropped him in the shit, Wiz Khalifa.
Remember how this occurred. He had an argument with his partner, an argument with his brother and then decided to take off. And where does he go? Well, Wiz Khalifa sends a driver. And you might think to yourself, 'That was very, very good of Mr Wiz Khalifa,' you know, employee benefits beyond the pale.
Is that something that you would expect Mr Wiz Khalifa to do for Mr Rajakovic, remembering that Mr Rajakovic could not identify Mr Wiz Khalifa at this point because on his evidence all he’s got is the BlackBerry and a description that he had back at the time when he picked him up at the casino and took him to Langtrees. That’s all he’s got, and the seven months that he drove him round Perth - doesn’t know him.
And so really, from Wiz Khalifa’s position, there’s no risk. Mr Rajakovic can confront whoever he has to confront and cut him free. And of course, on Mr Rajakovic’s version, that’s precisely what he was. He was a pawn being played. He was expendable. That’s what happened.
Mr Wiz Khalifa shuffles him off to Victoria. He got threatened. He got told, 'You keep your mouth shut or this is going to happen to you.' That wasn't in any evidence. He’s accommodated by a family, his board, he occasionally to has to fill the fridge. And what’s more, Mr Wiz Khalifa gives him money.
And you think, 'Well,' and this is the bloke that Mr Rajakovic is so frightened of that he sits in that witness box there and says, 'I'm not telling you.' The whole truth and nothing but the truth, you’re not getting the whole truth. Why? What’s Mr Wiz Khalifa done?
So let’s assume that Mr Wiz Khalifa has in fact threatened Mr Rajakovic. What happens there? He comes back to Margaret River and what was the plan? 'Make up with the family and perhaps hand myself in.' How was that protecting Mr Wiz Khalifa's interest? Hand himself in and tell you precisely the story that you’ve heard.
Ladies and gentlemen, the story makes no sense. It's absolutely fanciful. Returning to Perth and handing himself in after Mr Wiz Khalifa exerts so much fear, so much pressure, I’d respectfully submit that’s rubbish.
[59] Ts 12-13.
The prosecutor did not refer to the evidence of the appellant absconding from bail as 'evidence of flight' or that the jury could infer from that that the appellant 'knew that he was guilty of these offences'. Nor, however, did the prosecutor say anything to withdraw or counteract the statements that he had made to the jury to that effect in opening (see [48] above).
While the prosecutor referred to the 'encrypted' nature of a BlackBerry device, he did not otherwise address the other post-offence conduct (such as the failure to comply with Data Access Orders and the disposal of the mobile phone in the toilet bowl).
Defence counsel, in his closing address, referred to the appellant having failed to answer his bail with circumspection ('it's not something you really need to worry about').[60] His references to the failure of the appellant to open his BlackBerry or provide the passwords were similarly guarded.[61]
[60] Ts 17.
[61] Ts 15.
In his directions to the jury, the learned trial judge gave appropriate directions of law in relation to the onus of proof and the standard of proof. The directions included directions as to the proper approach to the drawing of inferences in a circumstantial case and the proper approach to the accused's evidence.[62]
[62] Ts 668-671.
The learned trial judge dealt with the evidence of the appellant having absconded while on bail and the other post-offence conduct in the context of his summary of the prosecution case. His Honour said:[63]
Now, we've also heard evidence that Mr Rajakovic absconded whilst on bail, and we also have heard evidence what he didn't provide the password. He's pleaded guilty to enable the police to access one of his phones. Now, the State says to you that this evidence by itself doesn't prove that the accused is guilty and it's not presented on that basis. They present the evidence on the basis that it's just one other of their circumstantial case, which when added with other circumstances, can lead you to be satisfied beyond reasonable doubt, the only reasonable inference to draw, is the guilt of the accused.
Mr Dobson says to you, 'Look, insofar as absconding whilst on bail, the accused man was under stress. He'd been drinking. He was frightened of an unjust accusation and he fled to the only person that was able to assist him.' He said to you, that bearing in mind that the nature of what we now know and the amount of drugs that were located, people are cautious and are fearful of their safety. And the fact that he didn't provide further information has to be looked at in that context.
[63] Ts 686-687.
A little later in his charge to jury, the learned primary judge made reference to the prosecutor's submission that the appellant's evidence was untruthful, and gave the following direction:[64]
Mr Cogin said to you, 'Look, what the accused said in the witness box was just a whole pack of lies.' That’s a matter entirely for you. Even if you conclude that the accused person has told lies, that of course, is a matter that would affect his credibility or believability. But you just can’t say, 'because he’s lied, he’s therefore guilty of the offence.'
Even, as I have said, if you reject his evidence in its entirely, you can’t therefore say he’s guilty. If you reject his evidence in its entirety, you go back to asking yourself, based on the evidence that I do accept, am I satisfied of the accused’s guilt in respect of the count that I am then considering.
[64] Ts 687.
This last direction was consistent with the approach suggested by the High Court in Zoneff v The Queen.[65]
[65] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 (Zoneff) [23]-[24] (Gleeson CJ, Gaudron, Gummow & Callinan JJ).
The learned trial judge's charge to the jury did not otherwise refer to the evidence of post-offence conduct, or to the prosecutor's opening as to 'flight' or consciousness of guilt.
The DNA Evidence
As I have noted above, one of the items located in the bushland, in the course of the search conducted on 8 June 2016, was a .243 bolt-action rifle, wrapped in a purple towel within a cryovac bag.
As also noted above, these items were seized by Detective Sergeant Knight. Detective Sergeant Knight gave evidence that he put the towel into an AFP bag, which he later sealed with AFP tape (the sealing of the bag is not evident on the video of the search).[66]
[66] Ts 325-326.
The bag was received by Senior Constable Sharon Potter who recorded the item on the Incident Management System.[67]
[67] Ts 293. Exhibit 14.1 and 14.2.
Christine Chin, a forensic biologist, gave evidence in relation to her analysis of the towel. She gave evidence that a mixed DNA profile was recovered from side 1 of the towel and concluded that a contributor matched the appellant. Ms Chin gave evidence that it was greater than 100 billion times more likely that the appellant was the contributor of DNA than an unknown person on the database.[68]
[68] Ts 400.
Whether the presence of the appellant's DNA on the purple towel was the result of contamination was a live issue at trial. Indeed, prior to the trial, a voir dire was held in relation to various evidential issues, including the potential for contamination of the towel, which defence counsel ultimately accepted was a 'straight jury question'.[69]
[69] Ts 155.
The issue of possible contamination of the towel was explored in cross-examination of Detective Sergeant Knight at trial. In that regard Detective Sergeant Knight agreed that on 8 June 2016:[70]
(a)he had handcuffed the appellant when he was arrested and drove him to the bushland;
(b)there were occasions upon which officers would leave their gloves on while attending to the exhibits log;
(c)he was not careful not to touch things in the immediate vicinity of the locations where the items were found;
(d)he used a pen attached on his person to pierce the plastic bag containing the rifle;
(e)he did not change his gloves between getting the pen, returning it and touching the firearm;
(f)he handled the firearm before putting it back down on the towel; and
(g)he did not have an independent recollection of sealing the bag into which the towel was placed.
[70] Ts 326-332.
Ms Chin was also cross-examined in relation to the process of secondary transfer of DNA (that is, from one source to another via an intermediary). That cross-examination included questions in relation to the process of secondary transfer and of skin shedding as a source of secondary transfer.[71] Ms Chin confirmed that secondary transfer was possible, but that the likelihood of it could not be determined.[72]
[71] Ts 407-408.
[72] Ts 407.
Her evidence on this issue included the following:[73]
All right. Now, if I were to - going back to my example earlier, if I were to put my pen down and put some gloves on and then pick the pen up and start fiddling with it and then put the gloves onto another surface, that can result in the transfer of my DNA material still, can't it, despite me having put gloves on?---Yes, it's possible because there was initial deposit of skin cells or DNA on the pen and when you wear your gloves there - there could be some transfer onto the gloves. And then if you subsequently touch something else, that could then transfer that DNA again. However, like I've said earlier, a lot of the transfers too depend on the surface, the type of surface. So gloves, being a smooth surface, may not be a good - what we call a transfer material. So you may have held the DNA with the gloved hand, but may not have retained much of that DNA on that surface because it's smooth surface.
Just extending my example, in this instance if - if I were to have gloves and be fiddling with the bolt of a rifle and working it, not necessarily with huge force but working it and rubbing it and moving it, is that more likely to overcome the smooth surface factor you referred to? And when I say overcome, not - transferring more easily than ordinarily done so for a smooth surface?---Well, all these explanations I've said earlier contribute to transfer or not transfer. So you have to - but unfortunately we can't say how much would it be due to the friction or the - you know, the strength of the contact. Whether it's the strength of the contact or the nature of the surface, though they all have a play in it, but unfortunately we can't say which has a bigger play in the transfer of DNA.
[73] Ts 408-409.
In addition to the evidence in relation to the DNA identified on the towel, Ms Chin confirmed in cross-examination that there was a single source female DNA profile identified on a plastic bag seized from the bushland. The identity of the source was not known, although Ms Chin was able to confirm that it did not come from the appellant's partner, whose DNA was collected as a reference sample.[74]
[74] Ts 402-403.
Turning, then to the grounds of appeal.
The Grounds of Appeal
Grounds 1 and 2 in the amended grounds of appeal were the subject of a grant of leave to appeal by Mazza JA on 4 July 2019. They provide:
1.The Learned Trial Judge's failure to exclude from the jury's consideration evidence concerning the Appellant's:
1.1Absconding on bail;
1.2Failure to obey the Data Access Orders dated 24 June 2016, 6 January 2017 and 15 December 2017;
1.3Disposal of a mobile phone at the time of his arrest on 15 November 2017;
gave rise to a substantial miscarriage of justice.
PARTICULARS
a.The evidence was not probative of any issues before the jury;
b.The evidence was incapable of any logical application as part of the circumstantial case against the Appellant in circumstances where it was ultimately not relied upon as indicating a consciousness of guilt;
c.The evidence was highly prejudicial.
2.Further or in the alternative the learned sentencing judge, failed to direct the jury adequately in relation to the evidence referred to in Ground 1, thereby giving rise to a miscarriage of justice.
These grounds clearly relate to the post-offence conduct evidence and, in particular, the evidence of flight.
The question of leave in relation to grounds 3 and 4 were referred to the hearing of the appeal. Grounds 3 and 4 provide:
3.The verdicts of guilty on which the convictions on Counts 2, 3, 4, 5, 6 & 7 are based should be set aside because, having regard to the new evidence of Jane Taupin, those verdicts are unreasonable and cannot be supported.
PARTICULARS
A.The finding of the DNA of the Appellant on a purple towel, in which a firearm was wrapped, at the bushland crime scene was important, if not crucial, evidence that the Appellant, on the State case, was guilty of the relevant counts on the indictment.
B.The validity of the State evidence to the effect that the Appellant's DNA was on the towel prior to its discovery at the bushland crime scene, is now subject to considerable doubt as a result of the new evidence.
C.The new evidence reveals that the police collection of exhibits failed to reach a minimum standard to avoid risk of DNA contamination and failed to reach the 'best practice' required for subsequent DNA analysis.
D.The new evidence concludes that it is not possible to determine whether any of the DNA reported was deposited through direct or indirect transfer, thus casting doubt on the state theory that the Appellant's DNA was on the purple towel prior to its discovery.
4.Further, or in the alternative to Ground 3, there has been a miscarriage of justice requiring the verdicts of guilty on Counts 2, 3, 4, 5, 6 & 7 to be set aside.
PARTICULARS
The Appellant relies upon the Particulars outlined in support of Ground [3].[75]
[75] The amended grounds of appeal refer to ground 1 in these particulars. This is a typographical error. It is apparent from the appellant's amended case that ground 4 is concerned with the DNA evidence and the proposed evidence of Ms Taupin.
Some preliminary observations in relation to the grounds are called for.
It will be apparent that, while ground 1 refers to a 'substantial miscarriage of justice', the burden on the appellant is not that high. The appellant's burden is to establish that either the admission of, or the directions in relation to, the post-offence conduct was such as to give rise to a 'miscarriage of justice' for the purpose of s 30(3)(c) of the Criminal Appeals Act2004 (WA).
Nevertheless, in the present case, the State does submit that, in the event that either ground 1 or ground 2 is upheld, this Court should dismiss the appeal on the basis that no substantial miscarriage of justice has occurred. That is, the State seeks to have this Court apply the proviso in s 30(4) of the Criminal Appeals Act2004.
Grounds 3 and 4, of course, are expressed in the alternative.
Ground 3 invokes s 30(3)(a) of the Criminal Appeals Act2004, namely that the verdicts of guilty on counts 2 to 7 should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported. The State submits that s 30(3)(a) is the wrong lens through which to view an appeal based on new evidence. It submits that the correct prism through which to assess the new evidence is whether there has been a miscarriage of justice (i.e. ground 4).
In relation to ground 4, however, the State does not contend that, if it were upheld, it is possible to apply the proviso. That is, the State accepted that, if ground 4 was established, it did not contend that there was no substantial miscarriage of justice.
Broad Summary of my Conclusions
For the reasons that follow, I have concluded that the manner in which the post-offence conduct, and in particular the 'evidence of flight', was dealt with at trial occasioned a miscarriage of justice. While I do not consider that the evidence was inadmissible (and so would dismiss ground 1), in the circumstances of this case in my view it was necessary for there to be a direction to the jury, first, as to the use that evidence could be put and, secondly a clear direction as to the use that it could not be put.
The need for such a directions arose from the real prospect, having regard to the State's opening and the nature of the evidence itself, that the jury might reason that the appellant absconded from bail due to a consciousness of guilt, in circumstances in which, first, the State had disavowed such a case (but without retracting the opening) and, secondly, the jury were not warned as to the risks of employing such reasoning.
I would not, however, uphold grounds 3 or 4. I accept the State's submission in relation to ground 3 that whether a verdict of guilty should be set aside because it is unreasonable or cannot be supported is to be assessed by reference to the evidence led at trial.
Nor am I satisfied that the new evidence of Ms Taupin reveals that there has been a miscarriage of justice. The evidence of Ms Taupin related to one aspect of the circumstantial case against the appellant. That evidence, which could readily have been adduced at trial, does not establish that the appellant is innocent or raise such a doubt that I am satisfied that the appellant should not have been convicted. I would refuse leave to admit the evidence of Ms Taupin and dismiss ground 4.
In the circumstances, having upheld ground 2, in my view it is not possible for this Court to conclude that the appellant's guilt was proved to the criminal standard, so as to be able to apply the proviso in s 30(4) of the Criminal Appeals Act2004. While the State case was, in my view, a strong one, the issues at trial and the nature of the error are such as to deprive this Court of the ability to justly assess whether the appellant's guilt was proved.
In light of my conclusions in relation to ground 2, I would allow the appeal, quash the convictions on counts 1 to 7 and order a retrial.
Turning then to my reasons for these conclusions.
Grounds 1 and 2 - Post-Offence Conduct
As I have noted above, the primary issue at trial was whether the State had proven, to the required standard, that the appellant had knowledge of the existence of each of the items the subject of the counts on the indictment. Being a circumstantial case, it was necessary for the State to establish, on each count, that the only reasonable inference to be drawn from all of the circumstances was that the appellant had knowledge of those items.
Post-offence conduct, including evidence of flight, is circumstantial evidence. Save in a case in which the post-offence conduct is an indispensable link in the chain of reasoning on which proof of guilt depends, a jury may accept and act upon evidence of post-offence conduct without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied that there is no other explanation of the post-offence conduct which is reasonably open on the facts).[76]
[76] Allami v The State of Western Australia [2013] WASCA 230 (Allami) [81] (Buss JA, Hall J agreeing).
In many cases, the relevance of the post-offence conduct, whether the conduct is evidence of flight or lies told by an accused, is that it is evidence of consciousness of guilt, and thus of guilt itself.[77] Where the evidence of post-offence conduct is relied upon as consciousness of guilt, it is necessary for the trial judge to direct the jury in accordance with the decision of the High Court in Edwards v The Queen, including that there may be reasons for the post-offence conduct apart from the realisation of guilt.[78]
[77] Allami [80] (Buss JA, Hall J agreeing) citing Wigmore on Evidence (Chadbourn rev 1978), vol 2, § 276(4).
[78] Edwards v The Queen (1993) 178 CLR 193 (Edwards).
As summarised by the Court of Appeal in Victoria in R v Ciantar:[79]
In all cases, it will be for the judge to determine whether evidence of post-offence conduct, taken in conjunction with any specified acts, facts and circumstances, is capable of constituting evidence of consciousness of guilt for the purposes of an issue.
In then charging the jury on any evidence which is capable of constituting evidence of consciousness of guilt for the purposes of an issue, the judge should take each offence left to the jury in turn and, by reference to that offence, identify for the jury:
(a) the evidence of post-offence conduct upon which the Crown relies;
(b) each issue in respect of that offence for which the Crown relies upon the evidence of post-offence conduct; and
(c) the acts, facts and circumstances which are said to show that the post-offence conduct bespeaks consciousness of guilt for the purposes of that issue.
Consistently with Edwards, the judge should direct the jury that there may be many reasons for post-offence conduct apart from consciousness of guilt. For example, it may be the result of panic or fear, or a wish to escape an unjust accusation, or because of guilt of some other lesser criminal offence or moral wrongdoing falling short of criminal behaviour, or to protect some other person or to avoid a consequence extraneous to the offence, and of course the judge should direct the jury on any explanations suggested by the defence.
[79] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [84]-[86] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA). See also Martinez v The State of Western Australia [2007] WASCA 143; 172 A Crim R 389 [284]-[285] (Martin CJ, Steytler P & Miller JA); R v Dupas (No 3) [2009] VSCA 202; (2009) 28 VR 380 [24] (Nettle JA, Ashley JA agreeing); Allami [78] (Buss JA, Hall J agreeing); Evans v The State of Western Australia [2020] WASCA 26 (Evans) [77] (Buss P, Mitchell & Beech JJA).
It may also be noted in this context, that, as in the case of lies, post-offence conduct need not reveal knowledge of the (whole of an) offence. It is sufficient if it reveals knowledge of some aspect of it.[80]
[80] Evans [75] (Buss P, Mitchell & Beech JJA).
While evidence of post-offence conduct is, in many cases, admitted as evidence of consciousness of guilt, this is not invariably the case. Depending upon the circumstances of the case, for example, lies may not be capable of indicating consciousness of guilt. Evidence of the lies may nevertheless be admissible, for example, on the basis that they are relevant to the accused's credibility as a witness. Zoneff is an example of such a case.
In the same way, depending upon the circumstances of the case, evidence of flight might be admissible for reasons other than that it is indicative of a consciousness of guilt. Allami may be regarded as an example of such a case.[81]
[81] Allami [12] (McLure P), [99] (Buss JA, Hall J agreeing).
In cases in which post-offence conduct is not adduced as evidence of consciousness of guilt, generally speaking, it is not necessary - and indeed may be undesirable - to give an Edwards direction. That is because, as the High Court stated in Zoneff in cases concerning lies:[82]
Such a direction … could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant.
[82] Zoneff [20] (Gleeson CJ, Gaudron, Gummow & Callinan JJ); see also Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 (Dhanhoa) [34] (Gleeson CJ & Hayne J).
As the Court also recognised in that case, however, there may be cases:[83]
in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt.
[83] Zoneff [16] (Gleeson CJ, Gaudron, Gummow & Callinan JJ).
It is apparent from the exchanges reproduced at [56] above that the learned trial judge in the present case was acutely conscious of the issues discussed above, and quite properly raised them with the prosecutor and defence counsel.
In that context, of course, the prosecutor took the position - contrary to that which he had put to the jury in opening - that he would not be putting to the jury in closing that the evidence of flight was evidence of consciousness of guilt, and that it was 'one circumstance in the combination of circumstances'. Defence counsel, perhaps conscious of the risk of giving the issue 'an undeserved prominence in the jury's mind',[84] agreed that the evidence was 'just a couple more pieces of circumstantial evidence upon which they do their job'.
[84] Zoneff [20] (Gleeson CJ, Gaudron, Gummow & Callinan JJ).
The immediate difficulty with these observations, however, is that they do not identify how the evidence of post-offence conduct (including the evidence of flight) was relevant and admissible, if it was not relevant and admissible as consciousness of guilt of the offences (or, at least, revealed knowledge of some aspect of them). That is, if the post-offence circumstances were not relevant as evidence indicating consciousness of guilt, what were they evidence of?
This is the gravamen of ground 1, which contends that the evidence was incapable of any logical application as part of the circumstantial case in circumstances in which it was, ultimately, not relied upon as indicating a consciousness of guilt.
The relevance of the post-offence conduct (other than as evidence of consciousness of guilt) is not immediately obvious from the trial record.
On appeal, the respondent submitted that the relevance of the post-offence conduct (other than as evidence of consciousness of guilt) was that it shed important light on the nature of the relationship between the appellant and the person referred to as Wiz Khalifa, and supported the inference that the appellant's involvement in the latter's criminal activities was such that the appellant must have known that those activities related to drug dealing.[85]
[85] Respondent's Revised Submissions [15]. Appeal ts 54.
While it is not immediately apparent from the address, I accept that the prosecutor's reference to the evidence of flight in closing (reproduced at [57] above) is capable of being understood in this way,[86] particularly in the context of the prosecutor's closing address read as a whole, which did emphasise the apparent closeness of the relationship between the appellant and Wiz Khalifa.[87]
[86] See e.g. the references such as 'who does he go to?'; 'Is that something you would expect Mr Wiz Khalifa to do for Mr Rajakovic?'.
[87] Ts 3-5, 7-8.
I am satisfied that the evidence of flight was capable of supporting the prosecution case in this way and, for that reason, was relevant and admissible (independently of whether it was evidence of a consciousness of guilt). The nature of the relationship between the appellant and Wiz Khalifa was relevant at trial, because the closer that their relationship was, the more likely it was that the appellant was involved in drug dealing with Wiz Khalifa. In that context, the fact that the appellant had turned to Wiz Khalifa for assistance when he absconded on bail was reasonably capable of showing a close connection between them.
The relevance of the evidence of the appellant's failure to comply with the Data Access Orders and his disposal of his mobile telephone when he was arrested is not as clear. Nevertheless, on balance, I am satisfied that that evidence was at least capable of bearing upon the nature of relationship between the appellant and Wiz Khalifa, who, the evidence revealed, communicated via their mobile telephones. In those circumstances, the appellant's conduct in relation to the telephones was capable of supporting an inference that he wished to hide that relationship.
For these reasons, I would not uphold ground 1 of the amended grounds of appeal. The post-offence conduct was relevant, independently of its being evidence of consciousness of guilt. The circumstances did not require the learned trial judge to exclude consideration of the post-offence conduct from the jury's consideration.
Nevertheless, accepting that the post-offence conduct was relevant and admissible on the basis that it shed light on the relationship between the appellant and Wiz Khalifa, in my view, it was necessary in the present case for there to be a clear direction as to the use to which the evidence could be put by the jury (and the use to which it could not be put).
In particular, in my view, there was a substantial prospect that, in the absence of a direction to the contrary, the jury might readily reason that the post-offence conduct, including the evidence of flight, demonstrated a consciousness of guilt on the part of the appellant. More specifically, the jury might reason that the failure to comply with the Data Access Orders demonstrated a consciousness that the contents of the mobile device would reveal evidence of drug dealing.
I reach this conclusion for two reasons.
First, in relation to the evidence of flight, the prosecutor had expressly opened the case on the basis that the jury could infer from that evidence that the appellant 'knew that he was guilty of these offences'. The jury were therefore invited, at the commencement of the trial, to engage in a process of reasoning to the effect that the appellant's flight was evidence of the consciousness of his guilt of the offences charged. At no time after that point in the trial were the jury instructed that they should not engage in such reasoning.
As I will come to later, the learned trial judge's instruction, reproduced at [62] above, was not a direction to that effect.
Secondly, and notwithstanding the prosecutor's concession in the exchange reproduced at [56] above, in my view, the post-offence conduct evidence was objectively capable of constituting evidence of consciousness of guilt. Indeed, in my view, the appellant's post-offence conduct provided a potentially compelling basis for the drawing of such an inference.
In the absence of any warning as to the risk of doing so, in my view there would be a natural tendency for the jury to conclude that the appellant absconded while on bail because he knew he was guilty of the offences charged,[88] notwithstanding that there might be other explanations for his having done so. Certainly, in my view, the tendency to use the evidence of flight in this way would arise more naturally than to use it in the manner suggested by the respondent on appeal (i.e. as evidence of the appellant and Wiz Khalifa's relationship).
[88] Evans [99] (Buss P, Mitchell & Beech JJA). See Broadhurt v The Queen [1964] AC 441, 457.
Such a tendency was even more likely, in my view, in relation to the post-offence conduct relating to the mobile devices. The State had led evidence as to the use of BlackBerry devices in the course of criminal activity and to the appellant having been arrested with two further mobile phones. The fact that the appellant refused to provide access to those devices (and attempted to dispose of one) provided a compelling basis for an inference that he knew that the contents of the devices would reveal evidence that would incriminate him.
In all of the circumstances, in my view, it would have been open to the post-offence conduct to be left to the jury as evidence of consciousness of guilt. Indeed it is somewhat surprising that, after having led the evidence, the prosecutor did not maintain the State's position that the post‑offence conduct showed a consciousness of guilt.
However, once the prosecution had disavowed the use of such reasoning, by its concession, given the objective likelihood that the jury might engage in it in any event, it was necessary, in my view, that the jury be directed that it could not engage in such reasoning. Such a direction was necessary to avoid a risk of a miscarriage of justice. Put another way, it was necessary for the learned trial judge to make clear the permissible use of the evidence of the post-offence conduct.[89]
[89] Pennington v The State of Western Australia [2013] WASCA 98 (Pennington) [114] (Martin CJ, Buss & Mazza JJA agreeing); Evans [106] (Buss P, Mitchell & Beech JJA).
This point was made in relation to evidence of lies in Pennington:[90]
[A] miscarriage of justice will only arise where there is a reasonable possibility that the failure to direct the jury as to the appropriate use made of the lies alleged to have been told by the accused may have affected the verdict by giving rise to a reasonable possibility that the jury may have impermissibly reasoned that the lies were probative of guilt without being directed to the conditions which must be met before that process of reasoning can be engaged.
[90] Pennington [114] (Martin CJ, Buss & Mazza JJA agreeing); Evans [106] (Buss P, Mitchell & Beech JJA).
In Smart v State of Tasmania,[91] the alleged post-offence conduct was that the appellant had disposed of shoes he had been wearing, upon which there was evidence of blood. The evidence was not relied upon as consciousness of guilt (and so no Edwards direction was required). The Court of Criminal Appeal in that case added:[92]
In this sort of situation, a jury should be given a direction as to the limited use that they may make of evidence of post-offence conduct. That is because there is a risk that the evidence will be misused. The jury should have been directed that, if they were satisfied that the appellant had disposed of his shoes, they could take that conduct into account in determining whether he had participated in violence, in a general sense, but not for the purpose of deciding whether he had participated in any particular crime of violence. Such a direction would have been consistent with the views expressed by the Victorian Court of Appeal in R v Ciantar (above) at [74]–[104].
[91] Smart v State of Tasmania [2013] TASCCA 15 (Smart).
[92] Smart [93] (Blow CJ, Wood & Pearce JJ).
Similarly, in the circumstances of the present case, the State having disavowed (belatedly) reliance on consciousness of guilt, it was necessary to direct the jury both as to the use to which the evidence of the post-offence conduct could be put and the use to which it could not be put.
That is, it was necessary to direct the jury that the only purpose for which the post‑offence conduct could be used was as evidence of the nature of the relationship between the appellant and Wiz Khalifa. Conversely, it was necessary to direct the jury that it could not reason that the appellant's post‑offence conduct demonstrated a consciousness of guilt on the part of the appellant.
Regrettably, in my view, the learned trial judge's directions in relation to the post-offence conduct evidence (reproduced at [62] above) did not guard against the possibility of such reasoning. To the contrary, in my view, in the circumstances there was a real and perceptible risk that the jury in the present case may have impermissibly reasoned that the post-offence conduct indicated a consciousness of guilt.
First, and most significantly, the directions did not counteract the potential continuing effect of the prosecutor's statement in opening that the jury could infer from the evidence of flight that the appellant 'knew that he was guilty'. Given the natural tendency to engage in such reasoning in any event, a jury would, in my view, reasonably conclude in the absence of reference to it that such reasoning was permissible.
Secondly, the learned trial judge's statement that 'the State says to you that this evidence by itself doesn't prove that the accused is guilty and it's not presented on that basis' does not amount to such a direction. Of course, it was correct to say that the evidence 'by itself' was not presented as proof of guilt. That was the case, however, with all of the evidence led at the trial; being a circumstantial case, no single piece of evidence was presented as individually proving the State's case.
Indeed, his Honour continued in this vein; namely that the State presented the post-offence conduct 'on the basis that it's just one other of their circumstantial case, which when added with other circumstances, can lead you to be satisfied beyond reasonable doubt, the only reasonable inference to draw, is the guilt of the accused'. That direction, however, does not identify how, or in what way, the post-offence conduct was said to add to the other circumstances.
Certainly, the direction does not identify the permissible use identified by the State on appeal (i.e. as evidence of the appellant and Wiz Khalifa's relationship). It simply identifies the evidence as a 'circumstance'. Referring to the evidence in this way can just as easily be understood as a reference to the suggestion that the appellant 'knew that he was guilty'.
This is reinforced by the fact that his Honour then referred to defence counsel's submission as to other reasons for the appellant absconding while on bail (he was under stress, he was frightened etc). Reference to those matters invited attention to the question why the appellant absconded, rather than what his conduct said about his relationship with Wiz Khalifa. That is a question one might expect to address in the context of a suggestion that the reason for the appellant's flight was a consciousness of guilt. Put another way, an invitation to consider why the appellant absconded, calls attention to the very kind of issues that might arise from an Edwards direction, without in fact giving an Edwards direction.
Finally, these matters were left to the jury as part of a summary of the respective parties' cases. They were not directions from the learned trial judge, carrying the authority of his office, as to the use to which the evidence of post-offence conduct could be put and, more importantly, the use to which it could not be put.
For these reasons, in my view, the absence of a warning to guard against the jury engaging in impermissible reasoning without being directed to the conditions which must be met before that process of reasoning can be engaged, occasioned a miscarriage of justice in the present case.
In so concluding, I am conscious that the appellant's counsel did not apply for any further direction or re-direction before the learned trial judge. That is most regrettable and, indeed, the learned trial judge having raised the issue with counsel at trial was not greatly assisted in this regard (see [102] to [103] above). Nevertheless, for the reasons I have given, in my view it is 'reasonably possible' that the failure to direct the jury as to the permissible and impermissible uses of the post-offence conduct 'may have affected the verdict'.[93]
[93] Dhanhoa [38] (McHugh & Gummow JJ).
I would therefore uphold ground 2. As noted above, the State seeks to have this Court apply the proviso in s 30(4) of the Criminal Appeals Act2004. Before considering the proviso, it is appropriate to deal, first, with grounds 3 and 4.
Grounds 3 and 4 - DNA Evidence
Grounds 3 and 4 both depend upon evidence not adduced at trial, namely an expert report prepared Ms Jane Taupin, a forensic scientist. The appellant, accordingly, seeks leave to admit the evidence of Ms Taupin pursuant to s 40(1)(e) of the Criminal Appeals Act 2004.
Before addressing grounds 3 and 4, it is necessary to identify the nature of the additional evidence sought to be adduced.
The Additional Evidence of Ms Taupin
Ms Taupin holds a Bachelor of Science (Hons), a Master of Arts (Criminology) and a Postgraduate Diploma in Criminology, all from the University of Melbourne. She has practised as a forensic scientist since 1986, in both Australia and the United Kingdom. Her practice has included reporting on DNA evidence in criminal cases in Australia since 1999 and she has published on the topic of DNA evidence, including in relation to trace evidence transfer.
Ms Taupin prepared a written report in relation to the appellant dated 1 April 2019. The respondent did not seek to cross-examine Ms Taupin.
For the purposes of her report Ms Taupin was provided with the transcript of the evidence of Detective Sergeant Knight, Senior Constable Potter and Ms Chin from the appellant's trial together with video recordings of the searches conducted at the bushland tendered in evidence.
The report consists of observations made by Ms Taupin in relation to the actions of Detective Sergeant Knight, together with a discussion of various issues concerning the DNA analysis and the possibility of secondary transfer.
Ms Taupin, for example, reported:[94]
D/Sgt John KNIGHT was not wearing any personal protection equipment suitable for subsequent DNA analysis from exhibits at the bush land scene, apart from gloves (not double gloving). He was wearing a long sleeved and collared zip-front top, dark jeans, casual laced shoes, dangling lanyard with a card identification, watch and utility belt holding equipment. These items all provided a means for transfer of DNA from the arrest and subsequent conveyance of the accused. They also provide a means for transfer of DNA between exhibits and other items at the scene.
…
It could be observed from the video recordings that D/Sgt John KNIGHT sometimes wore gloves to write on the exhibit log book straight after exhibit seizure and sometimes did not. The exhibit log book could thus be a reservoir of DNA from multiple events. Exhibit bags also touched his upper and lower garments.
A ditch was observed in the video recording containing a long plastic bag that was removed (site 4). A single glove was lying on the ground adjacent.
Other exhibits were then removed from another location in the bush. Two pens were clipped onto the lanyard of D/Sgt KNIGHT. The exhibit log book was observed resting on his trousers. The pen used to write was placed in his mouth. His gloved hand put his hand in his left pocket of his top and took out another pen to write on the outside of the clip sealed plastic bag. A short time later his bare hand was put in the left pocket again and took out the pen to write on another plastic bag; the pen was then thrown on the ground. His bare hands then touched his trousers. During the tagging of one of the bags it was pulled tight by the mouth of D/Sgt KNIGHT.
At site 4 the long plastic bag was punctured open by a pen by D/Sgt John KNIGHT, retrieved from the lanyard hanging around his neck. A pen is not a suitable, clean implement to open a plastic bag. D/Sgt KNIGHT was wearing gloves; however, both the pen and gloves may retain and transfer DNA to other objects.
[94] Affidavit of Terence Kimberley Dobson made on 31 May 2019, Annexure TKD3, at page 19-21.
The report goes on to critique three aspects of Ms Chin's evidence under the heading 'DNA Evidence Analysis and Interpretation':[95]
(a)Ms Taupin observes that over 2 dozen samples were analysed for DNA and that the majority could not produce a statistical evaluation. She notes that one result was a single source female DNA and that it did not come from the appellant's partner;
(b)Ms Taupin observes that side 1 of the towel produced a mixed DNA profile that had major components corresponding to the appellant. She states that Ms Chin's evidence that it was greater than 100 billion times more likely that the appellant was the contributor of DNA than from an unknown source was incorrect on the basis that such a statement 'transposed the conditional'. Ms Taupin's report does not however proffer her own probability analysis, or otherwise contest the identification of the DNA sample as corresponding to the appellant.
(c)Ms Taupin critiques Ms Chin's evidence that 'gloves, being a smooth surface, may not be a good - what we call a transfer material' (see [71] above). In that regard Ms Taupin says:[96]
Trace DNA can be transferred between multiple objects and disposable gloves can act as an efficient transfer vector (Fonnelop et. al., 2015). A Victoria Police Forensic Services Department study demonstrated that DNA material can be transferred from exhibit to exhibit by scissors, forceps and gloves (Szkuta et. al., 2015). Gloves were a highly efficient transfer vector. These instruments pose a significant contamination risk if not DNA free before contact is made with the targeted sample during exhibit examination. The reuse of instruments including gloves and further contact with other areas of an exhibit could potentially relocate DNA, which could negatively affect the interpretation of relevant activities. The potential of intra-exhibit transfer is greater with trace DNA samples as they are not visible - thus increasing the probability of accidental contact during examination.
Although disposable clothing and gloves prevent the investigator from contaminating the crime scene there is still the potential for the investigator to act as an unwitting vector of DNA within the crime scene itself.
Gloves need to be changed frequently, not only between items but including between different areas of the same items especially when sampling for DNA analysis. Cleaning of gloves before use and wearing multiple layers of gloves has been recommended (Margiotta et. Al., 2015; Szkuta et. al., 2015) to avoid skin exposure during the changing of gloves.
[95] Affidavit of Terence Kimberley Dobson made on 31 May 2019, Annexure TKD3, at pages 22-23.
[96] Affidavit of Terence Kimberley Dobson made on 31 May 2019, Annexure TKD3, at pages 22-23.
The report then goes on to discuss, in some detail, issues surrounding trace DNA transfer, by either direct transfer or secondary transfer. That discussion is general in nature and not specific to the evidence concerning the appellant. It is consistent with the evidence of Ms Chin to the effect that there are multiple variables that affect any transfer. Ms Taupin also discusses, in general terms, issues of quality control for the mitigation of possible contamination and inadvertent transfer of DNA.
Ms Taupin's report concludes with a statement that in her opinion the police collection of exhibits failed to reach a minimum standard, and much less 'best practice' required for subsequent DNA analysis. She summarises the issues as follows:[97]
[97] Affidavit of Terence Kimberley Dobson made on 31 May 2019, Annexure TKD3, at page 26.
The following are a summary of the issues that I have discussed in this opinion:
9.1Officer who arrested accused was the exhibits officer at the crime scene on the same day; contradicts best practice
9.2Accused conveyed to crime scene; contradicts best practice
9.3Crime scene officers not wearing appropriate personal protection equipment for subsequent DNA analysis
9.4Significant lack of observance or awareness by officers regarding DNA contamination mitigation procedures
9.5Potential for DNA transfer and thus contamination observed in multiple instances
9.6Clarity required regarding secure sealing of the towel in an exhibit bag
9.7Clarity required regarding the nature of the towel, for instance the colour
9.8Mixture DNA profiles denoted for many samples (up to 5 or more) and thus at least two unknown contributors postulated for some DNA detected
9.9Gloves are an efficient transfer vector for DNA
9.10Smooth plastic can retain DNA deposits; the unknown single source DNA obtained from the many items examined was from a plastic bag
9.11The manner or time in which any DNA was deposited could not be determined
9.12It is not possible to determine whether any of the DNA reported was deposited through direct or indirect transfer
9.13DNA profiles can now be obtained from a few cells; a person sheds hundreds of thousands of skin cells per day.
9.14A reservoir of DNA from multiple deposits of the occupants may exist in home, social or work environments
9.15Transfer and contamination issues need to be considered on collection, particularly when DNA cannot be sourced to a particular biological material
9.16Statistical explanation inappropriate including transposition of the conditional; it is the probability of the evidence under different scenarios, not the probability of the scenarios.
Turning then to grounds 3 and 4.
Grounds 3 and 4 - Disposition
Ground 3 invokes s 30(3)(a) of the Criminal Appeals Act2004, namely that the verdicts of guilty on counts 2 to 7 should be set aside because, having regard to the new evidence of Ms Taupin, they are unreasonable or cannot be supported.
This ground is misconceived as a matter of law. Section 30(3)(a) is concerned with the effect of the evidence at trial and whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[98] It is not concerned with the effect of additional evidence not led at trial. Whether this Court must allow an appeal on the basis of additional evidence, not led at trial, depends upon whether that evidence establishes that there has been a miscarriage of justice, within the meaning of s 30(3)(c) of the Criminal Appeals Act2004.
[98] Krencej v The State of Western Australia [2019] WASCA 82 [28], [31] (Mazza, Mitchell & Beech JJA).
The distinction between the two concepts was succinctly explained by Mitchell JA in Ardrey v The State of Western Australia:[99]
Proposed ground 2 elides two concepts which are distinctly identified in s 30(3) of the Criminal Appeals Act 2004 (WA). The first is whether the court is of the opinion that the verdicts of guilty should be set aside because, having regard to the evidence, the verdicts are unreasonable or cannot be supported (s 30(3)(a)). This requires the court to consider the whole of the evidence led at trial and determine whether the trial record left it open to the jury to be satisfied of guilt beyond reasonable doubt. The second is whether a miscarriage of justice was occasioned by the absence of fresh evidence or new evidence (s 30(3)(c)). Where evidence is properly characterised as fresh, a miscarriage of justice will be established where there is a significant possibility that, on the basis of all relevant evidence, the jury would have acquitted the accused. Where evidence is properly characterised as new, a miscarriage will arise if the evidence establishes the accused to be innocent or raises such a doubt about his or her guilt that the appellate court is satisfied he or she should not have been convicted.
[99] Ardrey v The State of Western Australia [2016] WASCA 154; (2016) 261 A Crim R 251 (Ardrey) [156] (Mitchell JA), see also [145] (Mazza JA).
Consistent with this approach, it is appropriate to consider the application to adduce Ms Taupin's evidence in the context of ground 4, namely whether a miscarriage of justice was occasioned by the absence of that evidence.
In that regard, it is well settled that, in exercising its discretion whether to admit additional evidence, this Court is ultimately concerned with whether it is just, in all of the circumstances, to admit the further evidence on appeal.[100] In that context, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence remain relevant to the exercise of the discretion and to the determination of whether there was a miscarriage of justice, although the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles.
[100] Impicciatore vThe State of Western Australia [2020] WASCA 33 [69]-[70] (Quinlan CJ), [218]-[232] (Buss P & Mazza JA).
In that context, as is reflected in the above passage from Mitchell JA's judgment in Ardrey, where an accused has been convicted, an appellate court will not allow an appeal on the basis of new (as distinct from fresh) evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.
There can be no doubt that the evidence of Ms Taupin is not fresh evidence. All of the matters dealt with in Ms Taupin's report could, with reasonable diligence, have been adduced at trial. Indeed, the central thesis of the report, namely that the appellant's DNA on the purple towel could have been the result of secondary transfer, was the subject of evidence at the trial, adduced by defence counsel in cross-examination (see [70]-[74] above).
In this regard, while Ms Taupin expressed a view contrary to that of Ms Chin as to the efficiency of plastic gloves as a transfer vector, Ms Taupin's report was otherwise not, in substance, different from the evidence given by Ms Chin at trial in relation to the issue of secondary transfer. Both described the mechanism and variety of factors giving rise to secondary transfer, both confirmed that secondary transfer was possible, and neither expressed a view as to the likelihood of that having occurred in the present case.
Of course, Ms Taupin's report sets out these issues in more detail, and in a manner which is critical of the investigating officers. Ultimately, however, as a matter of substance her evidence was consistent with that of Ms Chin.
To the extent that Ms Taupin's report challenges aspects of Ms Chin's evidence (see [142(b) and (c)] above), those are matters going to the weight of Ms Chin's evidence and could clearly have been the subject of evidence from the appellant at trial.
In my view, this is a case in which the interests of justice are such that the evidence of Ms Taupin should only be admitted if it establishes that the appellant is innocent or the raises such a doubt that the Court is satisfied that the appellant should not have been convicted. Ms Taupin's evidence is so closely related to the evidence that was in fact adduced at trial, and so clearly could have been adduced at trial, that the more stringent approach traditionally applied to 'new' evidence is appropriate.
In that regard, the evidence of Ms Taupin plainly does not establish that the appellant was innocent. Ms Taupin's evidence is not itself exculpatory and the appellant did not contend otherwise. At the hearing of the appeal, the appellant put the case on the basis that the evidence demonstrated that the appellant 'should not have been convicted'.[101]
[101] Appeal ts 22.
In my view, for the reasons that follow, the evidence of Ms Taupin does not raise such a doubt that I am satisfied that the appellant should not have been convicted.
First, as I have already said, Ms Taupin's central thesis, namely that the appellant's DNA on the purple towel could have been the result of secondary transfer, was, in substance, given by Ms Chin at trial. The potential for secondary transfer was a matter squarely raised for consideration by the jury.
Secondly, the DNA evidence from the towel was only ever one circumstance, among many, adduced to support the inference based on the whole of the evidence that the appellant was guilty of the offences, and in particular that he had knowledge of the various items alleged to be in his possession. The DNA evidence was not left to the jury on the basis that it was, by itself, capable of establishing the appellant's guilt. The State case, in relation to each of the items in the bushland, was truly one in which the various circumstances were 'strands in a cable'. The learned trial judge clearly told the jury that the DNA evidence, taken by itself, could not prove the appellant was guilty of an offence.[102]
[102] Ts 684.
Thirdly, and relatedly, the evidence was not an essential link in a chain necessary to establish guilt. There was, as I will come to next, ample other evidence capable of supporting an inference of guilt beyond reasonable doubt. As the DNA evidence was not an indispensable link in a chain of reasoning towards guilt, it was not necessary for the jury to be satisfied beyond reasonable doubt that the appellant's DNA in the towel came from a direct transfer, before determining whether it was satisfied beyond reasonable doubt that the appellant was guilty of any of the charges.[103]
[103] Shepherd v The Queen (1990) 170 CLR 573, 576 (Mason CJ), 581 (Dawson J), Austic v The State of Western Australia [2010] WASCA 110 [2]-[4] (McLure P); Wark v The State of Western Australia [2020] WASCA 19 [615]-[616] (Beech JA, Mazza JA agreeing).
Nevertheless, the learned trial judge, quite properly, did instruct the jury that the DNA evidence would only be of assistance to them if they were satisfied that it was a direct transfer of DNA.[104] His Honour did so in the context of having:
(a)reminded the jury of Ms Chin's evidence as to the possibility that the DNA may have been deposited by way of secondary transfer; and
(b)reminded the jury of defence counsel's submission that the video recording of the seizure of exhibits needed to be carefully considered and referred to features of that evidence to which counsel had referred and his submission that the DNA got on the towel by secondary transfer.[105]
[104] Ts 685.
[105] Ts 684-685.
Finally, even if the jury had been left with a reasonable doubt as to the provenance of the DNA on the towel, there was ample other evidence capable of supporting the State's circumstantial case that the appellant was knowingly involved in drug-dealing and had knowledge of the items the subject of the charges. That evidence included:
(a)the furtive nature and contents of the appellant's mobile communications, as revealed from Mr Chan's BlackBerry;
(b)the physical proximity of the bushland to the appellant's premises;
(c)observations of the appellant entering the bushland, including on 6 and 8 June 2016;
(d)the presence of the distinctive blue barrels at both the bushland (containing money and drugs) and at the appellant's premises at Parmelia;
(e)the presence of other items common to both the bushland and the appellant's premises or vehicle (e.g. black garbage bags, items associated with vacuum-sealing); and
(f)the relationship between the appellant and Wiz Khalifa, including the permissible uses of the post-offence conduct.
Of course, each of these circumstances, individually, would no doubt have carried varying weight and could not, in isolation, establish the appellant's guilt to the required standard. Nevertheless, it was a matter for the jury to determine what weight they should be given when taken in combination. Moreover, even if Ms Taupin's evidence had been adduced at trial (subject of course to the effect of cross-examination) it would not, in my view, have rendered the DNA evidence inadmissible. The DNA evidence would have remained evidence relevant to the overall assessment of the jury of the combined effect of all of the evidence.
In my view, even apart from the DNA evidence, the State's circumstantial case was a strong one and the evidence in support of that case was eminently capable of sustaining findings of guilt beyond reasonable doubt. In those circumstances, the new evidence from Ms Taupin does not satisfy me that the appellant should not have convicted.
For those reasons, I am not satisfied that it is just, in all of the circumstances, to admit the evidence Ms Taupin on the appeal.
I would therefore refuse leave to adduce the additional evidence and would refuse leave to appeal in relation to grounds 3 and 4.
Application of the Proviso
As I have concluded that ground 2 should be upheld, is it necessary to consider the State's submission that the appeal should, nevertheless, be dismissed on the basis that no substantial miscarriage of justice has occurred (s 30(4) of the Criminal Appeals Act2004 (WA)).
That issue is ultimately to be resolved, in a case such as the present, by reference to whether this Court can be satisfied that the appellant's guilt has been proved beyond reasonable doubt on the admissible evidence.[106]
[106] Kalbasi v State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 (Kalbasi) [13]-[15] (Kiefel CJ, Bell, Keane & Gordon JJ); OKSv State of Western Australia [2019] HCA 10; (2019) 265 CLR 268 (OKS) [31] (Bell, Keane, Nettle & Gordon JJ), [38] (Edelman J).
Notwithstanding that the State's case was, in my view, a strong one, it is not possible to conclude, in the present case, that no substantial miscarriage of justice actually occurred as a consequence of the failure to direct the jury as to the permissible and impermissible uses of the appellant's post-offence conduct.
I have reached this conclusion for the following reasons.
The acceptance of the State's circumstantial case in the present case necessarily depended upon the rejection of the appellant's sworn evidence that he had no knowledge of the various items alleged to have been in his possession. Of course, as the learned trial judge properly directed the jury (see [63]-[64] above), rejection of the appellant's evidence, while necessary for the jury to reach a finding of guilt on any of the charges, was not a sufficient basis for such a finding. It remained necessary for the State to establish the offences beyond reasonable doubt.
Nevertheless, it remains correct to say that the case against the appellant, at least in part, turned on an issue of contested credibility.[107] The assessment of the appellant's credibility was, in turn, a matter that could only be assessed by reference to the relative strength of the other evidence. For these reasons, in my view the natural limitations of proceeding on the record preclude a conclusion that guilt was proved beyond reasonable doubt.[108]
[107] Kalbasi [15] (Kiefel CJ, Bell, Keane & Gordon JJ); Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449 (Castle).
[108] Castle [68] (Kiefel, Bell, Keane & Nettle JJ); OKS [31] (Bell, Keane, Nettle & Gordon JJ).
While the application of the proviso does not depend upon this Court's estimate of the verdict of a hypothetical jury,[109] in a case such as the present the concepts of the 'lost chance of acquittal' or 'inevitability of conviction' retain their utility.[110] In that regard, as I have concluded above, there was substantial prospect that, in the absence of a direction to the contrary, the jury might reason that the post-offence conduct, including the evidence of flight, demonstrated a consciousness of guilt on the part of the appellant. In those circumstances, the State case was not so strong that an appropriately instructed jury would inevitably have convicted the appellant.
[109] Kalbasi [12] (Kiefel CJ, Bell, Keane & Gordon JJ).
[110] Kalbasi [15] (Kiefel CJ, Bell, Keane & Gordon JJ).
Put another way, it cannot be assumed that the failure to direct the jury as to the permissible and impermissible uses of the appellant's post-offence conduct had no effect on the jury's verdict. Indeed, as I have earlier concluded, given the nature of the post-offence conduct, there was a reasonable possibility that that it did have an effect, to the appellant's detriment.[111]
[111] See Johnstone v The State of Western Australia [2019] WASCA 67 [47] (Mazza, Beech & Pritchard JJA).
Accordingly, I would not dismiss the appeal on the basis that no substantial miscarriage of justice has occurred.
Conclusion
In light of the foregoing, the appeal should be allowed and the appellant's convictions on counts 1 to 7 be quashed and the declaration that the appellant is a drug trafficker on counts 1, 2, 6 and 7 be set aside.
There are no circumstances that would render it unjust for the appellant to be tried again. There should be an order for a new trial on counts 1 to 7.
I would make the following orders:
1.The application for leave to adduce additional evidence is refused.
2.Leave to appeal on grounds 3 and 4 is refused.
3.Appeal allowed.
4.The convictions on counts 1 to 7 are quashed.
5.The drug trafficker declaration made in respect of counts 1, 2, 6 and 7 is set aside.
6.There be a new trial on counts 1 to 7.
BUSS P:
The appellant appeals against conviction.
The appellant was charged on indictment with eight counts.
Count 1 alleged that on 6 February 2016, at Rockingham, the appellant supplied a prohibited drug, namely methylamphetamine, to another.
Count 2 alleged that on 8 June 2016, at Kwinana, the appellant had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another.
Count 3 alleged that on 8 June 2016, at Kwinana, the appellant was in possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to be unlawfully obtained.
Count 4 alleged that on 8 June 2016, at Kwinana, the appellant, not being a person exempted under the Firearms Act 1973 (WA), possessed a firearm, namely a Stevens .243 Winchester Bolt‑Action Rifle, whilst not being the holder of a firearms licence or permit entitling him to do so.
Count 5 alleged on that 8 June 2016, at Kwinana, the appellant not being a person exempted under the Firearms Act, possessed ammunition, whilst not being the holder of a firearms licence or permit entitling him to do so.
Count 6 alleged that on 21 June 2016, at Kwinana, the appellant had in his possession a prohibited drug, namely MDMA, with intent to sell or supply it to another.
Count 7 alleged that on 21 June 2016, at Kwinana, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
Count 8 alleged that between 29 June 2016 and 2 July 2016, at Perth, the appellant failed to obey a data access order dated 24 June 2016.
Initially, the appellant pleaded not guilty to each charge.
However, at the commencement of his trial, the appellant entered a plea of guilty on count 8.
On 20 June 2018, at the completion of the trial before Bowden DCJ and a jury, the jury returned verdicts of guilty on each of counts 1, 2, 3, 4, 5, 6 and 7.
His Honour recorded judgments of conviction on each of the counts in the indictment.
The grounds of appeal
The appellant relies upon four grounds of appeal.
The grounds, as amended, read:
1.The Learned Trial Judge's failure to exclude from the jury's consideration evidence concerning the Appellant's:
1.1Absconding on bail;
1.2Failure to obey the Data Access Orders dated 24 June 2016, 6 January 2017 and 15 December 2017;
1.3Disposal of a mobile phone at the time of his arrest on 15 November 2017;
gave rise to a substantial miscarriage of justice.
PARTICULARS
a.The evidence was not probative of any issues before the jury;
b.The evidence was incapable of any logical application as part of the circumstantial case against the Appellant in circumstances where it was ultimately not relied upon as indicating a consciousness of guilt;
c.The evidence was highly prejudicial.
2.Further or in the alternative the learned sentencing judge, failed to direct the jury adequately in relation to the evidence referred to in Ground 1, thereby giving rise to a miscarriage of justice.
3.The verdicts of guilty on which the convictions on Counts 2, 3, 4, 5, 6 & 7 are based should be set aside because, having regard to the new evidence of Jane Taupin, those verdicts are unreasonable and cannot be supported.
PARTICULARS
A.The finding of the DNA of the Appellant on a purple towel, in which a firearm was wrapped, at the bushland crime scene was important, if not crucial, evidence that the Appellant, on the State case, was guilty of the relevant counts on the indictment.
B.The validity of the State evidence to the effect that the Appellant's DNA was on the towel prior to its discovery at the bushland crime scene, is now subject to considerable doubt as a result of the new evidence.
C.The new evidence reveals that the police collection of exhibits failed to reach a minimum standard to avoid risk of DNA contamination and failed to reach the "best practice" required for subsequent DNA analysis.
D.The new evidence concludes that it is not possible to determine whether any of the DNA reported was deposited through direct or indirect transfer, thus casting doubt on the state theory that the Appellant's DNA was on the purple towel prior to its discovery.
4.Further, or in the alternative to Ground 3, there has been a miscarriage of justice requiring the verdicts of guilty on Counts 2, 3, 4, 5, 6 & 7 to be set aside.
PARTICULARS
The Appellant relies upon the Particulars outlined in support of Ground [3].
On 4 July 2019, Mazza JA granted leave to appeal on grounds 1 and 2 and referred the application for leave to appeal on ground 3 to the hearing of the appeal. On 15 August 2019, his Honour referred the application for leave to appeal on ground 4 to the hearing of the appeal.
The appellant's application for leave to adduce additional evidence in the appeal
By an application in the appeal filed on 27 June 2019, the appellant applied for leave to adduce additional evidence in the appeal, the relevant evidence being a report dated 1 April 2019 from Ms Jane Taupin, a forensic scientist. On 12 August 2019, Mazza JA referred the application for leave to adduce the additional evidence to the hearing of the appeal.
The merits of grounds 1 and 2
I agree with Mazza JA, for the reasons he gives, that ground 1 has not been made out.
I also agree with Mazza JA, for the reasons he gives, that ground 2 has been made out.
The merits of grounds 3 and 4
As Mazza JA notes in his reasons, the principles applicable to an application for leave to adduce additional evidence under s 40(1)(e) of the Criminal Appeals Act 2004 (WA) are well established. See Clarke v The State of Western Australia;[112] Huggins v The State of Western Australia;[113] and Impicciatore v The State of Western Australia.[114]
[112] Clarke v The State of Western Australia [2018] WASCA 14 [231] ‑ [246].
[113] Huggins v The State of Western Australia [2018] WASCA 61 [384] ‑ [397].
[114] Impicciatore v The State of Western Australia [2020] WASCA 33 [218] ‑ [232].
The proposed evidence in Ms Taupin's report is new as distinct from fresh evidence. I am of the opinion, for the reasons given by Quinlan CJ, that Ms Taupin's proposed evidence does not establish that the appellant is innocent or raise such a doubt that I am satisfied that the appellant should not have been convicted. The interests of justice do not require that Ms Taupin's proposed evidence be admitted in the appeal.
Accordingly, at least on that basis, grounds 3 and 4 cannot succeed. They did not have a reasonable prospect of success. Leave to appeal on grounds 3 and 4 should be refused.
The appropriate disposition of the appeal
As I have mentioned, ground 2 has been made out. A miscarriage of justice (within s 30(3)(c) of the Criminal Appeals Act) has occurred. I agree with Mazza JA, for the reasons he gives, that this court cannot be satisfied that the trial judge's misdirection had no effect upon the jury's verdict. I am not persuaded that no substantial miscarriage of justice has occurred. The proviso in s 30(4) of the Criminal Appeals Act is unable to be engaged.
The appeal should be allowed. The judgments of conviction entered by the trial judge in relation to counts 1 to 7 must be set aside.
I consider that, despite the miscarriage of justice which has occurred, the State had at the trial and continues to have a strong circumstantial case against the appellant. In my opinion, having made my own independent assessment of the sufficiency and quality of the evidence given at the trial, it would be open to a reasonable and properly directed jury to be satisfied beyond reasonable doubt, upon the whole of the evidence, that the appellant was guilty of counts 1 to 7.
There are no circumstances that would render it unjust to the appellant to make him stand trial again.
Accordingly, a new trial should be had.
I agree with the orders proposed by Quinlan CJ at [179] of his reasons.
MAZZA JA:
I have had the considerable advantage of reading the draft reasons of Quinlan CJ.
The facts and circumstances are set out in his reasons. Except to the extent necessary to explain what follows, I will not repeat them.
I, too, would allow the appeal. I would make the formal orders set out at [179].
Grounds 1 and 2
These grounds may be considered together.
These grounds concern evidence led by the State of what has conveniently been described as the appellant's post‑offence conduct. This conduct comprised evidence that the appellant:
(a)absconded on bail, including by not attending for his trial in the District Court listed to commence in September 2017. Between 1 September 2017 and when he was arrested in Margaret River on 15 November 2017, a driver arranged by the person known at trial as Wiz Khalifa drove the appellant to Victoria, where he stayed for two months in accommodation provided by Wiz Khalifa;
(b)failed to obey data access orders dated 24 June 2016, 6 January 2017 and 15 December 2017; and
(c)at the time of his arrest on 15 November 2017, placed a Samsung mobile telephone in a toilet bowl in an attempt to damage or destroy it.
The State prosecutor, in his opening address,[115] foreshadowed that the State would lead evidence of the appellant's flight between 1 September 2017 and 15 November 2017 and assert that from the evidence the jury should infer 'that [the appellant] knew he was guilty of these offences'; that is, that he absconded from bail out of a consciousness of guilt. The
prosecutor did not refer to the appellant's failure to comply with the data access orders or the disposal of the mobile telephone in the toilet bowl in his opening address. However, it appears that these events were led by the State as evidence of consciousness of guilt.
[115] ts 182.
In my opinion, the post‑offence conduct was relevant and admissible to show a consciousness of guilt on the part of the appellant. It would have been well open for the jury to infer that the appellant absconded on bail and failed to attend his trial because he knew he had committed the alleged offences. Further, he did not comply with the data access orders because, had he done so, it would have revealed incriminating evidence. Similarly, he attempted to dispose of the mobile telephone because it contained incriminating evidence.
It is remarkable then that, at the conclusion of the State's case, the prosecutor changed the State's position and said, in the absence of the jury, that the State would no longer run its case on the basis that the post‑offence conduct showed a consciousness of guilt on the appellant's part.
Once the State had changed its position, in the absence of the jury, two issues arose. First, in the absence of the allegation that the post‑offence conduct showed a consciousness of guilt, what was the relevance of the evidence? The second issue is what directions, if any, were required to deal with the evidence of post‑offence conduct?
At trial, these issues were dealt with as follows. The evidence of post‑offence conduct was left to the jury as simply part of the State's circumstantial case against the appellant. Exactly what work it had to do, in this context, is unclear. His Honour was given no assistance by either counsel as to how he should direct the jury in relation to the evidence. Plainly, having regard to the State's change of position, his Honour could not direct the jury that it could infer a consciousness of guilt on the appellant's part from the post‑offence conduct. His Honour referred to the evidence of the post‑offence conduct in his summary of the parties' cases and said it formed part of the 'circumstances', but gave no specific direction in relation to it.
The real issue raised by ground 1 is whether, in light of the State's change of position, the evidence of the appellant's post‑offence conduct was relevant and therefore admissible.
The appellant submitted that, in light of the State's change of position, the evidence was irrelevant and therefore inadmissible. The State submitted that, despite the State's change of position, the post‑offence conduct was relevant to show the nature and extent of the appellant's relationship with the person known at trial as Wiz Khalifa. The State submitted that the fact that the appellant fled to, and stayed in, Victoria with Wiz Khalifa's assistance showed that their relationship was closer than the appellant claimed. The State also submitted that the appellant did not comply with the data access orders in order to prevent the police from obtaining evidence which showed the close connection between Wiz Khalifa and the appellant. A similar logic was applied to the relevance of the appellant's placing of his mobile telephone into the toilet bowl.
In my opinion, the strength of the relationship between the appellant and Wiz Khalifa was a relevant fact in issue at the appellant's trial. The closer the relationship the appellant had with Wiz Khalifa, the more likely it was that the appellant was involved in drug dealing with him. The fact that the appellant absconded on bail and went to, and stayed in, Victoria with the assistance of Wiz Khalifa, might reasonably be seen by the jury as showing a close connection between the two men. Accordingly, this evidence was relevant and admissible, independently of whether it was evidence of a consciousness of guilt on the part of the appellant.
As to the evidence of the appellant's failure to comply with the data access orders and that he placed his mobile telephone into the toilet bowl when he was arrested on 15 November 2017, evidence was led at trial that the appellant and Wiz Khalifa communicated via their mobile telephones at or around the time of the alleged offences. Given that the appellant went to, and stayed in, Victoria with the assistance of Wiz Khalifa, it could be inferred that the appellant kept in contact by mobile telephone with Wiz Khalifa after his arrest and while he was on the run. This would be further evidence of the appellant's close connection with Wiz Khalifa.
Having regard to all of these circumstances, I am of the opinion that it was open to the jury to infer that the appellant failed to comply with the data access orders and placed his mobile telephone in the toilet bowl to conceal incriminating evidence; in particular, so that law enforcement authorities would not be aware of the appellant's contact with Wiz Khalifa at or around the time of the commission of the offences and up to the time of his arrest in Margaret River.
For these reasons, I have concluded that the post‑offence conduct, apart from it being evidence of consciousness of guilt, was relevant evidence of the closeness of the relationship between the appellant and Wiz Khalifa. The relationship between the appellant and Wiz Khalifa was a matter of importance in the State's case against the appellant. The admission of the evidence did not give rise to a miscarriage of justice. Ground 1 has not been made out.
I now turn to ground 2.
I agree that this ground has been made out. My reasons for arriving at this conclusion may be briefly stated. As Quinlan CJ points out at [85], while the post‑offence conduct was not ultimately relied upon by the State as evidence of consciousness of guilt, it was necessary, having regard to the particular circumstances of the case, for his Honour to direct the jury as to how they may use the evidence and, perhaps more importantly, how they could not use the evidence.
As I have already mentioned, at the outset of the trial the prosecutor told the jury that it could reason from the evidence of flight that the appellant absconded from bail because he knew that he was guilty of the offences. The other post‑offence conduct, namely the failure to comply with the data access orders and the disposal of the mobile telephone in the toilet, also had this capacity. As the Chief Justice points out at [114], at no time was the jury instructed that they should not engage in such reasoning. Moreover, the post‑offence conduct, as the Chief Justice points out at [116], was objectively capable, and was potentially compelling, evidence of consciousness of guilt.
Once the State's case changed so that it no longer relied upon the post‑offence conduct as evidence of consciousness of guilt, the jury needed to be instructed as to the State's change of position and directed that it was impermissible for the jury to follow the chain of reasoning the State had invited it to adopt at the outset of the trial. This was necessary because, if nothing was said, there was a perceptible, if not obvious, risk that the jury would, if left to its own devices, conclude that the appellant absconded while on bail because he knew that he was guilty and that he failed to comply with the data access orders and he attempted to dispose of his mobile telephone in the toilet to conceal incriminating evidence as to drug dealing. As a result of the State's change of position, this chain of reasoning was no longer open.
In the process of explaining to the jury how the post‑offence conduct could not be used, the judge should have directed the jury as to the narrow purpose for which it could be used, namely, to shed light on the nature of the relationship between the appellant and Wiz Khalifa. Unfortunately, his Honour's directions failed to state this. A direction that the post‑offence conduct was 'just one other' circumstance in a circumstantial case did not obviate the risk that the jury would use the evidence as demonstrating a consciousness of guilt on the appellant's part. The jury should have been told in unequivocal terms that the post‑offence conduct was only relevant to the issue of the nature and extent of the relationship between the appellant and Wiz Khalifa and nothing else. The jury should also have been told in unequivocal terms that it could not reason that the post‑offence conduct demonstrated a consciousness of guilt on the part of the appellant. In the particular circumstances of this case, his Honour's failure to give the directions I have mentioned gave rise to a miscarriage of justice.
For the above reasons, ground 2 has been made out.
Contrary to the submissions of the State, I would not apply the proviso, pursuant to s 30(4) of the Criminal Appeals Act 2004 (WA). This is because it cannot be assumed that the misdirection had no effect upon the jury's verdict.[116] The present case is similar to Johnstone v The State of Western Australia[117] in that the absence of a direction designed to preclude an impermissible path of reasoning by the jury left open the possibility that the jury would have journeyed down that impermissible path. In such a circumstance, there is no room for the operation of the proviso. I cannot conclude that no substantial miscarriage of justice has occurred.
[116] OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268 [31].
[117] Johnstone v The State of Western Australia [2019] WASCA 67.
Ground 3
I agree with Quinlan CJ's reasons in respect of ground 3.
Ground 4
The issue to be resolved in ground 4 is whether the appellant has suffered a miscarriage of justice having regard to the evidence of Ms Taupin which was not adduced at trial and which is the subject of an application pursuant to s 40(1)(e) of the Criminal Appeals Act. The evidence the appellant seeks to adduce from Ms Taupin alleges that the manner in which the towel (on which the State alleged DNA highly likely to have come from the appellant was deposited) was handled contradicted best practice and gave rise to the possibilities of contamination and secondary transfer of the appellant's DNA.
The legal principles governing the admission on appeal of additional evidence not adduced at trial have been summarised in a number of recent cases including Clarke v The State of Western Australia;[118] Huggins v The State of Western Australia[119] and Impicciatore v The State of Western Australia.[120] It is unnecessary to repeat what was written in those cases. It is sufficient for present purposes to note that where, as in this case, an appellant seeks to demonstrate a miscarriage of justice based on new (and not fresh) evidence, ordinarily he or she must show that the evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.
[118] Clarke v The State of Western Australia [2018] WASCA 14 [231] ‑ [246].
[119] Huggins v The State of Western Australia [2018] WASCA 61 [384] ‑ [397].
[120] Impicciatore v The State of Western Australia [2020] WASCA 33 [218] ‑ [232].
For the reasons given by the Chief Justice, with which I respectfully agree, Ms Taupin's evidence falls well short of this standard.
Ground 4 has not been made out.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Research Associate to the Honourable Chief Justice Quinlan
10 AUGUST 2021
3
25
3