Roth-Beirne v The State of Western Australia - [2005] WASCA 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ROTHBEIRNE -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 170

CORAM: WHEELER JA
PULLIN JA
MILLER AJA

HEARD: 3 AUGUST 2005

DELIVERED : 7 SEPTEMBER 2005

FILE NO/S: CCA 162 of 2004

BETWEEN: SALLY ROTHBEIRNE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FRENCH DCJ
File No  :ALB 40 of 2003

Catchwords:

Criminal law - Drug offences - Evidence of convictions and imprisonment referred to by accused - Whether prejudicial and whether conviction should be quashed

Evidence - Distinction between "fresh" evidence and "new" evidence - "New" evidence produced - Whether conviction should be quashed

Legislation:

Nil

Result:

Application for extension of time in which to appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr M R Gunning
Respondent: Mr D Dempster

Solicitors:

Applicant: Gunning Young
Respondent: State Director of Public Prosecutions

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

Crofts v The Queen (1996) 186 CLR 427
Lawless v The Queen (1979) 142 CLR 659
MacPherson v The Queen (1981) 147 CLR 512
Mallard v The Queen (2003) 28 WAR 1
Mickelberg v The Queen (2004) 29 WAR 13
Pfennig v The Queen (1995) 182 CLR 461
R v Coman [1953] VLR 581
R v Firth [1938] 3 All ER 783
R v Forster [1955] VLR 253
R v Maher [1955] VLR 256
R v Peckham [1935] All ER 173
R v White (2003) 7 VR 442
Tkacz v The State of Western Australia [2005] WASCA 108
Winning v The Queen [2003] WASCA 245

Case(s) also cited:

Mickelberg v The Queen (1989) 167 CLR 259
Milton v The Queen [2000] WASCA 25
R v Azaddin (1999) 109 A Crim R 474
R v Bohdal (1987) 24 A Crim R 318
R v Button (2002) WAR 382
R v Owen (2001) 123 A Crim R 183
R v Vaitos (1981) 4 A Crim R 238

WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.
PULLIN JA: The applicant seeks an extension of time in which to appeal against conviction. The applicant was convicted on 16 September 2003 in the District Court at Albany of cultivation of cannabis with intent to sell or supply.
The appeal should have been instituted within 21 days from the date of conviction. It was instituted on 6 October 2004. The Court in deciding whether to exercise its discretion to extend time, will consider whether there is a satisfactory explanation for the delay and whether there is merit in the appeal. A delay of 12 months will require a very convincing explanation to sustain the exercise of the Court's discretion.
The application for an extension was also filed on 6 October 2004 supported by an affidavit from the applicant's solicitor which read:
"2.On 20th September 2004, I spoke to the Applicant's father who advised that she wished to appeal against her conviction from twelve months previously. I asked him to fax a copy of the Judge's summing up, which he did on 21st September 2004.
3.I was in fact sent the sentencing comments, so I called him back and advised him that he had provided the wrong material. He then provided me with the transcript of the Judge's summing up on 29th September 2004.
4.Having read the summing up, I advised him that there may be a ground of appeal in relation to prejudicial material which was heard be [sic] the jury including the Applicant's involvement in drugs other than cannabis and the fact that she had previously been to jail. However, I indicated that I would require the transcript of evidence. Mr. Roth‑Beirne has requested the same from the court, but it is expected to be received on or about Friday 8th October 2004.
5.In the meantime, I have been instructed to file the Notice of Appeal. I am seeking an Affidavit of the Applicant in relation to the Extension of Time application."

Shortly before the hearing of the appeal another affidavit was filed partly in support of the application for an extension of time. This revealed that the applicant had been in a motor vehicle accident some years ago which makes it difficult to organise herself, makes impulsive decisions and suffers anxiety. This was revealed in a letter from a Dr Adams who said that these factors were "a major contributing factor in her not appealing her adverse court hearings in the past". A report from a clinical psychologist, a Mr Christman, was to the same effect.

The trial

The indictment read:
"On 13 November 2002 at Torbay [the applicant] cultivated a prohibited plant, namely cannabis, with intent to sell or supply cannabis to another."
To do so is an offence against s 7(1)(a) of the Misuse of Drugs Act.
The prosecution case at trial was that upon a search of the applicant's premises by police, 303 cannabis plants were found growing in the garden. Also found was a large number of clip seal bags and two sets of weighing scales. These were inside the house and inside her motor vehicle. The police also found $3440 in cash in the applicant's wallet which was in her car.
The applicant was interviewed by the police and this was video‑taped. In this interview the applicant said that the plants were not in fact cannabis, but were "degenerate? hempy, long fibre" (AB 103). (Later analysis and examination by experts showed that all 303 plants were cannabis). As to the $3440, the applicant said that she withdrew between $2000 to $3000 from the bank "a week ago" (AB 105) and had been "taking more out" since.
The applicant pleaded not guilty and represented herself at the trial. In the absence of the jury and before the prosecution opened the case, the trial Judge asked the applicant about legal representation. The applicant said that there was "not an appropriate lawyer in Australia" who could represent her (AB 11).
After the prosecution case, her Honour advised the applicant that she was not obliged to give evidence. The applicant chose to do so. She admitted that she grew the plants. She was then asked the following questions by her Honour and the following answers were given:
"Okay. You might want to say - what the prosecution is saying in this case is they're saying that you were growing it not just for yourself to use. They're saying that you were growing it in order or for the purposes of and with the intention of either selling it to somebody else or giving it to somebody else, but it wasn't just for you?‑‑‑It looks that way because there was more than 100, there was a hell of a lot there, but it wasn't. It was purely for my own use. I've been growing it for years and I've done time and I'm not a bloody idiot to make the same mistake again. I wasn't growing it for anyone else.
Was there anything you wanted to say about some of the things that were found there? For example, would you like to say something about the money that was found in your wallet?‑‑‑Yeah, that was taken out of the bank. On 21 October 2002 I withdrew $2900.
Do you have something about that? Is there a bank ‑ ‑ ‑?‑‑‑I went to the bank and it would've cost me $4 a sheet ‑ ‑ ‑
To get a statement, but is that a withdrawal notice or ‑ ‑ ‑?‑‑‑I just rang them up and I've just quoted from them. I'm not parting with my honest money. If I need to go to the bank and get bank accounts to prove it, I will. It's all in the bank accounts.
Why did you take out - how much did you say you took out on 21 October?‑‑‑2900.
2900. What account was that from?‑‑‑It was from my savings.
Is that a Commonwealth savings account?‑‑‑Mm.
Do you know how much that left in your bank account?‑‑‑I'm not sure but on 8 January 2003, that's 8 weeks later, I had $1800 in it.
What did you take out the $2900 for?‑‑‑I've always had a lot of money on me. At the time it was better to have the money on me than in the bank.
You're receiving a pension, is that right?‑‑‑Mm.
Where does that - does that go into your bank?‑‑‑Mm.
Is that where this money comes from, this 2900?‑‑‑Yes. My father had been putting in $100 a week for a few months to help me get by. It's not easy getting back into society when you've just been locked away, so he was helping me." (AB 48 ‑ 49)
The following questions and answers were later put by prosecution counsel and given by the applicant:
"We've heard that you were on a pension at around that time of about $200 a week, that's right? On that amount of money presumably that's how you live and buy food and alcohol and the essentials of life, so to speak?‑‑‑Mm.
This amount of $3400 that the police found, they found in your wallet in the car. Remember that?‑‑‑Bloody thieves.
You said to them that it was safer than in the bank. What do you mean by that, 'Safer than the bank',?---Safer's the wrong word. I've got no problem with carrying a few thousand dollars around with me. I've been doing it for years. It's handy to have the money when the bank's shut and you need to withdraw more.
So what do you mean by 'it's safer than in the bank'?‑‑‑Safer - I used the wrong word when I said safer.
All right. Why did you get it out at that time, ie, 1 week before the search, can you recall?‑‑‑Because it was a nice amount to withdraw. I like holding lots of money.
Okay. So you thought perhaps it was safer in your wallet in the car than it was in the bank?‑‑‑I'd just been to Albany.
Is it a coincidence, Ms Roth‑Beirne, that that cash was in your wallet at the time of the search?‑‑‑Yes. (AB 54)
The prosecution then asked questions about the scales found in the car:
"What about the scales that were in the boot of the car? Can you remember why they were in the boot of the car?‑‑‑I got that money out on 21 October, less than a month before the raid.
Can you remember why your pink scales were in the boot of the car?‑‑‑I have a habit of travelling with scales and bags and maybe even a needle, in the hope that I might be able to buy a hit.
Okay. So rather than ‑ ‑ ‑?‑‑‑I came out of gaol in May this year.
Rather than for selling drugs yourself ‑ ‑ ‑?‑‑‑As if I'd go and load up my car (indistinct)
‑ ‑ ‑ you take scales and bags in case you're going to buy drugs?‑‑‑Yeah.
But haven't you got 303 cannabis plants growing in your backyard?‑‑‑I could get lucky and find someone that does sell a very nice heady, stony ounce. I haven't been that lucky.
Well, could you get lucky to find someone to buy a stony ounce? Is that the case?‑‑‑To what?
Is it the fact that you could get lucky and find somebody to buy a stony ounce?‑‑‑What do you mean?
Well, isn't that why you had the scales and the bags and the cash in your car all together?‑‑‑What are you insinuating?
I'm insinuating that instead of having these items in your property to purchase drugs, you actually had them there to sell the drugs that you were growing. Do you have anything to say about that?‑‑‑How can I make it bloody obvious that it was not with intent? Whatever I had in the car - I think the best thing is never carry - never carry anything except - never carry anything. Make sure you're always wearing clean undies in case you get raided.
Okay. Look, you had these items with you, the $3400. Can you tell the jury why - apart from the fact that you thought it would be safer out of the bank ‑ ‑ ‑?‑‑‑I want an adjournment so I can go and get these bank accounts from the bank.
‑ ‑ ‑ why you decided to take that money out a week before the search?‑‑‑Because I like carrying a lot of money. It was mine and I could, so I did.
Thank you.
FRENCH DCJ: Unfortunately, Ms Roth‑Beirne, I think it would take too long to be able to get the bank statements from the blank, so we'll just have to get by just on what you've said about it. One thing ‑ ‑ ‑?‑‑‑So this is going to be an appeal, is it?
I think one thing you might want to clarify with the jury, when you said you were carrying the scales in the car with you, I think you also said that you sometimes also take a needle in the car. When you talk about buying drugs, did you mean drugs other than cannabis?‑‑‑Mm.
Okay. Thank you?‑‑‑Cannabis is not the way to go. You don't go to gaol for heroin and all the other crap." (AB 55‑56)
The applicant then left the witness box and led no further evidence. The applicant and the prosecution then addressed the jury. The court was not provided with the addresses of the applicant or the prosecution.
Early in her summing‑up, her Honour said:
"The other thing to remember is that it is important not to be prejudiced in relation to any issues or any matters that have arisen in relation to the accused person through the trial. We know that she has been relatively frank in some of the things she said to police officers and some of the things she said to you today. She said that she has used cannabis for quite a while. She also referred to the use of other drugs without being specific about them. She talked about actually having gone to prison at some stage.
That's normally not something that would necessarily come out in a jury trial, but of course as you appreciate Ms Roth‑Beirne is representing herself today and so these things have come out. Although they are part of her general account of things to you, strictly speaking they are not relevant to your decision because your decision is only focusing on this particular issue, and that is whether the prosecution have proved beyond reasonable doubt that she is growing these 303 cannabis plants for the purposes or with the intention of selling some of the cannabis from those plants, or some of the plants, to another person or supplying them to another person.
You might also find that there are aspect of Ms Roth‑Beirne's life - perhaps depending on your view or an impression formed - that might make you feel prejudiced towards her, and also aspects that might engender some feelings of sympathy as well, but it's important that you focus on the task of an objective point of view. (AB 57‑58)
The applicant does not complain about any aspect of the Judge's summing‑up. The jury then convicted the applicant.

The appeal

The applicant's proposed appeal filed on 6 October 2004 was supported by just one ground, namely that the trial Judge erred "in not discharging the jury when material prejudicial to the applicant was raised in evidence".
Subsequently, an amended notice of appeal was filed on 15 March 2005, particulars to the ground of appeal reading:
"PARTICULARS
(a)The appellant was unrepresented at trial, and apparently unaware of the prejudicial nature of some aspects of her evidence;
(b)The appellant gave prejudicial evidence as follows: 'I've been growing it (cannabis) for years and I've done time …' (transcript p 47); 'It's not easy getting back into society when you've just been locked away …' (transcript p 48); 'I came out of gaol in May this year …' (transcript p 54); 'I have a habit of travelling with scales and bags and maybe even a needle in the hope that I might be able to buy a hit.' (transcript p 54)."
Two other proposed grounds were added, reading:
"2. The evidence as the finding of scales and bags should not have been led as part of the prosecution case as those items had no probative value in relation to the charge against the appellant.
3. The conviction should be set aside and a new trial ordered as a result of evidence obtained subsequent to the appellant's conviction.
PARTICULARS
(A)The prosecution alleged that an amount of $3440 found in the appellant's wallet was a factor relevant to the jury inferring that the appellant intended to sell or supply cannabis and it was put to the appellant that the money was from the sale of drugs. (transcript p 54)
(b)The appellant's evidence was that on 21 October 2002, about three weeks prior to being charged, she withdrew an amount of $2,900 from her Commonwealth savings account. (transcript p 48)
(c)The appellant sought an opportunity to obtain her bank records to prove that she had withdrawn $2,900 on 21 October, but the learned trial Judge refused to allow an adjournment for that purpose. (transcript p 54-55)
(d)The appellant's bank records have since been obtained and show that on 21 October 2003, $2,900 was withdrawn from the appellant's bank account."
Ground 2 has been abandoned.

Ground 1

By reason of s 8(1)(e) of the Evidence Act 1906, an accused person may not be asked questions about the commission of other offences, save in certain permitted circumstances which did not apply here. This is a reflection of the common law prohibition which is explained in Pfennig v The Queen (1995) 182 CLR 461. The applicant here was not asked any questions of the prohibited kind. She volunteered that she had been growing cannabis for years, that she had been in gaol before, indicated that she had committed a similar offence and gave evidence about a willingness to purchase drugs.
The applicant now complains that because she was unrepresented at trial and unaware of the prejudicial nature of this evidence, that the conviction should be quashed, this on the basis that the trial Judge should have immediately discharged the jury when the prejudicial material was raised in evidence by the applicant without her being aware that it should be excluded.
The fundamental duty of a Judge conducting a trial in which an accused is unrepresented is to ensure that the accused receives a fair trial. As Gibbs CJ and Wilson J observed in a joint judgment in MacPherson v The Queen (1981) 147 CLR 512 at 523 that:
"The judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law. He must accordingly exclude evidence tendered against the accused which is not shown to be admissible."
and further at 524 ‑ 525 that:
"There is no limited category of matters regarding which a judge must advise an unrepresented accused - the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial. And although no doubt some accused person refuse the offer of legal representation for tactical reasons, an accused does not become disentitled to a fair trial because he has declined, and even perversely declined, an offer of legal assistance."
See also Mason J at 534 and Brennan J at 547 and see R v White (2003) 7 VR 442.
The circumstances of the case are all important. In this case, the first time the subject of illicit drugs and spending time in gaol was raised, the information was volunteered by the appellant quite unexpectedly. She then repeated the fact that she had been in gaol one page later in the transcript. Then she said that she had the habit of travelling with scales and bags and maybe even a needle in the hope that she might be able to buy a hit. In relation to the latter evidence, the applicant was there attempting to explain why she had scales, with a view to negativing the inference that she had scales in her possession to assist at some time in the selling or supplying of drugs.
In relation to the applicant's evidence that she had been in gaol, her counsel refers to R v Maher, a partial report of which appears as a note in [1955] VLR 256. The report reveals that an offender in a criminal case had been cross‑examined about where he was on a particular day and he answered that by saying that he was in gaol. Gavan Duffy J, delivering the judgment of the Court in Maher's case, said:
"We are of the opinion that the question asked and the answer given did raise an occasion where the judge should have given the accused the opportunity of having the jury discharged if he so wished. In R v Featherstone (1942) 28 Cr App R 176 a question similar to this was before the Court of Criminal Appeal. The headnote reads:
'Where an irregularity such as the accidental disclosure of a previous conviction takes place in the course of the trial of an undefended prisoner, it is the duty of the Judge to inform him that he has the right to apply that the jury should be discharged and the trial started afresh, and that if he desires to make that application, he should make it forthwith. If an application is made to that effect, it is the duty of the Judge to decide upon it according to the circumstances of the case.'
If the disclosure in question could not, in our opinion, in any way affect the judgment of the jury in coming to their decision on the question of guilty or not guilty, the fact that there had occurred something that was an irregularity would not be sufficient to justify the application being granted, but we are all of the opinion that in this case it would be impossible for us to say that the result of the trial could not have been different if this irregularity had not occurred. For that reason, we think in Maher's case the application should be granted. The application will be granted and the appeal allowed …"

This note about R v Maher appears at the end of the case of R v Forster [1955] VLR 253. In the latter case the applicant had been convicted of "garage breaking and stealing". During the course of the trial, counsel for the applicant had asked for the jury to be discharged because of evidence of bad character including the fact that the applicant was in gaol. Lowe J, delivering the judgment of the court on behalf of Gavan Duffy, O'Brien JJ and himself, referred to R v Coman [1953] VLR 581 as authority for the proposition that there is no rule of law that a jury on a criminal trial must be discharged if evidence of bad character of the accused is given. The case further decided that if the trial Judge came to the conclusion that disclosure of bad character was deliberate on the part of the accused and declined to discharge the jury but warned it not to take into account the accused's bad character, a new trial may be refused. During the course of the hearing, the case of R v Maher was referred to by the Solicitor‑General appearing for the Crown and as to R v Maher, Lowe J said at 255:
"It is a decision on particular facts and it is given in relation to the circumstances of the particular trial with which the Full Court was dealing. If it has been thought that it in any way lessens the authority of Coman's Case we emphasise that Coman's Case is still the guiding rule. Indeed, the Full Court, as it was constituted in September 1953, could not, in accordance with convention, depart from Coman's Case and it is not to be supposed that in silence they did so. … Maher's Case does not purport to review Coman's Case and, in our opinion, it is not inconsistent with it."
The appeal in Forster's case was dismissed because the trial judge had 'make it plain to the jury what their duty was on the charge that had been laid and was being tried against the prisoner …' (p 254)."
There is some English authority on the topic. In R v Peckham [1935] All ER 173 at 174, Lord Hewart CJ said:
"In the opinion of this court, where a statement with regard to a prisoner's previous record is inadvertently made from the witness box to his prejudice, and his counsel applies for the trial to be begun again before another jury, the Court ought to begin the trial again."
In R v Firth [1938] 3 All ER 783, the Court of Criminal Appeal held that the trial ought to be begun again before another jury where three elements were present:
(1)a statement with regard to a prisoner's previous record or of that kind inadvertently made from the witness box;
(2)the statement must be to the prejudice of the prisoner;
(3)an application by prisoner's counsel for the trial to be begun again before another jury
The cases of Peckham and Firth were considered by the Full Court of this Court in Winning v The Queen [2003] WASCA 245. Roberts‑Smith J noted at [228] that in both of those cases the prejudicial evidence came from police witnesses speaking with the authority of their positions. In Winning's case, the evidence complained of was volunteered by a co‑offender who "to the knowledge of the jury have every reason to make false claims about the applicant. That point was made perfectly clear to them both by senior counsel for the applicant and by the trial Judge." Roberts‑Smith J concluded his review of the authorities at [231] by saying that the:
"… modern practice is that whether or not to discharge the jury is a matter for the discretion of the trial Judge on the particular facts and the exercise of that discretion will not lightly be interfered with. The Court emphasised that it depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in light of the circumstances of the case as a whole, is the correct course."
Roberts-Smith J also referred to Crofts v The Queen (1996) 186 CLR 427 in which Toohey, Gaudron, Gummow and Kirby JJ said at 440 ‑ 441:
"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence and the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial Judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable. Glennon v The Queen (1994) 179 CLR 1 at 8 ‑ 9; Maric v The Queen (1978) 52 ALJR 631 at 635 … In our view, in the particular circumstances of this case, that could not be said."
In Winning's case, after consideration of Croft's case and the English authorities to which I have referred, Roberts‑Smith J said at [234]:
"To some extent, it seems to me, the question may be one of characterisation. What distinguishes the present case from the authorities just referred to, is that the prejudicial statements here were made by Avis as a deliberate stratagem on his part and on which he was strongly and extensively challenged. It was a situation in which the trial Judge was manifestly in the best position to assess the forensic effect of Avis' statements in the context of the issues at trial and determine whether or not that could be adequately dealt with by the addresses of counsel and his own directions. Furthermore, bringing to the matter that separate consideration required on appellate review, in my view the learned trial Judge's failure to discharge the jury did not occasion the risk of a substantial miscarriage of justice. This ground has not been made out."
I now turn to the circumstances of this case. The trial Judge obviously considered that a direction to the jury about the significance of the evidence was all that was required.
If evidence about the fact that the applicant had an earlier conviction and had been in gaol, had come from witnesses against the wishes of the applicant, then there would be good reason for concluding that the applicant should have been advised about her right to apply to have the jury discharged. However, this was a case where the disclosure was made voluntarily by the applicant and in circumstances where she wished to give the evidence to provide a reason why she would not be so foolish as to have any intention to sell or supply drugs to somebody else. The applicant sought to persuade the jury that because she had been to prison for selling or supplying drugs and, (by inference) had not liked that experience, she would not be likely to do so again. That was a legitimate approach. Her Honour warned the jury that the fact she had been in prison, and that she used cannabis, should not prejudice the applicant in the jury's view.
The evidence of the earlier conviction and imprisonment and her personal use of cannabis was relevant and therefore admissible evidence in the applicant's case.
In those circumstances it was unnecessary for her Honour to contemplate discharging the jury and unnecessary to advise the applicant that she would be entitled to apply to discharge the jury.
In my opinion ground 1 would not succeed.

Ground 3

In summing‑up her Honour informed the jury that the prosecution relied on the presence of the cash to draw an inference that the cultivation of the cannabis was for the purpose of selling or supplying the drug (AB 60).
Her Honour then continued at AB 61:
"She said that as far as the money was concerned she had withdrawn that from her bank on 21 October. She explained why she didn't have any bank statements to support that, but she said she had withdrawn that amount of money, that she was in the habit of carrying large amounts of cash with her and that she liked to do so when she found that convenient."
The applicant has now produced to this Court a copy of her Commonwealth Bank Albany branch statements showing that $2900 had been withdrawn from her bank account on 21 October, this being over three weeks before the date of the offence, namely 13 November 2002.
This is not fresh evidence. See Mallard v The Queen(2003) 28 WAR 1 at [15], Mickelberg v The Queen (2004) 29 WAR 13. This was evidence which the accused could clearly have brought to court with her. She did not bring the statements to Court because she did not want to pay $4.00 per sheet to obtain them. Nevertheless, evidence which does not satisfy the fresh evidence test may be relied on to set aside a conviction in certain circumstances. This is called "new" evidence. See Mallard and Mickelberg. Where the evidence is "new" evidence rather than "fresh" evidence, it is not sufficient for the applicant to merely show an increased chance of acquittal: Lawless v The Queen (1979) 142 CLR 659 at 676; Mickelberg v The Queen (supra) at 413; Mallard v The Queen (supra) at [15] and Tkacz v The State of Western Australia [2005] WASCA 108 at [49]. The "new" evidence must demonstrate that the applicant is innocent or "raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand". See Hillstead v The Queen [2005] WASCA 116 at [61].
The circumstances were that that the appellant had been in prison. When released, her income consisted of a pension and $100 per week from her father. Her evidence was that $2900 had been withdrawn on 21 October 2002 and over three weeks later on 13 November 2002 when she was arrested she had in her possession $3440 in cash. The applicant was unable to satisfactorily explain how on the one hand she was short of money, living on a pension and required the help of her father was able to meet living expenses but on the other was able to accumulate money. The bank statements if they had been produced would not necessarily have corroborated the applicant's explanation that all the $3440 had been drawn from her bank on 21 October 2002 and thereafter. They did support her evidence that she had taken out the $2900 on 21 October 2002. In her video‑recorded interview she said she drew out "more" after 21 October 2002. The statements show that the first withdrawal of cash after 21 October 2002 was on 14 November 2002 (the day after she was found with $3440 in her possession). I acknowledge however that the payments between 21 October 2002 and 14 November 2002 which appear to be payment of accounts may have involved payments of cash but even if they were all payments of cash, the total still falls short of $3440 (although not by much). This leaves unanswered the question of how she lived for three weeks without the expenditure of any money and how she even managed to accumulate some money.
However, in my view, the point of significance about the fact that the accused was found in possession of a large quantity of cash is that it suggests some activity which required payment or receipt of cash. Whether the money came from a bank account or not is beside the point. In the circumstances of this case, where the appellant had been imprisoned, had then upon discharge lived on a pension assisted in a limited way by her father, and was able (even if the cash came from her account) to meet living expenses and yet to accumulate more cash than had been withdrawn is a relevant piece of evidence to be added to the evidence that the appellant had certain accoutrements of drug dealing such as scales and bags. Subject to a correct direction on inferences (no complaint is made about the direction to the jury), the jury was entitled to take the evidence about the large quantity of cash into account in deciding whether an inference could be drawn that she was cultivating cannabis intending to sell or supply it.
In my opinion, even though the bank statements corroborated her evidence that she withdrew $2900, and even if the statements also corroborated her evidence that most of the $3440 was withdrawn from the bank, it would at best merely increase her chance of acquittal. The new

evidence does not demonstrate that the applicant was innocent and nor does it raise such a doubt about her guilt that the verdict should not be allowed to stand.

Ground 2 would not succeed. As a result I would dismiss the application to extend time in which to appeal.
MILLER AJA: I have had the opportunity of reading in draft the reasons for judgment of Pullin JA. I agree with those reasons and have nothing to add. I agree that the application for extension of time within which to appeal should be dismissed.