Ryan v The State of Western Australia [No 2]
[2011] WASCA 144
•1 JULY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RYAN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2011] WASCA 144
CORAM: BUSS JA
MURPHY JA
HALL J
HEARD: 14 JUNE 2011
DELIVERED : 1 JULY 2011
FILE NO/S: CACR 233 of 2010
BETWEEN: KAREN ANN RYAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :KAR 20 of 2008
Catchwords:
Criminal law - Appeal against conviction - Drug offences - Whether fresh or new evidence gives rise to a miscarriage of justice - No evidence given at trial - Unsworn statement evidence - No reasons given for change in position
Legislation:
Criminal Appeals Act 2004 (WA), s 28(3), s 30(3)(c)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Extension of time to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A J Maughan
Respondent: Mr D Dempster
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387
Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1
Bryer (1994) 75 A Crim R 456
Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stavrianakos v The State of Western Australia [2011] WASCA 130
BUSS JA: I agree with Hall J.
MURPHY JA: I agree with Hall J.
HALL J: On 8 April 2010 the appellant was convicted following a trial of two counts of possessing prohibited drugs with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The appellant now seeks leave to appeal that conviction. She also seeks an extension of time within which to bring the appeal and applies for leave to adduce additional evidence.
Background
The appellant was jointly charged with Todd Marshall. She and Marshall had been in a de facto relationship for approximately eight years. They resided together in a house in Karratha. In the week prior to 31 March 2008 they travelled to Perth where they stayed at a hotel.
The prosecution case was that on 31 March 2008 they drove together to the offices of a courier company in Forrestfield. The appellant went into the offices with a sealed cardboard box which she consigned for transport to Karratha. She put her own name as the sender on the consignment note. However, she did not give her residential address in Karratha but rather wrote an address in Mandurah. She wrote that the receiver was to be Marshall but that the parcel would be collected from the depot of the courier company in Karratha. She wrote that the package contained household items. She paid $50 in cash for transport of the parcel.
The appellant and Marshall then drove to the airport from where they planned to fly back to Karratha. They were stopped by police and searched. The police located a copy of the consignment note on the appellant. She was also found in possession of approximately $20,000 in cash. She told the police that Marshall had won the bulk of this money at the casino and she was carrying it because she had a lockable bag. They were then released and allowed to board their plane to Karratha.
Police intercepted the package and opened it. Inside the package were two smaller boxes containing what were described as 'bunker lights'. The smaller boxes were described as taking up only a small portion of the larger box and were secured by newspaper that had been scrunched up and packed around them. On examination, the lights were found to contain quantities of prohibited drugs. In one, 273 grams of MDMA of
about 19% purity and being a total of 1,034 tablets was found. Inside the other, 50.7 grams of methylamphetamine with a purity of about 14% was located. There was evidence at the trial that the street value of the MDMA was between $18,000 and $45,000 and the street value of the methylamphetamine was between $14,000 and $35,000.
The appellant and Marshall were apprehended by police on their arrival in Karratha. They were also both searched, as was their home. A small piece of paper containing names and numbers was found on the appellant. A similar such list was located in a drawer in the bedroom at the house. These lists were described by the prosecution as 'tick lists' and it was alleged by the State that they referred to persons to whom the appellant and Marshall had, or intended, to sell drugs.
In an interview with the police the appellant denied any knowledge of the drugs. She said that Marshall had purchased some lights and that she had assisted in packaging them into the larger box. She denied having seen inside the smaller boxes which contained the lights. She said that prior to going to the airport they had gone to a service station and purchased a newspaper. That newspaper was then used for packaging purposes. When asked whether her fingerprints would be on the packaging she said that they could be because she had read the newspaper. She said that Marshall had taped up the box in the car and that she understood that the lights were for 'tidying up' their house in Karratha. When asked why the lights had been consigned to the courier company the appellant said:
A.It was easier than carrying it on the plane.
Q.Well, they're two fairly small boxes - - -
A.Oh, yeah.
Q.- - - you - you could easily have taken them on the plane.
A.Yep.
Q.You've had - - -
A.I - I wasn't - I didn't really think about it (ts 14 ‑ 15).
The appellant was asked why she wrote on the consignment note that the package was to be collected from the Karratha depot:
Q.Why didn't you address it to your house?
A.Don't know.
Q.Do you know where it was addressed to?
A.To the depot.
Q.Why?
A.I - I didn't - I didn't know if they would drop it off there, or, so, I just thought I'd put it for hold for depot, easier to pick up.
Q.Surely it's easier to put your own address on it, and, have it dropped off at your home?
A.Well, I didn't know, I was just, yeah.
...
Q.Did Todd go in - in there with you?
A.No.
Q.So, he was out in the car was he?
A.Yep.
Q.He didn't give you any instruction here about what to do?
A.Nah. I just thought it would be easier though for him to pick it up, so, I just put care of the depot.
Q.The consignment note says K Ryan, obviously - - -
A.Yeah.
Q.- - - and, the address is given as 1 Bateman Court, Mandurah.
A.Yep.
Q.Why did you use that address?
A.That's one of my aunties. I don't know, I wasn't really thinking straight, so - - -
Q.How long have you lived at 41 Galbraith?
A.Two years.
Q.So, why didn't you use that address?
A.Oh, cos I was - I don't know, I was just thinking about everything that was going on, and, that - I just, yeah - I don't know (ts 16 ‑ 19).
It was put to the appellant that the lights were probably worth $30 in total, that it cost $50 to send them to Karratha and that similar lights could be purchased in Karratha. She agreed, when it was put to her by the interviewing police officer, that this did not appear to make sense and that it did not look good.
She was asked about the list found in her pocket. When asked what it meant she said:
A.Nah, I can't remember.
Q.Is it your writing?
A.Yep. It's from ages ago.
Q.Well, how often do you wash your clothes?
A.Oh, yeah, often.
Q.Well, that hasn't been washed.
A.Yeah, I know that.
Q.So, how longs it been in there? This to me looks like it's an order.
A.I don't see how it would be an order, but - - -
Q.Well, why don't you give me a - - -
A.- - - I don't know what it is (ts 24 ‑ 25).
Marshall also participated in an interview with the police and I will return to that interview when considering the question of fresh evidence.
The prosecution case was that the appellant and Marshall were jointly in possession of the drugs. They were jointly charged and tried together. Neither of them gave evidence at the trial. Marshall did call a witness, his cousin, who gave evidence regarding the second list found at the Karratha house. The cousin said that that list was in his writing and related to arrangements that he had made for a group of friends to take a trip to Thailand together.
Ground of appeal
There is a single ground of appeal which reads as follows:
1.Fresh evidence that could not have been discovered with reasonable diligence at the time of the Appellant's Trial, has been discovered and that fresh evidence establishes that there was a significant possibility that, in the light of all the admissible evidence - including that give at the Trial - a jury, acting reasonably, would have acquitted the Appellant. It is respectfully submitted that this has resulted in a miscarriage of justice as recognised pursuant to Section 30(3)(c) of the Criminal Appeals Act 2004 (WA) and accordingly it is submitted that the convictions of the Appellant should be quashed.
Particulars
1.1A statement has been obtained from the co‑accused outlining his involvement as the principal and only offender in regards to this matter;
1.2The co‑accused went to Trial in regards to this matter and until recent times no statement had been provided from him evidencing that the Appellant had no involvement in the counts charged;
1.3The co-accused's accepting of being found guilty at Trial and sentenced for the offending resulted in him acknowledging his guilt and the innocence of the Appellant in regards to this matter.
The proposed fresh evidence
There is no affidavit from Marshall attesting on oath as to any evidence that he would be prepared to give on behalf of the appellant.
The application for leave to adduce fresh evidence is supported by an affidavit from the appellant's solicitor. In that affidavit, which is dated 21 December 2010, the solicitor states as follows:
7.Following contact by Mr Marshall to the office of Andrew Maughan & Associates on 28 October 2010, Mr Andrew Maughan attended upon Mr Marshall at Bunbury Regional Prison.
8.Mr Andrew Maughan attended Bunbury Prison on 26 November 2010 and Mr Marshall provided a statement excluding the Appellant from any involvement in the offending for which he had been convicted.
9.I can advise the Court that a statement was received by our office in the week post-dating Mr Andrew Maughan's attendance upon Mr Todd Marshall at Bunbury Prison, outlining what had been told by Mr Todd Marshall to Mr Andrew Maughan.
10.I can advise the Court that statement was in written format.
Attached as Annexure 'ASR-1' is a copy of the statement of Mr Todd Marshall dated 2 December 2010.
11.I am told and truly believe that this statement is true and correct.
It is to be noted that who it was who told the solicitor that the statement is true and correct is not apparent. She does not state that Marshall said this to her and, in any event, the expression of her opinion as to the truth of the statement is not admissible.
The annexed statement of Marshall is signed but not sworn on oath. It is a very brief statement and much of its contents would be inadmissible even if given on oath. The statement reads as follows:
I, Todd Marshall, care of Bunbury Regional Prison, Centenary Road, Bunbury in the state of Western Australia make this statement having taken legal advice from David Walls.
I flew to Perth to see my friend, Jay Wragg in hospital. He had been seriously assaulted.
Whilst in Perth I met a friend. I had lost my job of 7 years.
I arranged to purchase the drug from my friends.
I paid for the crystal meth. I paid $12,000. The pills were on credit.
I brought the money with me from Karratha.
Karen knew nothing of this. I had travelled to Perth before Karen.
So by the time Karen was down, the drugs were packaged in the lights. I packaged them in the lights.
All Karen would have seen was the two small light boxes inside the larger box.
Karen did help put newspaper around the smaller box. The newspaper had been bought at the service station as always maintained.
We went to TOLL IPEC. I was driving so I asked Karen to run them in.
Karen completed the consignment note. I don't know why she used the address she did.
I would have collected the package - it was addressed to me.
Of the money seized at the airport, it was won at the casino - $12,000‑$13,000. The balance was funds from Karratha.
The drugs found on me at the airport were part of the drugs purchased by me in Perth.
The hatch‑back used was owned by my friend (Did not purchase drugs from this friend).
I don't know anything about any 'tick note' found on Karen at Karratha Airport.
I asked Karen to carry the $20,000 from Perth to Karratha because she had locks on her bag.
Karen paid the $50 to TOLL IPEC.
Karen knew nothing, as far as I am aware, that I was dealing in drugs.
We were renovating our home in Karratha so the purchase of the light fitting would not have surprised her.
This statement is true and correct to the best of my knowledge and belief.
Even if accepted at face value, this statement contradicts Marshall's interview with the police and the defence case that he presented at the trial. When interviewed, Marshall was asked:
Q.Would your fingerprints be on the inside of the package of the, the lights?
A.Nah, because I never put them in there.
Q.So you haven't opened up the, the boxes at all to check the lights?
A.Nah.
Q.So you purchased them without opening them up and looking at them?
A.I'm saying no more. I, I didn't put the stuff there, so that's it. I'll make a statement, whatever (ts 5).
At the commencement of the trial counsel for Marshall said in his opening address:
We, however, on behalf of Mr Marshall, deny that he had knowledge and possession of the drugs. That is the fundamental issue (ts 243).
At the hearing of the appeal counsel for the appellant said that no arrangements had been made for Marshall to be called to give evidence at the hearing. Counsel for the State said that if Marshall was called he would seek to cross‑examine. It was pointed out to counsel for the appellant that there was no evidence on oath from Marshall. Furthermore, there was no explanation in any of the material as to why Marshall had changed his position from that which he previously held.
Merits of the appeal
Whether an appeal brought on the basis of fresh evidence can succeed depends upon it being established that there was a miscarriage of justice: s 30(3)(c) Criminal Appeals Act 2004 (WA). A miscarriage of justice would be established if the appeal court considered that there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ). The appellant carries the onus of establishing that such a miscarriage has occurred.
Fresh evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered. The test applicable in respect of new evidence as opposed to fresh evidence is different: Stavrianakos v The State of Western Australia [2011] WASCA 130. It is unnecessary for present purposes to expand upon those differences. Even assuming that the fresh evidence test is applicable in this case, this appeal cannot succeed for the reasons that follow.
It is necessary for an appellate court to make an assessment of the evidence that is said to be fresh. In respect of recanting witnesses, this has been said to be influenced by two matters. First, the reason or reasons given by the witness for having recanted his or her evidence, and second, the significance of the evidence of the witness at trial and whether, and if so to what extent, the appellant's conviction was supported by other apparently reliable evidence: Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387 [68] (Buss JA).
In the present case Marshall is not a recanting witness as he did not give evidence at the trial. However, his position is analogous to that of a recanting witness in that he presented a positive defence case at trial to the effect that he had no knowledge of the drugs contained in the package and was therefore never in possession of them but now claims otherwise. A conviction may be set aside on the basis of a recantation if the witness' new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation: Bryer (1994) 75 A Crim R 456, 458 (Fitzgerald P) referred to by Buss JA in Amiss [69].
Where an appeal is brought on the basis of evidence which is said to be fresh, there are generally a number of necessary requirements that the appellant will need to meet to provide a proper foundation for the appeal:
1.the evidence will need to be presented to the court in the form of an affidavit from the witness who is to give the evidence;
2.the witness will need to set out the details of the evidence he or she can give;
3.if the evidence differs from that given on a previous occasion or is inconsistent with past conduct, the affidavit should contain some explanation of when and why this change has occurred;
4.the witness will need to state a willingness to appear and give the evidence on oath at the appeal (and at any retrial that might follow) and to be exposed to cross‑examination;
5.some evidence will be required to establish that the evidence is fresh, that is, that it was not available at trial and could not, with reasonable diligence, have been discovered.
In this case, the information provided on appeal does not give rise to a significant possibility that the jury would have entertained a reasonable doubt had that information been available. The reasons for that are as follows.
Firstly, the information provided on appeal is not evidence. It is an unsworn statement that would not be admissible in its present form. An out of court statement that consists of a confession by a co‑accused is not admissible in favour of another accused person: Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1, 22 (Dawson, Toohey and Gummow JJ). In any event, it was not suggested that the statement itself would be admissible, rather the court was asked to assume that Marshall would, if required to do so, give sworn evidence to the same effect as the statement. Marshall was not called on the appeal and therefore his willingness to give evidence on oath and to be subjected to cross‑examination was not established. In these circumstances, there is no basis for assuming that he would give evidence on oath in accordance with the statement if called.
Secondly, the fact that Marshall was not called or cross‑examined means the veracity of any new evidence that he could give has not been tested. In these circumstances it is not possible for this court to make an assessment as to the cogency or plausibility of any evidence that Marshall might give.
Thirdly, the information contained in the signed statement contradicts Marshall's interview with the police and the defence case that was presented on his behalf at trial. That inconsistency is unexplained. In these circumstances, it is difficult to see how Marshall could be presented as a witness whose evidence could be relied upon.
Fourthly, the circumstantial evidence against the appellant at the trial is unaffected. There was a strong circumstantial case against the appellant. The jury reached unanimous verdicts of guilty in respect of both accused and in doing so clearly accepted the prosecution case that they jointly possessed the drugs. The jury must also have rejected the claims by the appellant and Marshall in their police interviews that they had no knowledge of the drugs.
In any event, no explanation has been advanced on oath either by Marshall or by the appellant as to why there has been a change in his position or when that change occurred. In these circumstances it is difficult to assess whether the evidence is truly fresh.
Conclusion
This appeal was not commenced within the time allowed: s 28(3) Criminal Appeals Act 2004. The delay is significant, being in excess of five months. The explanation for that delay is that Marshall did not provide the statement until 21 December 2010. However, in the absence of any evidence as to why he changed his position and when that was first communicated to the appellant it is impossible to conclude that there has been adequate explanation for the delay.
An extension of time may be granted where the delay is not adequately explained if there are exceptional circumstances or there would be a miscarriage of justice if an extension was not granted: Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424. There are no exceptional reasons and, for the reasons I have given, it has not been established that any miscarriage of justice has occurred. Accordingly, I would refuse an extension of time. Even if an extension of time was granted I would refuse leave to appeal because the ground of appeal is not reasonably arguable: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
Accordingly, I would make the following orders:
1.Extension of time to appeal refused.
2.Appeal dismissed.
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