Sheriff v The State of Western Australia
[2017] WASCA 185
•16 OCTOBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SHERIFF -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 185
CORAM: MAZZA JA
MITCHELL JA
HALL J
HEARD: 2 JUNE 2017
DELIVERED : 16 OCTOBER 2017
FILE NO/S: CACR 91 of 2016
CACR 92 of 2016
BETWEEN: MOHAMED V SHERIFF
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 97 of 2016
CACR 98 of 2016
BETWEEN :KENNETH HENRY OMEREONYE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 136 of 2016
CACR 137 of 2016
BETWEEN :YOUSSOUF BAMBA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND 1218 of 2014
Catchwords:
Criminal law - Appeals against conviction - Attempted possession of methylamphetamine with intent to sell or supply - Whether trial judge erred in directing jury as to separate pathways to guilt - Whether trial judge erred in directing jury as to joint criminal enterprise - Whether verdict unreasonable and cannot be supported by the evidence - Turns on own facts
Criminal law - Appeals against sentence - Attempted possession of methylamphetamine with intent to sell or supply - Sentences of 8 years 6 months' imprisonment for two coaccused and 10 years' imprisonment for one coaccused - Whether sentences manifestly excessive - Whether trial judge erred in fact in concluding that a particular mobile phone could be attributed to the appellant Sheriff - Whether there is a justifiable sense of grievance based on the disparity between the appellant Sheriff's sentence and the sentences of his cooffenders
Legislation:
Criminal Code (WA), s 7
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)(a)
Result:
Appeals dismissed
Category: B
Representation:
CACR 91 of 2016
CACR 92 of 2016
Counsel:
Appellant: Mr A J Robson
Respondent: Ms A L Forrester SC
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
CACR 97 of 2016
CACR 98 of 2016
Counsel:
Appellant: Mr S B Watters & Mr B L Nugawela
Respondent: Ms A L Forrester SC
Solicitors:
Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)
CACR 136 of 2016
CACR 137 of 2016
Counsel:
Appellant: Mr D Rice
Respondent: Ms A L Forrester SC
Solicitors:
Appellant: Griffiths Rice & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barry v The State of Western Australia [2012] WASCA 175
Bibovic v The State of Western Australia [2016] WASCA 22
Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331
Chen v The State of Western Australia [2017] WASCA 114
Chen v The State of Western Australia [2017] WASCA 99
EAGD v The State of Western Australia [No 2] [2014] WASCA 68
Gandy v The State of Western Australia [2017] WASCA 93
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
Hoang v The State of Western Australia [2015] WASCA 130
Kalbasi v The State of Western Australia [2016] WASCA 144
Kitis v The State of Western Australia [2013] WASCA 34
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Le v The State of Western Australia [2015] WASCA 73
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Ly v The State of Western Australia [2015] WASCA 18
M v The Queen (1994) 181 CLR 487
Mansell v The State of Western Australia [No 6] [2013] WASCA 120
Mikulic v The State of Western Australia [2011] WASCA 127
Milenkovski v The State of Western Australia [2014] WASCA 48
Nguyen v The State of Western Australia [2017] WASCA 35
Ozan v The State of Western Australia [2013] WASCA 27
Penney v The State of Western Australia [2011] WASCA 71
Pham v The State of Western Australia [2011] WASCA 244
Phan v The State of Western Australia [2014] WASCA 144
R v English (1993) 10 WAR 355
Reid v Director of Public Prosecutions (WA) [2012] WASCA 190
Ritchie v The State of Western Australia [2016] WASCA 134
Shepherd v The Queen (1990) 170 CLR 573
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Taylor v The State of Western Australia [2016] WASCA 210
The State of Western Australia v Johnson [2010] WASCA 187
Tresnjo v The State of Western Australia [2015] WASCA 193
Warren and Ireland v The Queen [1987] WAR 314
Yiu v The State of Western Australia [2016] WASCA 172
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1
Table of contents
Summary
Appeals against conviction
Appeals against sentence
Outcome of appeals
Extension of time to appeal
The State's case at trial
Evidence of movement of packages and the appellants
Seizure and reconstruction of packages
Controlled delivery of the packages to the appellants
Appellants travel to the Maylands address
Appellants travel to Perth and are arrested
Phones and iPad seized from the appellants
Phones seized from appellants at time of arrest
Use of SIM cards in phones
iPhone
iPad
Significant telephone calls
Recorded interviews with the appellants
Sheriff
Omereonye
Bamba
Evidence adduced by the appellants
Joint criminal enterprise grounds
The decision in L
State's position in this appeal
Trial judge's direction
Bases of criminal responsibility
'Two parts' to the first basis of liability
Joint possession
Acting in concert
Joint criminal enterpriseAiding
Summary
Elements of the offence
Further references to joint criminal enterprise
Conclusion as to joint criminal enterprise grounds
Separate pathways ground
Trial judge's direction
When a separate pathways direction is required
Omereonye
Bamba
Conclusion as to separate pathways ground
Unreasonable verdict: general principles
Unreasonable verdict: what the State had to prove
Unreasonable verdict: Sheriff
Appellant's submissions
Other evidence implicating Sheriff
Evidence linking Sheriff to Phone 12
Inference that Sheriff used the 832 number
The jury's verdict in relation to Sheriff was not unreasonable
Unreasonable verdict: Bamba
Appeal against sentence: trial judge's findings of fact
Appeal against sentence: personal circumstances
Sheriff
Omereonye
Bamba
Trial judge's approach to sentencing
Sheriff's sentence appeal - alleged factual error
Sheriff's sentence appeal - parity
Manifest excess: general principles
Omereonye's and Bamba's manifest excess grounds
Maximum penalty
Customary sentencing standards
Seriousness of the offending conduct
Personal circumstances
Conclusion as to manifest excess grounds
Orders
CACR 91 of 2016 (Sheriff's appeal against conviction)
CACR 92 of 2016 (Sheriff's appeal against sentence)
CACR 97 of 2016 (Omereonye's appeal against conviction)
CACR 98 of 2016 (Omereonye's appeal against sentence)
CACR 136 of 2016 (Bamba's appeal against conviction)
CACR 137 of 2016 (Bamba's appeal against sentence)
JUDGMENT OF THE COURT:
Summary
The appellants, Mohamed Sheriff, Kenneth Omereonye and Youssouf Bamba, were convicted after trial of one count of attempted possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. That is an offence contrary to s 6(1)(a) and s 33(1)(a) of the Misuse of Drugs Act 1981 (WA) (Drugs Act). Sheriff received a sentence of 10 years' immediate imprisonment, while Omereonye and Bamba each received sentences of 8 years 6 months' immediate imprisonment. The appellants now appeal against their convictions and sentences.
Appeals against conviction
Each appellant appeals against his conviction on the ground that the trial judge erred in law in directing the jury that 'joint criminal enterprise' was a separate basis for criminal liability for the offence.
Omereonye and Bamba also contend that there was a miscarriage of justice, when the trial judge failed to direct the jury concerning the need to be unanimously satisfied of the same pathway to the appellants' guilt.
Sheriff and Bamba also raise grounds contending that the verdict of guilty in respect of them was unreasonable and cannot be supported having regard to the evidence.
In each appeal against conviction, leave to appeal has been granted on the joint criminal enterprise ground. The applications for leave to appeal on the other grounds have been referred to the hearing of the appeal.
Appeals against sentence
Bamba and Omereonye both appeal against their sentences on the sole ground that the sentence of 8 years 6 months' immediate imprisonment was manifestly excessive.
Sheriff appeals against his sentence on the ground that the trial judge erred in fact in concluding that the use of a particular mobile telephone number in connection with the offence could be attributed to him. That factual finding supported the view that Sheriff was involved in the offence at an earlier time than the other appellants. Sheriff also contends that he has a justifiable sense of grievance based on the disparity between his sentence and that of the other two appellants.
The applications for leave to appeal on all of these grounds have been referred to the hearing of the appeal.
Outcome of appeals
For the following reasons, none of the grounds of appeal have been made out. The appeals must all be dismissed.
Extension of time to appeal
Bamba requires an extension of time in which to appeal. The last day for appealing was 14 June 2016. Bamba's appeal notices were filed on 7 September 2016. Although his appeal notices were filed late, and the delay has not been adequately explained, Bamba's appeals have been prepared in a manner that allowed them to be heard together with the other two appellants' appeals. In these circumstances, it is appropriate to grant Bamba an extension of time in each of his appeals.
The State's case at trial
The State's case at trial was that, on 17 January 2014, customs officers intercepted two packages that had been posted from India to an address in Murdoch, and were being transported by the courier company TNT Express. The packages contained four hard-shell helmets, two soft‑shell helmets and two sets of rollerblades. Secreted within the foam of the hard‑shell helmets was just under a kilogram of methylamphetamine with a purity of about 79%. Written on a label on each of the packages was the name 'Mr Clint Jhon', the Murdoch address and a mobile telephone number ending in 832.[1]
[1] Trial ts 52.
The State alleged that Sheriff, Omereonye and Bamba were awaiting the packages and the hidden cargo. The State alleged that together they sought to possess the methylamphetamine within it with the intention of selling or supplying it to others.[2]
[2] Trial ts 52.
After intercepting the packages, federal law enforcement officers substituted the methylamphetamine with a benign white powder. They reconstructed the packages and their contents to look as they had when intercepted.[3]
[3] Trial ts 52.
On 23 January 2014, the 832 number was used to call TNT and ask for details about when the packages would be delivered. A controlled delivery of the packages was attempted to the Murdoch address after 4.00 pm on 28 January 2014. There was no answer to a knock on the door. The police officer who attempted delivery, Officer Leong, left a TNT 'missed you' card in the letterbox.[4]
[4] Trial ts 52 - 53.
On 29 January 2014, Sheriff telephoned his friend Alhaji Sheriff. To avoid confusion the prosecutor referred to the friend (who was not related to Sheriff) as Alhaji. We shall adopt the same approach. Sheriff asked Alhaji if he (Sheriff) could use Alhaji's house in Nollamara on the following day. Just before 5.00 pm on 29 January 2014, a phone later found in Sheriff's possession was used to call TNT and change the delivery address for the package to Alhaji's Nollamara address.[5]
[5] Trial ts 53 - 54.
On the morning of 30 January 2014, Sheriff drove to the Nollamara address in a rented grey Toyota Yaris. Bamba and Omereonye also made their way to the same address. At 12.54 pm Bamba drove the Yaris from the Nollamara address to the Mirrabooka Square shopping centre, and returned to the Nollamara address just after 2.00 pm. At about 2.12 pm on 30 January 2014, Officer Leong, dressed as a TNT employee, again attempted a controlled delivery of the packages. He was met by Sheriff at the front door, after walking past Omereonye and Bamba (who were outside the house). Officer Leong said that he was looking for Clint Jhon and was told by Sheriff that 'he's gone out and told me to collect the packages for him'. Sheriff received and signed for the packages, and Officer Leong left the Nollamara address at 2.20 pm.[6]
[6] Trial ts 54.
About seven minutes later, the three appellants drove in the Yaris to a group of residential units in Maylands where Omereonye lived, taking the packages with them. They parked the Yaris in an underground carport area and removed the packages from the car. Bamba stayed only a short time before going out to the road at the front of the units to keep watch. Omereonye went to his unit and returned. Sheriff and Omereonye opened the packages and removed the contents. They placed the helmets in an old washing machine to the side of the carport. They put the rollerblades into an old TV cabinet that was in the carport.[7]
[7] Trial ts 54 - 55.
Twelve minutes after they had arrived, Sheriff drove out of the carport with Omereonye in the front passenger seat of the Yaris. They picked up Bamba where he was still on the road. The appellants then headed into Perth city. On the way they stopped just around the corner from the Maylands address, where Bamba took the empty boxes from the car and put them on a rubbish pile on the verge. The appellants then drove into the city where they were subsequently arrested.[8]
[8] Trial ts 55.
The prosecutor told the jury that the key issue in the trial was likely to be possession of the substance substituted into the helmets. He said the State's case was that each of the appellants either jointly possessed the benign powder in the belief that it was a drug and with intent to sell or supply it to another, or they aided another in possessing it, believing that other to have an intention to sell or supply it to another. The prosecutor contended that possession of the benign powder in the belief that it was a prohibited drug was an attempt to possess that prohibited drug.[9]
[9] Trial ts 55 - 56.
Evidence of movement of packages and the appellants
The evidence led at trial was clearly capable of establishing the following facts. As no party submitted to the contrary, the evidence can be shortly summarised.
Seizure and reconstruction of packages
On 17 January 2014, officers from the Australian Customs and Border Protection Service identified and seized packages consisting of two cardboard boxes addressed to Clint Jhon at the Murdoch address and bearing a TNT tracking number. The packages were identified and seized on coming into the TNT depot at Perth International Airport.[10]
[10] Trial ts 83.
On 20 January 2014, customs officers handed the packages, including their contents, over to officers from the Australian Federal Police (AFP) who secured them for analysis.[11] An AFP investigator deconstructed and reconstructed the packages, replacing the white powder found therein with a benign substance.[12] The white powder was inside plastic packaging and was found in foam cavities within four hard-shell bicycle helmets which were inside one of the packages.[13] The second package contained two pairs of rollerblades and no illicit substances.[14]
[11] Trial ts 83 - 84.
[12] Trial ts 86 - 107, 119 - 121, exhibits 1 - 7.
[13] Trial ts 100 - 103, exhibit 5.
[14] Trial ts 122 - 125, exhibit 8.
The white powder removed from the four helmets was found to have a total weight of 978.7 grams. Four 1 gram samples of the white powder, one from each helmet, were then analysed by a Government chemist. All were found to contain methylamphetamine. The purities of the methylamphetamine across the four samples were found to be 78.9%, 79.1%, 78.4% and 79.1%.[15]
Controlled delivery of the packages to the appellants
[15] Trial ts 83 - 84.
Officer Leong conducted a controlled delivery of the reconstructed packages. On 28 January 2014, he attended the Murdoch address in company with another officer. He took the two packages to unit 4 and knocked on the door. There was no response. He looked through the front window and saw that the unit was empty with no furniture. He left the premises and took the packages.[16] He left a TNT 'missed you' card in the letterbox of the Murdoch address.[17]
[16] Trial ts 217, exhibit 23.
[17] Trial ts 218 - 219, exhibits 22, 23.
On 29 January 2014 at 4.54 pm, the delivery address recorded by TNT was changed from the Murdoch address to the Nollamara address.[18] This was the address of Alhaji, a friend of Sheriff. It was not unusual for Sheriff to arrange to stay at Alhaji's residence.[19]
[18] Trial ts 155 - 157, exhibit 14.
[19] Trial ts 242 - 247.
On 30 January 2014, Officer Leong again attempted a controlled delivery of the packages. At about 2.12 pm, he and the other officer attended the Nollamara address. Two dark-skinned males came out of the front door.[20] Officer Leong was greeted by Sheriff at the front door. Officer Leong said:[21]
Hi. I'm looking for Clint Jhons. I have a couple of packages for him.
To which Sheriff replied:
Yeah, he's gone out and told me to collect the packages for him.
[20] Trial ts 221 - 222, exhibit 25.
[21] Trial ts 223.
At Officer Leong's request, Sheriff produced his driver's licence and signed for the packages, in his own name, in a TNT delivery book.[22] While this occurred, Bamba was observed standing near the end of the driveway, and later walking along the road about 15 m from the driveway of the Nollamara address.[23]
Appellants travel to the Maylands address
[22] Trial ts 223 - 228, exhibits 24, 25.
[23] Trial ts (17 February 2016, Closed Court) 10 - 12, 33 - 34, exhibit 30.
At about 2.27 pm, surveillance operatives observed the appellants travel from the Nollamara address to the Maylands address in the Yaris, arriving at about 2.50 pm. Bamba was observed in the rear passenger seat, Omereonye was in the front passenger seat, and Sheriff was the driver.[24] The Yaris parked in the undercover parking to the side of the units at that address.[25] Sheriff was seen standing in the vicinity of the Yaris.[26] Bamba walked away from the car and then walked along Crawford Road, first in a southerly direction, then in a northerly direction and then back to the driveway of the Maylands address. He walked 30 or 40 m in one direction and about 50 m in the other.[27] He was not observed to be using a mobile phone.[28]
[24] Trial ts (17 February 2016, Closed Court) 6, 14 - 15.
[25] Trial ts (22 February 2016, Closed Court) 16 - 17.
[26] Trial ts (22 February 2016, Closed Court) 17, trial ts (17 February 2016, Closed Court) 16.
[27] Trial ts (17 February 2016, Closed Court) 15 - 16, trial ts (19 February 2016, Closed Court) 5 - 6, trial ts (22 February 2016, Closed Court) 11, 22, exhibit 31.
[28] Exhibit 31, trial ts (22 February 2016, Closed Court) 12.
At 3.00 pm, surveillance operatives observed the Yaris leave the driveway of the Maylands address, pick up Bamba and depart with the appellants seated as before.[29] After the Yaris departed the Maylands address, police inspected the area where the Yaris was parked and saw a washing machine and a dryer. Police opened the lid of the washing machine, saw helmets inside the washing machine and took photographs of them. Police then took them out of the washing machine and took further photographs.[30]
Appellants travel to Perth and are arrested
[29] Trial ts (17 February 2016, Closed Court) 16, trial ts (22 February 2016, Closed Court) 17.
[30] Trial ts (17 February 2016, Closed Court) 22 - 23, trial ts (22 February 2016, Closed Court) 17 - 20, exhibit 33.
Surveillance operatives observed the Yaris stop around the corner from the Maylands address, where Bamba exited the rear car door, threw cardboard packaging onto a pile of rubbish on the verge, and got back into the car.[31] The surveillance operatives then observed the appellants leave in the Yaris and travel to the Perth Central Business District, where they parked in Murray Street.[32]
[31] Trial ts (17 February 2016, Closed Court) 21; ts of video record of interview with Mr Bamba, page 76 - 77.
[32] Trial ts (17 February 2016, Closed Court) 23 - 24.
At around 3.20 pm, police attended Maylands and collected the boxes of interest from a bulk collection pile on the verge outside that address. The boxes were photographed, bagged and recorded on the exhibit log.[33]
[33] Trial ts (17 February 2016, Closed Court) 25, trial ts 260 - 261, 780 - 782.
Police then attended the Maylands address and located bike helmets lying on the ground beside a washing machine at the far end of the complex. Next to this area, on a shelf in the carport a bag containing shoes and rollerblades was found.[34]
[34] Trial ts 261 - 263, exhibit 26.
The appellants were arrested in Perth.[35] When arrested, Bamba was at an Australia Post store and Sheriff and Omerenoye were at a Vodafone store.[36] A total of six mobile phones were seized from the appellants,[37] and a bundle of paperwork was seized from Bamba.[38] Each gave a video record of interview.[39]
[35] Trial ts 523 - 529, exhibit 47.
[36] Trial ts (17 February 2016, Closed Court) 28, trial ts 524, 528 - 529, exhibit 47.
[37] Exhibit 48.
[38] Trial ts 516 - 517, exhibit 46.
[39] Exhibits 43, 44A, 44B, 45.
Police searched the Yaris and seized a TNT 'I missed you card' which was in the back driver's seat pocket.[40]
[40] Trial ts 490 - 492, exhibit 42.
Phones and iPad seized from the appellants
A significant aspect of the State's case concerned the usage of mobile phones, and SIM cards in mobile phones, which were located with the appellants at the time of the arrest. That evidence is summarised below. A contentious point in this appeal concerns whether the mobile phone identified below as Phone 12 was actually found in Sheriff's possession at the time of his arrest. Phone 12 was the mobile phone in which the SIM card for the 832 number had been used to make calls associated with the packages. That issue will be addressed in detail when considering Sheriff's grounds of appeal. Otherwise, the evidence summarised below does not appear to be contentious in these appeals.
Phones seized from appellants at time of arrest
Each appellant was found in possession of a Nokia telephone which had two SIM card slots, and which were identical in appearance. Each appellant was also found in possession of a second mobile phone. In these reasons, the mobile phones will be referred to by the description given in the table below. The last three digits of the telephone number will be used to describe each SIM card.
Every mobile phone has an IMEI, which is the International Mobile Equipment Identity number. This is a serial number for the phone and is intended to be unique in the world so that a particular phone can be uniquely identified.[41] The Nokia phones had separate IMEI numbers associated with each of the two SIM card slots located in the phone. We shall refer to the SIM card slots for each phone as Slot 1 and Slot 2 for that phone.
[41] Trial ts 398.
On the State's case, the following phones were seized from the following appellants at the time of their arrest:
| Phone | Seized from[42] | IMEI | Mobile number | SIM card subscriber |
| Phone 8 (Nokia) | Omereonye | Slot 1: 289[43] | 295[44] | Mohamed Sheriff[45] |
| Slot 2: 297[46] | 661[47] | Marcy Johnson[48] | ||
| Phone 9 (Blackberry) | Omereonye | 378[49] | 777[50] | Kenneth Omereonye[51] |
| Phone 10 (Nokia) | Bamba | Slot 1: 201[52] | 133[53] | Youssouf Bamba[54] |
| Slot 2: 219[55] | 640[56] | Faka Brown[57] |
[42] Trial ts 531 - 532, 540, 803 - 804.
[43] Trial ts 585 - 589, exhibit 48.
[44] Trial ts 585 - 589, 599 - 600, exhibit 50.
[45] Trial ts 599 - 600, exhibit 50.
[46] Trial ts 585 - 589, exhibit 48.
[47] Trial ts 585 - 589, 613, exhibit 57.
[48] Trial ts 613, 614, exhibit 57.
[49] Trial ts 684, exhibit 48, exhibit 70.
[50] ts of video record of interview with Mr Omereonye page 44 (Omereonye Blue AB 79), exhibit 58.
[51] Trial ts 614 - 615, exhibit 58.
[52] Trial ts 590, exhibit 48.
[53] Trial ts 590, 608 - 609, exhibit 54.
[54] Trial ts 608 - 609, 612, exhibit 54.
[55] Trial ts 590, exhibit 48.
[56] Trial ts 590 - 591, exhibit 48. Exhibit 39 shows that the mobile number ending in 640 was the only number used in IMEI 219.
[57] Trial ts 609 - 610, 612, exhibit 55.
| Phone | Seized from[58] | IMEI | Mobile number | SIM card subscriber |
| Phone 11 (Samsung) | Bamba | 789[59] | 215[60] | Alvin Kaba[61] |
| Phone 12 (Nokia) | Sheriff | Slot 1: 125[62] | 587[63] | Karala Smirja[64] |
| Slot 2: 133[65] | 688[66] | Eared Jamari[67] | ||
| Phone 13 (iPhone) | Sheriff | 768[68] | 398[69] | Mohammad Sharif[70] |
[58] Trial ts 531 - 532, 540, 803 - 804.
[59] Trial ts 643, exhibit 48, exhibit 67.
[60] Trial ts 611 - 612, exhibit 56.
[61] Trial ts 610 - 612, exhibit 56. Alvin Kaba is Youssouf Bamba's former name: Trial ts 519 - 520, exhibit 46.
[62] Trial ts 591 - 592, exhibit 48.
[63] Trial ts 591 - 592, 603 - 604, exhibit 53.
[64] Trial ts 603 - 604, exhibit 53.
[65] Trial ts 591 - 592, exhibit 48.
[66] Trial ts 591 - 592, 602 - 603, exhibit 52.
[67] Trial ts 602 - 604, exhibit 52.
[68] Trial ts 627 - 628, exhibit 48, exhibit 65.
[69] Trial ts 627 - 628, exhibit 49, exhibit 65.
[70] Trial ts 597 - 599, exhibit 49.
Use of SIM cards in phones
Exhibits 36, 37, 38 and 39 document all of the phone numbers that had ever been used in the particular IMEI noted in the document; ie the SIM cards that were in the phone at any time.[71] The exhibits indicate the first and last date on which a SIM card was used in a phone. It is convenient to refer to the range of dates in which a SIM card was used in a particular phone, recognising that this does not mean that the SIM card was in the phone for the whole of the relevant period.
[71] Trial ts 401. In Telstra records, the last digit of the IMEI number is ignored because it is a variable number depending on the phone's software: Trial ts 404, 407.
The SIM card for the 832 number was used in Phone 12, in Slot 2 on 6 January 2014 and in Slot 1 from 16 January 2014 to 23 January 2014.[72] The 832 number was subscribed in the name Matene Dukuly.[73]
[72] Trial ts 401 - 402, 404 - 406, 435, exhibits 36, 37.
[73] Trial ts 600 - 602, 604, exhibit 51.
Slot 1 of Phone 12 had also been used for the SIM card for the 587 number from 11 November 2013 to 1 March 2014.[74]
[74] Trial ts 435, exhibit 36.
Slot 2 of Phone 12 had also been used for the SIM card for the 587 number from 10 November 2013 to 23 January 2014.[75]
iPhone
[75] Trial ts 435, exhibit 37.
The iPhone seized from Mr Sheriff (Phone 13) was analysed and a report of the iPhone's internet history was produced.[76] The Google search history includes searches for TNT Express's 'contact us' page on 23 January 2014, a search for Avis car rentals on 29 January 2014 at around 6.00 am, and a search for the Nollamara postcode on 29 January 2014 at around 8.45 am.[77]
iPad
[76] Trial ts 629 - 631, exhibit 66.
[77] Trial ts 634 - 637, exhibit 66.
An iPad was seized from Mr Sheriff.[78] A report was produced following downloading information from the iPad.[79] The report (exhibit 71) displays a chat between 'vamusa.sheriff' and 'Laye Hawa kenneh'. The following conversation occurred between these two persons commencing at 2:35:08 pm on 29 January 2014 and concluding at 2:41:57 pm on the same day:[80]
[78] Trial ts 685.
[79] Trial ts 685 - 686.
[80] Exhibit 71 page 3063.
vamusa.sheriff: Everyone will be getting 600000
vamusa.sheriff: We getting this one 100,000 this week Saturday
Laye Hawa kenneh: Ok
vamusa.sheriff: Altogether is 400,000
vamusa.sheriff: 60,000
vamusa.sheriff: 37,0000
vamusa.sheriff: 300,000
vamusa.sheriff: 18000
vamusa.sheriff: 60,000
vamusa.sheriff: Alhaji
vamusa.sheriff: Lib
vamusa.sheriff: Lib
vamusa.sheriff: 30,000
Significant telephone calls
Exhibits 40 and 41 display call charge record results that Telstra was requested to provide, relating to the 832 and 688 numbers respectively.[81] Mobile numbers are unique numbers.[82]
[81] Trial ts 409, 411 - 412, 442.
[82] Trial ts 443.
The records display 'A numbers' and 'B numbers'. An 'A number' is the phone service either making the call or sending an SMS.[83] The 'B number' is the number receiving the call or answering the call or receiving the SMS.[84] The record shows, amongst other things, both the mobile number and the IMEI associated with the 'A' and 'B' numbers.[85]
[83] Trial ts 413, 420.
[84] Trial ts 414, 420.
[85] Trial ts 417, 420.
However, if a SIM card not associated with Telstra, such as Optus or Vodafone, was used, no IMEI trace would be recorded by Telstra in these records.[86]
[86] Trial ts 431 - 432.
The records contain multiple entries for the same call if the call traverses multiple telephone switches, because the records are produced by the telephone switch.[87] A call record may appear in the call charge records even if the SIM card receiving the call has been physically taken out of the phone.[88] The following table displays the significant phone calls recorded in exhibits 40 and 41:
[87] Trial ts 414 - 416,.
[88] Trial ts 461.
| Date and time | Maker of call | Receiver of call | Length of call |
| 6 Jan 2014, 10:24 am | Call from Phone 12, mobile no. 832[89] | To 0469579324 | 3 s |
| 21 Jan 2014, 11:17am | Call from Phone 12, mobile no. 832[90] | To TNT customer service (131 150)[91] | 6 min 2 s |
| 22 Jan 2014, 4:53:19 pm | Call from Phone 12, mobile no. 832[92] | To mobile no. 661 | 4 s |
| 22 Jan 2014, 4:53:29 pm | Call from Phone 12, mobile no. 832[93] | To mobile no. 661 | 3 s |
[89] Exhibit 40.
[90] Trial ts 966, exhibit 40.
[91] Trial ts 148.
[92] Trial ts 999, exhibit 40.
[93] Trial ts 999, exhibit 40.
| Date and time | Maker of call | Receiver of call | Length of call |
| 22 Jan 2014, 4:53:52 pm | Call from Phone 12, mobile no. 832[94] | To Phone 8, mobile no. 661 | 31 s |
| 22 Jan 2014, 4.57 pm | From Phone 8, mobile no. 587[95] | To Phone 12, mobile no. 832 | 52 s |
| 22 Jan 2014, 4.59 pm | From Phone 8, mobile no. 587[96] | To Phone 12, mobile no. 832 | 11 s |
| 22 Jan 2014, 5:02 pm | From Phone 8, mobile no. 587[97] | To Phone 12, mobile no. 832 | 23 s |
| 22 Jan 2014, 7:30 pm | Call from Phone 12, mobile no. 832[98] | To Phone 8, mobile no. 661 | 1 min 39 s |
| 22 Jan 2014, 8:24 pm | Call from Phone 12, mobile no. 832[99] | To Phone 10, mobile no. 640 | 13 s |
| 22 Jan 2014, 8:25 pm | Call from Phone 12, mobile no. 832[100] | To Phone 10, mobile no. 640 | 21 s |
| 23 Jan 2014, 10:39 am | Call from Phone 12, mobile no. 832[101] | To Phone 10, mobile no. 640 | 18 s |
| 23 Jan 2014, 2.03 pm | Call from Phone 12, mobile no. 832[102] | To TNT customer service (131 150)[103] | 7 min 19 s |
| 23 Jan 2014, 2.34 pm | Call from 08 6250 4700[104] | To Phone 12, mobile no. 832 | 1 min 41 s |
| 24 Jan 2014, 4:20 pm | Call from 08 6250 4700[105] | To mobile no. 832, redirected to mobile no. 0469 000 120[106] | 4 s |
| 28 Jan 2014, 10:30:35 pm | Automatic SMS received by Phone 8, that missed call from 777 number[107] | NA |
[94] Trial ts 999, exhibit 40.
[95] Trial ts 436, 1001, exhibit 40.
[96] Trial ts 1001, exhibit 40.
[97] Trial ts 1001, exhibit 40
[98] Trial ts 999, exhibit 40.
[99] Trial ts 439 - 440, 998, exhibit 40.
[100] Trial ts 439 - 440, 998 - 999, exhibit 40.
[101] Trial ts 441 - 442, exhibit 40.
[102] Trial ts 967 - 968; exhibit 40.
[103] Trial ts 148.
[104] On the State's case this entry represents a return call from TNT as the number differs only by one digit from the direct line of Mr Campbell: trial ts 148 - 150, 967 - 968.
[105] Trial ts 422 - 423, exhibit 40.
[106] Trial ts 422 - 423, exhibit 40.
[107] Trial ts 617 - 618, exhibit 59.
| Date and time | Maker of call | Receiver of call | Length of call |
| 29 Jan 2014, 1:36 pm | Automatic SMS received by phone 10, that missed call from 587 number[108] | NA | |
| 29 Jan 2014, 4:49pm | Call from Phone 12, mobile no. 688[109] | To TNT customer service (131 150)[110] | 4 min 53 s |
| 30 Jan 2014, 8:30 am | Automatic SMS received by phone 10, that missed call from 661 number[111] | NA |
[108] Trial ts 620 - 621, exhibit 62.
[109] Trial ts 411 - 412, 414 - 416, exhibit 41.
[110] Trial ts 148.
[111] Trial ts 620 - 621, exhibit 62.
It was an admitted fact that Phone 8 was used to make a phone call from the 295 number to Alhaji's mobile phone number at 4.25 pm on 29 January 2014 and 11.26 am on 30 January 2014.[112]
[112] Trial ts 860 - 862, exhibit 79.
Recorded interviews with the appellants
None of the appellants gave evidence at trial. Each appellant participated in one or more recorded interviews with police after their arrest.
Sheriff[113]
[113] Exhibit 43.
Sheriff admitted being at the Nollamara address when the packages were delivered and that he signed for the packages. Sheriff denied knowing the packages contained drugs, organising the delivery or contacting TNT. Sheriff told police that he went to the Nollamara address to use his friend's Foxtel subscription to watch the soccer.
Sheriff told police that, when the packages were delivered, he said he did not know the person to whom it was addressed to but that the delivery driver asked for his ID and he then signed for the package.
Sheriff provided the 295 number as his phone number for his Nokia phone, and admitted also owning an iPhone.
Sheriff denied touching the packages, taking them inside or putting them in the car. He denied seeing the packages after they were delivered. Sheriff admitted renting the Yaris, driving it to the Nollamara and Maylands addresses and driving it to the city. He said he was going to get his cousin's sunglasses fixed. Sheriff said that he could not remember whether he touched the package or opened it at the Maylands address, but he admitted touching the rollerblades. He says he does not know what happened to the packages after that, and does not know how the TNT 'missed you' card ended up in the Yaris.
Omereonye[114]
[114] Exhibit 44B.
Omereonye admitted being present at the Nollamara address and seeing the delivery of the packages occur. He admitted seeing Sheriff sign for the delivery. He denied knowing anything about the packages. Omereonye said that he went to the Nollamara house because he was going to go to the city with Sheriff.
Omereonye admitted putting the packages inside the boot of the car. He told police that they went to the Maylands address because he needed to pick up some things from his unit. Omereonye said that he saw Sheriff opening the packages and admitted helping him do so. He admitted touching the helmets and rollerblades inside the packages, and then placing them on the TV rack in the car park of the units. He denied placing the helmets in the washing machine. Omereonye said that he did not know anything about the items and that he was just helping out Sheriff.
Bamba[115]
[115] Exhibit 45.
Bamba denied committing the offence and denied ever being involved in dealing in drugs. He admitted being at the Nollamara address and in the Yaris with Sheriff and Omereonye when they drove to the Maylands address and then to the city. Bamba told police that he was getting a lift with Sheriff to the city so that he could have his citizenship paperwork signed at the Commonwealth Bank.
Bamba denied being friends with Omereonye or knowing his name. He told police that he did not know who lived at the Maylands address, and denied attending the Nollamara address before.
Bamba said that, at both the Nollamara address and Maylands address, he walked around outside because he was waiting to go to the city and because it was hot. He denied knowing what the others were doing while he was walking outside. Bamba said he spoke to his girlfriend on the phone while doing so.
Bamba denied seeing a package being delivered or seeing a package on the way to the Maylands address. He admitted to disposing of some empty boxes from the car after leaving the Maylands address.
Evidence adduced by the appellants
Although they did not give evidence, the appellants did call a number of witnesses. Sekou Toure had known Bamba since 1998 and gave evidence of sharing practices in the African community and that he had two phones (one for international calls and one for local calls).[116] Mawata Donzo was Bamba's partner who gave evidence of their plan to drive to the City to get Bamba's passport documents signed on 30 January 2014, which was changed when she felt sick that morning.[117] She also gave evidence of having two phones.[118] Omereonye also called character evidence.[119]
[116] Trial ts 864 - 871.
[117] Trial ts 874 - 876.
[118] Trial ts 876 - 877.
[119] Trial ts 881 - 886.
Joint criminal enterprise grounds
Each of the appellants contend that the trial judge in this case made the same error in his direction as was identified by this court in L v The State of Western Australia.[120]
The decision in L
[120] L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545.
In L, police executed a search warrant at L's house and located a total of 8.99 g of methylamphetamine. L and her co-offender, D, were charged with possessing the methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Drugs Act. They were both convicted of that offence after trial before a jury, and appealed against their convictions. L and D alleged an error by the trial judge in his directions to the jury.
The general effect of the trial judge's direction was that the jury could convict L and D if satisfied that they participated in a joint criminal enterprise and one of them was in possession of methylamphetamine. The trial judge identified the subject of the joint criminal enterprise as dealing in drugs generally. The direction did not clearly identify an arrangement or understanding to possess the methylamphetamine found at L's house. Otherwise, the trial judge's direction reflected the common law doctrine of joint criminal enterprise.
The court in L held that L and D's criminal responsibility was to be determined by reference to s 7 - s 9 of the Criminal Code (WA), which do not incorporate the common law doctrine of joint criminal enterprise. In that case, the direction gave rise to a miscarriage of justice because, following the direction, the jury may have apprehended that they could convict L and D otherwise than by reference to the requirements of s 7 ‑ s 9 of the Code. The direction invited the jury to convict L and D on a basis for which the law did not provide, namely that the jury could convict D without considering whether he had assisted or encouraged L to possess any drugs which the jury found were in L's possession alone, and vice versa.[121]
State's position in this appeal
[121] L [65] - [66], [73].
Some aspects of the reasoning in L in relation to the application of the common law doctrine of joint criminal enterprise to the Code were questioned in Campbell v State of Western Australia.[122] Campbell concerned an appeal from the refusal to order separate trials, which was dismissed on the basis that severance was not required to ensure a fair trial, and that any prejudice to Campbell as a result of a joint trial was capable of being overcome by suitable directions to the jury. It does not appear that the resolution of that appeal turned on the issue of joint criminal enterprise.
[122] Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331.
In the present appeal, the Director of Public Prosecutions, who appeared for the State, accepted that there was clearly no additional liability relevant in this case outside s 7(a) and s 7(c) of the Code. She did not contend in this appeal that the direction could be supported on the basis that the common law joint criminal enterprise doctrine applied in Western Australia. It may also be noted that the State did not contend for a separate head of liability based on joint criminal enterprise in Campbell (where the issue discussed by the court does not appear to have been the subject of submissions by the parties to that appeal) or in L. Rather, the Director submitted that the direction in the present appeal was an entirely conventional direction.[123]
[123] Appeal ts 63 - 64.
That submission by the Director should be accepted for the reasons which follow. This appeal can therefore be resolved without dealing with any contentious issues as to the scope of liability under s 7(a) of the Code, or with the questions about joint criminal enterprise raised in Campbell. Given that this appeal can be resolved on that basis, in circumstances where the limits of liability under s 7(a) have not been the subject of any detailed submissions by the parties, it is neither necessary nor appropriate to say anything more about those questions.
Trial judge's direction
Bases of criminal responsibility
Without expressly referring to the section number, the trial judge began his direction on the categories of criminal responsibility by identifying the elements of s 7(a) - (d) of the Code.[124] The trial judge identified the two relevant categories as 'every person who actually does the act' and 'every person who aids another person in committing the offence'.[125] That is, the trial judge correctly identified the bases on which a person could be liable for an offence under s 7(a) and s 7(c) of the Code.
'Two parts' to the first basis of liability
[124] Trial ts 1175 - 1176.
[125] Trial ts 1176.
The trial judge referred to 'two parts' of the first basis of liability, being the person who actually did the act. The first was that the person actually did the act: ie did 'all the acts constituting the offence'.[126] The second was where persons who:[127]
acting jointly with another or what lawyers describe as in concert with another, do one or more of acts in a series of acts which constitute the offence.
[126] Trial ts 1176.
[127] Trial ts 1176.
This description is entirely consistent with the decision in L,[128] where the court observed by reference to the decision of Franklyn J in Warren and Ireland v The Queen,[129] that:
the reference to every person who actually does 'the act' includes all persons who do the act or one or more of the acts in a series of acts which constitutes or constitute the offence. In that manner, s 7(a) provides for criminal liability of several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person. (citations omitted)
Joint possession
[128] L [32].
[129] Warren and Ireland v The Queen [1987] WAR 314, 327 - 329.
The trial judge then returned to what he had referred to as the 'first part' of liability that could arise under s 7(a). He explained to the jury that:[130]
If you're satisfied beyond reasonable doubt that the accused whose case you're considering did attempt to possess a prohibited drug namely methylamphetamine then that accused would be guilty as a person who did the act constituting the offence and in this case the State says that each accused did an act constituting the offence.
The act in question was possession of the parcel …
The trial judge then referred to the concept of joint possession and the State's contention that each of the appellants was in possession of the parcel containing the methylamphetamine. The trial judge referred to the appellants' contention that the jury could not be satisfied that they had the required intention or knowledge to be in possession of the methylamphetamine inside the parcel.[131] There could be no complaint about this aspect of the direction.
Acting in concert
[130] Trial ts 1176.
[131] Trial ts 1176 - 1177.
The trial judge then returned to what he had earlier described as the 'second part' of liability that could arise under s 7(a). The trial judge said:[132]
[I]f two or more persons are acting together to carry out an unlawful act then the acts done by each of them in carrying out the unlawful act are treated as the act of all of them.
You look at the totality of the acts and if it can be said that the accused were acting together, one doing one thing and the others other things, all of which acts if done by one person to constitute the offence then each of the perpetrators is liable as a principal and treated as if he actually committed the offence.
Again, this statement is entirely consistent with the passage of L quoted at [71] above.
[132] Trial ts 1177.
The trial judge then put the direction in what he said was 'another way'. The trial judge said:[133]
Put another way, two or more people acting together in concert to do an act which if done would amount to the commission of a criminal offence and that act is done by one or both of them, each is deemed to have committed the offence and the law is that where two or more persons combine to carry out a joint criminal enterprise each is responsible for the acts of the other or others in carrying out that enterprise.
The State must prove in relation to this aspect and satisfy you beyond reasonable doubt that both the existence of the joint enterprise and the participation by the accused in furtherance of it in that enterprise. (emphasis added)
The italicised words in the first paragraph quoted above, considered in isolation, suggest that an appellant might be liable even if he did not do any of the acts in a series of acts which constitute the offence. The inclusion of those two words, considered in isolation, might be seen to be inconsistent with what was said in L.[134] However, those words are not to be considered in isolation. The direction must be considered as a whole. The words identified above were preceded by an explanation that made it clear that an accused person must have done at least one of the relevant acts before liability on this basis was established. Further, in the emphasised words of the second paragraph quoted above, the trial judge said that the accused must have participated in furtherance of the enterprise. The requirement for participation was elaborated on in later passages which are dealt with below. In the context of this trial, the only way that an appellant might have participated in furtherance of the enterprise was by doing an act which was one of the acts constituting an attempt to possess the methylamphetamine thought to be contained in the packages.
Joint criminal enterprise
[133] Trial Ts 1177.
[134] L [33].
It is the trial judge's use of the phrase 'joint criminal enterprise' which appears to have excited the attention of counsel for the appellants. However, in considering the direction it is important to recognise that the phrase would have no particular meaning for the jury. The jurors would not be aware of the legal discourse about when a person may be found liable on the basis of a joint criminal enterprise at common law or under Criminal Codes. An appellant does not establish error in a direction simply by pointing to the use of the phrase 'joint criminal enterprise'. The appellant must establish that the direction, taken as a whole, invited the jury to convict the appellant otherwise than by reference to s 7 - s 9 of the Code.[135]
[135] L [31], [43].
In the present case, the trial judge might have referred to a requirement for the State to prove that the appellants were acting in concert, rather than in a joint criminal enterprise. Had his Honour done so, the textual basis for much of the argument advanced by the appellants in this court would be lost. Further, in the context in which the phrase 'joint criminal enterprise' was used in the trial judge's direction, it did not convey to the jury any different meaning than that the appellants must be shown to have acted in concert.
The trial judge's direction explained what he meant by 'joint criminal enterprise', which was that:[136]
two or more persons reach an understanding or arrangement amounting to an agreement between them they will commit a crime.
[136] Trial ts 1177.
The trial judge explained that the existence of an understanding or an agreement can be inferred from the circumstances. After referring to what counsel had said about the circumstances of the present case, the trial judge gave an example where a burglary is committed where one person stays in the car behind the steering wheel with the engine running, a second person breaks a glass panel on the outside of the door and opens the door, and a third person enters the house and steals property.[137] The trial judge said:[138]
All three would be guilty of burglary even though only one went into the house and only one actually broke the window. This is because they were acting jointly and the State in this case contends that all three accused were in a joint criminal enterprise. Each did an act or acts in furtherance of the enterprise and the totality of the acts constituted the offence of attempt.
[137] Trial ts 1178 - 1179.
[138] Trial ts 1179. The example appears to have been taken from the direction of Smith J in R v Lowery (No 2) [1972] VR 560.
The trial judge told the jury that the prosecution alleged that there was a joint criminal enterprise to possess methylamphetamine. The trial judge said:[139]
If the agreed crime is committed by one or other of the participants in the joint criminal enterprise then all of the participants in that enterprise are equally guilty of the crime regardless of what part they played in its commission provided, of course, that that person was a participant and played a part in carrying out the criminal activity.
So in this case the prosecution as I've said must prove that there was a joint criminal enterprise so you need to be satisfied of that in relation to this aspect of liability. If the prosecution does prove this that there was a criminal enterprise, that's a primary finding you can make, members of the jury, then you must consider whether the prosecution has proved beyond reasonable doubt that the particular accused you're considering has been proven to have participated in the joint venture, in the joint criminal enterprise, I'm sorry, and acted in furtherance of it.
Those are the two key steps you need to take. You have to consider whether the prosecution has proved beyond reasonable doubt that this was a joint criminal enterprise and if so then with respect to each accused has the prosecution proved beyond reasonable doubt and satisfied you beyond reasonable doubt that that person participated in that joint criminal enterprise by doing an act in furtherance of it. (emphasis added)
The emphasised words in the passages just quoted make it clear that the jury could not convict an appellant on this basis without being satisfied that he did an act in furtherance of the joint criminal enterprise to possess methylamphetamine, and so played a part in the criminal activity. In the context of this case, that could only have been by doing one or more of the acts constituting the attempt to possess methylamphetamine.
[139] Trial ts 1179 - 1180.
During the course of the appeal hearing, counsel for the appellants were asked whether they could point to any basis on which the jury might have been satisfied that any of the appellants participated in the importation and attempted possession of the methylamphetamine in a way which would not attract liability under s 7 of the Code. The only basis suggested by counsel was that the jury might have found an appellant to be guilty on the basis that he was a party to an agreement to possess methylamphetamine, without being satisfied of any actual act being proved.[140] We do not accept that the jury, following the trial judge's direction discussed in detail above and below, could possibly have apprehended that they might find any of the appellants guilty simply on the basis of the existence of an agreement to possess methylamphetamine. Counsel were unable to identify any other basis on which the jury might find any appellant guilty otherwise than by reference to the requirements of s 7(a) and s 7(c) of the Code.
Aiding
[140] Appeal ts 14 - 15, 53, 57, 70 - 71.
The trial judge then went on to direct the jury as to the basis on which the appellants might be found liable as persons who aided another in committing the offence, in terms which are not the subject of complaint in this appeal.[141]
Summary
[141] Trial ts 1180 - 1181.
The trial judge concluded this aspect of his direction by saying:[142]
So let me just summarise the way in which the State puts its case in relation to responsibility. Firstly, and there are three ways, firstly each accused himself attempted to obtain possession and each did an act constituting an attempt.
Secondly, the accused were parties to a joint criminal enterprise to possess the methylamphetamine. Thirdly, each accused was an aider to the attempt to attempt to obtain possession of the methylamphetamine.
In this passage, the trial judge was doing no more than identifying the three concepts which he had just explained in detail, in a context where it must have been understood by the jury as referring to that detailed explanation.
Elements of the offence
[142] Trial ts 1181.
The trial judge then went on to deal with the elements of the offence. At the beginning of this portion of his direction, the trial judge said:[143]
I've already explained to you about criminal responsibility, so obviously you take into account what I say about criminal responsibility when you're considering the elements.
The trial judge's explanation about criminal responsibility required the relevant appellant to have done at least one of the acts constituting the offence of attempting to possess methylamphetamine before he could be found guilty. The manner in which the trial judge described the elements of that offence reinforced that explanation.
[143] Trial ts 1182.
The first element which the trial judge identified was that:[144]
it's those particular accused that did the things that the State says constitute the offence. The State has to prove in relation to a particular accused that he is and was the offender in question.
[144] Trial ts 1182 - 1183.
The second element which the trial judge identified was that methylamphetamine is a prohibited drug.[145]
[145] Trial ts 1183.
The third element which the trial judge identified was that the appellant attempted to commit the offence of possessing methylamphetamine with intent to sell or supply it.[146] The trial judge gave a detailed explanation of what this involved, including that:[147]
the first matter that needs to be established is that the accused intended to commit an offence. And before you find that a person attempted to commit an offence, you must be satisfied beyond reasonable doubt that they did intend to commit that offence.
So that's a primary factual finding you're going to have to make: are you satisfied beyond reasonable doubt that the accused's case who you're considering, bearing in mind what I've said about responsibility, intended to commit the offence.
It follows that before you can find a person attempted to possess a prohibited drug, you must be satisfied beyond reasonable doubt that they intended to possess the prohibited drug.
[146] Trial ts 1183 - 1189.
[147] Trial Ts 1184 - 1185.
After directing the jury about drawing inferences about intention, the trial judge said:[148]
The State must prove that the accused whose case you're considering intended to sell or supply to another all or any part of the methylamphetamine they were attempting to possess …
[148] Trial ts 1187.
The trial judge identified as a second sub-element the State was required to prove:[149]
The State must satisfy you beyond reasonable doubt that the accused began to put the intention into effect by doing an act that was more than merely preparatory and in this case the State says the accused men had possession of the cartons which they believed contained methylamphetamine.
The State must prove beyond reasonable doubt that the particular accused did some physical act which is more than merely preparatory to the commission of the offence by means of which the accused began to put his intention to commit the offence into execution.
The act or acts relied upon by the State must have been done with the intention to commit the offence.
[149] Trial ts 1187.
In the course of explaining what was involved in possession, the trial judge said:[150]
So in order to prove that the accused attempted to possess the methylamphetamine the subject of the charge the State must prove that the accused intended to take physical custody of the methylamphetamine or intended to have control or dominion over it.
[150] Trial ts 1188.
The trial judge summarised what the State had to prove in order to establish an appellant attempted to commit an offence as involving the following three sub-elements:[151]
1.the appellant intended to possess methylamphetamine, that is to have control or dominion of it;
2.the appellant believed that what he was intending to possess was a prohibited drug;
3.the appellant intended to sell or supply the methylamphetamine.
4.the appellant did not actually possess the drugs; ie, he didn't actually commit the offence of possessing methylamphetamine with intent to sell or supply.
[151] Trial ts 1189.
The trial judge said that he did not expect the jury to have any difficulty with the first two elements which his Honour had defined, namely identity and that methylamphetmine is a prohibited drug.[152] The trial judge again summarised what the State had to prove in relation to the third and fourth elements in the following terms:[153]
The State must prove that the accused intended to have the methylamphetamine in his possession and he did so with the intention of selling or supplying it to another.
The State must prove that the accused did an act which was more than merely preparatory to the commission of the offence, such act being done as the initial step in putting the intention into effect …
…
The State must also satisfy you as I've said that when the accused did those acts he did so with the intention of committing an offence, but that he didn't fulfil that intention to the extent of committing the offence.
[152] Trial ts 1189.
[153] Trial ts 1189 - 1190.
The trial judge's direction about the elements of the offence was expressed in terms of the intention and acts of the particular accused, and was inconsistent with any idea that an accused might be convicted without the jury being satisfied that he did or aided any of the acts which constituted the offence.
Further references to joint criminal enterprise
Later in his direction, the trial judge dealt with when the conduct of an accused participating in a joint criminal enterprise is evidence against a co-accused participating in that enterprise.[154] In the course of doing so, the trial judge reiterated:[155]
You must be satisfied before you can find the accused guilty on this basis of the existence of the joint enterprise or combination and that the accused was a participant in it and did an act in furtherance of it. (emphasis added)
[154] Trial ts 1210 - 1211.
[155] Trial ts 1211.
In summarising the State's case, the trial judge again referred to the bases on which the State alleged the appellants to be criminally responsible, in the following terms:[156]
[T]he State's case against each of the accused is put on those three bases that I've outlined, namely each accused attempted to obtain possession, indeed each did an act, which constituted an attempt to obtain possession. Secondly, the accused were parties to a joint criminal enterprise to possess the methylamphetamine with intent to sell or supply it to another. And thirdly, in the alternative, each accused was an aider to the attempt to obtain the possession of the methylamphetamine with intent to sell or supply.
Conclusion as to joint criminal enterprise grounds
[156] Trial ts 1216.
Taken as a whole, the trial judge's direction did not suggest that the jury might find any appellant to be guilty other than by reference to s 7(a) or s 7(c) of the Code. In accordance with the trial judge's direction, the jury could only find an appellant guilty if satisfied that he did the act, or at least one of the acts, constituting the offence with the relevant intention or knowingly aided another to do so. Although it used the term 'joint criminal enterprise', the trial judge's direction was entirely consistent with the decision of this court in L.
Counsel for Sheriff submitted that, in Handlen v The Queen,[157] the High Court held that a direction on a head of liability not supported by the Commonwealth Criminal Code involved such a fundamental departure from the proper conduct of the trial that the proviso could have no application.[158]
[157] Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282.
[158] Appeal ts 16 - 17.
In Handlen, the two appellants (Handlen and Paddison) were charged with importing a commercial quantity of border controlled drugs, contrary to s 307.1 of the Commonwealth Criminal Code. The Crown case was that a third person (Reed) imported the drugs, which were concealed inside the cathode ray tubes of computer monitors. The plurality described the basis on which Handlen and Paddison could have been criminally responsible in the following terms:[159]
The only basis upon which criminal responsibility could be fixed on [Handlen and Paddison] for the importations was for aiding, abetting, counselling or procuring the commission of the offences by Reed. Proof of guilt was dependent upon establishing, in the case of each [of Handlen and Paddison], that his conduct in fact aided, abetted, counselled or procured the commission of the offence by Reed that he intended that his conduct would facilitate the commission of an offence of the type that Reed committed. (citations omitted)
[159] Handlen [9].
The Crown case in Handlen had been put and left to the jury on the basis that it was sufficient to show that Handlen and Paddison were parties to a 'group exercise to import the drugs'. This was held to be an error which could not be cured by an application of the proviso. The plurality observed:[160]
The question of whether the appellants were parties to the group exercise obscured the requirement to prove that each appellant engaged in conduct that in fact facilitated the commission of the importation offences by Reed.
The plurality illustrated the point by reference to the case against Paddison. Their Honours observed that the jury might have convicted Paddison on the basis that it was satisfied that he was party to a group exercise, without being satisfied that he had packed the drugs in the monitors knowing that they were border controlled drugs that Reed intended to import into Australia (which was his conduct which might be relied upon as aiding in the commission of the offence). In holding that the proviso could not be applied in these circumstances, the plurality said:[161]
Ultimately, the issue posed for the jury was whether the prosecution had proved that the appellants were parties to the group exercise when this was irrelevant to proof of their complicity in Reed's offences. The verdicts on the importation counts reflect the jury's satisfaction that each appellant was a party to the group exercise but it does not follow that the jury must have been satisfied of the facts necessary to establish the appellants' guilt of the importation offences in the only way for which the law allowed.
[160] Handlen [46]
[161] Handlen [47].
The vice of the direction in Handlen was therefore that, in the circumstances of that case, it invited the jury to convict Handlen and Paddison on a basis for which the law did not then provide.[162] For the reasons explained above, the trial judge's direction to the jury in the present case did not invite the jury to convict the appellants otherwise than on the basis provided for in s 7(a) and s 7(c) of the Code. The decision in Handlen does not assist the appellants in the present case.
[162] The Criminal Code (Cth) was subsequently amended to incorporate s 11.2A which provides that a person who enters an agreement to commit an offence is taken to have committed the offence where that offence is committed in accordance with the agreement.
For the above reasons, the grounds of appeal raising the joint criminal enterprise issue must be dismissed.
Separate pathways ground
Trial judge's direction
The trial judge directed the jury about the need for unanimity in the following terms:[163]
Members of the jury, I have explained to you that there are three ways in which the State presents its case that the accused are guilty of this charge. If you all agree upon a verdict in this case, then that's the verdict. It has to be unanimous, which means you must all agree that the accused is guilty.
The State has, as I've said, put its case on alternative bases that I've explained to you, although it must be obvious that there's a real overlap between the positions. It's not necessary that you all agree that it was one of those alternatives, namely, principal offender, joint criminal enterprise or aiding. You don't all have to be unanimous about which one of those particular items it was.
However, it is necessary that you be unanimous the offence was committed in one of the ways. One way is as the person who did the things that constitute the offence. The second way is if the accused was a party to a joint criminal enterprise and participated in the enterprise. The third way is if the accused aided another person to commit the offence.
The jury cannot deliver a guilty verdict unless you're all satisfied beyond reasonable doubt that the accused is guilty on at least one of those bases. As long as you are unanimous about your verdict the path by which the members of the jury reach their verdict may differ. However, you cannot deliver a guilty verdict unless you are all satisfied that the accused is guilty on at least one of those bases.
[163] Trial ts 1215 - 1216.
Omereonye contends that the trial judge erred in directing the jury in the above terms, and in failing to direct the jury 'concerning the need for them to be unanimous regarding the pathway to guilt they followed to establish [Omereonye's] culpability'. Bamba adopts this argument.
When a separate pathways direction is required
The law as to when a jury is required to be directed that they must be unanimous not only as to the verdict but also as to the legal pathway by which the verdict was reached is well established. It was summarised in Gandy v The State of Western Australia,[164] and is to the following effect.
[164] Gandy v The State of Western Australia [2017] WASCA 93 [72] - [73], [84].
It has never been the law that individual jurors must agree on every matter before reaching a verdict. Nor has it been held that the concept of a unanimous verdict requires each juror to be satisfied that the prosecution has established its case in one particular way. Where the alternative legal formulations of liability rest on the same or a substantially similar factual foundation and do not involve materially different issues or consequences, the jury only has to be unanimous in the verdict. It is not necessary that all members of the jury arrive at the same verdict by the same pathway.
However, where the alternative legal formulations of liability rest on materially different factual foundations or involve materially different issues or consequences, a trial judge is required to direct the jury that, in order to convict the accused of the offence charged, the jury must be unanimous as to the pathway to guilt. In these reasons, we will refer to this direction as a 'separate pathways direction'.
At least where the alternative legal formulations of liability under s 7(a) ‑ (d) rest on the same or a substantially similar factual foundation, a jury may convict so long as all members are satisfied that the accused is liable on at least one of the bases, even though they do not all reach that verdict by the same pathway.[165]
Omereonye
[165] L [54]; as to the interaction between s 7 and s 8 of the Code see Gandy [84] - [88].
There is no reasonable basis for contending that the alternative legal formulations of liability advanced by the State in Omereonye's case rested on materially different factual foundations or involved materially different issues or consequences.
The only matter to which counsel for the appellant pointed in support of the submission that a separate pathways direction should have been given concerned evidence about when Omereonye brought a box cutter to the carport where the packages were opened. Counsel for Omereonye refers to the following passage from the prosecutor's closing address to the jury:[166]
In the case of Mr Omereonye you have first of all the box cutter that he rushed upstairs to get on that day. Aminata Koroma told you that Mr Omereonye came up to the apartment at about 1.00 pm and he got the box cutter staying for only a minute or so.
She said she went downstairs about half an hour later and she found on the ground in the car bay number 5, next to bay 6 where the TV cabinet was kept, she found the box cutter and took it upstairs with her.
Now, the surveillance evidence really demonstrates that the time given by Ms Koroma it just can't be correct. 1.00 pm can't be right because Mr Omereonye had to be inside of Milford Way by that point. He wasn't seen coming out until later, around about the time that the boxes arrived with Sergeant Leong.
So there are, I suggest, two possibilities. The first is that Mr Omereonye came up a bit earlier that day, before the surveillance had started on Milford Way and then he left the box cutter downstairs so that it would be there when they arrived with the boxes. And if you were satisfied that that was the case then that would show Mr Omereonye premeditated that, that he was planning to receive boxes at his address that day.
The second possibility is that he came up just before 3 pm when they arrived there with the boxes. So they get there with the boxes, all three of them, Mr Bamba goes out the front and Mr Omereonye goes upstairs. The difficulty with that scenario is that Ms Koroma said that she came downstairs and got the box cutter about half an hour later and she may be wrong about the half an hour. That's a unit of time that we tend to use in our day-to-day lives without meaning 30 minutes precisely.
But she wasn't seen by any surveillance, and you heard from Operative 687 that he was able to see down the driveway pretty well straightaway after the car had left. So it seems quite unlikely that she would have come down in that very small window of time after they happened to have left without seeing them, seen the box cutter there, grabbed it and gone upstairs in time for Operative 687 to start looking down the driveway.
But that's probably an example of one of those factual questions that you don't need to resolve, the time, because whenever it was that Mr Omereonye got the box cutter, it clearly shows that he actively participated in opening these boxes. That much is absolutely clear.
[166] Trial ts 986 - 987.
Omereonye submits that the critical factual difference in the pathways to his guilt concerned the box cutter. He submits that for the pathway based on joint possession, the State contended that if the box cutter was taken to the carport at 1.00 pm, that suggests Omereonye was aware the drugs were soon to arrive. Conversely, if the box cutter was first produced at around 2.48 pm, that would support a contention that Omereonye aided in the removal of the helmets from the packages.
There is no merit in that submission. As the prosecutor's submission quoted above indicates, the question of when Omereonye obtained the box cutter was not one the jury were required to resolve. On either view of the time, the evidence was that Omereonye obtained the box-cutter to open the packages at the Maylands property. He did so, on the State's case, in a context where he travelled with Bamba and Sheriff from the Nollamara address to the Maylands address where he lived, assisted in the unpacking of the packages and provided the place where they were to be stored. Either view of the evidence as to precisely when Omereonye obtained the box cutter was consistent with a finding of guilt under either s 7(a) or s 7(c) of the Code.
Bamba
Bamba's grounds of appeal against conviction also contended that the trial judge 'misdirected the jury as to the pathways of guilt', and adopted Omereonye's submissions as to that ground. It appears that the inclusion of this ground is simply a product of a rather haphazard approach of Bamba's counsel adopting content from Omereonye's appellant's case. To the extent that Bamba relies on the argument advanced by Omereonye, the argument should be rejected for the reasons explained above. Bamba did not advance any other basis for contending that the trial judge erred in not giving the jury a separate pathways direction in his case.
Conclusion as to separate pathways ground
Leave to appeal should be refused on this ground.
Unreasonable verdict: general principles
Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow this appeal if, in its opinion, the verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
The conclusion that a verdict is unreasonable, having regard to the evidence, is not materially different to the conclusion that the verdict was unsafe or unsatisfactory.
In considering this ground, it is necessary for this court to decide whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question the court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence. The court must not disregard or discount the consideration that the jury had the benefit of having seen and heard the witnesses.[167] As the majority noted in M v The Queen:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495). (footnotes omitted)
[167] M v The Queen (1994) 181 CLR 487, 492 - 493.
This court must make its own independent assessment of the sufficiency and quality of the evidence, and determine whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.[168]
[168] EAGD v The State of Western Australia [No 2] [2014] WASCA 68 [35], citing SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14].
The question for this court is whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[169]
[169] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; Bibovic v The State of Western Australia [2016] WASCA 22 [34]. See also Mansell v The State of Western Australia[No 6] [2013] WASCA 120 [16] - [19].
Unreasonable verdict: what the State had to prove
The appellants were charged with attempting to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) and s 33(1)(a) of the Drugs Act. The law in respect of that offence was recently summarised in Kalbasi v The State of Western Australia.[170] We adopt that summary without repeating it.
[170] Kalbasi v The State of Western Australia [2016] WASCA 144 [84] - [92], [98]. See also Reid v Director of Public Prosecutions (WA) [2012] WASCA 190 [14], R v English (1993) 10 WAR 355.
In the present case, the State's case was based either on s 7(a) of the Code (either joint possession, or acting in concert in the manner described above) and s 7(c) of the Code (aiding). In order to prove aiding, the State must prove that:[171]
1.a person or persons (the principal) has committed the offence;
2.the aider had actual knowledge of the facts amounting to the offence committed by the principal;
3.the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which make up the offence; and
4.what the aider did or omitted to do actually aided or assisted the commission of the offence.
[171] Ritchie v The State of Western Australia [2016] WASCA 134 [84] and cases there cited; Taylor v The State of Western Australia [2016] WASCA 210 [58], [310], [316] - [317].
So, in the circumstances of the present case, to establish an appellant's guilt the State needed to prove that:
1.The relevant appellant either:
(a)had actual physical custody of the package with the helmets or exercised control or dominion over it (either alone or jointly with one or more of the other appellants); or
(b)acting in concert with one or more of the other appellants, did one or more of the acts by which the other appellant(s) gained actual physical custody of, or exercised dominion or control over, the package; or
(c)did an act which aided or assisted one of more of the other appellants to have actual physical custody of, or exercise dominion or control over, the package;
and
2.At the time of engaging in the conduct referred to in 1, the relevant appellant believed that the package contained a prohibited drug; and
3.At the time of engaging in the conduct referred to in 1, the relevant appellant intended to sell or supply the prohibited drug to another or (in the case of 1(c) above) knew that the principle offender had that intent.
Unreasonable verdict: Sheriff
Appellant's submissions
The submissions advanced by counsel for Sheriff were very much focussed on the proposition that 'there was inadequate evidence for [Phone 12] to be attributed to' Sheriff.[172] Phone 12 was significant because the evidence was that this was the phone in which the SIM card for the 832 number was located when the calls referred to at [48] above were made from that number. The 832 number was also written on the label of the packages delivered from India.
[172] Appellant's written submissions, par 23.
Sheriff's counsel submitted that there was a mix up of the phones seized from Sheriff and Omereonye, and that the Nokia phone attributed to Omereonye was actually Sheriff's Nokia phone and vice versa.[173]
[173] Appeal ts 33 - 34.
Sheriff's counsel submitted that the evidence taken as a whole did not enable the jury to be satisfied, beyond reasonable doubt, that Sheriff believed the packages to contain prohibited drugs or intended to sell or supply prohibited drugs to another.[174]
Other evidence implicating Sheriff
[174] Appeal ts 23 - 25.
In the circumstances of this case, it was not necessary for the jury to be satisfied that Sheriff was the user of Phone 12 when it was used to make the calls in order to find Sheriff to be guilty of the offence with which he was charged. There was other evidence led at trial which left it open for the jury to find Sheriff guilty even if not satisfied that Sheriff was the user of the 832 number. It was open for the jury to be satisfied that the only reasonable inference was that Sheriff attempted to be in possession of methylamphetamine with intention to sell or supply on the following evidence considered in combination:
1.Phone 13 (Sheriff's iPhone) was used to search for the postcode for Nollamara (where the final delivery address for the packages was located) and the contact details for TNT.
2.The iPad belonging to Sheriff had been used for an internet chat which was apparently related to drug dealing and in which Alhaji's name was used.
3.Sheriff contacted Alhaji during the period of time in January 2014 when Alhaji was away from Perth for work and before Sheriff was arrested, and arranged to use Alhaji's house for the purpose of watching football and playing computer games.[175]
4.The 295 number, subscribed in Sheriff's name, was used to contact Alhaji.[176] Alhaji's residence was used as the final delivery address.[177]
5.Sheriff was observed to drive the Yaris (in which the TNT 'missed you' card was located) between the Nollamara address and the Maylands address, and then into the city. Sheriff had been asked to rent the car by a friend, Samuka Konneh.[178]
6.Sheriff was present at the Nollamara address when the packages were delivered. He was the person who accepted the packages from Officer Leong and signed for them.[179] It was open to the jury to accept the evidence of Officer Leong that Sheriff said that '[Cliff Jhon has] gone out and told me to collect the packages for him'.[180]
7.After accepting physical custody of the packages, Sheriff drove in the Yaris with Omereonye and Bamba to the Maylands address where the packages were opened in his presence and the helmets containing the methylamphetamine were placed in the washing machine (thereby separating the items containing methylamphetamine from the other packaged items).
8.Sheriff lied to police about having had no dealings with the packages after signing for them, and about having travelled from the Nollamara address to the city without stopping at the Maylands address (which admitted lies were relied on by the State as evidencing guilt).[181]
[175] Trial ts 243 - 245, 253 - 255.
[176] Exhibit 79.
[177] Trial ts 242, exhibit 14.
[178] Trial ts 789 - 791.
[179] Trial ts 223.
[180] Trial ts 223.
[181] See Trial ts 1213.
There was direct evidence that Sheriff had physical custody of the packages containing methylamphetamine. It was at least open for the jury to conclude that the only reasonable explanation for Sheriff's presence at the Nollamara address, his arrangements to use the house which was the final delivery address for the packages and his conduct after receiving the packages was that Sheriff thought the packages contained prohibited drugs, and so had attempted to possess the drugs. The amount of methylamphetamine in the helmets, as well as that conduct, supported an inference that Sheriff intended to sell or supply the drugs to another. On that basis, the evidence summarised above was capable of satisfying the jury, and satisfies us, of each of the elements of the offence beyond reasonable doubt. That is, the only reasonable inference to be drawn from that evidence, considered in the context of the evidence led at trial as a whole, is that Sheriff attempted to possess the methylamphetamine in the packages with intent to sell or supply it to another. That is so even if the jury were not satisfied that Sheriff was the user of the 832 number.
The conclusions noted above are sufficient to lead to the conclusion that Sheriff's unreasonable verdict ground must fail, even if his submissions in relation to Phone 12 and the 832 number were to be accepted.
Further, in the context of that evidence, the conclusions that Sheriff was found in possession of Phone 12 and was the user of the 832 number were clearly not indispensable intermediate steps in the reasoning process towards an inference of guilt which must be established beyond reasonable doubt.[182] Rather, the circumstantial evidence of guilt was to be assessed in the manner summarised in Mansell v The State of Western Australia:[183]
The case against the appellant was circumstantial. Circumstantial evidence is not necessarily inherently less compelling than direct evidence. As Gleeson CJ and Kiefel J noted in AK v The State of Western Australia (2008) 232 CLR 438:
'Undisputed objective circumstances may be more reliable than direct testimony [27].'
Where the prosecution relies upon circumstantial evidence, guilt must be the only reasonable and rational inference that could be drawn from the circumstances: Plomp v The Queen (1963) 110 CLR 234, 243; Shepherd v The Queen (1990) 170 CLR 573, 578.
Circumstantial evidence must be evaluated in its entirety, not considered on a piecemeal basis in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Shepherd (579 - 580). In R v Hillier (2007) 228 CLR 618, Gummow, Hayne and Crennan JJ stated:
'Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal [48].'
[182] See Shepherd v The Queen (1990) 170 CLR 573, 576, 585, 586.
[183] Mansell [20] - [21].
In this context, it was not necessary for the jury to be satisfied beyond reasonable doubt that Sheriff was found in possession of Phone 12, or that he was the user of the 832 number, before they could take account of evidence of those matters in determining Sheriff's guilt.
Evidence linking Sheriff to Phone 12
In any event, the evidence led at trial supported the conclusion that Sheriff was arrested in possession of Phone 12, from which the calls by the 832 number had been made.
Officer Court gave evidence that he arrested Bamba near the Australia Post store, placing the items seized from Bamba (which included a Samsung Galaxy mobile phone and a Nokia mobile phone) into a clip-seal bag. Officer Court took Bamba to the Murray Street mall where he handed Bamba and the property taken from him to other police officers. Officer Court then took custody of Sheriff and Officer Rawlins received Sheriff's property bag.[184] At trial, he could not recall what was marked on the bags.[185]
[184] Trial ts 529 - 530, 697 - 700.
[185] Trial ts 701.
Sheriff was then conveyed to the Yaris where the vehicle was searched, and he was then conveyed back to the Organised Crime Squad offices. Sheriff's property bag remained with Officer Rawlins and, when Officer Court checked it at the offices, contained an Apple iPhone and a Nokia mobile phone. Officer Court also saw two other property bags with Bamba's and Omereonye's names on them. Bamba's property bag had the same items as Officer Court had previously seized in it. The contents of Omereonye's bag included a Blackberry mobile phone and a Nokia mobile phone. All three property bags had items of identification of the relevant appellant in them.[186]
[186] Trial ts 531 - 532, 594, 702.
During the search of the Yaris, Officer Court obtained Sheriff's driver's licence from the property bag Rawlins was holding.[187]
[187] Trial ts 593 - 594, 700 - 701, exhibit 42.
At the Organised Crime Squad offices, Officer Court took the phones out of each property bag and placed them in a clip-seal bag on which he wrote the relevant appellant's name with a permanent marker.[188] Sheriff's photographic identification was still in his property bag.[189] The bags with the phones were placed on Officer Rawlin's desk just after 8.00 pm.[190]
[188] Trial ts 532.
[189] Trial ts 595.
[190] Trial ts 532 - 533, 736.
Sheriff provided Officer Court with the passcode for the iPhone (Phone 13) and Omereonye provided the passcode for the Blackberry (Phone 9), which Officer Court used to access those phones.[191]
[191] Trial ts 592 - 593.
Officer Rawlins gave evidence that he was present when Bamba was arrested near an Australia Post store. At that time property was taken from Bamba and 'placed on the ground next to him for the short-term'. Officer Rawlins could not recall where Bamba's property was placed after that. Bamba was escorted to a police vehicle in the mall area, where they met officers with Sheriff. Rawlins exchanged prisoners and a property bag with another officer. Rawlins was handed a property bag which he understood had items belonging to Sheriff inside it, and went with Sheriff and other officers to the Yaris where the search of the vehicle was conducted.[192]
[192] Trial ts 806 - 807, 808 - 810, 828 - 829.
Officer Rawlins recalled receiving some property from Omereonye at the Organised Crime Squad offices, which he thought might have been a phone (although he was not sure).[193]
[193] Trial ts 830 - 832.
Officer Rawlins entered details of the phones and the persons from whom they were seized in the police information management system at 12.29 am on 31 January 2014.[194] Although Officer Rawlins could not recall how he received the property,[195] he could recall the property bags being at his desk and he gave evidence that the items would either have been left on his desk or secured in a cabinet.[196]
[194] Trial ts 801 - 804, 811, exhibit 75.
[195] Trial ts 800, 804.
[196] Trial ts 805, 815, 824.
Significantly, the arrest of Sheriff and Omereonye was captured on CCTV,[197] which showed those appellants being separated before Omereonye's property was placed into a bag. It also showed that Omereonye was driven away with the bag in a police vehicle.
[197] Exhibit 47.
The evidence summarised above established that Phone 12 was seized from Sheriff at the time of his arrest in Murray Street. Although the Nokia phones found in the possession of each appellant were identical in appearance, the CCTV footage shows there was no opportunity for the property of different appellants to be mixed up at the point of their arrest. Phone 12 was in the same bag as Sheriff's driver's licence, the iPhone which Sheriff accepted was his when interviewed by police and sunglasses which Sheriff said he was taking to get fixed. The phones were taken by Officer Court from the property bags and placed in separate labelled bags which were then placed on Officer Rawlin's desk. The phones were then entered into the police information management system. The evidence supports the conclusion, and the jury were entitled to accept, that the phones seized from the appellants at the time of their arrest were those attributed to them by name and there was no 'mix-up' of Sheriff's and Omereyone's Nokia mobile phones.
Sheriff refers to a number of potential discrepancies in the police records, but none of those discrepancies, if established, preclude acceptance of the evidence referred to above.
Sheriff also relies on the facts that:
1.the SIM card for the 295 number, which was subscribed in Sheriff's name, was located in Phone 8 (the Nokia phone found in Omereonye's possession at the time of his arrest);
2.Sheriff gave the 295 number as his phone number in the police interview;[198]
3.telecommunications records show the SIM card for the 295 number had only been used in Slot 1 of Phone 8;[199]
4.Alhaji gave evidence that he had the 295 number stored in his phone under his nickname for Sheriff;[200]
5.there was a missed call from the 777 number in Phone 9 (Omereonye's Blackberry) to the 295 number in Phone 8 at 22:30:35 on 28 January 2014 (it being unlikely that Omereonye would be calling himself if Phone 8 was his); and
6.the 832 number made calls to two numbers in Nigeria, in circumstances where Sheriff and Bamba are from Liberia and Omereonye is from Nigeria.[201]
[198] Trial ts 742 - 744.
[199] Trial ts 745.
[200] Trial ts 258 - 259, 744.
[201] See appeal ts 35 referring to trial ts 999.
The evidence referred to in the previous paragraph supports the proposition that Sheriff owned or regularly used Phone 8, which was found in Omereonye's possession at the time of arrest. There was evidence that it was common practice in the African community to share phones and SIM cards.[202] However, it does not deny the proposition that Phone 12, which was associated with the 832 number, was found in Sheriff's possession at the time of his arrest. It does not demand a conclusion that the police mixed up the phones, or require the jury to have had a reasonable doubt about whether the phones attributed to each accused were in fact seized from that accused.
Inference that Sheriff used the 832 number
[202] Trial ts 255 ‑ 256, 333, 869.
When the evidence that Sheriff possessed Phone 12 at the time of his arrest is combined with all of the other evidence led at trial, it was open to the jury to conclude, and we conclude, that the only reasonable inference is that Sheriff used Phone 12 and the 832 number to attempt to arrange the delivery of methylamphetamine for the purpose of selling or supplying it to another. That inference is principally compelled by the combination of Sheriff's possession of Phone 12, evidence of Sheriff arranging for the use of the Nollamara address, the use of his iPhone and iPad referred to above, his conduct on the day of the alleged offence (particularly in accepting possession of the parcel) and the lies which Sheriff told in his interview with police. The 832 number was used for the purposes of the delivery, and to change the delivery address to the Nollamara address which Sheriff had arranged to use at the delivery time.
The jury's verdict in relation to Sheriff was not unreasonable
When the evidence led at trial was considered as a whole, the jury could properly be satisfied (and we are satisfied) that the only rational inference which could be drawn from the primary facts established by that evidence was that Sheriff attempted to possess a prohibited drug with intent to sell or supply it to another. Sheriff had actual physical custody of, and exercised dominion and control over, the package which he believed contained a prohibited drug and which he intended to sell or supply to another. It was open to the jury to reject, as do we, Sheriff's version of events given in his recorded interview to the effect that he had no knowing involvement in the alleged offence. The verdict was not unreasonable and was supported by the evidence. This ground of Sheriff's conviction appeal must be dismissed. As the ground has no reasonable prospect of success, leave to appeal on the ground should be refused.
Unreasonable verdict: Bamba
Most of the written submissions advanced in support of Bamba's unreasonable verdict ground relate to the 832 number and Phone 12, the browsing history in Sheriff's iPhone and the use of Alhaji's house. The reference to these matters in Bamba's written submissions appears to be a symptom of the approach taken by counsel of cutting and pasting from Sheriff's submissions. In oral submissions, counsel for Bamba accepted that these issues did not substantially concern the case against Bamba.[203]
[203] Appeal ts 58 - 59.
In substance, Bamba's remaining contention is that the evidence relied on by the State against him was not sufficient to implicate him in the offence, and did not exclude the reasonable possibility that Bamba 'was really basically an innocent bystander, and somebody just turns up on the day and he gets in the car and goes for a ride'.[204]
[204] Appeal ts 58.
In summary, the State relied at trial on the following evidence to prove, beyond reasonable doubt, that Bamba was acting in concert with, or at least knowingly aiding, the other appellants in attempting to possess a prohibited drug with intent to sell or supply it to another:
1.Phone 10 (an identical Nokia to that found in the other appellants' possession) was found in Bamba's possession at the time of his arrest.
2.Phone 12 and Phone 8 were used to call Phone 10.
3.The mobile number on which Phones 12 and 8 contacted Phone 10 was subscribed in another person's name, though whether this was a false name could not be positively proved.[205] This mobile number was registered on 11 Jan 2014.[206]
4.Bamba was seen outside the premises when the boxes were being delivered to the Nollamara address, and appeared to be acting as a lookout.[207]
5.Bamba was observed outside the Maylands premises while the helmets were being transferred from the package to the washing machine, and appeared to be acting as a lookout.[208]
6.Bamba disposed of the empty boxes.[209]
7.Bamba's fingerprints were found on the TV cabinet in the carport area of the Maylands address.[210]
8.Bamba lied to the police about knowing Mr Omereonye and that the Maylands address was Omereonye's address.[211] Ms Koroma, Omereonye's partner, gave evidence that she knew Bamba through Omereonye and that they visited each other's houses.[212]
[205] Trial ts 747 - 748.
[206] Exhibit 55.
[207] Exhibit 25.
[208] Exhibit 31.
[209] Trial ts (17 February 2016, Closed Court) 21; ts of video record of interview with Mr Bamba, pages 76 - 77.
[210] Trial ts 370.
[211] Ts of video record of interview with Mr Bamba, pages 22, 38 - 39.
[212] Trial ts 328 - 329.
Taken as a whole, this evidence is inconsistent with Bamba simply accepting a lift into the city not knowing what Sheriff and Omereonye were doing. If he had simply been accepting a lift, the evidence did not suggest any valid reason for Bamba to have gone to the front of the Nollamara and Maylands address at critical times, or to have lied to the police about knowing Omereonye. Bamba's contention in the police interview that he was calling his girlfriend was not supported by the observations made by police surveillance operatives. His possession of the common type of Nokia phone used in the commission of the offence, and communications with the other phones, pointed to his knowing involvement in the attempt to possess the prohibited drugs with intent to sell or supply to another.
When the evidence led at trial is considered as a whole, it was capable of satisfying the jury (and we are satisfied) that Bamba acted jointly with Sheriff and Omereonye in attempting to possess a prohibited drug with intent to sell or supply it to another. At the very least, the evidence was capable of proving beyond reasonable doubt that Bamba knowingly aided that attempt by acting as a lookout. It was open to the jury to reject, as do we, Bamba's version of events as given in his recorded interview. The verdict was not unreasonable and was supported by the evidence. Although we would grant Bamba leave to appeal on this ground, this ground of Bamba's conviction appeal must be dismissed.
We now turn to the appeals against sentence.
Appeal against sentence: trial judge's findings of fact
The trial judge made findings about the delivery, receipt and movement of the appellants and the packages consistently with the evidence noted above at [21] ‑ [34].[213]
[213] Trial ts 1328 - 1331.
The trial judge found that Sheriff used his iPhone to change the delivery address to the Nollamara premises and to search for the postcode for Nollamara. His Honour said that Sheriff's involvement in bringing the drugs into the country must have been 'at a reasonably early stage', but was not satisfied that Omereonye's and Bamba's involvement occurred at the same stage as that of Sheriff.[214]
[214] Trial ts 1330.
The trial judge found that Bamba acted as a lookout at the Maylands address, and that Omereonye obtained a box-cutter from his unit and the helmets were placed in the washing machine.[215]
[215] Trial ts 1331.
The trial judge found that the appellants were engaged in a commercial activity and that the drugs were being obtained for financial gain and not for personal use. While there was no evidence of how much each of the appellants would have received, each appellant knew and actively participated in the attempt to obtain the prohibited drugs. It was not a spur of the moment decision and was reasonably sophisticated. Each appellant was involved at the latest by 30 January 2014 and their attendance at the Nollamara address was not merely 'fortuitous'.[216] The trial judge was not satisfied that the appellants were 'at the helm of some sort of organised drug syndicate or that any of you caused the importation of the methylamphetamine'. However, they were all involved in attempting to possess methylamphetamine and succeeded in taking possession of what they thought was a prohibited drug and taking the steps described above with it.[217]
[216] Trial ts 1331.
[217] Trial ts 1333 - 1334.
Appeal against sentence: personal circumstances
The trial judge made the following findings in relation to the appellants' personal circumstances.
Sheriff
Sheriff was aged 27 years at the time of sentencing. He fled to Australia as a child refugee from the civil war in Liberia with his mother and siblings. His father had died in Liberia and Sheriff had a troubled and difficult background. Sheriff completed year 11 and obtained a number of trade certificates. He had worked in various casual positions, and was a skilled soccer player who had once aspired to play professionally. He had no relevant convictions and was a person of prior good character who had made a contribution to his local community.[218]
Omereonye
[218] Trial ts 1338 - 1339.
Omereonye was aged 40 at the time of sentencing, was in a stable relationship and had two children. He had no relevant convictions.[219]
Bamba
[219] Trial ts 1336 - 1337.
Bamba was aged 27 years at the time of sentencing. He had a traumatic childhood, being separated from his parents in a civil war as a baby and raised in a refugee camp in Sierra Leone. He did not have contact with his mother and, although sometime prior to the date of offending he had made attempts to reunite with his father, Bamba's father died while Bamba was on remand.
Bamba was in a stable relationship and had two children. He had been employed in various positions, was a productive member of the community and was regarded as a responsible and giving person. He had two prior convictions in 2013 for non-drug related offences, for which he was placed on a community based order.[220]
[220] Trial ts 1334 - 1335.
Trial judge's approach to sentencing
The trial judge recognised that major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. His Honour noted that the weight of the drugs in question is not generally the chief factor to be taken into account in fixing the sentence but it is a matter of importance. The other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations but they are not completely irrelevant.
The trial judge recognised that he was required to impose a sentence commensurate with the seriousness of each appellant's offending.
Having taken account of the maximum penalty, the circumstances of the offence and the mitigating and aggravating factors, the trial judge imposed the following sentences:
Sheriff10 years' immediate imprisonment, with eligibility for parole, backdated to 3 February 2016.
Omereonye8 years 6 months' immediate imprisonment, with eligibility for parole, backdated to 3 February 2016.
Bamba8 years 6 months' immediate imprisonment, with eligibility for parole, backdated to 2 February 2016.
Sheriff's sentence appeal - alleged factual error
Ground 1 of Sheriff's appeal against sentence is that the trial judge erred in fact in concluding that the use of the 832 number in connection with the offence could be attributed to him and thereby support that Sheriff was involved in the offence at an earlier point in time to the other appellants.
The argument advanced in relation to this ground of appeal reflects that advanced in support of Sheriff's conviction appeal. It is to be rejected for the reasons explained at [129] ‑ [143] above.
Counsel for Sheriff identified two factual errors in the trial judge's findings as to the phone which Sheriff used to engage in the attempt. The trial judge referred to Sheriff using the 688 number (which was used from Phone 12) to contact Alhaji to arrange to use his house.[221] As noted above at [49], it was common ground that the 295 number was used to contact Alhaji. The trial judge also referred to Sheriff using his 'iPhone' to change the TNT delivery address for the packages on '29 January 2015'.[222] As noted above at [48], the evidence was that the 688 number in Phone 12 was used for that purpose on 29 January 2014. However, as the use of all relevant phones was attributed to Sheriff, these errors as to which phone Sheriff was using are not material to the sentencing exercise.
[221] Trial ts 1332.
[222] Trial ts 1330.
Counsel for Sheriff also referred to alleged discrepancies between the trial judge's sentencing remarks and the evidence as to when certain phone numbers 'began to be used'.[223] However, at this point the trial judge appears to simply be referring to the dates when the numbers began to be used to call each other. The trial judge went on to specify activation dates and dates of use for two of the three numbers in a manner consistent with Sheriff's submissions on appeal.[224] We are not satisfied that the trial judge made the factual error alleged or that the factual errors, if established, would be material to the sentencing exercise.
[223] The findings are at trial ts 1331, and the criticism of the findings are set out in item 4 of Sheriff's 'Schedule of Factual Errors Relating to Telephone Evidence - Sheriff CACR 91 and 92/2017 dated 30 May 2017'. Note that items 2 and 5 of that Schedule do not refer to errors of the trial judge.
[224] Trial ts 1332.
Leave to appeal on ground 1 should be refused.
Sheriff's sentence appeal - parity
Ground 2 of Sheriff's sentence appeal contends that he has a justifiable sense of grievance based on the disparity between his sentence and those of the other appellants.
The principles to be applied in determining whether this court should interfere with a sentence on parity grounds were summarised by Mazza JA in Barry v The State of Western Australia:[225]
The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences.
Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance.
What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents. (citations omitted)
[225] Barry v The State of Western Australia [2012] WASCA 175 [55] - [57].
The appellants were all convicted after trial of the same offence and there was little difference in the mitigating factors based on their personal circumstances. Sheriff's higher sentence is explicable by the greater role which he played in the offence. Sheriff was, on the trial judge's findings, involved at an earlier stage than the other two offenders. He was also the principal organiser, having arranged for the parcels to be delivered to the Nollamara address. Given his greater role in the offence, the difference in the sentences imposed on Sheriff and the other two appellants does not give rise to an objectively justifiable sense of grievance. Leave to appeal should be refused on this ground, and Sheriff's appeal dismissed.
Manifest excess: general principles
Each of Omereonye and Bamba appeal against their sentences of 8 years 6 months' immediate imprisonment on the ground that those sentences are manifestly excessive.
The general principles governing appeals on the ground of manifest excess are well established:
1.A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2.The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate the sentence imposed to be unreasonable or plainly unjust.
3.The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
4.A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5.When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Omereonye's and Bamba's manifest excess grounds
Maximum penalty
The maximum penalty for an offence against s 6(1) of the Drugs Act is 25 years' imprisonment and a fine of $100,000.[226]
Customary sentencing standards
[226] Section 34(1)(a) of the Drugs Act.
The customary sentencing standards for offences involving the possession of large quantities of methylamphetamine with intent to sell or supply have been addressed in a number of decisions of this court, many of which are very recent.[227] Having regard to the different circumstances of the offenders and the offences, the appellants' sentences are broadly consistent with those imposed in these other cases.
[227] See Chen v The State of Western Australia [2017] WASCA 114; Chen v The State of Western Australia [2017] WASCA 99; Nguyen v The State of Western Australia [2017] WASCA 35; Yiu v The State of Western Australia [2016] WASCA 172; Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1; Tresnjo v The State of Western Australia [2015] WASCA 193; Hoang v The State of Western Australia [2015] WASCA 130; Le v The State of Western Australia [2015] WASCA 73; Ly v The State of Western Australia [2015] WASCA 18; Phan v The State of Western Australia [2014] WASCA 144; Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324; Ozan v The State of Western Australia [2013] WASCA 27; Kitis v The State of Western Australia [2013] WASCA 34; Pham v The State of Western Australia [2011] WASCA 244; Mikulic v The State of Western Australia [2011] WASCA 127; Penney v The State of Western Australia [2011] WASCA 71.
Omereonye refers to a number of decisions of this court where sentences of between 7 and 13 years were imposed for offences involving between 500 g and 1.125 kg of methylamphetamine.[228] In a number of those cases the offender received a substantial discount for a plea of guilty.[229] When all relevant circumstances are taken into account, those decisions are broadly consistent with the sentences imposed in the present case.
Seriousness of the offending conduct
[228] Phan, Ly, Le, Nembousse v The State of Western Australia [2015] WASCA 68 and Pham.
[229] Phan, Le, Nembousse
The appellants attempted to possess almost a kilogram of methylamphetamine with a purity of about 79%. On the findings made by the trial judge, Omereonye and Bamba deliberately involved themselves in the drug transaction for financial gain (albeit of an unknown amount).
The value of the methylamphetamine was significant. The trial judge noted in his sentencing remarks:[230]
In this case, there was evidence of substantial financial yield which could be obtained in the event of methylamphetamine being broken down, diluted and sold in smaller quantities. As an example, for a sale of quantities at a level of .1 grams, there would be a yield of nearly $2 million.
[230] Trial ts 1330.
Omereonye played an active role in the offence by providing a place to store the drugs. Bamba's overt observed role was less active, involving acting as a lookout. However, each of the appellants acted in concert to attempt to possess about a kilogram of high purity methylamphetamine. The offence which they jointly committed was objectively serious by reason of its planned nature, as well as by reason of the weight, purity and value of the methylamphetamine which they attempted to possess in a commercial operation.
Personal circumstances
The trial judge's findings as to Omereonye's and Bamba's personal circumstances are noted above.
The trial judge correctly recognised that the principal sentencing considerations for this offence are personal and general deterrence, and the courts give mitigating personal circumstances less weight when imposing sentences for offences of this type. As McLure P noted in The State of Western Australia v Johnson:[231]
It is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs. It is for these reasons that in sentencing for offences under s 6(1) of the Act, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight.
Conclusion as to manifest excess grounds
[231] The State of Western Australia v Johnson [2010] WASCA 187 [17].
Having regard to the above matters, and all the circumstances of the case, the manifest excess grounds advanced in Omereonye's and Bamba's sentence appeals have no reasonable prospects of success. Leave to appeal should be refused and the sentence appeals dismissed.
Orders
The following orders should be made in each appeal.
CACR 91 of 2016 (Sheriff's appeal against conviction)
1.Leave to appeal on ground 2 (unreasonable verdict) is refused.
2.The appeal is dismissed.
CACR 92 of 2016 (Sheriff's appeal against sentence)
1.Leave to appeal on ground 1 (error of fact) and ground 2 (parity) is refused.
2.The appeal is dismissed.
CACR 97 of 2016 (Omereonye's appeal against conviction)
1.Leave to appeal on ground 2 (separate pathways direction) is refused.
2.The appeal is dismissed.
CACR 98 of 2016 (Omereonye's appeal against sentence)
1.Leave to appeal on ground 1 (manifest excess) is refused.
2.The appeal is dismissed.
CACR 136 of 2016 (Bamba's appeal against conviction)
1.The application for an extension of time in which to appeal is granted.
2.Leave to appeal on ground 1 (separate pathways direction) is refused.
3.Leave to appeal on ground 3 (unreasonable verdict) is granted.
4.The appeal is dismissed.
CACR 137 of 2016 (Bamba's appeal against sentence)
1.The application for an extension of time in which to appeal is granted.
2.Leave to appeal on ground 1 (manifest excess) is refused.
3.The appeal is dismissed.
7
36
2