Sims v The State of Western Australia
[2020] WASCA 100
•23 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SIMS -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 100
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 4 MAY 2020
DELIVERED : 4 MAY 2020
PUBLISHED : 23 JUNE 2020
FILE NO/S: CACR 38 of 2019
BETWEEN: KELLY MAREE SIMS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 39 of 2019
BETWEEN: KELLY MAREE SIMS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEWART DCJ
File Number : BUN IND 51 of 2017
Catchwords:
Criminal law - Drug offences - Possession of methylamphetamine with intent to sell or supply to another - Appeal against conviction - Whether guilty verdict is unreasonable or unsupported by the evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal against conviction granted
Appeal against conviction allowed
Judgment of conviction set aside
Judgment of acquittal substituted
Category: B
Representation:
CACR 38 of 2019
Counsel:
| Appellant | : | S Vandongen SC |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 39 of 2019
Counsel:
| Appellant | : | S Vandongen SC |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Gibbs v The State of Western Australia [2018] WASCA 68
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Wells v The State of Western Australia [2017] WASCA 27
REASONS OF THE COURT:
At the conclusion of the hearing of these appeals, orders were made granting leave to appeal on all grounds in the appeal against conviction, granting applications to adduce additional evidence in the conviction appeal, allowing the conviction appeal, setting aside the appellant's conviction and entering a judgment of acquittal. In the appellant's appeal against sentence, leave to appeal was refused and the appeal was dismissed. The court said that it would publish reasons for making those orders at a later time. What follows are our reasons for making those orders.
Introduction
The appellant was convicted of one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). It was alleged that she was in possession of 177.49 g of methylamphetamine hidden in a modified gas cylinder found in the back seat of the appellant's car when she was pulled over by police. She was jointly charged with her co-accused, Leigh Phillip Hunt. Both pleaded not guilty to the offence and were convicted after trial by jury. The appellant was sentenced to 5 years 7 months' imprisonment, backdated to 3 September 2018.
The appellant appealed against her conviction and sentence. We allowed the appeal against conviction because, in our view, having regard to the evidence, the verdict of guilty on which the conviction was based was unreasonable or could not be supported. The evidence led at trial required the jury to have a reasonable doubt about whether the appellant was aware or believed in the likelihood that the gas cylinder contained drugs. The evidence was therefore incapable of establishing, beyond reasonable doubt, that the appellant was in possession of the drugs hidden in the gas cylinder.
Evidence against the appellant at trial
At about 9.15 am on 15 June 2016, the appellant was stopped by police while driving a white Holden Commodore sedan, registered in her name,[1] in front of the Lord Forrest Hotel in Bunbury. She was the only occupant of the vehicle. Police conducted a search of the vehicle.[2]
[1] Trial ts 143; exhibit 12.
[2] Trial ts 103 - 105.
Items on the rear seat included what appeared to be a gas cylinder and a red bag containing tools. The gas cylinder was sitting loose and uncovered, directly behind the driver's seat. Externally, the gas cylinder had the appearance of an ordinary 9 kg gas cylinder of the kind which might be used to fuel a barbeque. However, when one of the police officers picked up the cylinder, the base appeared to be moving and loose.[3]
[3] Trial ts 105 - 106, 110; exhibit 2, 3.
A subsequent roadside inspection of the gas cylinder revealed that its base unscrewed from the bottom of the cylinder. Inside the gas cylinder were three clip-seal plastic bags with a white crystal substance in them, subsequently analysed to be a total of 177.49 g of methylamphetamine.[4] The value of the methylamphetamine if sold in ounces was between $54,000 and $57,000.[5] Also in the cylinder were empty clip-seal bags, some bubble wrap and a rubber band.[6]
[4] Exhibit 11.
[5] Trial ts 168.
[6] Trial ts 107; exhibit 8.
DNA profiles matching the appellant's co-accused, Mr Hunt, were detected on one of the clip-seal bags containing methylamphetamine and the rubber band. No DNA or fingerprints associated with the appellant were found on the cylinder or its contents.[7]
[7] Trial ts 118, 127 - 128, 129 - 130.
Phone records indicated that the appellant was in contact with Mr Hunt in the early hours of the morning of 15 June 2016. Two text messages were sent from Mr Hunt's phone to the appellant's phone at 2.07 am and 2.08 am, and there was a 206 second phone call from Mr Hunt's phone to the appellant's phone at 2.08 am.[8] Mr Hunt checked into the Lord Forrest Hotel at about 2.41 am on 15 June 2016.[9] Mr Hunt's phone number was also dialled twice by the appellant's mobile phone at 9.08 am, shortly before her arrest.[10] Between 11.50 am and 11.59 am on 15 June 2016, when the appellant was in custody,[11] Mr Hunt called a different phone number registered to the appellant three times and texted the number twice.[12] He checked out of the hotel later that morning,[13] and was subsequently arrested on 27 December 2016.
[8] Trial ts 146 - 147; exhibit 15.
[9] Trial ts 143 - 144; exhibit 13.
[10] Trial ts 149; exhibit 16.
[11] Trial ts 163.
[12] Exhibit 15.
[13] Trial ts 144; exhibit 13.
The appellant made no admissions in relation to the drugs. In the recorded search of the vehicle, the appellant indicated that she was staying with a friend, Shayne Gilchrist, and had just dropped her children at school.
No indicia of drug dealing (such as tick lists, scales or cutting agents) or drug use (such as smoking implements) were found in the appellant's possession.[14]
[14] Trial ts 26, 163.
Evidence of the appellant's two prior convictions for selling methylamphetamine was led as propensity evidence, under s 31A of the Evidence Act 1906 (WA). The appellant pleaded guilty to, and was convicted of, those offences on 12 May 2014. The circumstances of the offences were as follows. At about 12.33 pm on Tuesday 3 December 2013, the appellant met with another person at her home address and sold 1.7 g of methylamphetamine for $1,250. At about 5.05 pm on Tuesday 17 December 2013, she met with another person at her house and sold 3.5 g of methylamphetamine for $2,500.[15]
[15] Trial ts 170.
The appellant did not give or adduce any evidence at trial.
Mr Hunt gave the following presently relevant evidence at trial. He had driven from his residence in Greenmount to Bunbury for the purposes of collecting tools for a plumbing job, which were stored in a locked shed in a property he rented out. He arrived at between 11 pm and midnight on 14 June 2016 and collected the equipment, including the gas cylinder. He contacted the appellant by text and a phone call, to catch up with her and ask for a lift to his hotel (he did not want to drive in the centre of Bunbury as his driver's licence was suspended at that time). He put the gas cylinder and the red bag with tools in the back seat of the appellant's car, and they drove to the Lord Forrest Hotel. They both went to his room, smoked methylamphetamine and had sex. He fell asleep and woke at about 11 am, when the appellant was not there. He called the appellant because he was heading back to Perth and wanted to get the gas cylinder and bag of tools he had left in the appellant's car.[16]
[16] Trial ts 173 - 180.
Mr Hunt also gave evidence that he had placed the methylamphetamine in the gas cylinder 8 - 9 months before it was found by police, to store drugs which had made him and other users ill. He had tried to return the drugs to the supplier, who would not take them back. On 14 June 2016, he had grabbed the gas cylinder thinking it was a genuine gas cylinder, and when collecting the cylinder did not intend to possess the drugs or supply them to anyone else. He denied giving the drugs to the appellant to do a drug run.[17]
[17] Trial ts 204 - 206.
Grounds of appeal
The appellant appeals against her conviction on four grounds.
Ground 1 and ground 2 challenge the admission of the evidence of the appellant's previous convictions and the directions given in relation to that evidence.
Ground 3 contends that a miscarriage of justice was occasioned by the prosecution failing to disclose evidence. The evidence which was not disclosed is information allegedly provided by Mr Gilchrist when speaking to two detectives at Bunbury Prison. The appellant applied to adduce an affidavit of Mr Gilchrist as additional evidence in the appeal. Mr Gilchrist deposes that he told the officers:[18]
[H]ow [Mr Hunt] was at my place and wanted a lift to a motel, [the appellant] gave the lift to [Mr Hunt], that [sic] I saw tools the next day and they were not [the appellant's] tools and that [the appellant] took the kids to school.
Mr Gilchrist also deposes that, on the morning of 15 June 2016, the appellant was getting her children ready for school and he drove the appellant's car to her house to get the kids' school bags. He says that he saw 'hand tools, a carry bag and other stuff on the back seat, which were not there the day before'.[19] This was part of the information which, the appellant contends, Mr Gilchrist passed on to police officers when he met them at Bunbury Regional Prison.
[18] Affidavit of Shayne Cheal Gilchrist sworn 9 May 2019, par 23.
[19] Affidavit of Shayne Cheal Gilchrist sworn 9 May 2019, par 12.
The State applied to adduce affidavits of the two police officers, who deny Mr Gilchrist's account of the conversation, as additional evidence in the appeal. The effect of their evidence is that Mr Gilchrist did not provide the information referred to at [17] above. The State also applied to adduce two affidavits of the prosecutor, to the effect that she disclosed to defence counsel that Mr Gilchrist had 'said off the record that it wasn't [the appellant's] gear'.[20]
[20] Affidavit of Sarah Adele Kavanagh sworn 29 October 2019, par 4.
Ground 4 contended that the verdict of the jury was unreasonable and was not supported by the evidence at trial.
Disposition
For the following reasons, in our view, ground 4 was established. We therefore ordered that the appeal should be allowed, the appellant's conviction quashed and a judgment of acquittal substituted. We reached that conclusion on the assumption that the evidence of the appellant's prior convictions was properly admitted under s 31A of the Evidence Act. It is therefore unnecessary to resolve grounds 1 - 3.
General principles
Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow an appeal against conviction if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
The general principles governing an appeal on this ground are well established.[21] In summary:
[21] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] - [34].
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(5)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(6)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court 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 appellate court must set aside the verdict.
(7)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
The evidence could not establish that the appellant possessed the drugs
The appellant was charged with having in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act. The fact that the appellant had physical custody of the gas cylinder in her car is not sufficient to establish that she was in possession of the methylamphetamine inside the gas cylinder. To prove that the appellant was in possession of the methylamphetamine the State had to prove, beyond reasonable doubt, that when she drove the Commodore with the gas cylinder in the back seat, she was aware or believed in the likelihood (in the sense that there was a significant or real chance) that the substance in the cylinder was, in fact, 'a drug', within the ordinary and natural meaning of that term.[22]
[22] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176[192], [202], [211].
The gas cylinder had the outward appearance of a genuine gas cylinder. There was nothing about its appearance sitting in the back seat of the appellant's car that would raise suspicion that it was in fact a container for methylamphetamine. There was no forensic evidence, such as DNA or fingerprint evidence, connecting the appellant with either the gas cylinder or the drugs inside the cylinder. None of the indicia of drug dealing were found in the appellant's possession. There was no evidence that the appellant made any admissions to police.
The fact that Mr Hunt's DNA was found on items inside the gas cylinder supports an inference that the drugs, and therefore the cylinder, were his. The fact that Mr Hunt contacted the appellant about half an hour before checking into the Lord Forrest Hotel supports an inference that they may have met before he checked in, and that the appellant may have obtained the gas cylinder from him at that time. The fact that the appellant was stopped with items apparently belonging to Mr Hunt in front of the hotel at which he was staying supports an inference that the appellant was returning to the hotel to meet with Mr Hunt and to return the gas cylinder to him.
The above inferences are supported by Mr Hunt's direct evidence that the drugs were his and that he placed the gas cylinder in the back seat of the appellant's car shortly before checking into the hotel. The jury was entitled to reject those parts of his evidence that exculpated him, aspects of which (such that he had forgotten he had stored the methylamphetamine in the gas cylinder and thought it was a genuine gas cylinder) strained credulity. However, there was nothing to contradict Mr Hunt's evidence that the methylamphetamine and the gas cylinder were his and that he had placed the methylamphetamine (hidden in the gas cylinder) in the back seat of the appellant's car in the early hours of the morning of 15 June 2016. Further, the other evidence referred to above supported an inference that Mr Hunt had placed the gas cylinder in the appellant's car in the early hours of the morning before checking into the hotel, quite apart from his evidence.
There was no evidence that, if Mr Hunt had placed the gas cylinder in the appellant's car, he told her that it contained drugs. The appearance of the gas cylinder was such that the appellant would only know it contained drugs if someone had told her, she received it in circumstances implying that it contained drugs or she had physically inspected the gas cylinder and discovered its screw-on base.
A competing inference, open on the prosecution evidence, is that the appellant was knowingly delivering the methylamphetamine hidden in the gas cylinder to Mr Hunt. However, the State does not prove the appellant's guilt by showing that the knowledge required for possession is merely one of the available inferences on the evidence. In relying on inferences drawn from facts established by its evidence, the State must exclude, beyond reasonable doubt, all competing reasonable inferences consistent with the appellant's innocence.
In our view, the evidence taken as a whole is not capable of excluding the reasonable inference, supported by the evidence, that Mr Hunt placed the gas cylinder in the appellant's car in the early hours of 15 June 2016 without telling her that it contained drugs.
In the circumstances of this case, the evidence taken as a whole is incapable of establishing, beyond reasonable doubt, that the appellant was aware or believed in the likelihood that there were drugs in the gas cylinder.
This gap in the prosecution case is not filled by the evidence of the appellant's prior convictions, even assuming that evidence to be admissible under s 31A of the Evidence Act. The unlawful conduct revealed by that evidence was materially different from that charged in the indictment. It showed that, on two occasions in December 2013, the appellant sold relatively small quantities of methylamphetamine from her home. That contrasts with the charged conduct of transporting a significant commercial quantity of methylamphetamine. Further, the fact that the appellant has prior convictions for drug-dealing is not capable of excluding the reasonable inference that Mr Hunt placed the gas cylinder in the appellant's car without telling her that it contained drugs. The fact that, on two occasions in December 2013, the appellant sold relatively small quantities of methylamphetamine from her home does not make it more or less likely that Mr Hunt told the appellant that the gas cylinder contained drugs. Nor does that fact make it more or less likely that the appellant was otherwise aware or believed in the likelihood that there were drugs in the gas cylinder.
The State refers to Mr Hunt's repeated calls and texts after the appellant's arrest, as supporting an inference that he was expecting the appellant to arrive and was nervous when she did not. However, nervousness on Mr Hunt's part does not advance the case against the appellant. It might be evidence that, contrary to his evidence, Mr Hunt knew that the gas cylinder contained drugs and that he wanted to regain physical custody of them. It is not evidence of the appellant's knowledge of those facts, or that Mr Hunt informed her of the contents of the gas cylinder.
The State also refers to the value of the methylamphetamine if sold in one ounce lots. It contends that:[23]
That the true owner or custodian would leave the drugs in the custody of someone who was ignorant of their existence, in an unconcealed gas cylinder in a car (hardly a secure environment) is so objectively improbable as to be readily rejected. It would pose an unacceptably high risk that the drugs might be discovered or lost. The visible false bottom of the gas cylinder is so unusual that it would have aroused suspicion on the part of anyone who inspected the cylinder.
[23] Appellant's submissions, par 45.
We do not accept that submission. The inference which the State needs to exclude is not that some unknown 'true owner or custodian' of the drugs has left the gas cylinder in the car. The inference which the State must exclude is that Mr Hunt left the cylinder in the appellant's car without telling her it contained drugs, and that the appellant was otherwise unaware and did not believe in the likelihood that there were drugs in the gas cylinder. There are a variety of reasons why Mr Hunt may have left the gas cylinder in the car without telling the appellant it contained drugs: fear that she would refuse to hold the drugs, fear that she would make a report to police or fear that she might take some of the drugs for herself if she knew of their existence. A person engaged in the clandestine movement of drugs will not necessarily reveal the contents of a container left in the possession of a third party. While a car may not be the most secure location, the State did not adduce evidence that Mr Hunt had a more secure alternative location available to him. For safety reasons, a hotel is (it is to be hoped) unlikely to permit its guests to bring gas cylinders into their rooms. The discovery of the subterfuge would depend on someone making an inspection of the gas cylinder which, contrary to the State's submission, did not have a 'visible false bottom' from the perspective of someone looking at it in the appellant's car.
The State also submits that the appellant is unlikely to have been driving a car with a container she thought contained a dangerous substance such as LPG in the back seat without any reason. That may be so. However, the evidence supported an inference that the appellant had a reason for driving to the Lord Forrest Hotel with a gas cylinder on her back seat, namely to return to Mr Hunt the gas cylinder and the red bag with tools he had left in her car earlier that morning.
In our view, having regard to the evidence as a whole, the jury was required to have entertained a reasonable doubt about the appellant's guilt. The evidence was not capable of excluding the reasonable inference that Mr Hunt left the gas cylinder in the appellant's car in the early hours of the morning of 15 June 2016 without telling her that it contained drugs, and that the appellant was otherwise unaware and did not believe in the likelihood that there were drugs in the gas cylinder. The evidence is not capable of satisfying the jury, beyond reasonable doubt, that the appellant was aware or believed in the likelihood that there were drugs in the gas cylinder. Therefore, while it may give rise to a suspicion, the evidence is not capable of proving, beyond reasonable doubt, that the appellant possessed the methylamphetamine. As the evidence did not establish the guilt of the appellant beyond reasonable doubt, there is a significant possibility that an innocent person has been convicted.
The above conclusion does not depend on the jury's assessment of Mr Hunt's evidence, but arises from the evidence constituting the prosecution case. There is no advantage which the jury had over this court in assessing the evidence other than that of Mr Hunt, as a result of seeing and hearing the evidence, which is capable of resolving the doubt as to the appellant's guilt. In the circumstances, this court must set aside the appellant's conviction and substitute a judgment of acquittal.
Orders
For the above reasons, we ordered that leave to appeal on ground 4 should be granted and the appeal against conviction be allowed on that basis.
While we were satisfied that the other grounds were at least reasonably arguable, and that it was appropriate to admit the additional evidence in the appeal, it is unnecessary to determine whether the appeal should be allowed on the basis of any of the other grounds.
The appellant's appeal against sentence was dismissed on the basis that it was rendered redundant by the setting aside of the conviction.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell23 JUNE 2020
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