Stavrianakos v The State of Western Australia

[2011] WASCA 130

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   STAVRIANAKOS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 130

CORAM:   McLURE P

BUSS JA
MAZZA J

HEARD:   20 MAY 2011

DELIVERED          :   10 JUNE 2011

FILE NO/S:   CACR 178 of 2010

BETWEEN:   ANDONIOS STAVRIANAKOS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :KEEN DCJ

File No  :IND 918 of 2010

Catchwords:

Criminal law - Leave to appeal against conviction - Drug offences - Manufacturing methylamphetamine and attempting to manufacture methylamphetamine - Whether fresh or new evidence gives rise to a miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 27(2), s 39(1), s 39(3), s 40(1)(e)

Result:

Application for leave to admit evidence dismissed
Leave refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr L M Levy SC

Respondent:     No appearance

Solicitors:

Appellant:     Michael Tudori & Associates

Respondent:     Director of Public Prosecutions (WA)

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

de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

DPJB v The State of Western Australia [2010] WASCA 12

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13

Rinaldi v The State of Western Australia [2007] WASCA 53

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

1. McLURE P:  I agree with the orders proposed by Mazza J for the reasons he gives.  The proposed evidence of Ms Herman is clearly new not fresh.  Moreover, it lacks cogency.  The deponent does not swear that she did use the funnel in question and if so when and in what specific circumstances.  The proposed evidence does not give rise to an arguable claim that the appellant's convictions should be set aside applying either the test for fresh evidence or the test for new evidence (see Lawless v The Queen (1979) 142 CLR 659, 676 ‑ 677).

2. BUSS JA:  I agree with Mazza J and with McLure P's additional comment.

   MAZZA J: 

Introduction

1. This is an application for leave to appeal against conviction. The appellant also applies, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), to adduce what is said to be fresh or, alternatively, new evidence in the form of an affidavit sworn 2 March 2011 by his former de facto partner, Serina Anne Herman (Ms Herman).

2. The sole ground of appeal is:

   Since the appellant's convictions, he has discovered 'fresh' evidence, or alternatively 'new' evidence, which gives rise to a miscarriage of justice. 

   Particulars

   a)Serina Anne Herman, who was the appellant's de facto partner at the time of the alleged offences, has sworn an affidavit dated 2 March 2011 deposing to the fact that the traces of methylamphetamine were [sic] found on the funnel (item 10) would have resulted from her use of the funnel that she 'would have used to filter scraped‑out dirty bags' 

3. Leave to appeal cannot be granted unless the appellant demonstrates that the ground has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act.  To have a reasonable prospect of success a ground must have a rational and logical prospect of succeeding; in other words, a real prospect of success:  Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

Background

1. The appellant was charged on indictment with two offences being:

   (1)On a date unknown between 23 January 2009 and 23 July 2009 at Kallaroo [the appellant] manufactured a prohibited drug, namely methylamphetamine.

   (2)On 23 July 2009 at Kallaroo [the appellant] attempted to manufacture a prohibited drug, namely methylamphetamine.

2. After a two‑day trial in the District Court before Keen DCJ and a jury on 2 September 2010, the appellant was convicted as charged.  He was later sentenced to a total effective term of 18 months' immediate imprisonment.

3. The facts are as follows.  The appellant and Ms Herman were the occupiers of a house in the suburb of Kallaroo.  Ms Herman lived there five days out of seven.  Both were users of methylamphetamine.

4. At about 10 pm on 23 July 2009, police officers, accompanied by a forensic chemist, Dr Reynolds, executed a search warrant at the house.  At the time the appellant, but not Ms Herman, was at home.

5. In the en suite bedroom in the upstairs area of the house, the police found apparatus which was being used at the time to manufacture liquefied ammonia gas.  Elsewhere in the room and the house, police discovered various chemicals and items commonly used in the manufacture of methylamphetamine.  Among the items discovered were empty packets of over‑the‑counter cold and flu medications which contained pseudoephedrine, a chemical often used in the manufacture of the drug.  Police also found, in a chocolate milk container, 30 empty cold and flu capsules.

6. Outside the house, in a jar, was found a solution which, on later analysis, was shown to contain pseudoephedrine.  Amongst the items of equipment the police found was a funnel (item 10 on the police exhibit log).  Analysis of the funnel revealed traces of methylamphetamine on it, as well as other substances, including pseudoephedrine.

7. Dr Reynolds testified at trial that, having regard to what he saw at the appellant's house, methylamphetamine was being manufactured by a well‑known process known as 'the Nazi method':  ts 142, 169.  Part of this process involved the extraction of pseudoephedrine and then combining it with liquid ammonia gas.  The process had, in Dr Reynold's opinion, not been completed. 

8. With respect to the funnel, Dr Reynold said that the presence of methylamphetamine on the funnel indicated that the funnel had previously been used to manufacture methylamphetamine:  ts 155.  He was unable to say by what process or when the methylamphetamine had been made.

9. Parts of the search were recorded by police on a DVD, which was played to the jury.  The appellant was cautioned at the outset.  During the search, he told the police that he had been attempting to make a drug because he could not afford to buy it any more.  Later, in response to a question about what he was producing when the police arrived he said, 'I don't know yet because I never finished it, did I?  I was experimenting'.  The appellant also admitted to attempting to extract pseudoephedrine from tablets.

10. The appellant gave evidence in his defence.  He denied either manufacturing or attempting to manufacture methylamphetamine.  He said that when the police arrived at the house he was attempting to manufacture ammonia liquid.  He said that the ammonia liquid would be used to clean the 50 or so windows and doors he had at the house:  ts 190.  He gave innocent explanations for the chemicals found by the police.

11. He denied any knowledge of the 30 empty cold and flu capsules and testified that Ms Herman put them in the chocolate milk container.  He said that some of the contents of the empty packets of cold and flu medications had been taken by him for a sinus complaint and that Ms Herman had also taken some.

12. With respect to the funnel, he said that he had found it '[f]rom the Padbury rubbish rounds' and that he had used it to put fertiliser into a drum during the process of making ammonia gas:  ts 206 ‑ 207.  He denied using it in the successful manufacture of methylamphetamine:  ts 208. 

13. He agreed, in cross‑examination, that he had admitted to the police that he had been making methylamphetamine, but he said that he did so '[u]nder duress':  ts 226.

14. Ms Herman did not give evidence at the trial.

The distinction between fresh and new evidence

1. The distinction between fresh and new evidence is well established.

2. Evidence is considered to be 'fresh' if it did not exist at the time of trial or it could not have been discovered with reasonable diligence.  Evidence will be 'new' if it was available at the trial or could, with reasonable diligence, then have been discovered:  DPJB v The State of Western Australia [2010] WASCA 12 [61]; and Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [411].

3. Where the evidence is fresh, an appeal will be allowed if it is established that there is a significant possibility, having regard to all of the admissible evidence (including the evidence at trial), that a jury, acting reasonably, would have acquitted the appellant:  Mickelberg v The Queen [416].

4. The position with respect to new evidence is different and more difficult for an appellant.  The appeal will be allowed only if the strength of the new evidence shows that the appellant is innocent or raises such a doubt that the appellate court concludes that the appellant should not have been convicted:  DPJB v The State of Western Australia [66].

5. The rationale for the different approaches was explained in Rinaldi v The State of Western Australia [2007] WASCA 53 [79] (Steytler P), as follows:

   The rationale for setting aside a conviction on the ground of fresh evidence was said by Toohey and Gaudron JJ in Mickelberg v The Queen (1989) 167 CLR 259 at 301 to be that the absence of that evidence from the trial was, in effect, a miscarriage of justice (see also Gallagher v The Queen (1986) 160 CLR 392 at 395, 402 and 410; Beamish [v The Queen [2005] WASCA 62] at [10]). Different considerations have been said to apply in the case of new evidence. In Lawless v The Queen (1979) 142 CLR 659 at 675 - 676 Mason J said:

   'However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty.  Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call.  He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal.  He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented.  Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

   The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted … If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand.'

The discretion to admit evidence on appeal

1. Section 39(1) of the Criminal Appeals Act provides that an appeal must be decided on the evidence and material that was before the lower court. However, s 39(3) states that subs (1) does not affect the power of an appeal court under s 40 to admit evidence.

2. Section 40(1)(e) is in these terms:

   40.     General powers to deal with appeals

   (1)For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

   …

   (e)admit any other evidence;

3. The effect of ss 39(1), 39(3) and 40(1)(e) of the Criminal Appeals Act, when read together, is to give this court the discretion to admit and decide an appeal on evidence and material which was not before the lower court. 

4. The discretion given to the court to admit evidence not before the lower court is plainly wide and is designed to serve the demands of justice.  It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially.  However, because Parliament conferred an appellate jurisdiction on the Court of Appeal, it is highly unlikely that Parliament intended to abolish the distinction between original and appellate jurisdictions:  de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150].

The application to admit evidence in the appeal

1. The application to admit evidence was supported only by the affidavit of Ms Herman.  It is brief and is as follows:

   I, SERINA ANNE HERMAN … being duly sworn make oath and say as follows:

   1.I am the ex de facto of Andonios Stavrianakos of … Kallaroo, Western Australia, who is the Appellant in this matter.

   2.For approximately twelve (12) years until recently, I lived in a de facto relationship with [the appellant], and, during that time, I resided principally with him at … Kallaroo, Western Australia.

   3.When I was not residing with [the appellant] at … Kallaroo, Western Australia, I resided with my mother at her residence at … Carine, Western Australia, which address is now my residential address, and also the residential address of my son, when I have custody of him.

   4.Whilst I was residing at … Kallaroo, Western Australia, I had in my possession at that address, two (2) packets of Clarineze 10mg (each packet containing six (6) twelve (12) hour tablets), which my doctor … prescribed for me.

   5.[The appellant] also took some of these tablets, in my opinion about one (1) packet of Clarineze 10mg (each packet containing six (6) twelve (12) hour tablets).

   6.In relation to the thirty (30) empty day / night 'flu capsules that were found at … Kallaroo, Western Australia, I purchased them over the counter at my local pharmacy, and I [sic] they were found empty because I had difficulty in swallowing them due to their size, so I emptied them of their content and then I consumed the content.

   7.To the best of my recollection, I usually deposited the empty day / night 'flu capsules into an empty ice‑coffee container or something similar if I had no empty ice‑coffee container at the time, and then put them into the rubbish bin.

   8.I also understand that at … Kallaroo, Western Australia, a small amount of amphetamines was found on a funnel that I would have used to filter scraped‑out dirty bags [emphasis added].

   9.If, at the time of [the appellant's] trial in the District Court of Western Australia, I had been summoned or subpoenaed to attend the District Court to be a witness, or to give evidence, I would have made a full admission of all of the relevant matters that are set forth in this my Affidavit.

2. Although senior counsel, in his oral submissions, referred to an affidavit sworn by the appellant, the affidavit had not been filed in this court.  After the hearing, the court enquired as to whether the appellant intended to make an application to admit the affidavit as evidence in the appeal.  The appellant's solicitors replied in the negative.  No affidavit has been filed by the appellant's trial counsel.

The appellant's submissions

1. Senior counsel for the appellant, Mr Levy SC, in his oral submissions, identified only one paragraph in Ms Herman's affidavit as being either fresh or new:  appeal ts 6.  It is clear by reference to the particulars of the ground of appeal that he was referring to par 8 of the affidavit.

2. The contents of that paragraph are particularly relevant to count 1, proof of which relied very much on the funnel and the presence of methylamphetamine on it.  The paragraph has little, if any, impact on the proof of count 2.  This is because the funnel was one of many items that the police discovered that were associated with the manufacturing of methylamphetamine at the appellant's house.  Accordingly, Mr Levy's submissions were focused on count 1. 

3. In support of the submission that par 8 of Ms Herman's affidavit was fresh evidence, Mr Levy submitted that Ms Herman's use of the funnel could not have been discovered with reasonable diligence because a funnel is not an item usually associated with methylamphetamine use and the appellant had no reason to suspect that Ms Herman was the source of the trace of methylamphetamine found on it.  It was submitted that the evidence gave rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant. 

Is the evidence contained in Ms Herman's affidavit fresh or new?

1. The appellant bears the onus of establishing that evidence is fresh. 

2. To discharge this onus, the appellant must provide the court with the allegedly fresh evidence and with sufficient material to satisfy it either that the evidence did not exist at the time of the trial or that it could not have been discovered with reasonable diligence.  In a case such as this, where a witness who was known to the appellant at the time of the trial was apparently available and willing to give evidence, a full and frank explanation will be required, as to why the witness was not called.  This will usually involve the filing of affidavits from the appellant and trial counsel addressing the issue.  An affidavit by trial counsel should disclose whether there was any forensic reason why the witness was not called.  None of this occurred here.  Ms Herman's affidavit stands alone.  There is nothing in it which addresses either criterion of fresh evidence.

3. Mr Levy's submission that the appellant had no reason to suspect that Ms Herman was the source of the trace of the methylamphetamine on the funnel cannot be accepted.  There is no evidence from the appellant to support it.  Moreover, the existence of the funnel with methylamphetamine on it would have been the subject of pre‑trial disclosure.  Its importance could not have been lost on the defence prior to trial.  Ms Herman and the appellant were the only people living in the house.  Both were users of methylamphetamine.  If the appellant knew nothing of the methylamphetamine on the funnel, a reasonably diligent person in his position would have made inquiries of Ms Herman to see what she might have known.

4. The material before the court is incapable of supporting a conclusion that par 8 of Ms Herman's affidavit (or any other paragraph in the affidavit) is fresh evidence.  Accordingly, the submission that the material is fresh evidence must be rejected.  The evidence can only be considered on the basis that it is new evidence.

The effect of the new evidence

1. Paragraph 8 of Ms Herman's affidavit is very vague.  Assuming that Ms Herman meant to convey that she used a funnel 'to filter scraped‑out dirty bags' which contained methylamphetamine, it is not specified when this was done, exactly how it was done, nor does it provide any of the surrounding circumstances in which the funnel was so used or what happened to it after its use.

2. No explanation has been given as to why the contents of the bags needed to be filtered or how, in such a process, any methylamphetamine would have come into contact with the funnel.  The appellant's written submissions speak of Ms Herman using the funnel to wash out bags that had previously contained methylamphetamine.  However, Ms Herman gave no evidence to that effect in her affidavit.

3. The onus on the appellant with respect to new evidence is high.  Paragraph 8 of Ms Herman's affidavit is too vague.  It is incapable of establishing the appellant's innocence.  Further, it does not raise a doubt about the appellant's conviction on either of the counts and, in particular, count 1.

Conclusion

1. The evidence contained in Ms Herman's affidavit is new and not fresh.  It falls far short of the cogency required to justify the setting aside of the appellant's convictions on the basis of a miscarriage of justice.  In the circumstances, the ends of justice do not require the admission of Ms Herman's affidavit into evidence in this appeal.  It follows that the application to admit the evidence must be dismissed.  The ground of appeal has no reasonable prospect of success.  The application for leave to appeal must be dismissed.

Orders

1.The application for leave to admit evidence is dismissed.

2.Leave to appeal is refused.

3.The appeal is dismissed.