Vo v The State of Western Australia
[2012] WASCA 6
•13 JANUARY 2012
VO -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 6
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 6 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:145/2010 | 24 AUGUST 2011 | |
| Coram: | PULLIN JA BUSS JA HALL J | 13/01/12 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused on grounds 2, 3, 5 and 6 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DUNG NGUYEN VO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Drug offence Whether prosecution failed to disclose information that could have assisted the defence Obligation to disclose Whether available material could assist the defence requires a 'sensible appraisal by the prosecutor' Whether obligation to disclose extends to potentially relevant material Whether disclosure obligation exists where material not recently acquired Turns on own facts |
Legislation: | Criminal Procedure Act 2004 (WA), s 3, s 42, s 80, s 83, s 85, s 95 Misuse of Drugs Act 1981 (WA), s 6(1)(a) |
Case References: | Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 Carney v The State of Western Australia [2010] WASCA 90 Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 Jones v The State of Western Australia [2006] WASCA 192 Kadibil v The State of Western Australia [2003] WASCA 13 Lam v The State of Western Australia [2010] WASCA 61 Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 R v Brown (Winston) [1994] 1 WLR 1599 The State of Western Australia v JWRL (a child) [2010] WASCA 179 White v The Queen [2006] WASCA 62 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : VO -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 6 CORAM : PULLIN JA
- BUSS JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND 415 of 2010
Catchwords:
Criminal law - Appeal against conviction - Drug offence - Whether prosecution failed to disclose information that could have assisted the defence - Obligation to disclose - Whether available material could assist the defence requires a 'sensible appraisal by the prosecutor' - Whether obligation to disclose extends to
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potentially relevant material - Whether disclosure obligation exists where material not recently acquired - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 3, s 42, s 80, s 83, s 85, s 95
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave refused on grounds 2, 3, 5 and 6
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr K P Bates
Respondent : Mr P S Hastings QC & Ms K C Cook
Solicitors:
Appellant : Gunning Young
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382
Carney v The State of Western Australia [2010] WASCA 90
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Jones v The State of Western Australia [2006] WASCA 192
Kadibil v The State of Western Australia [2003] WASCA 13
Lam v The State of Western Australia [2010] WASCA 61
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
R v Brown (Winston) [1994] 1 WLR 1599
The State of Western Australia v JWRL (a child) [2010] WASCA 179
White v The Queen [2006] WASCA 62
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1 PULLIN JA: I agree with Hall J.
2 BUSS JA: I agree with Hall J, generally for the reasons he gives, that grounds 1 and 4 are without merit and that leave to appeal should be refused in respect of grounds 2, 3, 5 and 6. The appeal must therefore be dismissed.
HALL J:
Introduction
3 The appellant and his girlfriend, Hong Van Thi Huynh (Huynh), were jointly charged with two counts of possession of methylamphetamine with intent to sell or supply pursuant to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). After a trial in the District Court the appellant was acquitted of count 1 and convicted of count 2 on the indictment. Huynh was convicted of both counts. The appellant now appeals against his conviction on count 2.
4 The principal issue raised on the appeal is whether the prosecution failed in its duty to disclose information that would have assisted the defence. The information in question relates to the prior drug conviction of a person who was not a witness at the trial but is said by the appellant to be a possible alternative possessor of the drugs. The duty to disclose will need to be considered in the context of whether the alternative possibility was one that was reasonably open on the available evidence. Further, if that possibility was first raised during the trial, what was the nature of the prosecutor's obligation of disclosure at that point?
Prosecution case
5 On 4 March 2009 the police executed a search warrant at the appellant's home in Morley. The appellant was not at home at the time, however Huynh was. At the time the police arrived Huynh was seen at the kitchen sink. A bag containing 7.78 grams of methylamphetamine was later found under a pile of dirty dishes in the sink. That quantity of drugs was the subject of count 1.
6 Whilst the police search was continuing, the appellant returned home accompanied by Dinh Thai Lam (Lam). When searched by police Lam was found in possession of a small package of white powder, later identified as 10.7 grams of dimethylsulfone (commonly known as MSM) which contained traces of methylamphetamine. MSM is a known cutting agent for use in diluting drugs.
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7 The search of the house then continued and police located 30.5 grams of methylamphetamine in a clipseal bag inside a 'scotchguard' canister. The canister was located in the drawer of a table in the living room of the house. The drawer contained various other items which the appellant stated belonged to him. The scotchguard canister had been altered such that its contents had been emptied and the empty chamber could be accessed by unscrewing the bottom. The appellant stated to police that he did not know who owned the scotchguard canister. He denied ownership of the drugs contained in the canister. The methylamphetamine found in the clipseal bag was the subject of count 2.
8 Other items were found in the house, including a set of electronic scales on which traces of methylamphetamine were found. A notebook that contained a list of what appeared to be weights and prices was also seized. The prosecution case was that this was a list of prices for quantities of methylamphetamine, that it was written by Huynh and that it showed her to be knowledgeable about drug dealing.
9 The clipseal bag that contained the drugs found in the canister was tested for DNA. A mixed DNA profile consistent with having come from at least two individuals was recovered. The appellant and Lam were excluded as possible contributors to the mixed DNA profile. However, the major component of the mixed profile matched Huynh's DNA to a high degree of probability.
10 In the video recording of the search the appellant and Huynh each gave their address as being at the house. Lam gave a different address and denied that he had any property in the house. The appellant told the police that he had been living at the house for at least 2½ years. He was asked whether anyone other than Huynh also lived there. He said that other persons had lived there but they had moved out. He later referred to his 'ex' as having occupied one of the bedrooms in the house with her child, but that she had since moved out.
Defence case
11 The appellant did not give or adduce any evidence. Huynh gave evidence in her defence. Huynh said that she had moved into the house approximately three months earlier, at around Christmas 2008. She said she was aware that the appellant's ex-partner and son had formerly been living at the house. She denied any knowledge of the drugs found in the sink or the drawer.
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12 Huynh said that on the morning prior to the police coming to the house she and some friends had been smoking methylamphetamine. She said that initially the appellant had been asleep but had woken up and joined in using the drugs. She said that there were four other people in the group and that they included Lam and his girlfriend.
13 Huynh was shown the notebook which had been found by the police and which the prosecution relied upon as being consistent with drug sales. She conceded that the writing was hers and that it did record weights and prices for various quantities of methamphetamine. She said that the reason for this was that her friends would ask her to go and buy drugs and she needed to know the prices so that she did not get 'ripped off'.
14 Huynh was then asked:
Now, you've been living in this house at Turon Place in Morley for some three months, at that stage. Is that correct?---Yep.
Okay. Now, did anyone else live there at the time or during the period that you were there?---Before the raid, the two weeks - Lam and his girlfriend had been staying with us because Lam's got another, like, girlfriend at his parents' house.
Okay?---So he can't go back there. And then, his girlfriend's parents don't like him.
Okay?---Like, yeah. So he stayed there for two weeks.
...
So Lam and his girlfriend were staying in the house, is that two weeks before the raid and up to the raid?---Yep.
Okay. And to your memory, did anyone else stay at that house - that house being the search house - over the time that you lived there?---We just have people like drop in and out all the time.
Okay. Well, - - -?---You know, they crash there.
Well, when you say 'crash there', - - -?---Lam's friends.
Crashed there?---Yep.
Does that mean overnight?---Yep.
Okay?---Cos we leave our keys outside under the doormat (ts 138 - 139).
15 Huynh said that she could not recall the names of other people who had stayed at the house, but that the appellant's brother had a key. She
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- said that the appellant's brother came to the house 'cos of drugs and a shooting'. No clarification of this answer was sought.
16 Huynh was cross-examined by the appellant's counsel. She was asked about a spare room with a mattress on the floor:
And is - is it the case that people used to crash - crash there?---Yes.
And, in particular, Mr Lam used to sometimes sleep in that room. Is that correct?---Yes, with his girlfriend.
And it was the case that she wasn't always with him when he was crashing there. Is that the case?---She's basically always with him.
Was she?---Yeah.
Okay. And in - in respect of that, you - I think you've indicated in your evidence that you used to hide the keys to the - the house under the mat. Is that - - -?---Yeah.
So that both Lam and his girlfriend would have - - -?---Access.
- - - access to - to the house. Is that right?---Yes.
And it was the case that you would go to work during the day, is that correct, so that - and it was also the case that [the appellant] would often be working during the day. Is that correct?---Yes.
So there was people that had access to the house when you weren't at the house. Is that correct?---Yes.
The - and you've said - you've nominated Lam and his girlfriend as two of those people. You've also indicated that his brother was - had access to the house and - and did he - he know where the key was under the door?---He has his own key.
Pardon?---He has his own key.
He had his own key?---Yeah.
Okay. So, again, he could come and go as he - as he wished?---Yeah.
And you accept that you're a user of methylamphetamine?---Yes.
And you were also - having been a user of methylamphetamine, you were aware that [the appellant] used methylamphetamine from time to time?---Yes.
Is that correct?---Yeah.
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- You also were aware that - that Lam and his girlfriend used methylamphetamine. Is that correct?---Correct.
That - and you were aware, were you, that - that [the appellant's brother] who had access - had his own key, was a user of methylamphetamine. Is that correct?---Correct.
And it was the case that - that you also had some friends that would come round to your house and they were users of methylamphetamine. Is that correct?---Correct.
On the particular day in question, you've indicated that there was some of your friends around at the house using methylamphetamine. Is that correct?---Correct (ts 141, 142).
Grounds of appeal
17 There are six grounds of appeal. Without the supporting particulars, they are as follows:
1. The conviction be set aside on the grounds that there has been a miscarriage of justice by reason of the respondent's failure to disclose relevant evidentiary material concerning Mr Lam's prior conviction for possession of methylamphetamine with intent to sell or supply prior to or during the trial.
2. The learned trial judge erred in law [T p203], by directing the jury that they could use evidence given by the co-accused, Ms Huynh, in relation to the cost of drugs, against the appellant when there was no evidence that the appellant had any knowledge of the value or the cost of the drugs.
3. The learned trial judge erred in law in directing the jury that they were entitled to use evidence given by a witness in court as evidence generally. In other words, they could use the evidence of Ms Huynh as evidence against the appellant.
4. The learned trial judge erred in law in permitting, over objection, evidence to be adduced in cross-examination concerning another person's state of mind and also having the effect of reversing the burden of proof in relation to the issue of possession.
5. The questions by the prosecutor in cross-examination of Ms Huynh were improperly prejudicial to the credibility of the witness, in that, it had the effect of placing an affirmative burden on the witness to assist the respondent, thereby effectively reversing the burden of proof and by being personally derisory of the witness's answers, in circumstances where the learned trial judge had given a direction that the evidence of Ms Huynh given in court could be used both
- for and against the appellant, thereby occasioning a miscarriage of justice.
- 6. The cumulative or aggregate of the errors of law and the State's failure to disclose has caused the hearing to miscarry: Leary v R [1975] WAR 133 at 137.
18 On 1 May 2011 Mazza J granted leave to appeal on grounds 1 and 4 and referred the question of leave in respect of the other grounds to the hearing of the appeal.
Ground 1 - Failure to disclose
19 Following the trial the appellant's solicitor obtained a copy of the criminal history of Lam which recorded that on 15 May 2009 Lam was convicted of possession of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act. The record stated that Lam had received a sentence of 5 years and 4 months' imprisonment and was declared a drug trafficker in respect of that offence. I note that Lam appealed against his sentence and leave to appeal was refused and the appeal dismissed on 7 April 2010: Lam v The State of Western Australia [2010] WASCA 61.
20 It should be noted that material filed by the respondent establishes that the offence for which Lam was convicted and sentenced on 15 May 2009 was in respect of drugs found on his own premises on 12 June 2008, being nine months earlier than the offence the subject of this appeal. The appellant also points to the fact that Lam was interviewed by police on 12 June 2008 and made admissions that he was a dealer in methylamphetamine at that time, that he sold the drug to his friends and that he used the cutting agent MSM to mix with methylamphetamine in order to increase his profit.
21 The appellant contends that, since the trial of the appellant did not commence until 21 June 2010, either the Western Australian Police Service or the Office of the Director of Public Prosecutions (DPP) must have had documents relating to Lam's conviction in their possession at the time of the appellant's trial. It is submitted that the State had an obligation to disclose such material to the defence, including the record of Lam's conviction and any other evidentiary material relating to his charges, prior to the commencement of the trial or, alternatively, after Huynh gave her evidence.
22 The appellant contends that it was unfair not to disclose Lam's previous convictions for drug-related offences in circumstances where the
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- State was submitting that only the appellant and Huynh could have been in possession of the drugs found in the house. It is said that this is unfair because it denied the appellant the opportunity to adduce evidence to rebut the prosecution's proposition in relation to possession. It was submitted that the fact that Lam had a conviction in respect of the same drug could have raised a reasonable possibility that the drugs found in the house belonged to him rather than the appellant or Huynh.
The applicable statutory obligations of disclosure
23 Section 42 and s 95 of the Criminal Procedure Act 2004 (WA) provide for disclosure in respect of indictable offences. Section 95 imposes differing disclosure obligations at different stages of proceedings. The primary disclosure obligation arises at the pre-trial stage and is set out in s 95(6). Once this has been discharged there is a continuing disclosure obligation that is set out in s 95(9). The continuing obligation is more narrowly confined both as to those who bear the obligation and as to the material to which it relates.
24 As regards the primary or pre-trial disclosure obligation, s 95(6) provides that:
Within the prescribed period after an accused is committed for trial on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it -
(a) a statement of the material facts of the charge;
(b) any confessional material of the accused that is relevant to the charge;
(c) any evidentiary material that is relevant to the charge;
(d) a copy of the accused’s criminal record;
(e) a copy of the certificate given to the officer under section 45;
(f) any other document that is prescribed.
25 The phrase 'relevant authorised officer' is defined in s 80 to mean, in relation to an indictable charge, the authorised officer who is responsible for the prosecution of the charge in a superior court. Authorised officers are the Attorney General, the Solicitor General, the State Solicitor, the DPP, a member of the staff of the DPP appointed in writing by the DPP as an authorised officer and a person appointed to prosecute indictable offences under s 182: s 80(2).
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26 The appellant submits that the material relating to Lam's conviction fell within s 95(6)(c); that is, that it was evidentiary material relevant to the charge. The phrase 'evidentiary material' has the meaning given by s 42 (see s 95(1)). Section 42(1) defines the phrase to mean:
(a) a copy of -
(i) every statement that has been made in accordance with Schedule 3 clause 4 by;
(ii) every recording that has been made in accordance with Schedule 3 clause 6 of evidence given by;
(iii) every recording that has been made under the Evidence Act 1906; and
(iv) every other recorded statement, whether oral or written, by,
any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor’s case or the accused’s defence;
(b) if there is no statement or recording referred to in paragraph (a) of a person who the prosecutor intends to call as a witness, a written summary of the evidence to be given by the person;
(c) a copy of any document or object to which a statement or recording referred to in paragraph (a) refers;
(d) a copy of every other document or object that the prosecutor intends to tender in evidence at trial; and
(e) a copy of every other document or object that may assist the accused’s defence,
that is in the possession of the organisation or person who investigated the offence;
27 In the present case, the appellant submits that the material relating to Lam's conviction fell within s 42(1)(e) as being documents 'that may assist the accused's defence'. It was suggested that had this material been available it could have been introduced into evidence by the defence in cross-examination of police witnesses.
28 The obligation to disclose is not, nor could it be, completely unqualified. Whether material may assist an accused's defence requires an assessment by the 'relevant authorised officer' of whether material that is in the possession of the organisation that conducted the investigation has
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- that character. This requires a 'sensible appraisal by the prosecution' of whether available material could assist the defence: Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 [14]. Thus the obligation to disclose arises where, on a sensible appraisal, it can be reasonably anticipated that that material would assist the defence. In the case of the credit of a witness this would only arise in circumstances where credibility of that witness could be reasonably anticipated to be an issue: Carney v The State of Western Australia [2010] WASCA 90 [114].
29 In White v The Queen [2006] WASCA 62 McLure JA said that whether the prosecution had breached its duty of disclosure is to be assessed at the time it is to be performed [194]. Her Honour was there referring to the common law duty of disclosure (as to which see Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154), but the comment applies equally to the statutory duty. That is particularly so bearing in mind that the statutory duty is different at different stages of the proceedings.
30 It is important to bear in mind that the defence has very limited obligations of disclosure. Accordingly, it is possible that the issues will change, or that new issues will be raised by the defence at trial that could not reasonably be anticipated. In regard to the common law duty of disclosure the court in R v Brown (Winston) [1994] 1 WLR 1599, 1606 said that the prosecution was obliged to disclose:
[T]hat which can be seen on a sensible approach by the prosecution:
(1) to be relevant or possibly relevant to an issue in the case;
(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).
31 This statement was referred to with approval in Easterday [196] and White [187].
32 In The State of Western Australia v JWRL (a child) [2010] WASCA 179 [59] - [61] Martin CJ said that the approach that should be taken to relevance should not be narrow. His Honour said that the obligation to disclose includes all evidence that is relevant, or potentially relevant, to the charge; that is, relevant to any issue that might possibly or conceivably arise at trial and is not fanciful. Both McLure P at [153] and Buss JA at [155], whilst agreeing with the Chief Justice in other respects,
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- expressly reserved their positions in respect of this aspect and each expressed doubts as to whether the obligation to disclose extends to potentially relevant material.
33 The formulation in Brown assists in interpreting the statutory obligation to provide material that 'may assist the accused's defence'. Thus, in my view, that obligation is to be assessed by reference to the issues that existed at the time the obligation arose. There may be some available material that clearly raises a new exculpatory issue that will also need to be disclosed. However, there may be material that falls into neither of these categories but, rather, only becomes relevant by reason of an issue raised for the first time by the defence at trial. Whether or not the issue is one that could be reasonably anticipated by the prosecution will depend on the circumstances of the case. However, the prosecution is not required to be omniscient and to anticipate every possible issue that the defence may raise, even if remote or apparently foreclosed by the available evidence.
34 As I have mentioned, there is also a continuing obligation of disclosure in s 95(9) of the Criminal Procedure Act. That subsection provides that:
If, after complying with subsection (6), (7) or (8) and before a charge is finally dealt with, a prosecutor receives or obtains -
(a) confessional material or additional confessional material that is relevant to the charge;
(b) additional evidentiary material that is relevant to the charge;
(c) any statement or recording referred to in section 42(2)(b); or
(d) the name or address of a person described in section 42(2)(c),
the prosecutor must lodge it or a copy of it, and serve it or a copy of it on the accused, as soon as practicable.
35 There are a number of features about the continuing obligation of disclosure in s 95(9) that should be noted. Firstly, the obligation is not imposed upon 'the relevant authorised officer' (as in s 95(6)) but upon 'a prosecutor'. In respect of a prosecution in a superior court, a prosecutor means the authorised officer (as defined in s 80) who commenced the prosecution or a person who in court represents that person: definition of 'prosecutor' in s 3 Criminal Procedure Act. In effect, in this case that means the officer of the DPP who commenced the prosecution by signing
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- the indictment and causing it to be lodged with the court (see s 83 and s 85) and counsel who appeared for the prosecution at the trial.
36 The second feature to note about s 95(9) is that it refers to material that the prosecutor 'receives or obtains'. On the face of it this seems to be applicable to additional material received after the disclosure obligation under s 95(6) has been complied with. That does not readily fit the circumstance where there is a change to the issues at trial and material that was not previously relevant to the defence becomes so as a result of that change. In such a case the prosecutor has not received or obtained that material, rather it has changed its character. Whether disclosure should be made in such a case should be considered when the point arises in a future case.
37 However, even if the obligation extended to material that becomes relevant because of some change in the issues, the other consequence that flows from use of the words 'received or obtained' is that the obligation must arise from actual possession of the material by the persons who qualify as 'a prosecutor' at this stage of the proceedings. Seen in that light, it is a significantly more limited obligation than that arising under s 96(6).
38 There are obvious practical reasons why continuing disclosure is of a more confined nature than pre-trial disclosure under s 95(6). It cannot be the case that the prosecution is required to proactively undertake investigations to discover material relevant to issues that are first raised in the course of the trial. To impose such an obligation would be impractical and provide opportunity for appellants to utilise claims of non-disclosure in respect of material which the prosecution could not reasonably have anticipated as being relevant. The effect would be to undermine the finality of trial proceedings (subject to proper appeal grounds being established). To read disclosure so broadly would permit appellants to effectively use appeal proceedings as a second trial.
Ground 1 - The merits
39 In this case the central issue was whether the appellant, either alone or jointly with Huynh, was in possession of the drugs found in the house. In this regard, it was relevant to take into account the location in which the drugs were found and who, on the available evidence, was known to have access to the house. As regards the drugs in respect of which the appellant was convicted, it is relevant that they were found not merely in the house but in a drawer of a table in the lounge room. When the police executed the search warrant, neither the appellant nor Huynh suggested
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- that anyone else had been recently residing at the house and, in particular, did not suggest that Lam had recently been inside the house.
40 Thus, on the known circumstances existing at the time the trial commenced, the only people who 'a prosecutor' had any reason to believe had access to the house and opportunity to conceal the drugs found in the drawer were the appellant and Huynh. The fact that Lam arrived at the house whilst the search was being conducted and was found in possession of MSM did not provide any basis for inferring that the drugs in the house belonged to him and not the appellant and Huynh. Furthermore, the fact that Lam may have committed an offence in respect of drugs prior to the date of the search could not give reason to think that he might, therefore, have had access to the house and concealed the drugs there.
41 It can be inferred that a person who is in control of premises has knowledge of and dominion over items located there. However, where a number of people are capable of having concealed an item on premises there will be no reason to draw an inference that any particular person concealed it. That is not because there is some proposition of law that it is necessary in cases where items are concealed to negative knowledge and control by all others. It is because there is a reasonable hypothesis consistent with innocence. That hypothesis being that the items were placed where they were by some other person without the knowledge or consent of the owner or occupier of the premises. Whether such an hypothesis is available is simply a question of fact: Jones v The State of Western Australia [2006] WASCA 192.
42 In the present case, there was no evidence to suggest that anyone other than the appellant and Huynh had access to the drawer in the lounge room where the drugs were located. There was certainly nothing to suggest that Lam had such access. The first time there was any suggestion that Lam had been in the house at the relevant time and had an opportunity to conceal the drugs was when Huynh gave evidence in her defence. The prosecutor could not reasonably have anticipated that such a suggestion would be made. Particularly given that such a claim was inconsistent with what both the appellant and Huynh had said at the time of the search. In those circumstances, no disclosure obligation in respect of Lam's conviction could have arisen on a sensible appraisal of the available evidence prior to that time. Accordingly, the obligation under s 95(6) did not arise.
43 That leaves the question of whether the prosecutor had an obligation to make disclosure of Lam's prior conviction once Huynh had given her
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- evidence. Huynh's evidence raised the possibility that Lam had resided at the house and had access to rooms in which the drugs were found and may, therefore, have been responsible for concealing them. On that basis Lam's prior involvement in the same type of drugs was of potential relevance. However, any obligation of disclosure arising at this point must have been pursuant to s 95(9) and needs to be determined by reference to the requirements of that provision. In this regard, it is important to note that the statutory duty of continuing disclosure under s 95(9) is conditioned by practical considerations. Those considerations are whether a prosecutor with actual charge of the case was in possession of the material at the relevant time and whether a reasonable opportunity to make disclosure existed.
44 Huynh gave her evidence on the afternoon of 22 June 2010. She was the only witness called for the defence and her evidence was completed that afternoon. Immediately following her evidence, the appellant was called upon and elected, through his counsel, not to give or adduce any evidence. The following morning counsel addressed the jury and the trial judge summed up. The jury retired to consider its verdict that afternoon and returned with its verdicts that evening.
45 Affidavits have been filed by the respondent of the authorised officer who signed the indictment, the DPP's lawyer responsible for the matter and counsel who was briefed by the DPP to appear for the prosecution at the trial. Each of those persons deposes that they were not aware of Lam's conviction at the time of the trial. Thus, none of those persons who qualified as a 'prosecutor' at the relevant time, knew of or was in possession of the material that the appellant submits should have been disclosed. In those circumstances the obligation under s 95(9) did not arise. There having been no failure to disclose and that being the basis of this ground, no miscarriage of justice is established.
46 For those reasons this ground should be dismissed.
Grounds 2 and 3
47 In cross-examination Huynh was asked about her notebook and gave evidence regarding the cost of drugs. It was clear that she gave that evidence based upon her own experience of drug use. Whilst she was seeking to explain away the notebook on the basis that she was not a seller but, together with her friends, an occasional buyer, her evidence as to the value of drugs of this type was clearly relevant.
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48 The trial judge gave the jury directions in regards to the use they could make both of the notebook and Huynh's evidence. Her Honour said:
As against Ms Huynh only, you may take into account her notebook with its notations.
The State's case is if she's a person who regularly buys drugs for her own use, and only in modes amounts, then she's got no need for this information as to how much it costs to buy an ounce of methylamphetamine. That evidence of the notebook is only evidence against Ms Huynh, it's in her handwriting, it was found in her bag.
There's no evidence linking [the appellant] to those notes. And police didn't ask him about it in the search. And he's made no admission about it at all. So the actual notebook itself is only evidence against Ms Huynh.
Any evidence Ms Huynh gave in court however, about what drugs cost, and she agreed with Mr Eyers' estimate of what the drugs were worth, is admissible evidence both for and against both her and [the appellant]. So again, I'll just remind you. Evidence in court is evidence in general that you can use in general, but evidence of what each accused said outside the courtroom to the police is only evidence against the person who said it.
So you can consider all of that evidence to assess whether it establishes that it's more likely than not that the accused whose case you are considering did not have an intention to sell or supply the drugs to another (ts 202 - 203).
49 The appellant submits that these directions would be likely to lead the jury to conclude that evidence given by Huynh could be used to conclude that the appellant had knowledge concerning the value of the drugs found at the house.
50 This ground can be dealt with shortly. It is evident from her Honour's directions that she did not suggest that Huynh's knowledge of the value of drugs could be imputed to the appellant. That is not to say that Huynh's evidence of value was not admissible against the appellant. Her evidence was not simply as to her own state of mind but, based on her experience, as to the actual value of drugs. The value of the drugs found in the house was a relevant issue for the jury to consider in weighing the evidence as against the appellant.
51 There is no merit in this ground of appeal and leave in respect of it should be refused.
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Grounds 4 and 5
52 The appellant submits that the cross-examination by the prosecutor of Huynh was improper, in particular because it included questions that offended the principle in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1. In that case, the High Court held that a prosecutor should not invite a jury to conclude that an accused was guilty because the accused had not shown that the complainant had any reason to lie. Such an invitation was inappropriate as it had the effect of reversing the onus of proof.
53 The questions which were identified in respect of this ground of appeal included the question put to Huynh asking her whether she could think of any reason why anybody visiting her house would have left $13,000 worth of drugs there. This question needs to be understood in the context that Huynh had said that the only people at the time who were permanently residing at the house were herself and the appellant. She was not being asked to speculate. Rather, as one of the two permanent residents of the house she was a person who might reasonably be supposed to know whether there was anyone who could possibly have visited the house for the purpose of leaving drugs there with such a high value.
54 The principle enunciated in Palmer has no application in the present case. This was not a case involving improper questioning of an accused person as to the complainant's motive to lie. The questions in this case were not asked to suggest to the jury that the appellant was obliged to give an explanation of the events but rather were asked to test the explanation given by Huynh in her evidence-in-chief: Kadibil v The State of Western Australia [2003] WASCA 13 [23].
55 Furthermore, the trial judge gave clear directions that at no stage of the trial did any onus of proof shift to the accused in relation to the issue of possession (ts 181, 185, 201).
56 Ground 4 should be dismissed and leave should be refused in respect of ground 5.
Ground 6
57 Ground 6 relies upon error being established in respect of the other grounds which, though not sufficient in themselves, by their accumulated effect would establish a miscarriage of justice. Since, in my view, no
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- such error has been established in respect of any of the other grounds this ground has no merit and leave in respect of it should be refused.
Conclusion
58 I would dismiss grounds 1 and 4 and refuse leave in respect of grounds 2, 3, 5 and 6.
3
9
2