Waldron v The State of Western Australia

[2010] WASCA 63

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WALDRON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 63

CORAM:   McLURE P

PULLIN JA
BUSS JA

HEARD:   19 FEBRUARY 2010

DELIVERED          :   7 APRIL 2010

FILE NO/S:   CACR 46 of 2009

CACR 47 of 2009

BETWEEN:   TREVOR LEONARD WALDRON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :EATON DCJ

File No  :IND 777 of 2008

Catchwords:

Criminal law - Appeal against conviction - Possession of prohibited drug with intent to sell or supply - Applicability of Liberato direction - Whether verdicts of guilty unreasonable or cannot be supported by evidence - Turns on own facts

Criminal law - Appeal against sentence - Whether term of imprisonment should have been suspended - One transaction rule - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11(a)
Sentencing Act 1995 (WA), s 76(3)(b)

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr D P A Moen

Respondent:     Mr J Mactaggart

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186

Borbil v The State of Western Australia [2007] WASCA 24

Dixon v The State of Western Australia [2006] WASCA 255

HV v The State of Western Australia [2006] WASCA 242

Liberato v The Queen (1985) 159 CLR 507

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

Sinagra-Brisca v The Queen [2004] WASCA 68

1. McLURE P: The appellant was convicted after trial on one count of possession of a prohibited drug (MDMA, known as ecstasy) with intent to sell or supply (count 1) and one count of possession of a prohibited drug (cannabis) with intent to sell or supply (count 2) contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).

2. On 9 April 2009 he was sentenced to 3 years' imprisonment on count 1 and 1 year's imprisonment on count 2.  The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 4 years' imprisonment.

3. On 21 July 2009, Miller JA ordered that the appellant's application for leave to appeal against both conviction and sentence be referred to the hearing of the appeal.  In my view, none of the grounds of appeal are reasonably arguable and leave to appeal against conviction and sentence should be refused.  These are my reasons for that conclusion.

The conviction appeal

1. Section 11 of the Act contains a presumption of intent to sell or supply.  It relevantly provides:

   For the purposes of ‑ 

   (a)section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug.

2. The quantity of ecstasy specified in sch V is 2 g and the quantity of cannabis is 100 g.

3. The effect of s 11(a) of the Act was explained by Steytler P in Abbott v The State of Western Australia (2005) 152 A Crim R 186, as follows:

   Once the fact of possession of more than the specified quantity is proved beyond reasonable doubt or, as in this case, admitted, the prosecution has no other onus to discharge. The very purpose of s 11(a) of the Act is that of putting upon the accused, in such a case, the onus of establishing on the balance of probabilities that, on the whole of the evidence at the trial, he or she did not intend to sell or supply the drug to another [4].

4. In the opening address on behalf of the appellant at trial, it was admitted that the appellant was in possession of the ecstasy and cannabis the subject of counts 1 and 2 respectively.  The only issue at trial was whether the appellant was in possession of the prohibited drugs with an intention to sell or supply them to another.  As the appellant was in possession of more than the quantities specified in sch V of the Act, the only live question for the jury was whether the appellant had discharged his onus of proving on the balance of probabilities that he did not intend to sell or supply the drugs to another.

5. The prosecution case at trial was as follows.  At approximately 5.30 pm on 19 September 2007, a vehicle driven by the appellant was the subject of a targeted stop by a marked police vehicle.  A wooden baton was removed from the appellant's vehicle.  The passenger in the car driven by the appellant, Nicole Grant, produced a small bag of cannabis from her pocket.  Both the appellant and Ms Grant were advised that a strip search would be conducted at the local police station.  On arrival at the police station, the appellant indicated to police they may find something concealed in his groin.  The strip search was recorded and a clipseal bag was observed to fall from the appellant's underpants onto the ground.  The clipseal bag housed another clipseal bag containing 200 grey tablets which analysis revealed to be MDMA tablets weighing a total of 48.4 g.

6. Later that night, police executed a search warrant at the appellant's home.  During the search, which was recorded, the police located $3,300 hidden inside a clock, 216 g of cannabis inside a bag in the appellant's wardrobe, a smoking implement, a small quantity of cannabis and nine cannabis plants which he was cultivating.

7. The appellant gave evidence at trial.  He said he was an aviculturist earning an undeclared yearly income of approximately $30,000.  During the search of his home, the appellant advised police that he had no income apart from a fortnightly pension.  The appellant also gave evidence at trial that he had known Ms Grant since 2005 and took care of her bird, a cockatoo called 'Cheeky' whilst she worked away from Perth for periods of three to four weeks.  On 19 September 2007, Ms Grant arrived at the appellant's home around lunch time to collect Cheeky and during the course of the visit smoked cannabis with the appellant.  The appellant said he had 'smoked 10 pipes for breakfast' that morning (ts 118).  By the time Ms Grant asked the appellant to drive her home via Victoria Park to pick up some 'pills', the appellant described himself as 'a bit stoned and a bit wasted' (ts 119).  On the way home in the car, Ms Grant advised the appellant she was prepared to give the appellant 50 tablets on credit in addition to 10 tablets which were to form payment for the appellant's bird‑sitting and driving her home.  Ms Grant threw the double‑wrapped tablets onto his lap.  He believed there were 60 tablets in the package.  The appellant placed the package in his underpants. 

8. The appellant's defence was that all of the prohibited drugs were for his personal use and that he had been framed by Ms Grant and the police.

9. The appellant relies on two grounds of appeal, the first of which is multifaceted and in the following terms:

   The trial judge erred:

   (a)in directing in a manner that suggested that the jury had to accept the appellant's evidence that he believed he was given only 60 tablets before they could use that evidence in determining whether or not he had an intention to sell or supply the tablets;

   (b)in failing to direct instead (i) that, unless the jury could exclude beyond reasonable doubt the truth of the appellant's evidence that he was given only 60 tablets, then they must take that evidence into account in determining whether or not he had an intention to sell or supply the drugs or (ii) that, in determining whether or not the appellant had an intention to sell or supply the drugs, they must consider all the evidence, including the appellant's evidence that he believed he was given only 60 tablets; and

   (c)in failing to give any directions on the potential relevance of the appellant's evidence that he was drug‑affected at the time he received the tablets from Ms Grant.

10. The second ground of appeal is that, having regard to the evidence, the verdict is unreasonable or cannot be supported.

11. Grounds 1(a) and (b) are related.  Ground 1(a) misstates the trial judge's direction.  The trial judge said:

    What [the appellant] intended to do with both the ecstasy and the cannabis is a question for you to decide.  The State says that he was as I say in possession of 200 tablets and urges that you should not accept that it was his belief that he was in possession of only 60.  Whether you accept that as I say is a matter for you.

    [The appellant] told you in his evidence that he thought that he was being given 60 ecstasy tablets and that he had no intention of selling or supplying them to anyone.  If you find his evidence in that regard to be reliable and credible, you may well take that into account when considering whether on the probabilities, on the whole of the evidence, he did not have an intention to sell or supply (ts 178 ‑ 179).

12. The underlying and unstated assumption in grounds 1(a) and (b) is that the trial judge should have given a Liberato direction to the effect that if the jury had a reasonable doubt about the accuracy and reliability of the appellant's evidence, they must acquit:  Liberato v The Queen (1985) 159 CLR 507 (515). Such a direction is appropriate when the State carries the burden of proving all elements of the offence beyond reasonable doubt. In this case the appellant's evidence bore solely on the issue of whether he had an intention to sell or supply. As the statutory presumption had been activated, the onus was on the appellant to prove (on the balance of probabilities) that he did not have such an intention. The jury had to be positively satisfied of the truth and accuracy of the appellant's evidence for it to be relevant in the fact‑finding process on the issue of intention. Moreover, the trial judge in the passage cited above directed the jury that the appellant's intention had to be determined on the whole of the evidence, a point he subsequently repeated (ts 188). These grounds are without merit.

13. Ground 1(c) also has no reasonable prospect of succeeding.  The appellant's evidence was that on the morning of 19 September 2007 he had 10 pipes for breakfast, had smoked cannabis with Ms Grant during the four hours she was present at his house and had taken three panadeine forte tablets so that by the time he was in the car he was 'a bit stoned' and 'a bit wasted'.  The appellant's case at trial was that this evidence was relevant to whether or not the appellant was aware of the number of tablets he received from Ms Grant.  There was no suggestion at trial or in the appeal that the appellant's level of (drug induced) intoxication was such as to prevent the formation of the relevant intention.  His mental state was relied on to explain why he was not aware that he received 200 tablets rather than the 60 tablets the subject of his discussion with Ms Grant.  The trial judge referred to this aspect of the appellant's defence in the course of summarising the defence case for the jury (ts 188).  The appellant's evidence on this matter was simply part of the factual matrix for the jury's determination and involved no question of law.  The relevance of the evidence to the appellant's case was obvious and did not require any direction from the trial judge.

14. As to ground 2, the appellant relies on the following matters in support of his contention that the verdicts of guilty were not open on the evidence:

    (a)the appellant's sworn evidence that he possessed the cannabis for personal use, not for the purposes of sale or supply, and that he used cannabis heavily;

    (b)the relatively modest amount of cannabis found at the appellant's premises;

    (c)the finding of used cannabis and cannabis‑using equipment at the appellant's premises;

    (d)the appellant's sworn evidence that he possessed the ecstasy for personal use, not for the purposes of sale or supply, and that he used ecstasy previously;

    (e)the appellant's sworn evidence that he believed he had only 60 tablets, not 200 and that he was drug‑affected at the time he received those tablets;

    (f)the absence of any evidence of enrichment or the usual indicia of drug‑trafficking;

    (g)the failure of the State to call Ms Grant as a witness.

15. Of the seven matters relied on, three depend upon the appellant's evidence at trial.  I suspect this reliance is linked with the misunderstanding reflected in grounds 1(a) and (b).  It is clear that the jury were not prepared to positively accept the appellant's evidence relating to his intention.

16. As to the alleged absence of any evidence of enrichment, that ignores the significant amount of cash hidden in the clock, the appellant's personal drug use which had to be funded and the absence of independent evidence of the source of any capital or income available to the appellant.  The absence of usual indicia of drug‑trafficking (such as scales, clipseal bags) is equivocal and by itself incapable of discharging the appellant's onus negativing any intention to sell or supply.  As to the failure of the State to call Ms Grant as a witness, it was under no obligation to do so.  The appellant had admitted to being in possession of the prohibited drugs and the only live issue at trial was a matter on which the appellant bore the onus.  It was for him to call Ms Grant if it would have assisted his defence (a matter of pure speculation).  Moreover, the police had no prior notice of the appellant's contentions as to Ms Grant's involvement in the supply of the MDMA to the appellant.  This ground is also without merit.

Sentence appeal

1. The appellant relies on two grounds.  He contends the sentence on count 2 should have been suspended and in the alternative, the sentence on count 2 should have been made concurrent with the sentence on count 1.

1. There is no merit in ground 1. Having sentenced the appellant to immediate imprisonment on count 1 (which sentence is not the subject of appeal), the sentencing judge had no power to suspend the term of imprisonment on count 2: s 76(3)(b) of the Sentencing Act 1995 (WA).

2. There is also no merit in ground 2.  The offences were not part of a single transaction so as to attract the 'one-transaction rule':  Sinagra-Brisca v The Queen [2004] WASCA 68 [28] ‑ [31]; Dixon v The State of Western Australia [2006] WASCA 255 [10]; Samuels v The State of Western Australia (2005) 30 WAR 473, 489; Borbil v The State of Western Australia [2007] WASCA 24 [88]; HV v The State of Western Australia [2006] WASCA 242 [23]. In any event, having regard to all relevant sentencing factors it cannot reasonably be contended that a total sentence of 4 years is an inappropriate measure of the total criminality of the conduct as a whole.

3. PULLIN JA:  I agree with McLure P.

4. BUSS JA:  I agree with McLure P.