WILLIAMS v The State of Western Australia
[2021] WASCA 33
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WILLIAMS -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 33
CORAM: BUSS P
BEECH JA
VAUGHAN JA
HEARD: 1 FEBRUARY 2021
DELIVERED : 25 FEBRUARY 2021
FILE NO/S: CACR 58 of 2020
BETWEEN: TROY ANDREW WILLIAMS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 2216 of 2018
Catchwords:
Courts and judges - Procedural fairness - Apprehended bias - Whether the rule against prejudgment was infringed - Whether the judge's response to the statement of facts agreed between the prosecution and the appellant's solicitor gave rise to a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the factual issues at an ensuing trial of issues
Criminal law and sentencing - Where the statement of facts agreed between prosecution and the appellant's solicitor - Where the judge expressed concern that the agreed facts required the court to sentence on a basis that was false or misleading - Where the judge subsequently determined factual issues adversely to the appellant at a trial of issues - Whether the judge's refusal to recuse himself on grounds of apprehended bias meant that the requirements of procedural fairness had been breached - Whether the sentencing process miscarried
Evidence - Hearsay - Co-conspirator's rule - Whether, in order for evidence to be admitted under the co-conspirator's rule as an exception to the rule against hearsay, there must be reasonable evidence of the participation of the accused in the conspiracy at or before the time the words were said by the alleged co‑conspirator
Legislation:
Nil
Result:
Leave to appeal on grounds 1 and 2 granted
Leave to appeal on ground 1A refused
Appeal upheld
Sentence set aside
Matter remitted to the District Court for resentencing before a different judge
Category: D
Representation:
Counsel:
| Appellant | : | J Condon QC & S E Pratt |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Sarah Pratt & Associates |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283
Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527
Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593
Clarke v The State of Western Australia [2018] WASCA 14
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
DPP v Perry [2016] VSCA 152; (2016) 50 VR 686
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
KWLD v The State of Western Australia [2020] WASCA 94
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
LJW v The State of Western Australia [No 2] [2007] WASCA 275
Malvaso v The Queen (1989) 168 CLR 227
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Nuhana v The State of Western Australia [2018] WASCA 79
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2
Ogbonna v CTI Logistics Ltd [2021] WASCA 25
Pantorno v The Queen (1989) 166 CLR 466
Punevksi v The Queen [2000] WASCA 71
R v Bilick & Starke (1984) 36 SASR 321
R v Dinh [2000] NSWCCA 536; (2000) 120 A Crim R 42
R v Louden (1995) 37 NSWLR 683
R v Lovett [2012] WASC 511
R v Masters (1992) 26 NSWLR 450
R v Uzabeaga [2000] NSWCCA 318; (2000) 119 A Crim R 452
Rayney v The State of Western Australia [2020] WASCA 206
Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Rimington v The State of Western Australia [2015] WASCA 102
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Savory v The State of Western Australia [2018] WASCA 165
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Suleiman v The State of Western Australia [2017] WASCA 26
Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1
Ugle v The State of Western Australia [2018] WASCA 97
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
JUDGMENT OF THE COURT:
Summary
The appellant was charged jointly with another, Richard Grubb, with possessing a trafficable quantity of methylamphetamine with intent to sell or supply it to another. He pleaded guilty.
The appellant and Mr Grubb travelled together by plane from Melbourne to Perth, each having approximately half a kilogram of methylamphetamine secreted under his underwear. Upon arrival, police searched both men and found the drugs they were carrying.
At the initial sentencing hearing on 29 August 2019, it was the State's case that Mr Grubb had procured the kilogram of methylamphetamine, and that he was in possession of the entire kilogram, but the State accepted that the appellant was in possession of only the approximately half a kilogram that was on his person. At that hearing, the sentencing judge, Stevenson DCJ (the judge), expressed concern, or suggested, that to proceed on that factual basis would be to proceed on a basis that was false or misleading, having regard to the terms of the charge, the statement of facts and the prosecution brief.
The sentencing was adjourned to 5 September 2019.
On 4 September 2019, the appellant gave notice of an application, with supporting submissions, for the judge to disqualify himself from the sentencing, based upon the interactions between the judge and the appellant's counsel at the hearing on 29 August 2019. On 5 September 2019, the judge dismissed the application that he disqualify himself and adjourned the sentencing to 11 October 2019.
Before 11 October 2019, the State filed an amended statement of facts, alleging that the appellant had procured the kilogram of methylamphetamine and that he and Mr Grubb were in joint possession of the entire kilogram.
Sentencing did not occur on 11 October 2019.
In December 2019, the appellant filed an application to change his plea. That application was subsequently dismissed by Sleight CJDC on the basis that there would be no miscarriage of justice if the appellant's plea of guilty was left intact with the factual disputes to be resolved at a trial of issues.
On 2 April 2020, there was a trial of issues before the judge to resolve the two main factual disputes. The first concerned whether, as the State contended, the appellant and Mr Grubb were in joint possession of the entire kilogram of methylamphetamine, the appellant contending that he was in possession of only the approximately half a kilogram that was found on his person. Secondly, the appellant challenged the State's assertion that he was the source of the methylamphetamine.
The judge made findings adverse to the appellant on all issues.
The following day, the appellant was sentenced to a term of 9 years 6 months' imprisonment.
The appellant challenges his sentence on three grounds:
(1)the judge denied the appellant procedural fairness, taking into account his interventions in the sentencing hearing, and his failure to recuse himself after the interventions (ground 1);
(2)the appellant suffered a miscarriage of justice due to the prosecutor's failure to adhere to the factual basis on which the plea of guilty was entered (ground 1A); and
(3)the judge made express errors in his factual findings at the trial of issues, including in relation to the issues identified in [9] above (ground 2).
For the reasons that follow, we would uphold ground 1 and order that the appellant be resentenced by a different judge. Consequently, it is neither necessary nor appropriate to determine grounds 1A and 2. However, it is appropriate to make some observations on some aspects of those grounds that bear upon the conduct of the appellant's resentencing.
The indictment
The indictment alleged that on 9 May 2018 at Perth Airport, Mr Grubb and the appellant had in their possession a trafficable quantity of methylamphetamine with intent to sell or supply it to another. The indictment charged the appellant jointly with Mr Grubb.
It is convenient to outline the facts on which the appellant was ultimately sentenced, to provide context for understanding the issues that arose at earlier stages of the sentencing process.
The facts on which the appellant was sentenced
On 3 May 2018, Mr Grubb and Mr Gade, who was involved in the offending but was charged separately, were in a room at a hotel in East Perth.[1] Their conversation, which was captured on a covert listening device, concerned obtaining, transporting and selling methylamphetamine.
[1] ts 309.
During the conversation, Mr Grubb and Mr Gade agreed that Mr Grubb would bring 1 kg of methylamphetamine from Melbourne to Perth the following Sunday and sell it to Mr Gade for distribution to dealers in Perth.[2] Mr Grubb told Mr Gade that the appellant was able to source substantial amounts of methylamphetamine on credit.
[2] ts 309.
Mr Grubb travelled to Melbourne where the appellant procured 1 kg of methylamphetamine from an unknown source.[3]
[3] ts 309.
On 8 May 2018, Mr Grubb purchased two airline tickets for the appellant and himself to travel to Perth that day on an overnight flight.[4]
[4] ts 309 - 310.
On 9 May 2018 at 12.58 am, the appellant and Mr Grubb arrived at Perth Airport and upon disembarking were apprehended by police.[5]
[5] ts 310.
The appellant was searched at the airport and police located a package strapped to his groin area containing 494 g of methylamphetamine of 77% purity.[6] The package was hidden under a number of layers of underwear and skins under his jeans and was wrapped in sports strapping tape. Police also located a separate package within the methylamphetamine package which contained 2.19 g of cocaine of 64% purity.
[6] ts 310.
Mr Grubb was also searched and police located a package hidden in a similar way containing 499 g of methylamphetamine of 75% purity.[7] A roll of sports strapping tape was also located in a bag that Mr Grubb was carrying. A later search of Mr Grubb located a further 1.06 g of methylamphetamine also hidden in his underwear and wrapped in sports strapping tape.
[7] ts 310.
The appellant and Mr Grubb were in joint possession of the 1 kg of methylamphetamine with the intention that it be conveyed to an associate known to Mr Grubb, namely Mr Gade, for the purpose of distribution to dealers in Western Australia.[8]
[8] ts 310.
The nature of the issues arising in relation to ground 1 makes it necessary to outline the lengthy procedural history of these proceedings in some detail.
Hearing - 29 August 2019
On 29 August 2019, the appellant and Mr Grubb first appeared in the District Court to be jointly sentenced. They pleaded guilty to the charge on the indictment and were convicted.[9]
[9] ts 7.
The prosecutor tendered the papers comprising the prosecution brief.[10] She then read to the court the substance of the agreed statement of facts dated 20 December 2018. The statement of facts included the following:[11]
[4]Grubb explained to Gade that the co‑accused Williams was able to source substantial quantities of methylamphetamine on credit.
[5]Grubb subsequently travelled to Melbourne where he procured one kilogram of methylamphetamine from an unknown source.
…
[22]Williams was in possession of the methylamphetamine found on his person with the intention of couriering them to whomever Grubb directed him to.
[23]Grubb was in possession both of the drugs on his own person and the drugs which he had procured Williams to carry. It was the intention of Grubb to sell one kilogram of methylamphetamine to Nigel [Gade], so that it could be commercially distributed to dealers in Western Australia.
[10] ts 7.
[11] Statement of material facts dated 20 December 2018, AB 262 - 263.
In the course of his plea in mitigation, counsel for the appellant referred to the agreement between the parties that the appellant was only criminally responsible for the quantity of methylamphetamine that he was carrying.[12] The judge responded as follows:[13]
[12] ts 23.
[13] ts 24 - 25.
STEVENSON DCJ: With respect, I saw that in your written submissions. He is acting in concert, he pleaded guilty to the charge on the indictment with full knowledge of the offence, so he is a party to 1 kilogram. He's not to be sentenced on a limited basis that he's only responsible for the 494 grams that he had in his possession.
FREITAG, MR: Well, your Honour, with respect, that's the basis on which we understood from the State he was to be sentenced, and that's the basis on which the plea has been entered. There was no dispute by Mr Williams that Mr Williams was involved in this transaction, and nor could there be any dispute, obviously. But representations were made to the State that Mr Williams would only be responsible for what he was carrying, the DPP agreed with that, and the facts that have been read to your Honour are paragraph 6:
Mr Grubb procured the co-accused Williams to carry one half of the 1 kilo while he, Grubb, would carry the other half.
And at paragraph - - -
STEVENSON DCJ: Yes.
FREITAG, MR: - - - 23, your Honour, if I just:
Grubb was in possession, both of the drugs on his person and the drugs which he had procured Williams to carry. It was the intention of Grubb to sell 1 kilo of methylamphetamine to Nigel [Gade] so that it could be commercially distributed to dealers in Western Australia.
Paragraph 22:
Williams was in possession of the methylamphetamine found on his person with intention of couriering them to whoever Grubb directed him to.
So the State, at paragraphs 22 and 23 of their agreed facts, have asserted the proposition that I've just asserted to your Honour, that's agreed between the parties.
STEVENSON DCJ: With respect, that is completely artificial, and it's not the way, when I read the statement of material facts, I understood them to be, that sentence could proceed. You are tinkering at the edges with respect to their role in this offence.
…
STEVENSON DCJ: The facts admit to what is said in the statement that you've referred to. Yes, but for Mr Grubb's intention to supply Mr [Gade], Mr Williams would not have been involved, but that doesn't say anything about why he's involved at all, as I already alluded to, when Mr Grubb himself could have easily brought the 1 kilogram himself. So if you want to be sentenced on a limited basis, that he's got no knowledge of what Mr Grubb is doing at the same time - - -
FREITAG, MR: That's not my - - -
STEVENSON DCJ: - - - he's a party to the offence.
FREITAG, MR: That's not my submission, your Honour.
STEVENSON DCJ: He's in possession of - they are in - jointly in possession of the drugs that each were carrying. (emphasis added)
The judge and counsel for the appellant proceeded to discuss the relative criminality of the appellant and Mr Grubb and the inferences that could be drawn from the known facts.[14] The following exchange then occurred:[15]
[14] ts 25 - 26.
[15] ts 26 - 27.
STEVENSON DCJ: Mr Freitag, how can the court sentence Mr Williams on the basis that he's responsible only for 494 grams?
FREITAG, MR: Because that's the facts - - -
STEVENSON DCJ: That's artificial.
FREITAG, MR: - - - that have been - - -
STEVENSON DCJ: That's not the facts - - -
FREITAG, MR: That's the facts that have been - - -
STEVENSON DCJ: - - - of the matter.
FREITAG, MR: - - - put before your Honour.
STEVENSON DCJ: It's not. He accepts that he had full knowledge of what Mr Grubb was carrying.
FREITAG, MR: Your Honour - - -
STEVENSON DCJ: It's plain they did it together, they've acted in concert. They had joint knowledge of what they were doing and what they were attempting to achieve, and I don't understand how the court can sentence on the basis you're asking to do so. It would be false. (emphasis added)
After the judge and counsel for the appellant discussed the appellant's knowledge that Mr Grubb was also carrying methylamphetamine, the exchange continued as follows:[16]
[16] ts 28 - 29.
STEVENSON DCJ: So I sentence Mr Williams on the basis that he's not accountable or responsible for the drugs being carried by Mr Grubb, but I sentence Mr Grubb on the basis that he's responsible for the drugs carried by Mr Williams?
FREITAG, MR: Yes. And that's exactly what's set out in paragraph 22 and 23 of the State's agreed statement of the material facts. That's the only basis on which your Honour can, with respect, sentence, given that's the State's case.
STEVENSON DCJ: Well, I will come to the State in a minute. But, with respect, I don't agree that's the only basis. 22 says Williams was in possession. Well, that's a fact. But nothing here says that one's to be sentenced on a false basis of the reality and the other is to be sentenced - ‑ ‑
FREITAG, MR: No. The word false is, obviously, not used in the material facts. But the first line - - -
STEVENSON DCJ: Well, that's what you're asking the court to do. They both had knowledge of the crime. They're both parties to the same offence.
…
FREITAG, MR: Perhaps my submission can be brought down to this, your Honour. One, we say, is working for the other. One is being recruited by the other.
STEVENSON DCJ: I'm not prepared to accept that. I'm not prepared to accept that Mr Williams is working for Mr Grubb. I accept that as a result of the deal that Mr Williams set up - sorry. Correction. Mr Grubb set up Mr Williams becomes involved. But I can't speculate that Mr Williams is working for Mr Grubb.
FREITAG, MR: Well, it's not speculation, your Honour.
STEVENSON DCJ: It is pure speculation. (emphasis added)
The interaction between the judge and counsel for the appellant continued:[17]
[17] ts 31 - 32.
STEVENSON DCJ: I don't know whether Mr Williams, by reason of his location in Victoria, where the drugs were sourced from - - -
FREITAG, MR: No. And there's no agreement as to where the drugs were sourced from.
STEVENSON DCJ: Well, it's exactly the same thing. How can the court speculate about it?
FREITAG, MR: I'm not asking the court to speculate about that. What I'm asking the court to do is accept the explicit, agreed, statement of material facts, prepared by the State, which my client's pleaded to, and sentence on that basis.
STEVENSON DCJ: Yes. Sorry. Well, which you've negotiated.
…
STEVENSON DCJ: I understand what you're saying about his role.
FREITAG, MR: Yes.
STEVENSON DCJ: But I don't understand how the court can simply proceed to sentence on the basis for Mr Williams that it's only 494 grams. Given the context and the circumstances of the knowledge and the involvement, it would be artificial. It would be false. It would be a lie.
Notwithstanding any agreements that might have been reached.
FREITAG, MR: Yes.
STEVENSON DCJ: They've both pleaded guilty to the same offence. (emphasis added)
Thereafter, the exchange continued as follows:[18]
[18] ts 32 - 33.
STEVENSON DCJ: Well, the agreed statement of facts say what they say.
FREITAG, MR: Yes.
STEVENSON DCJ: We're talking about what they mean.
FREITAG, MR: Yes. And that's - - -
STEVENSON DCJ: And that's the point 'of' difference. And that's the difficulty I'm having as the sentencing judge. Because I'm being asked to close my eyes to the obvious.
I'm not prepared to make findings, as I've said, based on the material before the court at this stage, with respect to where either of these two offenders sit in the hierarchy involved in this particular crime. I can't make assumptions and I can't draw inferences.
But what is not in dispute is that they both acted in concert, together, with knowledge of what each other was doing, because they were doing it together at the same time, to bring the total one kilogram into this State.
FREITAG, MR: And, again, as I've said to your Honour previously, I agree with part of that and not part of that. I agree that Mr Williams was aware of what Mr Grubb was doing. But our submission is that he can be only sentenced on the basis that Mr Grubb for both, Mr Williams is responsible for what he is carrying. Because it's Mr Grubb's deal with Mr [Gade]. And Mr Grubb has procured Mr Williams for his involvement in this offending.
And I've set out the reasons why I say that. And they are as typed in the amended statement of material facts. (emphasis added)
The judge then briefly heard from the prosecutor. She referred to the covert recording of the conversation between Mr Grubb and Mr Gade on 3 May 2018, submitting that it demonstrated that the appellant had sourced the drugs in Melbourne.[19] The prosecutor expressed agreement with the judge's view that, like Mr Grubb, the appellant knew that, between them, he and Mr Grubb were carrying 1 kg of methylamphetamine.[20]
[19] ts 33.
[20] ts 33.
Counsel for the appellant remarked that there were emails between the State and the appellant's solicitor agreeing that the appellant was only criminally responsible for the methylamphetamine found on his person. The judge responded as follows:[21]
STEVENSON DCJ: But even if they exist how can the court sentence on the basis that you're suggesting? Because it would be misleading and deceptive. It's wrong. It's false. (emphasis added)
[21] ts 34.
The exchange then continued:[22]
[22] ts 35.
STEVENSON DCJ: Well, with respect, where do we see the genesis for this theory, with respect.
FREITAG, MR: Which theory, your Honour?
STEVENSON DCJ: The theory that Mr Williams is only to be sentenced for 500 grams.
FREITAG, MR: Well, it's been agreed - it's not a theory, your Honour, it's been agreed between the defence and the State, that that's the basis on which he'll - - -
STEVENSON DCJ: Well, that's - - -
FREITAG, MR: - - - be sentenced.
STEVENSON DCJ: - - - not what the State's telling me.
FREITAG, MR: I appreciate that's not what the State's telling you, hence my - - -
STEVENSON DCJ: And why - - -
FREITAG, MR: - - - comment, your Honour - - -
STEVENSON DCJ: - - - would the State agree - - -
FREITAG, MR: - - - it's not what we - - -
STEVENSON DCJ: - - - to that? How could the State agree to that? And even if the State does agree to it - - -
FREITAG, MR: Yes.
STEVENSON DCJ: - - - the evidence itself, speaks for itself. So how can the court be party to a fraud, so far as sentencing is concerned. (emphasis added)
The interaction between the judge and counsel for the appellant continued:[23]
STEVENSON DCJ: - - - I read the statement of material facts - - -
FREITAG, MR: Yes.
STEVENSON DCJ: - - - it didn't occur to me, for a second, having read it, that one should be sentenced on the basis that he's only guilty for possession, with intent to sell or supply, the amount of the drugs on his personal body. Because the facts don't admit to that, the law doesn't admit to that.
That's why I said earlier, if what you say was your instructor's understanding, then one would expect there to be somewhere in the negotiated, amended statement of material facts, a clear, express, plain statement to the effect that you're now submitting that Mr Williams should be sentenced on.
FREITAG, MR: And we suggest to your Honour that it is there, and your Honour's read it in a different way and I can't comment on the route by which your Honour's come to a different understanding, but we say paragraphs 22 and 23 are clearly supportive of the proposition that we're putting and are, therefore, that reason, and that's - - -
STEVENSON DCJ: Well, I - when I read them, I just understood them to be consistent with the unequivocal evidence of factually what happened, and I do not, and did not, see anything in them for the purpose of this submission. (emphasis added)
[23] ts 36.
The judge indicated that he proposed to adjourn the sentencing to the following week.[24]
[24] ts 38.
Counsel for the appellant then referred the court to an email from the prosecutor to the appellant's solicitor dated 19 November 2008. In that email, the prosecutor accepted that the State could not prove that the appellant was in joint possession of the entire kilogram, even though it did so assert in relation to Mr Grubb.[25]
[25] ts 38 - 39.
The judge made the following remark in concluding the discussion of the agreement between the State and the appellant:[26]
STEVENSON DCJ: But let me say this to you, Mr Freitag - - -
FREITAG, MR: Yes, your Honour.
STEVENSON DCJ: - - - with respect, as I've already indicated, I think, very plainly, the facts are incontrovertible. They are on the prosecution brief, the conduct, the subject to which both offenders have pleaded guilty is joint knowledge and conduct. I don't see how the court can proceed to sentence on the basis that Mr Williams is only to be sentenced for 494 grams.
FREITAG, MR: Your Honour's position has been crystal clear. (emphasis added)
[26] ts 40 - 41.
Application to disqualify - 4 September 2019
On 4 September 2019, counsel for the appellant emailed to the judge's chambers an application, with supporting submissions, for the judge to disqualify himself from the sentencing.[27] The basis of the application was that the interactions between the judge and counsel for the appellant at the previous hearing gave rise to a reasonable apprehension of bias in deciding the factual basis for the appellant's sentence.
[27] ts 74.
The appellant's written submissions drew attention to a number of passages in the transcript of the hearing of 29 August 2019, in which the judge had (i) described the factual basis for sentence invited by the appellant as among other things, false, misleading, artificial, wrong and a lie; and (ii) suggested, in effect, that for the court to sentence on the basis invited by the appellant would involve the court being party to a fraud.[28]
[28] Appellant's submissions dated 4 September 2019 [11], AB 279.
The application was heard and determined the next day.
Hearing - 5 September 2019
On 5 September 2019, the judge began by summarising what his Honour said had occurred at, and since, the previous hearing on 29 August 2019.[29] The judge made clear at the outset that sentencing would not proceed that day because his Honour required further evidence about the appellant's urinalysis testing results.[30]
[29] ts 49 - 51.
[30] ts 51 - 55.
In the course of the judge's summary of what had occurred at the hearing on 29 August 2019, his Honour said as follows:
(1)The point his Honour was making was that there were objective incontrovertible facts which the sentencing court could not ignore, and those facts gave rise to an issue as to whether the appellant had the limited role asserted by his counsel.[31]
(2)In the course of making that point, his Honour had used language aimed at making the position very plain.[32] Later in the hearing his Honour said that he had used very plain language to ensure that members of the public present at the sentencing understood the issue with which he, as sentencing judge, was confronted.[33]
(3)On 29 August 2019, the court, consistent with its duty to sentence according to the facts, was not prepared to sentence on the basis which appeared to have been agreed between the State and the appellant's solicitor and that remained the case. That was why his Honour said, as he did at the outset, that how the matter was to proceed needed to be determined.[34]
[31] ts 56.
[32] ts 56.
[33] ts 84.
[34] ts 58.
His Honour also indicated, as a matter of fairness, inferences that were open for him to draw as a basis for sentencing the appellant, including that (i) the appellant was closer to the source of the drugs and so higher up the chain of distribution than Mr Grubb; and (ii) but for the appellant's ability to source the drugs, Mr Grubb could not have completed his part in the criminal enterprise.[35]
[35] ts 60.
At the judge's invitation, the prosecutor (who was not the prosecutor on 29 August 2019) clarified the State's position concerning the basis upon which the appellant was to be sentenced. The prosecutor said that the State's position was that, as reflected in pars 22 and 23 of the statement of facts dated 20 December 2018, the appellant was responsible for, and in possession of, only the drugs which were on his person.[36] The prosecutor indicated that, having considered all the available material, including the conversation between Mr Grubb and Mr Gade, the State's position was that it could not prove that the appellant was the source of the 1 kg of methylamphetamine.[37] When challenged by the judge, the prosecutor said that 'the State stands by …' before being interrupted by the judge asking how the court was to sentence the appellant, and asking whether the prosecutor '[had] a conflict', given that he had negotiated the agreed facts.[38] The prosecutor submitted in response that he, as an individual, had no more of a conflict than the Office of the Director of Public Prosecutions as a whole.
[36] ts 67 - 68, 70 - 71.
[37] ts 68 - 69.
[38] ts 69.
The prosecutor indicated that the State conceded that the appellant was not, or the State could not prove that he was, in control of the drugs which were on Mr Grubb's person, whereas Mr Grubb was in control of the drugs being carried by the appellant and the State continued to invite the court to sentence on that basis.[39] The prosecutor made clear that the State did not allege that the appellant was in joint possession of the entire kilogram, stating that 'we would have said so [in the statement of facts] if we said he was'.[40] In response, the judge suggested that the State was inviting the court to 'ignore the evidence and the inescapable inferences' (emphasis added) to be drawn from the covert recording and the other incontrovertible facts surrounding the commission of the offence.[41]
[39] ts 70.
[40] ts 71.
[41] ts 71.
The judge suggested to the prosecutor that the appellant was the person who gave Mr Grubb the ability to source the drugs, being the critical link to those higher up the chain.[42] In response, the prosecutor said that the State was never of the view that it could prove, or that the judge could find, that fact to the required standard of proof and the State did not invite that conclusion.[43] The judge then said, '[w]e'll see where we go'.[44]
[42] ts 73.
[43] ts 73.
[44] ts 73.
The judge then indicated provisionally that, relevantly to the disqualification application, he had not expressed any concluded view with respect to any finding of fact for the purpose of sentencing.[45] Rather, the judge said that, as a matter of fairness, he had indicated to the appellant in the course of his plea in mitigation that the court had difficulty proceeding in the way invited by him, given the incontrovertible facts and material before the court.[46]
[45] ts 74.
[46] ts 74.
Counsel for the appellant made oral submissions in support of the application that the judge disqualify himself.[47] Counsel highlighted various passages of the transcript of the hearing of 29 August 2019 in which the judge had characterised the basis upon which the appellant sought to be sentenced as 'completely artificial', 'false', 'a lie', 'wrong', 'misleading and deceptive' and inviting the court to be 'a party to a fraud'.[48]
[47] ts 90.
[48] ts 91 - 94.
The judge then gave reasons dismissing the application that he disqualify himself.[49] His Honour's reasons included the following:
(1)it became apparent in the course of the appellant's plea in mitigation that the appellant sought to be sentenced on a basis which required the court to disregard some evidential material and not to draw inferences relating to his role and culpability;[50]
(2)in fairness to the appellant, the judge indicated the difficulty the court had in dealing with the sentencing in that way;[51]
(3)the judge acknowledged that the language his Honour used could have been chosen differently;[52]
(4)his Honour was of the view that it was open to the court, bearing in mind the agreed objective facts of the offending, to find, subject to any trial of issues and any further evidence led, that the appellant was in a position to assist Mr Grubb in Victoria to obtain the kilogram of methylamphetamine;[53]
(5)the judge adhered to the view that the court could not proceed to sentence on the basis that the appellant was simply recruited by Mr Grubb to courier the drugs for dissemination by Mr Grubb, stating that the objective facts 'admit to something more than that';[54]
(6)the judge considered that he had not expressed any views except that the court, based on the information before it, was confronted with a body of evidence that did not permit the appellant to be sentenced in the limited way sought by his counsel;[55]
(7)while there may need to be a trial of issues, all that the judge had done was to indicate to the appellant, as a matter of fairness, that it would be open to the court on the materials before it to infer that, but for the appellant's involvement, Mr Grubb would not have been able to source and bring the kilogram of methylamphetamine from Victoria to Western Australia.[56]
[49] ts 95 - 99.
[50] ts 96.
[51] ts 96.
[52] ts 96.
[53] ts 97.
[54] ts 97.
[55] ts 99.
[56] ts 99.
The sentencing proceedings were adjourned to 11 October 2019.
Further amended statement of facts - 2 October 2019
On 2 October 2019, the prosecution filed an amended statement of facts.
The statement of facts dated 2 October 2019 differed from the statement of facts dated 20 December 2018, outlined in [26] above, in at least two material respects. First, par 5 of the statement of facts dated 2 October 2019 provided that Mr Grubb travelled to Melbourne where the appellant procured 1 kg of methylamphetamine from an unknown source, whereas the earlier statement of facts had alleged that Mr Grubb procured the kilogram of methylamphetamine. Secondly, par 21 of the statement of facts dated 2 October 2019 alleged that the appellant and Mr Grubb were in joint possession of 1 kg of methylamphetamine with the intention that it be conveyed to Mr Gade, whereas, as already noted, par 22 of the earlier statement of facts had alleged that the appellant was only in possession of the methylamphetamine found on his person.
Further applications by the appellant
Prior to the hearing of 11 October 2019, the appellant's solicitors advised the court, by an email dated 8 October 2019, that the appellant intended to make further applications, including:
(1)an application to be provided with a copy of the transcript of the closed court proceedings concerning Mr Grubb; and
(2)an application to change his plea and, pending the hearing of that application, an application for bail.[57]
[57] ts 108.
Hearing - 11 October 2019
Counsel for the appellant submitted that the statement of facts dated 2 October 2019 had amended the State case in respect of the two factual issues raised by the judge at the hearing of 29 August 2019.[58] The judge indicated that he did not see the amendments as substantially changing the State's position with respect to the contents of the statement of facts.[59] Counsel for the appellant submitted that the amendments were significant and had the potential to affect the outcome at sentencing.[60]
[58] ts 117.
[59] ts 118.
[60] ts 119.
Counsel explained the significance of the changes to the agreed statement of facts by reference to the earlier agreement between the appellant's solicitor and the State that the appellant would be sentenced on the basis that he was culpable in relation to half a kilogram of methylamphetamine, rather than the entire kilogram.[61] The judge responded in the following terms:[62]
STEVENSON DCJ: But how can that possibly be the case given the incontrovertible facts? There's only - - -
FREITAG, MR: And this is why - sorry.
STEVENSON DCJ: There's only one way it could be the case and that is if Mr Williams gives sworn evidence that he had no knowledge that Mr Grubb himself was carrying 500 grams. (emphasis added)
[61] ts 119.
[62] ts 119.
The judge pressed counsel to identify what would be put before the court to justify sentencing the appellant on the basis that he was culpable only in relation to the approximately half a kilogram of methylamphetamine.[63]
[63] ts 119.
Counsel then foreshadowed the nature of the evidence in support of the application for the appellant to change his plea.[64]
[64] ts 120.
As to the question of the appellant's possession of the entire kilogram, counsel referred to the need for more than simply knowledge, submitting that possession also required control.[65] Counsel said that, on the issue of possession, the judge evidently had a very strong and clear view and that was why his Honour ought not rule on the issue if that point was reached.[66]
[65] ts 120.
[66] ts 120 - 121.
The prosecutor submitted that the State's position was that, given that the State had backed away from what it had agreed to, the appellant should be permitted to change his plea.[67]
[67] ts 126.
In the course of discussion with counsel, the judge indicated that, notwithstanding his ruling on the appellant's earlier application that he disqualify himself, in the circumstances it may be preferable for the appellant's application to change his plea to be heard by another judge.[68] Counsel for the appellant indicated that the appellant was content with that course if the judge so determined.[69]
[68] ts 123.
[69] ts 124.
Application to change plea and for bail - 6 December 2019
On 6 December 2019, the appellant filed an application to change his plea and an application for bail.
Hearing - 9 December 2019
On 9 December 2019, the appellant's two applications were heard before Sleight CJDC.
The prosecutor confirmed that the State conceded the change of plea application.[70] In response to an enquiry from Sleight CJDC concerning whether there was any additional evidentiary material before the State which led to its change of position, the prosecutor told the court that the State had made a pragmatic decision. The prosecutor referred to 'substantial resistance' from Stevenson DCJ and that the State had determined that as the sentencing judge was calling for a trial of issues it would be preferable for the State to advocate a different position.[71]
[70] ts 144.
[71] ts 144.
Sleight CJDC dismissed the application and found that there would be no miscarriage of justice if the appellant's plea of guilty remained and the factual disputes were resolved at a trial of issues.[72] There is no challenge to that decision. Nor, in our respectful view, could there reasonably be any such challenge.
[72] ts 150 - 151.
His Honour reserved his decision on the bail application. On 12 December 2019, his Honour gave reasons refusing bail.[73]
[73] ts 167 - 175.
Subsequently, a trial of issues was listed for 2 April 2020.
Trial of issues - 2 April 2020
The issues
Prior to the hearing on 2 April 2020, the parties filed written submissions.
The State's outline of submissions identified the State's position as reflected in the amended statement of facts dated 2 October 2019. The State summarised the issues in dispute as being:[74]
(1)whether the appellant was party to an agreement with Mr Grubb[75] for the transport of 1 kg of methylamphetamine to Western Australia for the purpose of distribution to dealers in Perth;
(2)whether the appellant (whose first given name is Troy) was the person referred to by Mr Grubb as 'Troy', who was able to source substantial quantities of methylamphetamine on credit;
(3)whether the appellant was the source of the methylamphetamine which he and Mr Grubb were found to be carrying on 9 May 2018; and
(4)whether the appellant was in joint possession with Mr Grubb of the methylamphetamine both of them were carrying, with the intention that it be commercially distributed[76] or, rather, was only in possession of the half a kilogram he had on his person.
[74] Respondent's submissions dated 5 March 2020 [3], AB 393.
[75] See ts 264.
[76] See ts 264.
The State asserted that the evidence established that the appellant was involved in a criminal conspiracy to bring 1 kg of methylamphetamine from Melbourne to Perth for the purpose of it being distributed to dealers in Perth. The State invoked the co‑conspirator's rule[77] in contending that the evidence of the conversation between Mr Grubb and Mr Gade was admissible against the appellant.[78] The prosecutor identified that the issue as to whether the appellant was party to an agreement with Mr Grubb in the nature of a criminal conspiracy was relevant only for the purpose of deciding the admissibility of the covert audio recording of the conversation between Mr Grubb and Mr Gade under the co‑conspirator's rule.[79]
Evidence
[77] Referring to Tripodi v The Queen (1961) 104 CLR 1; Ahern v The Queen (1988) 165 CLR 87.
[78] ts 207, 244 - 245.
[79] ts 206 - 208.
At the outset, the judge indicated to counsel that, in preparing for the hearing, he had not looked at the prosecution brief or listened to the audio recording so that he was 'a clean piece of paper with respect to the evidence that the parties wish[ed] to adduce for the purpose of [the] trial of issues'.[80]
[80] ts 206.
The State tendered the prosecution brief, which was received as an exhibit.[81] The judge then listened to the audio recording of the conversation between Mr Grubb and Mr Gade. That evidence was received subject to the appellant's objection to its admissibility.
[81] Exhibit 1, ts 220.
The appellant tendered a copy of the statement of facts and prosecution notice relating to Mr Gade.[82] The judge also received the amended statement of facts concerning the appellant dated 2 October 2019.[83]
The judge's reasons
[82] ts 227 - 228.
[83] ts 229.
The judge's conclusion on the trial of issues, adverse to the appellant, are challenged by ground 2. His Honour's reasons included the following:
(1)the judge observed that the primary facts were not in issue, apart from the appellant's challenge to the admissibility and relevance of the covert audio recording;[84]
(2)the judge referred to well‑known principles requiring that before he draw an inference against the accused it must be the only reasonable and rational inference to be drawn from the facts as found;[85]
(3)the judge identified an overlap between the issue of whether the appellant was in joint possession with Mr Grubb of the kilogram and whether they were involved in a conspiracy at that point in time to bring the methylamphetamine into Western Australia;[86] and
(4)the judge identified features of the evidence relied on by the State, including:
(a)Mr Grubb booked and paid for the appellant's flight to Perth;
(b)each of Mr Grubb and the appellant carried an almost identical quantity of methylamphetamine, of nearly identical purity;
(c)each of the offenders carried the methylamphetamine in the same fashion, using the same sports strapping, a matter which could be no coincidence;
(d)Mr Grubb had in his possession strapping tape identical to that used by both to conceal the drugs on their person; and
(e)the quantity of methylamphetamine each carried was far in excess of what they could consume personally.
[84] ts 271.
[85] ts 272.
[86] ts 273.
The judge noted the appellant's submission that the matters on which the State relied were equally consistent with the appellant knowing only of his own package.[87]
[87] ts 274.
The judge found that, without having regard to the audio conversation between Mr Grubb and Mr Gade, he was satisfied beyond reasonable doubt that the appellant must have known of the methylamphetamine being concealed by Mr Grubb and 'was therefore in joint possession with Mr Grubb of the 1 kg'.[88]
[88] ts 274.
The judge was also satisfied that, if it was necessary to make a separate finding of fact, the only reasonable inference was that the appellant and Mr Grubb conspired to work together to bring the kilogram into Western Australia from Victoria.[89]
[89] ts 274.
The judge then considered the covert audio recording of the conversation between Mr Grubb and Mr Gade, including the references to a person named Troy.[90]
[90] ts 275.
The judge found that Mr Grubb said to Mr Gade, in the context of a discussion about the amount of drugs that they could handle and disseminate through their associates, words to the effect that he could have a kilogram come in on Sunday.[91] The judge further found that Mr Grubb also said words to the effect that '[w]ell, Sunday it's coming in'.[92]
[91] ts 275.
[92] ts 275; see ts 226, 270 - 271.
The judge stated that the conversation continued and Mr Grubb referred to his contact and ability to work with a person named Troy, who, Mr Grubb described, has the ability to get whatever he wants, including substantial quantities of methylamphetamine on credit.[93]
[93] ts 275.
The judge noted that the conversation occurred six days before the offence and three days before the Sunday referred to in the conversation.[94]
[94] ts 275.
The judge concluded that, having found that there was a conspiracy between Mr Grubb and the appellant to act in concert to bring into Western Australia 1 kg of methylamphetamine, his Honour was satisfied, applying the co‑conspirator's rule, that the evidence of the audio recording could be relied upon by the State against the appellant.[95] His Honour further observed that it was, in any event, arguable that the evidence of the audio recording was part of the evidence to be considered, along with the other evidence in its totality, for the purpose of fact-finding for sentencing.[96]
[95] ts 275.
[96] ts 275 - 276.
The judge concluded that he was satisfied beyond reasonable doubt that the only reasonable inference was that Mr Grubb obtained the kilogram of methylamphetamine from the appellant, and the appellant's associates, in Victoria, and that but for that dealing, the methylamphetamine would not have been brought into Western Australia by Mr Grubb and the appellant.[97]
[97] ts 276.
Grounds of appeal
The appellant advances three grounds of appeal.[98]
[98] The appellant was granted leave to amend his grounds, during the course of the hearing, to add ground 1A: appeal ts 22. The appellant abandoned what had been ground 3: appeal ts 31 - 32.
In substance, ground 1 asserts that, in light of the judge's interventions concerning the factual basis on which the appellant should be sentenced, the judge erred in failing to recuse himself from any trial of issues in the subsequent sentencing of the appellant.
Ground 1A contends that the appellant suffered a miscarriage of justice due to the prosecution's failure to adhere to the factual basis on which the appellant had entered his plea of guilty.
Ground 2 contends that the judge erred in being satisfied beyond reasonable doubt as to the following matters:
(a)that the appellant was in joint possession of 1 kg of methylamphetamine with Mr Grubb;
(b)that the appellant was the source of the drugs transported to Perth;
(c)that the offending would not have occurred but for the relationship between the appellant and Mr Grubb; and
(d)that the appellant was a party to a conspiracy with Mr Grubb to bring methylamphetamine to Perth.
The question of leave to appeal was referred to the hearing of the appeal.[99]
[99] Order of Buss P 3 July 2020, AB 5.
Ground 1: the parties' submissions
The appellant's submissions
The appellant submits that the judge's interventions on 29 August 2019 gave rise to at least two problems.
First, the tone and content of the interventions meant that the judge stepped outside of the proper bounds of the role of judge, going close to 'donning the mantle of the [p]rosecutor'.[100] In this regard, the appellant points to a number of pejorative features of the language used by the judge in the course of the hearing on 29 August 2019.[101]
[100] Appellant's submissions, AB 11, referring to Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593, 606.
[101] Appellant's submissions, AB 11 - 12.
Secondly, the appellant submits that what the judge said, and the manner in which his Honour said it, on 29 August 2019, and again on 5 September 2019, revealed, or would indicate to a reasonable observer, that the judge had adopted a firm, seemingly concluded, view as to the facts on which the appellant was to be sentenced.[102] Further, the appellant points to the fact that the factual assertions made by the judge were themselves initiated by his Honour and, as at 5 September 2019, were specifically disavowed by the prosecution. In all the circumstances, the fair‑minded lay observer might reasonably apprehend that the sentencing judge might have prejudged the factual issues as to the basis on which the appellant was to be sentenced.[103]
The respondent's submissions
[102]Appellant's submissions, AB 13 - 15.
[103] Appellant's submissions, AB 15; appeal ts 7 - 10.
The respondent emphasises that a sentencing judge is not bound to accept and act on an agreement between the parties as to the legal or factual basis on which an offender is to be sentenced.[104]
[104] Respondent's submissions [26] - [27], AB 36.
The respondent submits that the reasonable bystander, having heard the judge's observations on 29 August 2019 and 5 September 2019, would not have reasonably apprehended that the judge had or may have predetermined the question of the appellant's liability in relation to the methylamphetamine found on Mr Grubb's person. Rather, the reasonable bystander would have seen that his Honour was only expressing a provisional view, albeit that the judge 'expressed himself robustly'.[105] In that regard, the respondent points to the following matters:[106]
(1)procedural fairness required that the judge inform the parties of any provisional view contrary to the agreed facts;
(2)it is generally wrong to draw conclusions about findings made by a judge based on questions or provisional views expressed during submissions;[107]
(3)the judge's duty required that his Honour not sentence on facts that he considered were plainly wrong;
(4)the judge's training, tradition and oath or affirmation required him to discard the irrelevant, the immaterial and the prejudicial, as a reasonable observer would know;
(5)the sentencing judge observed, at the commencement of the trial of issues, that he was 'a clean piece of paper with respect to the evidence that the parties wish[ed] to adduce';[108] and
(6)the judge's starting point reflected the indictment that alleged joint liability.
[105] Appeal ts 33.
[106] Respondent's submissions [29], AB 37; appeal ts 32 - 34.
[107] Respondent's submissions [24], AB 35, relying on Savory v The State of Western Australia [2018] WASCA 165 [36].
[108] ts 206.
The respondent submits that the appellant has not articulated, or established, a logical connection between the matters to which he points and the asserted deviation by the judge from the course of deciding the case on its merits.[109]
[109] Respondent's submissions [30], AB 38.
Ground 1: disposition
The judge's independent role in determining the facts relevant to sentence is not in doubt. It is a fundamental principle of the criminal law that it is for the sentencing judge alone to decide the sentence to be imposed - under no circumstances can any understanding between the prosecution and the defence bind the sentencing judge.[110] Agreement by the parties does not and cannot bind the court as to the facts that are to form the basis for sentencing.[111]
[110] Malvaso v The Queen (1989) 168 CLR 227, 233; GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 [31]; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [47]; LJW v The State of Western Australia [No 2] [2007] WASCA 275 [63], [65].
[111] Chow (606); R v Uzabeaga [2000] NSWCCA 381; (2000) 119 A Crim R 452 [34]; Rimington v The State of Western Australia [2015] WASCA 102 [53]; Suleiman v The State of Western Australia [2017] WASCA 26 [46]; DPP v Perry [2016] VSCA 152; (2016) 50 VR 686 [92].
Generally at least, if the sentencing judge proposes to find facts that are substantially different from, or additional to, the facts in the statement of agreed facts, the judge should draw this to the parties' attention and give them an opportunity to respond.[112] Plainly, the sentencing judge was aware of this precept and amply satisfied its requirements.
[112] Pantorno v The Queen (1989) 166 CLR 466, 473, 482 - 483; Rimington [54]; Suleiman [46]; Ugle v The State of Western Australia [2018] WASCA 97 [36].
What is in issue in this appeal is the manner in which the judge expressed himself in taking issue with the facts agreed between the State and the appellant as the basis for his sentencing, and whether it gave rise to a reasonable apprehension of bias.
The test to be applied in determining whether a judge should recuse himself or herself because of a reasonable apprehension of bias was outlined by this court in KWLD v The State of Western Australia as follows:[113]
The test to be applied in determining whether a judge should recuse himself or herself by reason of reasonable apprehension of bias is well established. A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits [see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60]]. The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial [Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12]].
[113] KWLD v The State of Western Australia [2020] WASCA 94 [81].
These principles were recently elaborated by Buss P in Rayney v The State of Western Australia.[114] What follows draws heavily on what his Honour said in that case.
[114] Rayney v The State of Western Australia [2020] WASCA 206 [103] ‑ [112].
The application of the test set out in [98] above does not involve a prediction about how the judge would in fact approach the resolution of the question. Rather, the issue is one of possibility (real and not remote), not probability.[115]
[115] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [7].
The test for apprehended bias is objective. It is founded on the need for public confidence in the judiciary and gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. The neutrality of a judge is fundamental to the administration of justice.[116]
[116] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12]; British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 [139]; Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [32].
The determination of whether a fair‑minded lay observer might reasonably apprehend that the judge might not act impartially and without prejudice raises largely a factual issue, but one which must be considered in the legal, statutory and factual contexts in which the judge is required to make the decision.[117]
[117] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [20].
Although the hypothetical fair‑minded lay observer is not to be taken to have a detailed knowledge of the law, the observer is presumed:[118]
(1)to be reasonable;
(2)not to make snap judgments;
(3)to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial; and
(4)to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case.
[118] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293 ‑ 294; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87 ‑ 88, 95; Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 368, 371 ‑ 372; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 67 ‑ 68; Johnson [12] ‑ [14]; Isbester [23].
In Minister for Immigration and Multicultural Affairs v Jia Legeng,[119] Hayne J observed that an assertion that a decision-maker has prejudged or will prejudge an issue, and an assertion that there is a real likelihood that a fair-minded lay observer might reasonably apprehend that the decision-maker might not act impartially and without prejudice, in effect makes a statement which has several distinct elements at its foundation. His Honour elaborated:
First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
[119] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [185].
In the present case, the first three of these elements must be found in order to establish a reasonable apprehension of bias. The final element is clearly satisfied in this case and is not open to question.
In Livesey, the High Court allowed an appeal on the ground of apprehended bias by a barrister against a decision of the Court of Appeal that he be struck off the roll. Mason, Murphy, Brennan, Deane and Dawson JJ held:[120]
It is … apparent that, in a case such as the present … a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting. (emphasis added)
[120] Livesey (300).
In British American Tobacco, Heydon, Kiefel and Bell JJ observed that it was recognised in Livesey that a fair-minded lay observer might reasonably apprehend that 'a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case'.[121] Their Honours added that the recognition in Livesey was 'a recognition of human nature'.[122]
[121] British American Tobacco [139].
[122] British American Tobacco [139].
In our respectful view, for the reasons and in the manner outlined below:
(1)on 29 August 2019 and 5 September 2019, the judge expressed a clear and firm view about questions of fact which, given his Honour's intervention, were to constitute a live and significant issue in the sentencing proceedings, namely, the factual basis for the sentencing of the appellant; and
(2)in all the circumstances, a fair‑minded and informed lay observer might reasonably have apprehended that his Honour might not bring an open mind to the determination of the issues, emerging from his Honour's intervention, relating to the factual basis for the appellant's sentencing.
As outlined in [26] above, the statement of facts dated 20 December 2018 asserted, relevantly for present purposes, that:
(1)Mr Grubb procured a kilogram of methylamphetamine in Melbourne from an unknown source;
(2)the appellant was in possession of the methylamphetamine found on his person; and
(3)Mr Grubb was in possession of both the drugs on his own person and the drugs which he procured the appellant to carry.
Throughout the sentencing hearing on 29 August 2019, the judge persistently characterised in emphatically pejorative and dismissive terms the position advanced in the agreed statement of facts - that the appellant was in possession of only the 494 g of methylamphetamine found on his person. Among other things, his Honour described this position as:
(1)'artificial';[123]
(2)'misleading and deceptive';[124]
(3)'wrong';[125]
(4)'false';[126] and
(5)'a lie'.[127]
[123] ts 24 ('completely artificial'), 27, 31.
[124] ts 34.
[125] ts 34.
[126] ts 27, 29, 31, 34.
[127] ts 31.
The judge observed that for the court to sentence on the basis advanced by the parties would involve the court 'be[ing] party to a fraud'.[128]
[128] ts 35.
The judge expressed his response to the agreed facts in terms that suggested that his Honour saw the question of the amount of methylamphetamine in the appellant's possession as being so clear as to leave little or no room for arguing the position advanced by the appellant and agreed to by the State. In addition to the statements quoted in [110] above, among other things, his Honour:
(1)referred to the position as 'plain';[129]
(2)said that for the court to sentence on the basis invited by the parties required it to 'close [its] eyes to the obvious';[130]
(3)observed that 'the facts do not admit to' the view that the appellant was guilty only in relation to the half a kilogram of methylamphetamine found on his person;[131]
(4)referred to the 'unequivocal evidence of factually what happened';[132] and
(5)observed that the facts were 'incontrovertible',[133] and that he had 'already indicated [this]… very plainly' in the course of earlier exchanges with counsel.[134]
[129] ts 27.
[130] ts 32.
[131] ts 36.
[132] ts 36.
[133] ts 41.
[134] ts 41.
In our respectful view, the persistent, emphatic and forceful terms in which his Honour expressed his view as to the agreed facts was apt to create in the mind of a fair‑minded lay observer an apprehension that his Honour might not bring a mind open to persuasion to the questions - initiated and advanced by his Honour - as to the factual basis for the appellant's sentencing.
The respondent points to the judge's summary on 5 September 2019 of what had occurred on 29 August 2019. The substance of that summary is set out at [43] above. Among other things, the judge observed that he had used language aimed at making the position very plain, saying that this was to ensure that members of the public present at the sentencing understood the issue with which he, as the sentencing judge, was confronted.[135]
[135] ts 56, 84.
While later statements by the judge may be taken into account in determining whether there is a reasonable apprehension of prejudgment, they are not to be used for the purpose of ascertaining whether the judge has expressed a willingness, or confidence in his or her ability, to keep an open mind.[136] That is because, as the plurality explained in British American Tobacco, an appellate court reviewing the decision of a judge to hear a case when apprehended prejudgment is alleged will, by definition, be reviewing the decision of a judge who was confident of their ability to decide the case impartially.[137] In our opinion, as counsel for the respondent on appeal ultimately accepted,[138] the reasonable apprehensions of the fair‑minded lay observer are to be evaluated objectively, essentially by reference to what is revealed by the record of the transcript of 29 August 2019, not by reference to the judge's subsequent explanation as to why he had used particular language on that occasion or his Honour's subsequent reasons for refusing to disqualify himself.
[136] British American Tobacco [137].
[137] British American Tobacco [137].
[138] Appeal ts 36.
In any event, in our opinion, consideration of the transcript of 5 September 2019 tends to reinforce and magnify, rather than assuage, the concerns of the fair‑minded lay observer arising from the hearing of 29 August 2019, as summarised in [110] ‑ [112] above. Essentially, that arises from the judge's responses to the prosecutor's enunciation of the State's position, at the time, that the appellant was criminally responsible only in relation to the half a kilogram of methylamphetamine. When the prosecutor said that the State did not allege that the appellant was in joint possession of the entire kilogram, the judge suggested that the State was inviting the court to 'ignore the evidence and the inescapable inferences' to be drawn from the covert recording and the other incontrovertible facts surrounding the commission of the offence.[139]
[139] ts 71.
In our respectful view, the pejorative ('ignore') and emphatic ('inescapable') language and tone adopted by the judge was liable to create or reinforce a perception in the mind of a fair‑minded lay observer of a real prospect that, in a subsequent trial of issues, the judge might be firmly committed to the position his Honour so unequivocally asserted on 29 August 2019, and might not be open to being persuaded (i) that the position he had so emphatically rejected as 'false' and 'a lie' was, in fact, the correct one or (ii) that the position he had asserted on 29 August 2019 was not established by the prosecution to the requisite standard. As already noted, the existence of a real possibility is enough - prejudgment does not need to be demonstrated as the likely outcome.
In so concluding, we do not overlook that, as the respondent emphasises, at the commencement of the trial of issues, the judge observed that he was 'a clean piece of paper' with respect to the evidence that the parties wished to adduce. We repeat what is said in [115] above, by reference to British American Tobacco.[140] In any event, the judge's observation would not overcome, in the mind of the fair‑minded lay observer, the combined effect of the sustained position adopted by his Honour in the course of the lengthy proceedings on both 29 August 2019 and 5 September 2019.
[140] British American Tobacco [137].
In oral submissions, counsel for the respondent emphasised two matters. First, he submitted that the indictment charged the appellant jointly with Mr Grubb and that the judge's approach must be understood in that context.[141] Secondly, the respondent emphasised that, in the hearings before the judge, the appellant, through his counsel, had conceded his knowledge of the drugs being carried by Mr Grubb.[142]
[141] Appeal ts 32 - 33.
[142] Appeal ts 35.
While both these points are correct - as far as they go - they do not sustain the respondent's contention that there was no reasonable apprehension of bias.
As to the first, the form of the indictment, in alleging a joint offence, is not inconsistent with the appellant's position, accepted by the State, that he entered his plea of guilty on the basis that he was only in possession of some of the drugs involved.
As to the second, there is, of course, more to a charge of possession than proof of knowledge. In addition to knowledge, proof of possession requires proof beyond reasonable doubt of either physical custody or an intention to control or have dominion over the drugs said to be possessed.[143] Counsel for the appellant made plain to the judge, both on 29 August 2019 and 5 September 2019, that the appellant did not accept that he had any intention to exercise dominion or control over the drugs found on Mr Grubb's person. Moreover, on 5 September 2019, the prosecutor accepted that the State could not prove beyond reasonable doubt that the appellant exercised control, in the sense required, over the drugs on Mr Grubb's person.[144]
[143] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [179]; Nuhana v The State of Western Australia [2018] WASCA 79 [73].
[144] ts 70.
The respondent's reliance on the principle stated in Savory[145] is misplaced. That case was concerned with an issue of a fundamentally different character from the issues arising in this case. The issue in Savory was whether it could be concluded that the judge had made a particular finding of fact, in circumstances in which the appellant in Savory asserted that such a finding was erroneous. In that context, the court applied well‑established authority for the principle that things said by a judge in the course of exchanges with counsel do not amount to the judge making a finding of fact. Rather, the findings of fact are to be discerned from the sentencing remarks.
[145] Savory [36]; see respondent's submissions [24], AB 35.
The question in the present appeal is not whether, on 29 August 2019 or 5 September 2019, the judge made a finding of fact. Rather, the issue is whether the judge's firm indication of his view of the facts gave rise to a reasonable apprehension that, in a subsequent trial of issues as to those facts, the judge might firmly adhere to the view he had repeatedly asserted, and might not be open to persuasion from that view. For the above reasons, we are so satisfied.
For these reasons, we would uphold ground 1.
The result of so holding is that the sentencing process has miscarried. The judge's sentence must be set aside, and the matter remitted to the District Court for the sentencing proceeding to be conducted afresh by another judge.[146]
[146] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [2] ‑ [3], [117], [172]; Ogbonna v CTI Logistics Ltd [2021] WASCA 25 [22]. As to the need for an appellant to make an election, see also Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2 [24] and compare [76] footnote 67 and Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 [9] ‑ [11].
On appeal, counsel for the appellant properly recognised that this would be the result of succeeding in relation to ground 1.[147]
[147] Appeal ts 3.
In these circumstances, it is neither necessary nor appropriate to determine ground 1A or ground 2.
In circumstances where those grounds were fully argued, and where the matter is to be remitted for resentencing, it nonetheless seems to us to be appropriate to make some observations in relation to each of them.
Ground 1A
For the reasons already given, it is sufficient to give only a very broad outline of the parties' submissions on grounds 1A and 2.
The appellant's submissions
The appellant accepts that the manner and circumstances in which the State changed its case did not involve any breach of procedural fairness, as the appellant was given sufficient notice of the change in position to enable him to meet the new State case.[148]
[148] Appeal ts 20 - 21.
The nub of the appellant's complaint in ground 1A is of unfairness in that the State reneged on its agreement with the appellant as to the facts without any sufficient justification.[149] In this case, no new fact or evidence had emerged, and nor had there been any identifiable change in the law. The appellant submits that the sentencing judge's inappropriate intervention did not justify the State's change of position.
[149] Appeal ts 16 - 17.
In the circumstances, the appellant submits, the State should have adhered to its agreement. Alternatively, the State should have adhered to its agreed position while making balanced submissions, designed to assist the court in relation to the issues raised by the judge's intervention, without advocating a different position as to what other findings might, on the evidence, be open to the sentencing judge.[150]
[150] Appeal ts 18 - 19, 26.
The appellant submits that the State's unjustified change of position gave rise to a forensic disadvantage to the appellant in being faced with the State advocating a different position that was materially disadvantageous to him.
Respondent's submissions
The respondent submits that there was no unfairness and no practical injustice in the course of the sentencing proceedings, including in the change in the position adopted by the State.[151]
[151] Appeal ts 37 - 38, 40.
The respondent submits that flexibility must be accorded to the State in being permitted to change its position if, on further reflection, the position to which it had agreed appears to be erroneous.[152] The respondent asserts that, in effect, it should be inferred that this is what had occurred in the present case.[153]
Ground 1A: observations
[152] Appeal ts 38.
[153] Appeal ts 42.
In LJW v The State of Western Australia [No 2], Steytler P said as follows:[154]
It is important to bear in mind that a 'plea bargain' of the kind that is said to have been made in this case is not an agreement in the technical sense of that word. It should be very clearly understood that it would be quite improper, and a breach of the duty owed by the prosecutor to the court, for a prosecutor to agree, for whatever reason, that he or she will make a submission to a court that is contrary to that person's understanding of the legal position or, in the case of sentencing proceedings, that is contrary to the prosecutor's understanding of what would, or would not, be an appropriate sentence to be imposed. The guidelines published by the Office of the Director of Public Prosecutions reflect this. Guideline 9 makes it plain that a prosecutor represents the community, and not any private or sectional interest. Guideline 11 is to the effect that the duty of the prosecutor is to act fairly and impartially to assist the court to arrive at the truth. Importantly, Guideline 13 provides that the prosecutor must not advance any argument that does not carry weight in his or her own mind.
It necessarily follows that if a 'plea bargain' has been reached upon the basis of what is subsequently discovered to have been a misunderstanding of the legal position, a prosecutor cannot be held to it if that would result in him or her having to make a misleading submission to the court. The appropriate process to be followed in such an event is for the prosecutor to notify opposing counsel of the misunderstanding and of the fact that he or she is no longer able to implement the earlier understanding. This should be done at once, before the hearing, so as to enable the defendant to reconsider his or her position in the light of the notification. A prosecutor has a duty of ensuring that his or her case is presented properly and with fairness to the accused (this is reflected in Guideline 11). This duty requires that, where there is, for valid reasons, a need to depart from some prior understanding, or from a previous statement of present intention to make a particular submission, this should be made plain to opposing counsel at the earliest possible opportunity so that he or she can consider the defendant's position in the light of it.
Finally, I should emphasise that 'plea bargains' should never be made by any counsel (whether prosecution or defence) without first gaining a full understanding of the facts and applicable law. If that is done (as it should be, for a variety of reasons), the prospect of a later change of attitude will be greatly reduced.
[154] LJW v The State of Western Australia [15] - [17].
We would, with respect, adopt all of what his Honour said in this regard.
At the hearing before Sleight DCJ, the prosecutor accepted that there was no additional evidentiary matter which led to the State's change of position.[155] The prosecutor observed that the State initially made a pragmatic decision, to which there was 'substantial resistance' by Stevenson DCJ. After internal conferring between those responsible for managing the file, it was decided that in a context in which the sentencing judge was, in effect, calling for a trial of issues, it would be preferable to the State to advocate a different position.[156] The prosecutor then added that, 'Indeed, a different position was taken by the State as to what could be proved against [the appellant]'.[157]
[155] ts 144.
[156] ts 144.
[157] ts 144.
The propriety of the decision by the State to renege on its agreement as to the facts, and to advance a different factual basis for the appellant's sentencing, is, in our view, significantly influenced by the basis upon which that decision was made. The material before this court sheds very limited light on that question. Nothing in the materials before this court provides any direct support for the assertion of counsel for the State on appeal that its change of position was a result of further reflection by those responsible for the prosecution and the making of a considered decision that the position earlier adopted was wrong in fact or law.
In the circumstances, it is not necessary to resolve the issues raised by ground 1A.
Ground 2
Ground 2 challenges the judge's findings to the following effect:
(1)the appellant was in joint possession of 1 kg of methylamphetamine with Mr Grubb;
(2)the appellant was the source of the drugs transported from Melbourne to Perth;
(3)the offending would not have occurred but for the relationship and contact between the appellant and Mr Grubb; and
(4)the appellant conspired with Mr Grubb to bring the methylamphetamine to Perth.
As already noted, we do not propose to determine the merits of the challenge, by ground 2, to those findings of fact made by the sentencing judge.
The parties were at issue as to the admissibility of the conversation between Mr Grubb and Mr Gade on 3 May 2018 and, in particular, whether it was admissible as to the truth of its contents as against the appellant. Because the court heard full submissions on that question,[158] and because of the central significance of that question for the resentencing of the appellant, we consider it appropriate to record our views on that question.
[158] Including supplementary written submissions pursuant to leave sought by the respondent: appeal ts 48 ‑ 49.
The principles relating to the rule known as the co-conspirator's rule are well-established. They have been summarised in many cases, including Santos v The State of Western Australia [No 2][159] and Clarke v The State of Western Australia.[160]
[159] Santos v The State of Western Australia [No 2] [2013] WASCA 39 [62] - [65].
[160] Clarke v The State of Western Australia [2018] WASCA 14 [503] - [511].
The co-conspirator's rule is to the effect that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others, as the combination implies an authority in each to act or speak on behalf of the other.[161] Anything said or done by a participant in a joint criminal enterprise can be treated as having been said or done by another participant in the enterprise, and is admissible for all purposes, including to establish the truth of what is said. The evidence is admissible as an exception to the hearsay rule.[162]
[161] Tripodi (7); Santos [63]; Clarke [503].
[162] Ahern (93 ‑ 95); Santos [63].
Before the co-conspirator's rule can be applied to admit evidence of something said by an alleged co‑conspirator not in the presence of the accused, two things must be established. First, there must be evidence of a joint criminal enterprise and, secondly, there must be reasonable evidence, apart from the statement of the co‑conspirator, that the accused was a participant in the joint criminal enterprise.[163]
[163] Ahern (100); Punevksi v The Queen [2000] WASCA 71 [39] - [40]; Santos [64].
The standard of proof in determining the admissibility of the evidence is that there must be reasonable evidence in the sense of evidence on which a tribunal of fact could lawfully and properly reach the conclusion that the accused was a participant in the combination, preconcert or arrangement.[164]
[164] Ahern (100); Punevski [41] - [42]; Santos [65]; Clarke [510].
In order for evidence of something said by an alleged co‑conspirator not in the presence of the accused to be admitted under the co‑conspirator's rule as an exception to the rule against hearsay, there must be reasonable evidence of the participation of the accused in the conspiracy at (or before) the time the words are said.[165] That requirement is consistent with the rationale for this exception to the hearsay rule as explained by the High Court in Tripodi[166] and Ahern,[167] namely that the conspiracy carries with it an authority to act or speak in furtherance of the common purpose. That authority relates to future acts and statements, not an adoption of past acts and statements.[168] While the respondent submitted to the contrary in oral submissions, in supplementary submissions it accepted this was so.
[165] R v Masters (1992) 26 NSWLR 450, 461 ‑ 463; R v Louden (1995) 37 NSWLR 683, 690 ‑ 691; R v Lovett [2012] WASC 511 [21] ‑ [23]; see also Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527 [151] ‑ [153].
[166] Tripodi (7).
[167] Ahern (95).
[168] Masters (461 - 462).
It is, in our respectful view, plain that there is no reasonable evidence of the participation of the appellant in any conspiracy or concert at or before the time of the conversation between Mr Grubb and Mr Gade, namely on 3 May 2018. There is nothing in the prosecution brief demonstrating or suggesting conduct of any kind by the appellant at that time, or any participation in any criminal activity whatsoever.
The matters to which the judge referred, outlined at [74](4) above, as supporting a finding of a conspiracy between the appellant and Mr Grubb,[169] all occurred five or six days after Mr Grubb's conversation with Mr Gade. Contrary to the respondent's supplementary submissions,[170] it cannot be inferred from those matters that the appellant had entered into an agreement or conspiracy with Mr Grubb by 3 May 2018.
[169] ts 273 - 274.
[170] Respondent's supplementary submissions dated 8 January 2021 [16].
Moreover, contrary to the respondent's oral submissions,[171] the reference in the conversation of 3 May 2018 to Troy, which may be taken as a reference to the appellant, cannot supply the requirement for reasonable evidence of participation by the appellant. The reasonable evidence of participation must be found separately from the statement of the co‑conspirator.[172] Were it otherwise, hearsay evidence would 'lift itself by its own bootstraps' to the level of admissible evidence.[173]
[171] Appeal ts 47 - 48.
[172] Ahern (100).
[173] Ahern (95).
Consequently, in our respectful opinion, the evidence of the conversation between Mr Grubb and Mr Gade was not admissible against the appellant to prove the truth of what Mr Grubb had said. That being so, Mr Grubb's statement, in the course of the conversation, that his friend, Troy, was able to source substantial quantities of methylamphetamine on credit, was not admissible against the appellant to prove that that was so.
It is true, as the respondent emphasised, that what was said in the conversation was admissible for the purpose of establishing the existence of a conspiracy. Acts and statements of a co‑conspirator occurring before the participation of the accused may be admitted as circumstantial evidence of the existence of a conspiracy and as to its nature.[174]
[174] Ahern (92 - 93); R v Bilick & Starke (1984) 36 SASR 321, 331; Masters (463); Louden (690 - 691); R v Dinh [2000] NSWCCA 536; (2000) 120 A Crim R 42 [50] - [52]; Caratti [153].
However, that does not assist the State case against the appellant. At its highest, the conversation between Mr Grubb and Mr Gade could be evidence of a conspiracy involving those two men. The State case, as advanced in the statement of facts dated 2 October 2019, and at the trial of issues, did not assert a conspiracy between Mr Grubb and Mr Gade, to which the appellant was said to have joined. Rather, it asserted a conspiracy solely between Mr Grubb and the appellant. In any event, absent reasonable evidence of participation by the appellant in any conspiracy as at 3 May 2018, establishing a conspiracy between Mr Grubb and Mr Gade at that point in time does not assist the State case against the appellant. In particular, evidence of such a conspiracy does not make what was said in the conversation between Mr Grubb and Mr Gade evidence, as against the appellant, of the truth of things said in the conversation.
For these reasons, evidence of what was said in the conversation between Mr Grubb and Mr Gade was not admissible against the appellant as evidence of the truth of the things said in that conversation.
The judge's use of the covert recording of the conversation between Mr Grubb and Mr Gade as evidence against the appellant of the truth of what was said appears to have been central to his findings that (i) it was through the appellant that Mr Grubb obtained the 1 kg of methylamphetamine and (ii) but for that dealing, the drugs the subject of the offence would not have been brought into Western Australia by Mr Grubb and the appellant.
The judge found, without regard to the audio recording of the conversation between Mr Grubb and Mr Gade, that he was satisfied beyond reasonable doubt that the appellant must have known of the drugs concealed on the person of Mr Grubb and 'was therefore in joint possession with Mr Grubb of the 1 kg'.[175] (emphasis added) As already noted, knowledge cannot be equated to possession. The judge does not appear to have dealt with the separate question of whether the appellant was exercising, and intended to exercise, dominion or control over the drugs that were on Mr Grubb's person.
[175] ts 274.
Conclusion
For the above reasons, we would make the following orders:
(1)Leave to appeal on grounds 1 and 2 is granted.
(2)Leave to appeal on ground 1A is refused.
(3)The appeal is upheld.
(4)The sentence imposed by Stevenson DCJ on 3 April 2020 is set aside.
(5)The matter is remitted to the District Court for the appellant to be resentenced by another judge.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Research Associate to the Honourable Justice Beech
25 FEBRUARY 2021
0
41
0