Yu v The State of Western Australia - [2019] WASCA 197

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   YU -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 197
CORAM:   MITCHELL JA
BEECH JA
VAUGHAN JA

HEARD:   15 NOVEMBER 2019
DELIVERED          :   4 DECEMBER 2019
FILE NO/S:   CACR 18 of 2019
BETWEEN:   LU TING YU
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
File Number             :   IND 1203 of 2015

Catchwords:

Criminal law - Appeal against conviction - Possession of prohibited drug with intent to sell or supply - Whether miscarriage of justice arises from the absence of evidence, known to the offender, at trial

Legislation:

Criminal Appeals Act 2004 (WA), s 30
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S B Watters
Respondent	:	B M Murray & K C Cook

Solicitors:

Appellant	:	GTC Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

ARK v The State of Western Australia [2014] WASCA 45
Beamish v The Queen [2005] WASCA 62
Browne v Dunn (1894) 6 R 67
Clarke v The State of Western Australia [2018] WASCA 14
Gallagher v The Queen (1986) 160 CLR 392
Nuhana v The State of Western Australia [2018] WASCA 79
Ratten v The Queen (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
Smith v The State of Western Australia [2014] WASCA 90

JUDGMENT OF THE COURT:

Summary

On 6 December 2014, police stopped a taxi in which the appellant and her boyfriend, Hong Xiang Chen, were passengers. A shopping bag and wallet containing over $100,000 were located in the taxi. The appellant and Hong Xiang Chen were arrested and taken to an apartment rented by the appellant in Northbridge where the appellant's other co‑accused, Jian Liang Chen, was found asleep. About 3.4 kg of methylamphetamine was located in a search of the apartment.
The appellant was convicted after trial of possession of a prohibited drug with intent to sell or supply it to another. During the trial, the appellant gave evidence that she had no knowledge of, and exercised no control over, the drugs or cash. The jury must have rejected the appellant's evidence in order to find her guilty of the offence.
The appellant now seeks to appeal against her conviction on the sole ground that evidence obtained since trial shows that a miscarriage of justice has occurred. She seeks to adduce, as additional evidence in the appeal, the evidence of Hong Xiang Chen, to the effect that she was not involved in the offence. Hong Xiang Chen pleaded guilty to the offence and did not give evidence at the appellant's and Jian Liang Chen's joint trial.
The appellant's counsel properly accepts that the additional evidence is new, rather than fresh, evidence. We do not consider Hong Xiang Chen's evidence to be plausible or credible. That new evidence does not establish that the appellant should not have been convicted. No miscarriage of justice has arisen from the absence of Hong Xiang Chen's evidence, the general effect of which was known to the appellant (through her legal representatives), at trial.
As the new evidence does not arguably establish any miscarriage of justice, there would be no utility in admitting the evidence or granting an extension of time in which to appeal. Leave to appeal should be refused and the appeal should be dismissed.

Procedural history

The appellant was charged with one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. The offence was allegedly committed on 6 December 2014 at Perth. The appellant was jointly charged with Hong Xiang Chen and Jian Liang Chen.
Hong Xiang Chen pleaded guilty to the offence in April 2016. The appellant and Jian Liang Chen both pleaded not guilty and were tried in the District Court of Western Australia between 13 - 29 September 2016. They were both convicted and, on 16 December 2016, the appellant was sentenced to 14 years' imprisonment.
On 12 February 2019, over two years after the time for appealing had expired, the appellant instituted an appeal against her conviction. The sole ground of appeal concerns evidence obtained since trial, in the form of affidavits of Hong Xiang Chen to the general effect that the appellant was not involved in the offence. The appellant contends that this evidence is capable of raising a reasonable doubt as to whether the appellant was guilty such that a miscarriage of justice has occurred.
The following matters were referred to the hearing of the appeal:
(1)The application for an extension of time in which to appeal.
(2)The application for leave to appeal.
(3)The appellant's application in an appeal dated 27 March 2019,[1] to adduce the affidavit of Hong Xiang Chen sworn 8 October 2018[2] and the affidavit of Cheng Gu (who translated Hong Xiang Chen's affidavit) sworn 10 October 2018[3] as additional evidence in the appeal.
(4)The respondent's application in an appeal dated 21 June 2019,[4] to adduce the affidavit of Katharine Celia Cook sworn 21 June 2019[5] as additional evidence in the appeal.
[1] White AB 65.
[2] White AB 72 - 75.
[3] White AB 76 - 78.
[4] White AB 80.
[5] White AB 81 - 92.
In addition, on 12 November 2019 the appellant filed an application in an appeal to adduce a further affidavit of Hong Xiang Chen, sworn on 12 November 2019, as additional evidence in the appeal.

Additional evidence in the appeal

The court received the above affidavits provisionally, subject to determining the applications to adduce additional evidence.
The State indicated that it wished to cross-examine Hong Xiang Chen on his affidavits. The appellant did not seek to cross-examine Ms Cook on her affidavit.
Neither party made any objections to the admissibility of the affidavits sought to be relied upon by the other. Some parts of Hong Xiang Chen's affidavits contain statements attributing a state of mind to the appellant (a matter on which he could not give direct evidence). In the absence of objection we will not strike those parts of the affidavits out, but will not give those statements any weight.

The State's case at trial

The State's case at trial, as opened by the prosecutor, was to the following effect.
The appellant arrived in Perth on 3 December 2014.[6]
[6] Trial ts 406.
At about 9.10 am on 6 December 2014, police conducting a surveillance exercise followed a man who was referred to at trial as Hang Huan. Mr Huan alighted from the Indian Pacific train at Perth Railway Station and took a taxi to Northbridge. Mr Huan was observed walking with a small silver suitcase on wheels.[7]
[7] Trial ts 402 - 403.
Hong Xiang Chen and Jian Liang Chen arrived in Perth by air on the morning of 6 December 2014.[8]
[8] Trial ts 406.
Mr Huan was observed to meet Hong Xiang Chen in Aberdeen Street, Northbridge. They entered a door leading to the carpark of an apartment block on that street (Apartment Block). Hong Xiang Chen emerged from the carpark door about 10 minutes later, carrying a backpack that he did not have before. The backpack was later found to have traces of methylamphetamine inside it. The State contended that the backpack came from Mr Huan's silver suitcase, and contained the 3.4 kg of methylamphetamine which was the subject of the charge. Hong Xiang Chen went up in the lift of the Apartment Block.[9]
[9] Trial ts 402 - 403.
About 30 minutes later, the appellant and Hong Xiang Chen came down through the foyer of the Apartment Block and caught a taxi to an address in Kenwick (Kenwick address). Hong Xiang Chen seemed unsure of where he should go at the house and the appellant opened the rear passenger side door of the taxi and pointed to where he should go. Eventually, Hong Xiang Chen returned to the taxi, carrying a Jurlique shopping bag. Hong Xiang Chen placed the Jurlique bag at his feet and the taxi commenced the return journey to Perth.[10]
[10] Trial ts 404, 409.
At about 1.30 pm, police stopped the taxi and found that the Jurlique bag at Hong Xiang Chen's feet contained $92,850 in cash, mostly in bundles of $10,000. Police also located $10,000 in Hong Xiang Chen's wallet.[11]
[11] Trial ts 404.
The appellant and Hong Xiang Chen were taken back to the Apartment Block and a search under warrant was conducted of unit 13 in that block (Unit 13). Police gained entry to Unit 13 using a key from Hong Xiang Chen's wallet, which key the State contended belonged to the appellant. They found Jian Liang Chen sleeping in the main bedroom of the unit.[12]
[12] Trial ts 404 - 405.
Police located a Lacoste shoe box in a high cupboard of the laundry/bathroom of Unit 13. The shoe box contained five clip seal bags, three of which held about 500 g of methylamphetamine and two of which held about 1 kg each. The purity of the methylamphetamine was 80 - 81%. The total weight of methylamphetamine in the shoe box was approximately 3.4 kg. If sold in one ounce (28 g) lots, the drugs would raise approximately $1.2 million. The appellant's DNA was found inside the Lacoste shoe box which contained the methylamphetamine.[13]
[13] Trial ts 405.
The search of Unit 13 also located:[14]
(1)A Bulgari jewellery box in which there was a clip seal bag containing 16 g of methylamphetamine; and
(2)A digital scale, clip seal bags, disposable gloves and scissors with traces of methylamphetamine on them.
[14] Trial ts 405.
During the search of Unit 13, the appellant told police that:[15]
[15] Trial ts 407.
(1)She was a student doing a management course who rented Unit 13 to get familiar with the environment in Perth, where she wanted to find a job after she graduated.
(2)She had been unemployed for the last few months and had no means of income.
(3)Hong Xiang Chen was her boyfriend, with whom she had an argument some days before. She came to Perth without telling him.
(4)She did not know that Hong Xiang Chen and Jian Liang Chen were coming. They just turned up at Unit 13 while she was asleep.
(5)She was not quite familiar with Jian Liang Chen, who she said was Hong Xiang Chen's brother.
(6)There was not much conversation, and Hong Xiang Chen asked her to go with him to get something (she did not know what).
(7)She had not seen the Bulgari jewellery box or the Lacoste shoe box, which contained the methylamphetamine, before.
(8)She knew nothing about the methylampetamine in Unit 13.
The State contended that the statements referred to at (4) and (5) above were lies evidencing guilt.[16] The State relied in part on records showing that the appellant repeatedly called Hong Xiang Chen and Jian Liang Chen at about the time their flight was scheduled to land in Perth on 6 December 2014. The last call appeared to have been successful, as it lasted for more than 4 minutes.[17]
[16] Trial ts 407 - 408.
[17] Trial ts 408.
The prosecutor also referred to evidence of the following matters as supporting the State's case:[18]
(1)Unit 13 was leased by the appellant on 24 September 2014, with the first set of keys being collected by Jian Liang Chen.
(2)The appellant arrived in Perth on 3 December 2014.
(3)Bank records showed the three accused depositing large sums of money in their accounts and the account of a company called [Terry's] Gyprock Services.
(4)Between July and December 2014, the appellant was booked for six trips to Perth, Jian Liang Chen was booked for nine trips and Hong Xiang Chen was booked for at least six trips.
[18] Trial ts 406 - 407.

The appellant's case at trial

In his opening, senior counsel for the appellant told the jury that she denied knowing that there was a prohibited substance in Unit 13 and did not have the ability to exercise control and dominion over it. She was not in joint possession of the methylamphetamine located in Unit 13.[19]
[19] Trial ts 413.
Counsel submitted that the 'real villain in this whole enterprise' was Hong Xiang Chen, the appellant's boyfriend, who used her as a shield to protect his drug dealing activities. He used the appellant to launder money through her bank account, to book and purchase flights and to lease Unit 13.[20]
[20] Trial ts 414 - 416.

Central issue at trial

In order to find the appellant guilty of the offence, the jury would have to be satisfied, beyond reasonable doubt, that the appellant knowingly had physical custody of, or exercised dominion or control over, the methylamphetamine (either alone or jointly with others) with intent to sell or supply at least part of it to another.[21] There was no real issue as to intent if possession of 3.4 kg of methylamphetamine was established. The central issue at trial was whether the evidence established, beyond reasonable doubt, that the appellant was in possession of the methylamphetamine, either alone or jointly with Hong Xiang Chen and/or Jian Liang Chen.
[21] Nuhana v The State of Western Australia [2018] WASCA 79 [73] and cases there cited.

Evidence at trial relevant to the appellant's involvement in the offence

The primary facts outlined by the prosecutor in opening, as to the location of drugs and other items and the movement of the relevant persons, were not in serious dispute at trial. It is unnecessary for the purposes of these reasons to summarise the evidence supporting those contentions. Below we note particular evidence led as part of the prosecution case and relied on by the State to implicate the appellant in the offending.
Many of these facts are drawn from documents in a 'jury book', which was provided to the jury as an aide‑mémoir at trial, rather than the primary evidence. The parties included the 'jury book' rather than the primary exhibits in the appeal book. The appellant's appeal counsel accepted the accuracy of the jury book summaries and that we could proceed on the basis of those documents.[22]

Travel records

[22] Appeal ts 55 - 56.

The appellant travelled to and from Perth on the following occasions in 2014:[23]
[23] These movements are taken from the jury book timeline at Blue/Green AB 44 - 48.

Date of Travel	Arrive in Perth	Depart from Perth
17/7/14	From Sydney
11/8/14	To Sydney
17/8/14	From Sydney
20/8/14	To Sydney
12/9/14	From Sydney
25/9/14	To Sydney
10/11/14	From Melbourne
15/11/14	To Sydney
21/11/4	From Sydney
22/11/14	To Sydney
3/12/14	From Sydney

Hong Xiang Chen and Jian Liang Chen flew from Melbourne to Perth on a flight which was scheduled to land in Perth at 10.20 am on 6 December 2014. Jian Liang Chen was booked on a flight scheduled to depart Perth for Melbourne at 12.05 pm on 7 December 2014, but a ticket was never issued for that flight and the reservation was never paid for.[24]

Financial transactions

[24] Trial ts 569 - 571, exhibit 17, jury book at Blue/Green AB 48.

Cash deposits were made into a bank account in the name of the appellant as follows:[25]
[25] These payments are taken from the jury book timeline at Blue/Green AB 44 - 48, and sch 4 of the jury book at Blue/Green AB 56.

Date	Cash Deposit Amount
13/6/14	$4,000
8/7/14	$5,400
29/7/14	$4,950
7/8/14	$2,000
27/8/14	$3,800
26/9/14	$10,000
10/10/14	$4,000
21/10/14	$4,590
31/10/14	$9,000
14/11/14	$6,000
25/11/14	$4,000
27/11/14	$4,378.65
Total	$62,118.65

From October 2013 to November 2014, $31,140 was paid into the appellant's bank account by EFT transactions. In the same period, $33,857 was paid from the account to the University of Newcastle.[26]
[26] Jury book, sch 3 (Blue/Green AB 53).
On 23 September 2014, $30,000 was transferred from the appellant's bank account to an account in the name of Terry's Gyprock Services.[27]

Telephone call records

[27] Jury book timeline (Blue/Green AB 45).

At trial, downloads were tendered for the appellant's iPhone 5 (exhibits 15.1 and 15.2) and iPhone 6 (exhibit 14.1). There are records of communications between the appellant's phones and telephone numbers ending in 673 and 184 associated with an iPhone found with Hong Xiang Chen in the taxi and a telephone number ending in 737 associated with a phone found with Jian Liang Chen. There is also a record of contact with another phone number, ending in 305, associated with Jian Liang Chen.[28]
[28] See jury book 'Relevant Telephone Numbers' (Blue/Green AB 66).
There are frequent calls between the appellant's iPhone 5 and Hong Xiang Chen's 673 number on 2 December 2014 and dates prior.[29]
[29] Exhibit 15.1, esp at pages 19 and 27.
No calls were made between the appellant's iPhone 5 and either number associated with Hong Xiang Chen on 3, 4 or 5 December 2014. There is no contact between the appellant's iPhone 6 and phone numbers associated with Hong Xiang Chen or Jian Liang Chen after 2 December 2014.[30]
[30] Exhibit 15.1, esp at pages 20 - 21.
Between 9.57 am and 10.25 am on 6 December 2014, the appellant's iPhone 5 attempted to call Hong Xiang Chen's 673 number on five occasions, Jian Liang Chen's 737 number on six occasions and Jian Liang Chen's 305 number on two occasions. The duration of the calls shown on the records indicates that the attempts were unsuccessful. At 10.37 am, the appellant's iPhone 5 connected to Hong Xiang Chen's 673 number on two occasions, the first for 12 seconds and the second for 4 minutes 29 seconds.[31]

CCTV footage from the taxi

[31] Exhibit 15.1, esp at pages 19 and 27, exhibit 48, page 6; exhibit 53, page 12.

The CCTV footage from the taxi[32] shows the appellant and Hong Xiang Chen travelling from the Apartment Block to the Kenwick address. The appellant and Hong Xiang Chen do not interact much during the journey to or from the Kenwick address, although when they do speak with each other it is not obvious that they are arguing.
[32] Exhibit 9.
Upon arriving at the Kenwick address, Hong Xiang Chen exits the taxi, taking some items but leaving a red cigarette lighter on the rear taxi seat, which the appellant takes into her hand. As Hong Xiang Chen appears to be unsure where to go at the Kenwick address, the appellant opens her door. Her hand is obscured by the front passenger seat. The appellant then closes the taxi door and places the red cigarette lighter from her hand onto the rear seat.[33] Hong Xiang Chen then goes into the house.[34]
[33] Exhibit 9, from about 45.44 - 46.05 minutes into the recording.
[34] Exhibit 9, at about 46.01 minutes into the recording.
About 6 minutes later, Hong Xiang Chen returns to the taxi with a bag which he places in the footwell where he is sitting behind the taxi driver.[35] Shortly after, he places a yellow cigarette lighter and a packet of cigarettes on the rear seat of the taxi.[36]
[35] Exhibit 9, at about 51.50 minutes into the recording.
[36] Exhibit 9, at about 52 minutes into the recording.
The taxi then travels to the point where it is apprehended by police.

CCTV footage at the Kenwick address

CCTV footage at the Kenwick address shows the taxi pulling up and Hong Xiang Chen exiting the taxi. He initially moves to an area to the left of screen which is obscured. At this point, the appellant opens the taxi door and can be seen to make a hand gesture as Hong Xiang Chen changes direction.[37] The State invited the inference that the appellant was directing Hong Xiang Chen where to go. That is an available manner of interpreting the video, but is not the only possible view of what the appellant was doing.
[37] Exhibit 10, esp at about 1.10 minutes into the recording.
Hong Xiang Chen then returns to view and walks towards the camera, to the point where he enters the house. He then goes into the house and returns to the taxi with a bag about 6 minutes later.

Search of taxi

When the taxi was stopped by police, a search video was taken. In the video, the appellant is asked for her name and address. She provides an address of unit 20 (rather than unit 13) of the Apartment Block.[38]
[38] Exhibit 11, at about 1.05 minutes into the recording.
The bag of cash is located in the footwell of the rear passenger seat on the driver's side of the car, where Hong Xiang Chen was sitting. A wallet, a red cigarette lighter, a yellow cigarette lighter, a packet of cigarettes and a mobile phone are visible on the rear bench seat of the taxi.

Search of Unit 13

The Lacoste shoe box containing the methylamphetamine was located by Detective Senior Constable Bove on the top shelf of a floor to ceiling cupboard in a bathroom/laundry of Unit 13. There was nothing else in the cupboard. The Lacoste shoe box was visible to DSC Bove when he opened the cupboard, but he could not reach it without a chair or step. DSC Bove is about 168 cm tall. Police did not touch the inside of the Lacoste shoe box before placing it in a secure evidence bag.[39]
[39] Trial ts 732, 878 - 879, 881, exhibit 18.1.
When examined, the methylamphetamine inside the clip seal bags located in the Lacoste shoe box was wet and sticking to the plastic.[40] A spoon with traces of methylamphetamine was also located in the Lacoste shoe box.[41]
[40] Trial ts 661 - 662.
[41] Trial ts 665, 668 - 669.
Latex-style gloves and clip seal bags were found in a bin in an alcove under the kitchen bench. Electronic scales with white residue and a clip seal bag on top were also in the alcove, on top of a box for wine glasses. The clip seal bags were wet. The Bulgari box was found under the alcove and contained a clip seal bag with residual white powder.[42] On analysis, about 16 g of methylamphetamine was in the Bulgari jewellery box.[43]
[42] Trial ts 507 - 508; 717; exhibit 18.1.
[43] Table of testing results (Blue/Green AB 72).
Scissors with traces of methylamphetamine were found on a table in the lounge room of Unit 13.[44]
[44] Trial ts 508, 669 - 670, exhibit 32.
In being questioned during the search of Unit 13, the appellant said that the money in the taxi was not her business, and that:[45]
First of all, I didn't know it was money inside. My friend asked me to accompany him to get something and I went with him. Then I only knew he got his stuff, but I was not aware it was money inside.
[45] Blue/Green AB 10.
The appellant said that she had not touched the bag of money, and that:[46]
I even didn't get off the taxi. You can check with the driver. I was waiting in the taxi the whole time and didn't get out of the taxi. My friend said he would come back quickly after picking up some stuff. So I was waiting for him.
[46] Blue/Green AB 11 - 12.
When asked about the Lacoste shoe box, the appellant said:[47]
I came here a few days ago. I wanted to come here to learn English. That is to do some reading at my own home. Also my leg has been injured so I want to rest for a few days. My boyfriend and his brother just arrived here this morning. I didn't know what happened. They've already arrived when I woke up. So I didn't know anything at all. After a shower, I accompanied my boyfriend to pick up some stuff. I even haven't turned on my mobile phone or iPad for the whole day. I didn't know anything.
[47] Blue/Green AB 13.
The appellant said she had an argument with her boyfriend and that they had not been in contact for the past few days. She said:[48]
They did not tell me about coming here. And they didn't know that I was here. As I mentioned that we had an argument a few days ago. I didn't tell him that I came here. I just wanted to come home to rest. But then this morning, they suddenly arrived. They didn't know and I didn't know either. I only realised that they were here when I woke up.
[48] Blue/Green AB 15.
The appellant told police that she rented Unit 13 because she wanted to find work in Perth, and she shared payment of the rent with Hong Xiang Chen and Jian Liang Chen. She said she had not worked for a few months, and understood that her boyfriend worked on construction sites.[49]
[49] Blue/Green AB 17 - 20.
The appellant told police:[50]
I was sleeping. It was close to midday. I was already awake, but just didn't want to get up. So I was still lying in the bed. Then my boyfriend opened the door and then I heard someone was talking. Then I thought, oh, some people have some [sic] in. Because that room is the brother's room. I've been sleeping in the brother's room these few days. So when the brother opened the door, he saw that I was sleeping there. Then I was very surprised and said, 'How come did you two turn up suddenly?' That's all.
[50] Blue/Green AB 21.
The appellant denied knowledge of the Lacoste shoe box, and denied having touched the clip seal bags or the Bulgari box in the kitchen bin of Unit 13. She said that she had bought the scales for cooking, and used them occasionally for that purpose. She admitted that elastic bands found in the unit were hers, and said they were used to tie her hair and, once or twice, for money.
We note that the statements quoted above were made by the appellant in Mandarin. The quotations are taken from exhibit 18.2, which is an English translation of what the appellant said in Mandarin agreed upon by all parties at trial.[51] The appellant's appeal counsel confirmed the parties' agreement that the translation in exhibit 18.2 is accurate.[52]

DNA evidence

[51] Trial ts 500 - 502.

[52] Appeal ts 54 - 55.

The appellant was identified as a contributor to a mixed DNA profile obtained from the inside of the Lacoste shoe box. Hong Xiang Chen and Jian Liang Chen were excluded as contributors to that mixed DNA profile.[53]
[53] Trial ts 974 - 975.
Hong Xiang Chen was identified as a contributor to a mixed DNA profile obtained from the outside surface of a plastic glove found in the kitchen bin. Jian Liang Chen was excluded as a contributor to that profile. While it was 10,000 times more likely that the appellant was a contributor to that mixed DNA profile than not,[54] this was not a reliable result.[55]
[54] Trial ts 977.
[55] Trial ts 976 - 977, 993 - 995.

The appellant's evidence at trial

The appellant gave evidence at trial to the following effect.
The appellant was almost 24 years old when she gave evidence, and was a Chinese national who had been in Australia since 2010. From January 2014, she was living in Sydney and studying business management at the Sydney campus of the University of Newcastle.[56]
[56] Trial ts 1079 - 1081.
The appellant is 158 cm tall.[57]
[57] Trial ts 1088.
The appellant met Hong Xiang Chen in a nightclub in around June 2013. They became boyfriend and girlfriend. Hong Xiang Chen subsequently got married, but his relationship with the appellant continued (unknown to his wife). Hong Xiang Chen told the appellant that he was working in a building construction business in Sydney, and the appellant thought that he was staying illegally in Australia.[58]
[58] Trial ts 1081.
The appellant had known Jian Liang Chen since 2013, but had not spent much time with him. She knew Jian Liang Chen as a close friend of Hong Xiang Chen. As noted at [24](5) above, when she was interviewed by police she referred to Hong Xiang Chen and Jian Liang Chen as brothers. This was a cultural reference. Despite sharing the same surname, they are not related.[59]
[59] Trial ts 1082 - 1083.
The appellant had done a lot of air travelling in 2014, which was paid for by Hong Xiang Chen. He would give her cash to pay for airfares and hotels, and she would use her credit card to pay. Hong Xiang Chen said that this was so that his wife did not find out about their relationship.[60]
[60] Trial ts 1083 - 1085.
The appellant knew of a Terry, but could not recall paying $30,000 into a bank account in the name of Terry's Gyprock Services.[61]
[61] Trial ts 1085 - 1086.
The appellant was receiving about $30,000 per year from her family for payment of university fees.[62]
[62] Trial ts 1086 - 1087.
The appellant said that she and Hong Xiang Chen had previously stayed at a house in Belmont when in Perth. They were in Perth for a month or two. The appellant did not really understand what Hong Xiang Chen was doing in Perth at that time, but he said that he was busy working in the construction industry.[63]
[63] Trial ts 1087 - 1090.
The appellant signed the lease for Unit 13 when Hong Xiang Chen asked her to rent an apartment he had seen on the internet. The appellant and Hong Xiang Chen shared the cost of the apartment.[64]
[64] Trial ts 1090 - 1091.
The appellant came to Perth on her own in November 2014, when Hong Xiang Chen asked her to collect some business papers from a male living in Perth. She stayed in Perth, at Unit 13, for 24 hours, before flying back to Sydney having collected some papers.[65]
[65] Trial ts 1091 - 1093.
The appellant came to Perth again on 3 December 2014, after having a fight with Hong Xiang Chen. She did not tell him that she was coming to Perth, or speak to him while she was in Perth. She was looking for a job in Perth as an agent purchasing products and sending them back to China for a commission.[66]
[66] Trial ts 1093 - 1095.
On the morning of 6 December 2014, the appellant made a number of attempts to telephone Hong Xiang Chen, calling his number and that of Jian Liang Chen. She was eventually able to speak to Hong Xiang Chen briefly, but did not tell him that she was in Perth.[67]
[67] Trial ts 1096 - 1098.
At about 11 am on 6 December 2014, Hong Xiang Chen and Jian Liang Chen arrived at Unit 13. At this time the appellant was listening to music in bed in the main bedroom, which was usually used by Jian Liang Chen. The appellant was not expecting to see Hong Xiang Chen or Jian Liang Chen, and they appeared surprised to see her at Unit 13. The appellant and Hong Xiang Chen had a short argument, as he was angry that she had not told him she was in Perth.[68]
[68] Trial ts 1098 - 1101.
The appellant planned to go to a pharmacy because her foot hurt from a previous fall. She had a shower in the bathroom/laundry of Unit 13 for 20 - 30 minutes. When the appellant was ready to go to the pharmacy, Hong Xiang Chen said he was going on an errand to visit a friend and asked the appellant to come with him. The appellant did not refuse, as it was an opportunity to take the disagreement elsewhere. They took a taxi to the person's property. She did not know where the building was, and she had not been there before.[69]
[69] Trial ts 1101 - 1104.
In cross-examination, the appellant said that Hong Xiang Chen had not told her he was going out, and she did not know whether he went out when she was in the shower.[70] The appellant said:[71]
(Through interpreter) All right, I was getting up and getting prepared because I needed to get out of the house and go on - go to the pharmacy as I mentioned earlier.
So at what point did Hong Xiang say to you, 'Come on this visit with me'?---He saw me pretty much - pretty much got ready - getting ready and he said, 'Oh, I'm going out. Do you want to - we'll do this and then we'll swing by and do some other stuff.'
The appellant said that she left Unit 13 in a hurry, and left her personal effects behind.[72]
[70] Trial ts 1119 - 1120.
[71] Trial ts 1120.
[72] Trial ts 1121.
When the taxi arrived at the Kenwick address, the appellant stayed in the taxi as Hong Xiang Chen walked to the building. As he was walking over, she opened the taxi door to try to tell him that he had left his lighter in the car, but could not attract his attention. Hong Xiang Chen returned to the taxi carrying a bag, which he placed by his feet in the taxi. The appellant did not see what was in the bag, and did not talk to Hong Xiang Chen about it. Hong Xiang Chen was telling the appellant she should not be angry when he could not take her calls, and then police stopped the taxi.[73]
[73] Trial ts 1104 - 1106.
The appellant had not previously seen the gloves or plastic bags police found during the search of Unit 13. She had seen the digital scales on the kitchen bench before, and had used them to make cupcakes in the Belmont house noted at [70] above. Although she had bought Bulgari things before, she had not previously seen the Bulgari box containing the methylamphetamine. She had not seen the Lacoste shoe box in which methylamphetamine was located before. She had no idea that drugs were at Unit 13.[74]
[74] Trial ts 1108 - 1114, 1134.
In cross-examination, the appellant said that she was on a student visa at the time of her arrest, and had just one exam left to complete her management course before graduating in December.[75] In 2014, she had been working part-time in a sales position, earning about $300 per week. She also worked as an online shopping agent purchasing products for people in China. She was earning an average of $700 - $800 a week in these jobs. Her regular sales job had stopped about 6 months before her arrest. She rented Unit 13 for $600 a week when she was living in Sydney and was an out of work student.[76]
[75] Trial ts 1126 - 1127.
[76] Trial ts 1128 - 1129, 1135.
The appellant sought to explain the cash deposits noted at [33] above as Hong Xiang Chen paying money into her account for his own purposes. While she could not recall the payment to Terry's Gyprock Services, she would do things at his direction. She understood he would not be able to send money to another person's account because of his legal status.[77]
[77] Trial ts 1140 - 1144.
The appellant was unable to offer an explanation for the presence of her DNA inside the Lacoste shoe box, but said that she had definitely never touched the box before.[78]
[78] Trial ts 1188.

Additional evidence sought to be adduced in the appeal

Hong Xiang Chen's affidavits

The appellant seeks to adduce two affidavits of Hong Xiang Chen as additional evidence in the appeal. The first, sworn on 8 October 2018, is in Mandarin and has been translated into English by Cheng Gu. The second, sworn on 12 November 2019, is in English.
In his second affidavit, Hong Xiang Chen says in effect that his English has improved while he has been in prison, and he has realised that some paragraphs of his first affidavit did not reflect the meaning that he intended.
Hong Xiang Chen says that in 2014 he asked the appellant to rent a house in Perth. He informed the appellant that he needed a Perth address to 'carry out work with the gyprock company'. He and the appellant came to Perth a few times during 2014. The appellant would book the flights, and he would give her money for doing so.
Hong Xiang Chen deposes that in the months leading up to his arrest, he would give the appellant money for her to pay her living expenses and 'buy some nice things for herself'. He does not recall how much he gave the appellant, but says 'it was a few thousand on three or more occasions'.
Hong Xiang Chen says he believes that the appellant did not know of his offending. He says that he told her early in their relationship not to question him about his personal or professional life. If she asked him a question about his work or married life, he would either not answer or get angry.
In his affidavit sworn on 8 October 2018, Hong Xiang Chen says that, at Unit 13, he 'used to keep the drugs and the paraphernalia in a shoebox on the top shelf of a cupboard'. He deliberately kept the drugs and paraphernalia up high so that the appellant could not reach them. He is 1.85 m tall and the appellant is very small. He deposed that he would take the shoe box into the bathroom and cut and weigh the drugs. He would then place the drugs back into the shoe box before storing the shoe box high up on the shelf in the cupboard.
In his affidavit sworn 12 November 2019 there is a different version of events. Hong Xiang Chen says that:
I found the empty shoe box in the apartment, placed the drugs and paraphernalia inside and placed the shoe box in the top of the cupboard so no one could see it. This was the first time I had used the shoe box.
He says that he deliberately left the drugs and paraphernalia up high so the appellant could not see them or know about them. He says that the cupboard was about 2 m tall. His affidavit does not expressly state when this 'first time' was. In the course of cross-examination, Hong Xiang Chen sought to explain the inconsistency on the basis that there had been an error in the translation of the English version of his initial affidavit. He said that the reference to 'I used to' as appeared in the first affidavit was incorrect.[79]
[79] Appeal ts 38 - 39.
In his affidavit of 8 October 2018, Hong Xiang Chen deposes that on 6 December 2014, he went to exchange drugs for money, and he got into a taxi with the appellant. He does not give an account of his movements prior to getting in the taxi. In his affidavit sworn 12 November 2019, he says he was not exchanging drugs for money, but rather was collecting money from someone who had on a previous occasion been dealt drugs.
Hong Xiang Chen says that he did not participate in an interview with police and did not give a statement to the prosecution regarding the appellant's involvement in the offence. He deposes that he was asked by the Director of Public Prosecutions to provide evidence against the appellant in exchange for a shortened sentence of about 36 months. He says that he did not provide the prosecution with evidence as he was unwilling to lie about the appellant's involvement.

Hong Xiang Chen's evidence under cross-examination

Under cross-examination, Hong Xiang Chen accepted that he flew to Perth on 6 December 2014 to meet a man and take drugs from him, and to collect about $100,000 from an address which had been supplied to him. Hong Xiang Chen said that no one else knew about the money.[80]
[80] Appeal ts 23 - 24.
In a taxi on the way from the airport to Unit 13, Hong Xiang Chen spoke to the appellant on the telephone. He did not know she was in Perth and he had not told the appellant that he was coming to Perth. In the course of the telephone conversation they talked about 'nothing in particular', as he did not want to let her know what he was doing in Perth. He could not recall seeing any missed calls from the appellant on his phone.[81]
[81] Appeal ts 25 - 27.
Hong Xiang Chen arrived at Unit 13, not expecting anyone to be there. He found out that the appellant was in Perth only when he arrived at Unit 13 and found her sleeping in bed. She seemed surprised to see him.[82]
[82] Appeal ts 27.
When he left Unit 13 to collect the drugs, Hong Xiang Chen told the appellant that he was going to fetch something. The appellant was in the shower when he left to collect the drugs, and had just finished her shower when he returned with the drugs. Hong Xiang Chen went into the bathroom with the drugs, a shoe box he found in the 'hall way' or 'lobby area', the scales, plastic bags and a scoop. Wearing gloves, he transferred the methylamphetamine to new bags and placed them in the shoe box. He did this in the bathroom so that no-one else could see him. He threw out the gloves and used plastic packaging in a bin in the kitchen area. He thought he returned the scoop (which was found by police in the Lacoste shoe box) to the kitchen with the scales. He also left a sample of methylamphetamine in a jewellery box in the kitchen, where it would be convenient to show to someone later.[83]
[83] Appeal ts 29 - 32, 35 - 36.
Hong Xiang Chen said that 6 December 2014 was the first occasion he had packaged or touched drugs in Unit 13 or in other houses in Perth. He said that the day of his arrest was 'the first time I ever touched the drugs'.[84]
[84] Appeal ts 37.
Hong Xiang Chen said that he told the appellant to come with him in the taxi because at that time his English was not very good and she could help him read the address he had been given.[85] He did not give the appellant any explanation about what they were doing.[86] When they arrived at the Kenwick address, someone was calling him from behind and he thought the appellant told him which way the shouting was coming from.[87]
[85] Appeal ts 33.
[86] Appeal ts 41 - 42.
[87] Appeal ts 41 - 42.

Hong Xiang Chen denied that the appellant and he had argued, either in Unit 13 or in the taxi.[88]
[88] Appeal ts 28, 42.
Hong Xiang Chen gave evidence that Jian Liang Chen did not know about the drugs in Unit 13. Hong Xiang Chen said that he understood that Jian Liang Chen came to Perth with him to look for work and to have a 'change of scenery'.[89]
[89] Appeal ts 34.
Hong Xiang Chen said that he instructed the appellant to pay $30,000 to Terry's Gyprock Services, and did not tell her what it was for. When asked about why he did this, Hong Xiang Chen responded that his visa had expired and there were a lot of things he could not use his name for.[90] However, he later accepted that he had paid $100,000 to Terry's Gyprock Services a few days earlier.[91] When asked where he got the $30,000 from, Hong Xiang Chen said:[92]
It's a secret. I can't tell you. … I can't remember.
[90] Appeal ts 44 - 45.
[91] Appeal ts 46.
[92] Appeal ts 45.
Hong Xiang Chen denied that he had approached the State saying that he was willing to give evidence against Jian Liang Chen to the effect that he was involved in the drug dealing.[93] The following exchange occurred at the conclusion of the cross-examination:[94]
[93] Appeal ts 47 - 48.
[94] Appeal ts 48 - 49.
INTERPRETER (WITNESS): … So my intention was to fight to the very end and try to plead not guilty, fight to the very end. In the beginning I had a very good lawyer so I did not need to have a deal between either the prosecutor and the defending team so I don't need that deal. I had a very good lawyer to represent me to fight to the very end.
MURRAY, MR: But Mr Chen, you pleaded guilty, didn't you? And after you pleaded guilty you then tried to get a better deal for yourself.
INTERPRETER (WITNESS): Wrong. Yes, I only pleaded guilty after one and a half years.
MURRAY, MR: I mean the truth, Mr Chen, is you pleaded guilty because you are guilty.
INTERPRETER (WITNESS): Incorrect.
MURRAY, MR: Sorry, did I - - -
INTERPRETER (WITNESS): I feel I had to – had to plead guilty. I had no other ways.

Katharine Cook

Ms Cook's affidavit attaches documents which indicate that, on 23 May 2016, the office of the DPP disclosed to the appellant's trial solicitors the fact that Hong Xiang Chen wanted to be interviewed and stated that the appellant was not involved, and that police had declined to interview Hong Xiang Chen.

General principles

Section 30 of the Criminal Appeals Act 2004 (WA) identifies the grounds on which this appeal may be allowed. Relevantly for the purposes of this appeal, s 30(3)(c) provides that this court must allow the appeal if in its opinion there was a miscarriage of justice.
The unavailability of fresh evidence at trial gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial.[95] For this purpose, 'fresh' evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered.[96] There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available unless the new evidence establishes that the accused should not have been convicted.[97]
[95] Smith v The State of Western Australia [2014] WASCA 90 [159].
[96] Smith [158].
[97] Beamish v The Queen [2005] WASCA 62 [9] - [13]; Smith [160].
Of course, the ultimate question always remains whether a miscarriage of justice has occurred. As Gibbs CJ observed in Gallagher v The Queen:[98]
However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.
[98] Gallagher v The Queen (1986) 160 CLR 392, 399.
As the decision of the High Court in Gallagher illustrates, in assessing whether a miscarriage of justice arises from the absence of even fresh evidence at trial, this court has a responsibility to examine the probative value of the evidence, considered in light of the evidence led at trial. Gibbs CJ, Mason and Deane JJ all referred with approval to the following passage of Rich and Dixon JJ in Craig v The King:[99]
A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.
[99] Craig v The King (1933) 49 CLR 429, 439, quoted in Gallagher (396, 400 - 401).
In ARK v The State of Western Australia,[100] Buss P (Mazza JA agreeing) made the following observation in relation to this court's approach to and assessment of additional evidence admitted in an appeal:
The appellate court must decide on the relevance of the additional evidence. It must decide on the credibility of oral evidence and on the authenticity of documentary evidence. In some situations, the appellate court must decide whether it believes the additional evidence. In other situations, the appellate court will merely decide whether the evidence is capable of belief, and is likely to be believed, by reasonable people. After deciding on the relevance and credibility or authenticity of the additional evidence, the appellate court will evaluate its cogency in the context of the evidence adduced at the trial. The evidence which forms part of the trial record must be taken by the appellate court in the sense in which, having regard to the verdict, the jury must have accepted it. (citations omitted)
[100] ARK v The State of Western Australia [2014] WASCA 45 [139], quoted with approval in Clarke v The State of Western Australia [2018] WASCA 14 [248].

The appellant's argument

Counsel for the appellant accepted that the evidence of Hong Xiang Chen was properly classified as new, rather than fresh, evidence.[101] That concession was properly made. This was evidence the existence of which was actually known to the appellant (through her legal representatives), the prosecution having disclosed the fact that Hong Xiang Chen wanted to be interviewed and had said that the appellant was not involved. Hong Xiang Chen did not depose that he was not willing to testify at the appellant's trial. Neither party sought to adduce evidence of any steps taken by the appellant or her legal representatives to call Hong Xiang Chen as a witness at trial, or the reasons they did not do so. There were tactical forensic advantages and disadvantages to the appellant not calling Hong Xiang Chen as a witness at trial. There is no evidence that the appellant's counsel at trial did not make a tactical decision not to call Hong Xiang Chen. In all the circumstances, and recognising the latitude that must be extended having regard to the status of the appellant as an accused in deciding whether evidence not known to her is fresh,[102] there is no proper basis on which Hong Xiang Chen's evidence could be classified as fresh evidence.
[101] Appeal ts 50 - 51.
[102] Ratten v The Queen (1974) 131 CLR 510, 517.
The appellant contends that this court should accept Hong Xiang Chen's evidence as credible and as either demonstrating that the appellant did not commit the offence or as raising such a doubt about her guilt such that her conviction cannot be allowed to stand.[103] She contends that Hong Xiang Chen's evidence buttresses and supports the evidence given by the appellant at trial.[104]
[103] Appeal ts 53.
[104] Appeal ts 57.
The appellant does not contend that a miscarriage of justice arises on any other basis than is indicated above.[105] The appellant accepted that the ground of appeal hinged on the court accepting Hong Xiang Chen as a witness of truth.[106]
[105] Cf Rinaldi v The State of Western Australia [2007] WASCA 53 [84].
[106] Appeal ts 53.
The appellant also says that the critical aspects of the State case at trial were not put to Hong Xiang Chen in cross-examination. The appellant submits that it was not put to Hong Xiang Chen that the appellant was involved in packaging the drugs in the kitchen or knew about the drugs in the Lacoste shoe box on the shelf. It is submitted that if the State is going to contend that Hong Xiang Chen is not telling the truth, counsel for the State needed to put to the witness the issue that went to the heart of the State's case.[107]
[107] Appeal ts 51 - 53.

Disposition

It is convenient to dispose of the argument that certain matters were not put to Hong Xiang Chen at the outset. The rule in Browne v Dunn[108] did not require the State to put the critical aspects of its case as to the appellant's guilt to Hong Xiang Chen. The evidence on which the State relied to establish the appellant's guilt had already been adduced at trial. In any event, the evidence given by Hong Xiang Chen made it clear what his answers would have been to the propositions which the appellant contends ought to have been put. There would have been no utility in counsel for the State specifically putting those matters.
[108] Browne v Dunn (1894) 6 R 67.
In any event, in compliance with the rule in Browne v Dunn, counsel for the State did put to Hong Xiang Chen the matters on which the State relies for its contention that his evidence is not credible. This included putting to Hong Xiang Chen that:
(1)He was talking with the appellant about the drug deal when on the phone with her in the taxi from the airport to Unit 13.[109]
(2)He unpackaged the methylamphetamine in the kitchen of Unit 13.[110]
(3)He had changed his story and said that he had just found the shoe box on the day of his arrest because he knew the appellant's DNA was found in the shoe box.[111]
(4)The appellant took him to the Kenwick address because she knew the address.[112]
(5)He was telling lies to help keep the appellant out of trouble.[113]
Counsel for the State could not properly have cross-examined Hong Xiang Chen about the appellant's subjective state of mind or his understanding of what she knew about the shoe box. The complaint that the State's counsel did not attempt to do so is without merit.
[109] Appeal ts 28.
[110] Appeal ts 31, 32, 36.
[111] Appeal ts 40.
[112] Appeal ts 41.
[113] Appeal ts 41.
As noted at [104] above, Hong Xiang Chen's evidence being new and not fresh, it is not sufficient for this court to conclude that there was a significant possibility that a jury, acting reasonably, would have found the appellant not guilty if Hong Xiang Chen's evidence was before them together with all of the other evidence adduced at trial. Rather, Hong Xiang Chen's evidence must establish that the appellant should not have been convicted. To do so the evidence must have 'cogency and plausibility', to use the words in Craig. The ground of appeal therefore turns on this court's assessment of the credibility of Hong Xiang Chen's evidence, as counsel for the appellant ultimately accepted.[114]
[114] Appeal ts 50, 53.
For the following reasons, we do not accept Hong Xiang Chen's evidence or regard it as credible.
First, Hong Xiang Chen's evidence in this appeal is that Jian Liang Chen was also not involved in the offending, and that Jian Liang Chen came to Perth to look for work and for a 'change of scenery'. The statement that Jian Liang Chen was not involved is inconsistent with the position advanced by Hong Xiang Chen's senior counsel at sentencing. At sentencing, Hong Xiang Chen's counsel said that he repackaged the methylamphetamine into the Lacoste shoe box on Jian Liang Chen's instructions. His counsel took instructions from Hong Xiang Chen in the course of advancing that submission.[115] The statement that Jian Liang Chen came to Perth to look for work is also inconsistent with the evidence that Jian Liang Chen spent the morning and early afternoon of 6 December 2014 sleeping in Unit 13 and was booked to fly back to Melbourne the next day.[116] Although he said that he was 'not hundred percent sure' of this,[117] Hong Xiang Chen did not positively deny any knowledge of Jian Liang Chen's planned return the following day. The evidence that Jian Liang Chen was unaware of the drugs is patently false. The fact that Hong Xiang Chen is willing to lie about Jian Liang Chen's involvement in the offending significantly reduces the weight that can be given to his evidence that the appellant was also not involved.
[115] Trial ts 1549 - 1551.
[116] Jury book timeline (Blue/Green AB 48); trial ts 569 - 571, exhibit 17.
[117] Appeal ts 34.
Secondly, Hong Xiang Chen's evidence is inconsistent with the forensic evidence strongly pointing to the methylamphetamine being repackaged in the kitchen area of Unit 13. The discarded bags, the Bulgari box, the scissors, the scales and the gloves, all with at least traces of methylamphetamine, were all found in or near the kitchen area. We do not accept Hong Xiang Chen's explanations[118] for the location of some of those items.
[118] Appeal ts 31 - 36.
Thirdly, there is an inconsistency between the appellant's evidence at trial and Hong Xiang Chen's evidence as to when and where there was an opportunity for Hong Xiang Chen to repackage the drugs without the appellant's knowledge. The appellant's evidence is that she was in the bathroom/laundry having a shower and getting ready to go to the pharmacy. On her evidence, Hong Xiang Chen must have obtained the drugs from Mr Huan and repackaged the drugs in the kitchen area while the appellant was in the bathroom/laundry. That was the only opportunity for him to have done so without her knowledge. She described Hong Xiang Chen asking her to come with him just after she came out from the bathroom/laundry, before she was quite ready to go to the pharmacy. On the appellant's account, Hong Xiang Chen would not have had the opportunity to repackage the drugs in the bathroom/laundry without the appellant's knowledge. By contrast, on Hong Xiang Chen's account, he told the appellant that he was going out when he went to meet Mr Huan and he secretly repackaged the drugs in the bathroom/laundry area after the appellant had her shower.
Fourthly, it would be incongruous for Hong Xiang Chen to have gone to the trouble of secretly repackaging the drugs in the bathroom/laundry so that the appellant would not know what he was doing, and then to have taken the plastic bags, Bulgari box, scissors, scales and gloves and leave them in plain sight in the kitchen. That is particularly so when the 16 g 'sample' of methylamphetamine was contained in a box for a type of jewellery liked by his girlfriend.
Fifthly, the appellant's evidence at trial was inconsistent with that of Hong Xiang Chen on appeal in other respects. A large part of the appellant's evidence was that she and Hong Xiang Chen had argued, following which she had gone away to Perth and not spoken to him for three days. They had then argued at Unit 13 in front of Jian Liang Chen, which was part of the reason she went in the taxi with Hong Xiang Chen. Hong Xiang Chen's evidence in this appeal denied that there was any argument. We do not accept counsel's submission that this inconsistency between the two accounts is explicable by the passage of time.
Also, the appellant and Hong Xiang Chen gave conflicting accounts of what the appellant was doing when, as could be seen on the CCTV footage at the Kenwick address, she gestured to Hong Xiang Chen. Her evidence was that she was telling him he had left his lighter in the car; Hong Xiang Chen's was that she was telling him where a noise had come from, so as to indicate where he should go.
Sixthly, there are inconsistencies between Hong Xiang Chen's first affidavit and his other evidence which, in our view, are not explained by reference to translation difficulties as was Hong Xiang Chen's position in cross-examination. In his first affidavit, he said that 'I used to keep the drugs and paraphernalia in a shoebox on the top shelf of a cupboard'. He later went on to say:
I would take the shoebox into the bathroom and cut and weigh the drugs. Thereafter placing the drugs back into the shoe box before storing the shoe box high up on the shelf in the cupboard.
These paragraphs indicate a regularity to the activity. The former, but not the latter, was the subject of correction in Hong Xiang Chen's second affidavit. In his oral evidence, Hong Xiang Chen said that the only occasion on which he handled drugs in Unit 13 was on 6 December 2014. Further, his evidence was not that he stored drug paraphernalia in the shoe box. While a spoon was found in the shoe box, Hong Xiang Chen said that he thought he returned this to the kitchen. Also, Hong Xiang Chen did not give any evidence of 'cutting' the drugs. Rather, he said that he simply repackaged them. At least the references to 'paraphernalia' and drugs being 'cut' are not explained by translation issues.[119]
[119] See the explanation given at appeal ts 38 - 39.
There is also an inconsistency between the affidavits as to what Hong Xiang Chen was doing at the Kenwick address. In his first affidavit, Hong Xiang Chen said that he went to the Kenwick address to exchange drugs for money. In his second affidavit, he said that this was incorrect, and that he was collecting money from someone who had on a previous separate occasion been dealt drugs.
Seventhly, Hong Xiang Chen's evidence does not give any reasonable explanation for the financial transactions referred to above. In particular, Hong Xiang Chen sought to explain his instruction for the appellant to pay $30,000 to Terry's Gyprock Services on 23 September 2014 by reference to his immigration status, and therefore not wanting his name to appear in the transaction. However, as he accepted in cross‑examination, only a few days earlier, on 18 September 2014, Hong Xiang Chen had transferred $100,000 to Terry's Gyprock Services. This was inconsistent with his apparent concern to avoid his name appearing on such a transaction.
Eighthly, Hong Xiang Chen's account of the prosecution asking him to provide evidence against the appellant for an approximately 36 month reduction in his sentence is inherently implausible and inconsistent with the documentary record. It is inherently implausible that the DPP would approach a co-accused who had not indicated he had information to assist the prosecution, and to have offered a specific discount which was not within the Director's power to give. Further, the documents annexed to Ms Cook's affidavit show that it was Hong Xiang Chen's solicitor who approached police proposing to give evidence implicating Jian Liang Chen, and that this approach was rebuffed. Hong Xiang Chen's responses to this proposition, quoted at [101] above, appeared to be a belated denial of acceptance of his own guilt.
Ninthly, the account of Hong Xiang Chen, like that of the appellant, involves a highly improbable coincidence. On their account, both were in Perth at the same time without the other's knowledge. Further, on that account, the appellant chose the approximate scheduled arrival time of Hong Xiang Chen's and Jian Liang Chen's flight in Perth to repeatedly try to call them, after making no attempt for days, and spoke to Hong Xiang Chen as he was being driven towards Unit 13, where the appellant happened to be. Very quickly after his arrival, he collected the drugs, brought them to Unit 13 and they both went in a taxi to the Kenwick address where money the fruits of a drug deal was given to him.

Tenthly, Hong Xiang Chen's evidence does not explain how the appellant's DNA profile came to be located on the inside of the Lacoste shoe box, which was for size 9 shoes that were much larger than the appellant's shoe size.[120] The appellant was definite in her evidence that she had not touched the Lacoste shoe box before. Hong Xiang Chen's evidence did not suggest that she had done so, or suggest any actions which may have transferred the appellant's DNA inside the box.
[120] Trial ts 883 - 884, 1110 - 1111.
Eleventhly, Hong Xiang Chen's answer as to the source of the $30,000 transferred to Terry's Gyprock Services, namely that '[i]t's a secret. I can't tell you. … I can't remember', is not an answer that would be expected of a witness of truth.
For these reasons, we do not regard Hong Xiang Chen's evidence to be plausible or credible. Having regard to the whole of his evidence, considered in light of all of the evidence led at trial, we do not have any doubt as to the appellant's guilt of the offence of which she was convicted. While Hong Xiang Chen's evidence supports the appellant's account at trial in a general sense, there are inconsistencies between the two accounts which would not be expected if they were independently telling the truth. Hong Xiang Chen's account is inconsistent with the forensic evidence, provides no reasonable explanation of various matters such as the financial transactions, and involves aspects which are inherently implausible. We do not accept Hong Xiang Chen to be a witness of truth whose evidence can be relied upon.
Hong Xiang Chen's evidence in this appeal, considered in light of the evidence led at trial, does not establish that the appellant ought not to have been convicted. The appellant has not established any miscarriage of justice arising from the absence of his evidence at trial.

Orders

Having regard to the lack of credibility of Hong Xiang Chen's evidence, and its undisputed status as evidence which is new but not fresh, the sole ground of appeal is not arguably established. In these circumstances, there would be no utility in extending the time within which to commence this appeal. Nor is it appropriate to admit the evidence of Hong Xiang Chen, which does not arguably show a miscarriage of justice, as additional evidence in the appeal. We would admit the affidavit of Ms Cook, which established that Hong Xiang Chen's additional evidence is not fresh, as additional evidence in the appeal.
Therefore, we would make the following orders in the appeal:
(1)The appellant's application for an extension of time in which to appeal is dismissed.
(2)The appellant's applications in an appeal to adduce additional evidence in the appeal, dated 27 March 2019 and 12 November 2019, are dismissed.
(3)The respondent's application in an appeal to adduce additional evidence in the appeal, dated 21 June 2019, is granted.
(4)Leave to appeal is refused on the sole ground of appeal.
(5)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell
4 DECEMBER 2019