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 QCA 37
SUPREME COURT OF QUEENSLAND
R v Kaddour  QCA 37
CA No 7 of 2017
DC No 1160 of 2016
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 16 December 2016 (Muir DCJ)
16 March 2018
7 September 2017
Sofronoff P and McMurdo JA and Boddice J
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – where the appellant was found guilty of one count of unlawfully supplying a dangerous drug – where the appellant was a passenger in a car that was under surveillance – where the appellant was filmed handing a clip-seal bag containing a white crystalline powder to the driver of the car – where the appellant instructed the driver to stow the bag inside the front of his shorts – where the contents of the clip-seal bag were not particularised – where expert evidence was given at trial by a police officer as to the appearance and feel of dangerous drugs – where the Crown case was a circumstantial one – where the appellant gave evidence at trial that the crystalline substance was a training supplement that was commercially and legally available – whether the jury could be satisfied beyond reasonable doubt that the white crystalline powder was a dangerous drug
Drugs Misuse Act 1986 (Qld), s 6, s 128, s 129(1)(a), s 129(1)(b)
Barca v The Queen (1975) 133 CLR 82;  HCA 42, applied
Czako v R  NSWCCA 202, considered
Doney v The Queen (1990) 171 CLR 207;  HCA 51, considered
Edwards v The Queen (1993) 178 CLR 193;  HCA 63, applied
Italiano v Western Australia  WASCA 260, considered
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
Marinovich v R (1990) 46 A Crim R 282;  WASC 226, considered
Peacock v The King (1911) 13 CLR 619;  HCA 66, applied
Plomp v The Queen (1963) 110 CLR 234;  HCA 44, cited
R v Baden-Clay (2016) 258 CLR 308;  HCA 35, cited
Shepherd v The Queen (1990) 170 CLR 573;  HCA 56, applied
Weissensteiner v The Queen (1993) 178 CLR 217;  HCA 65, applied
P E Nolan for the appellant
J A Wooldridge for the respondent
Richardson McGhie for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: On a charge that a person has, contrary to s 6 of the Drugs Misuse Act 1986, unlawfully supplied a dangerous drug to another it is usual to prove the identity of the substance the subject of the charge by tendering a certificate of analysis pursuant to s 128 of the Drugs Misuse Act 1986. A certificate of an analyst who has analysed the substance, and which is tendered under that section, is conclusive evidence of its contents in the absence of evidence to the contrary.
- However, that is only one way in which the charge could be proved because not only does s 129(1)(a) of the Act provide that the prosecution is not required to particularise the dangerous drug to which the charge relates but, by virtue of s 129(1)(b), it is not even required to prove the identity of the dangerous drug to which the charge relates provided that the court is satisfied that the thing to which the charge relates was a dangerous drug.
- How then could such a charge be proved if a certificate is not relied upon? Obviously, one way to prove the nature of a substance might be by means of an accused’s admission because “what a party himself admits to be true, may reasonably be presumed to be so” although the truth of such an admission might become a subject of controversy. In the present case the prosecution sought to prove the element of the offence constituted by the identity of the substance by circumstantial evidence. This appeal raises the question whether the evidence led at the trial was sufficient to prove the appellant’s guilt beyond a reasonable doubt.
- This appeal arose in the following way. In November 2014 Detective Sergeant Sala was investigating a man called Brady whom he suspected of supplying dangerous drugs. He was placed under police surveillance. On 6 November 2014 police covertly followed Brady in his car, described by Sergeant Cooke, a police officer attached to the Surveillance Covert Operations Unit, as a “black Holden Commodore utility 289 Tango Romeo Kilo”. Brady was followed to a seafood retailer on Lytton Road, Morningside. He went into that establishment and, at 10.05 am, he was seen to walk out and get into his car. He signalled by hand to a nearby “silver Toyota Tarago van with ACT registration Yankee Golf Xray 99 Victor.” This car then followed Brady’s car as it travelled up Lytton Road. The Tarago was being driven by the appellant.
- Another police officer then took over surveillance and observed that the appellant’s Tarago was now leading Brady’s utility up Lytton Road and into Thynne Road. This road proceeds into an area of light industrial businesses and to a dead end near the Brisbane River. Police ceased observation at this point. However, a video recorder had been installed inside Brady’s car. It recorded what then happened and the jury was shown what the appellant and Brady then did and said.
- The appellant was in the front passenger seat of Brady’s car. He extracted a clip-seal transparent bag containing a white powder from inside the front of his shorts and handed it to Brady. This powder was referred to at the trial as a “white crystalline substance”. Brady then put this packet on the console between himself and the appellant. The following conversation then took place.
KADDOUR: "You'd want to dack that"
- Brady picked up the packet and put it down the front of his own shorts. The conversation continued:
BRADY: "Fucking love this song"
KADDOUR: "Does this thing go alright?"
BRADY: "These things are sick bro hey...I'll eventually get a GTS and turbo it eh"
KADDOUR: "You want to?"
KADDOUR: "That'd be sick hey"
BRADY: "I've got a mate that that's got a VE and it's fucking, he's got like a turbo rear mounted"
KADDOUR: "Go that way and [inaudible] I'll jump back out... turbo they rip hey"
BRADY: "Yeah, but he's blown fucking everything on it like boxes the whole fucking lot"
KADDOUR: "You get new tyres yet cunt? You haven't hey"
BRADY: "Nah it's just one"
KADDOUR: "You are the laziest cunt man"
BRADY: "I leant it to my brother and he fucking popped it"
KADDOUR: "You're a funny cunt... what was that? Security guard?"
BRADY: "Fucks me"
KADDOUR: "Get me out of here cunt"
BRADY: "Thought he was pulling in behind me for a second. Alright brother"
KADDOUR: "All right bro"
BRADY: "I'll speak to you soon"
KADDOUR: "See ya bro. Have a good weekend. I shall chat to you soon. Let me know what you think"
BRADY: "I think there's a gate there"
BRADY: "Sick. See ya brother".”
- The two vehicles had remained unobserved in Thynne Road for five minutes but police picked them up again at 10.15 am leaving Thynne Road. Brady’s car was once more in the lead. Together the two cars proceeded to an address in Balmoral where they stopped for a few minutes and they then drove back to Lytton Road where Brady stopped outside a coffee shop. The appellant parked his Tarago and joined Brady in his utility and together they left the area.
- Detective Sergeant Sala has had long experience in investigating drug offences including as an undercover agent. He was familiar with the appearance and feel of various dangerous drugs. His expertise to give evidence describing the appearance of various kinds of dangerous drugs was accepted by the defence. He said that methylamphetamine, “ice”, was a “solid kind of crystal substance”. These crystals “could be very small” but Detective Sergeant Sala had seen them in various sizes. He explained that methylamphetamine also came in a different form which was “a more smaller glucosey crystallised version of methylamphetamine”. This form of methylamphetamine was commonly called “speed”. Detective Sergeant Sala had seen speed that was yellow, brown or beige. The colour depended upon the process used to manufacture it. He also gave evidence about the appearance of steroids. He had seen this drug in tablet form, liquid form and powder. In powder form it was white and he had only ever seen it in a plastic clip-seal bag. Cocaine, he said, is “a granule sort of looking drug. It looks shiny.” He said that the crystals of which this drug was formed were smaller in size than sugar granules and they were similar to salt. Detective Sergeant Sala was also familiar with the drug MDA. He had seen it in powder form and pill form. He said it came in a range of colours but was usually found in a “white beige colour”. He described it as a “powdery type of drug”.
- He explained that these drugs, when carried or transferred in quantities for personal supply as distinct from large trafficable quantities, were normally carried by dealers and others in transparent plastic clip-seal bags.
- Expert evidence of this kind has frequently been admitted. In R v Marinovich police officers gave expert evidence about the meaning of slang terms used by dealers to refer to heroin in order for the prosecution to prove that conversations implicating the appellant, and which used a particular expression, concerned that drug. Such evidence, based on the experience of police officers but including not just personal observation but also information received concerning characteristics, prices, packaging, terminology and availability of a drug as well as evidence by way of comparison with other drugs, is in the nature of expert evidence. Of course, because it is expert evidence, a witness giving such evidence is subject to the same constraints and duties as every expert witness who is called to testify.
- None of this prosecution evidence was challenged or contradicted.
- The prosecution case was, as I have said, a circumstantial one. It relied upon eight facts that, the Crown submitted, supported the inference that the substance that the appellant had given to Brady was a dangerous drug:
- The appellant had led Brady away from the Fish Factory seafood retailer into a cul-de-sac within an industrial area arguably to reduce the risk of being seen;
- He had then joined Brady in the privacy of Brady’s utility for the same reason;
- The appellant had kept a clip-seal bag containing a white crystalline powder secreted down the front of his pants rather than in a pocket or elsewhere;
- The powder looked like one of the drugs described by Detective Sala and was consistent in appearance with crystallised methylamphetamine;
- It was contained in a clip-seal bag that, according to the expert evidence, was of a type commonly used to contain dangerous drugs;
- Upon giving the bag to Brady the appellant had immediately cautioned him that he ought to “dack that”, namely secrete the bag inside his shorts in the same way that the appellant had done;
- The brief conversation about the security guard, whom the appellant had suddenly seen, betrayed a consciousness on the part of the appellant that what he was doing was illicit;
- The appellant’s request that Brady should “let [him] know straight away” was consistent with the substance being a drug that could be ingested and that its effect and quality would be apparent immediately.
- The question is whether a conviction based upon that evidence can stand. The appellant contends that the conviction was unsafe and unsatisfactory and that there was no evidence upon which any reasonable jury could have convicted the appellant.
- Section 129(1)(b) of the Drugs Misuse Act provides relevantly:
“In respect of a charge against a person of having committed an offence defined in Part 2 –
- It is not necessary to particularise the dangerous drug in respect of which the offence is alleged to have been committed; and
- That person shall be liable to be convicted as charged notwithstanding that the identity of the dangerous drug to which the charge relates is not proved to the satisfaction of the court that hears the charge if the court is satisfied that the thing to which the charge relates was at the material time a dangerous drug; …”
- These provisions have been in force for a long time. They were first enacted in 1971 as an amendment to the Health Act 1937. They were then incorporated into the Drugs Misuse Act 1986 when that statute was passed and have continued in effect to the present day.
- In this case the indictment merely charged that the appellant had “unlawfully supplied a dangerous drug”. No complaint can be made about that and no complaint has been made. Further, although the Crown bears the onus of proving beyond a reasonable doubt that “the thing to which the charge related was at the material time a dangerous drug”, the obviation of any requirement to prove the identity of the drug means that a case can be proved by sufficient circumstantial evidence alone. This is not novel. In 1872 the author of The Principles of Circumstantial Evidence wrote that in cases of murder by poisoning, the “most satisfactory evidence” is constituted by chemical tests which “reproduce the particular poison which has been employed”. He went on:
“It would be most unreasonable, therefore, and lead to the grossest injustice, and in some circumstances to the impunity of the worst crimes, to require, as an imperative rule of law, that the fact of poisoning shall be proved by any special and exclusive medium of proof, when that kind of proof is unattainable, and especially if it has been rendered so by the act of the offender himself … and, as in all other cases, the corpus delicti must be proved by the best evidence which is capable of being adduced, and such an amount and combination of relevant facts, whether direct or circumstantial, as establish the imputed guilt to a moral certainty, and to the exclusion of every other reasonable hypothesis.”
- That final phrase has been echoed in the most modern of cases about circumstantial evidence.
- The Crown invited the jury to draw from the evidence the inference that the substance that the appellant had given to Brady was a dangerous drug. The prosecution pointed to the facts set out earlier as necessarily driving home such an inference. These facts included the fact that the substance looked like a dangerous drug, at least like those described by Detective Sergeant Salas. The appellant supplied the white powder to Brady in just the way such dangerous drugs are conveyed, namely in a clip-seal bag and which was hidden until needed. The parties to the transaction behaved covertly and furtively throughout, as one would expect people to behave who are parties to a transaction over dangerous drugs. The appellant and Brady behaved inconsistently with the behaviour of parties to a transaction involving an innocent substance. Absent some other explanation, the Crown established a prima facie case that the appellant had supplied Brady with a dangerous drug. Consequently, grounds 3 and 5 of the appellant’s grounds of appeal must be rejected. Ground 4 raises nothing of substance having regard to the fate of those two grounds and it should also be rejected.
- However, while there might have been a case to go to the jury, it is another question whether, as the appellant submits, the verdict of the jury was unreasonable and cannot be supported having regard to the evidence. This requires a close examination of the evidence which must include the evidence given in the defence case.
- The appellant gave oral evidence. He told the jury that the powder that he had given Brady was merely a training supplement of a kind that was commercially, and legally, available. He said that he and Brady trained regularly and frequently at a gym. Brady, said the appellant, had complained that he had been struggling with his workouts. The appellant said that he told Brady that he himself had been using a training supplement that enhanced his workout and that allowed him to lift heavier weights. He thought that perhaps, in addition to other ingredients, the powdered supplement contained amounts of caffeine. He agreed to give Brady a sample and this, he said, was what he had given to Brady in his car.
- He explained that on the day in question, Brady had texted him or called him, he could not recall which, and told him that he was at a seafood retailer on Lytton Road. The appellant said that he had intended to go to a nearby retailer of air-conditioners anyway to buy a remote control to replace one that he had broken. That business was situated on Thynne Road near Lytton Road. Accordingly, he drove to the seafood retailer, met Brady in the front of Brady’s car as the police had described and had given him the packet of training supplement, which was in the form of a white powder.
- He offered no explanation for his caching of the substance down the front of his shorts, although late in his cross-examination he said that he had no pockets. He did not then, or at any time, actually offer that as a reason for what he had done. The video shows that while he was in Brady’s car he had a zippered purse of ample size to hold the packet of white powder conveniently. He made no mention of this receptacle when giving evidence. Of course, having no pockets in his shorts, if indeed he had none, could not be a reason for his caveat to Brady to stash the bag of white powder down his own shorts for, as can be seen on the video recording, Brady’s shorts did have pockets. Also, when the appellant first handed it to him, Brady placed the bag of powder, naturally enough, in an open cavity on the car’s console in front of him designed to hold occasional objects, a place where it might securely, if openly, have remained. However, after being told by the appellant to “dack” the bag of white powder, Brady hid the packet down his shorts. Brady then obtained a white paper bag from behind the passenger seat bag and began to eat its contents, which appeared to be fried chicken legs. This showed another convenient, if not-so-secret, place in which he might have left the bag of white powder.
- The appellant was also unable to explain why he did not hand the packet to Brady while they were parked at the seafood retailer. Their elaborate trip to the end of Thynne Road appeared to serve no purpose for Brady except privacy, a purpose consistent with guilt.
- The appellant denied that the security guard’s appearance had unnerved him because he was supplying a drug. His comment to Brady, he said, was just a joke but he did not explain the joke.
- Finally, he acknowledged that when police finally confronted him with the video evidence in 2015 he did not then assert that the substance was merely a training food and did not do so, it seems, until he gave evidence at the trial. Consequently, this story had the appearance of a late invention.
- As Mr Nolan of counsel candidly acknowledged, the jury must have rejected the appellant’s explanation for they convicted him. It was certainly open for them to reject that story for it was full of holes. It was also open for them to conclude that the appellant was lying in his evidence.
- But even so, before the Crown could secure a conviction, it had to persuade the jury that it had excluded all reasonable hypotheses consistent with the appellant’s innocence. The jury had to be satisfied not only that guilt was a rational inference from the evidence in the case but also that it was the only rational inference that could be drawn.
- Any circumstantial case is pregnant with competing inferences. It is therefore “essential to inquire with the most scrupulous attention what other hypotheses there may be which may agree wholly or partially with the facts in evidence”. Such a hypothesis might arise from within the prosecution case or it might arise from evidence led by the defence.
- However, to be material for consideration, any hypothesis had to be a reasonable one. In order for a hypothesis to be a reasonable one in that sense it must be based upon something more than mere conjecture. In Peacock v The Queen O’Connor J said:
“… an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.”
- At his trial, the appellant pointed to two possible hypotheses that he said were consistent with his innocence.
- The first of these may be disposed of shortly. After the evidence-in-chief, the cross-examination and the re-examination of Detective Sergeant Sala had concluded, the appellant’s counsel sought and obtained leave to ask some further questions of Detective Sergeant Sala. Leave was given and Detective Sergeant Sala was asked whether he had ever encountered a situation in which a substance had been seized in circumstances that strongly suggested that the substance was a dangerous drug but which had been found, upon later analysis, not to be so. Detective Sergeant Sala said that he himself had never had that experience. On the contrary, he said, he had on occasions seized substances that he believed were not dangerous drugs. He had then caused them to be analysed to confirm his view. He accepted that dangerous drugs are sometimes mixed with other, legitimate, substances. These issues were taken no further.
- This evidence gives rise to no reasonable hypothesis consistent with innocence. Detective Sergeant Sala’s evidence was incapable of leading to a rational possibility that, for example, while the appellant actually believed the powder that he gave Brady was a dangerous drug it was, in truth, some placebo that had been sold to him by a fraudulent supplier. To the extent that the police officer had heard of such events involving others, there was no evidence about their frequency or the circumstances under which they occurred. There was certainly no evidence that anything like that had happened in this case.
- In any case, no such hypothesis could reasonably have been raised for it would have conflicted with the actual defence case. That case, which the appellant positively asserted in his sworn evidence, was that the powder was not a dangerous drug at all and was not believed by him to be a dangerous drug. It was a training supplement.
- A forensic choice made by an accused person to put forward a particular factual hypothesis or version of events will have an effect upon the trial. As the High Court said in Baden-Clay, parties are bound by the conduct of counsel, who exercise a wide discretion in deciding what issues to litigate. The choice made by the appellant to swear that the substance he supplied to Brady was an innocent one meant that the (faintly raised) alternative proposition that, while he believed he was committing a crime, he was mistaken, could not arise for two reasons. First, the one person who knew the necessary facts that had to be put before the jury about what the appellant was doing and thinking was the appellant. He put forward no such hypothesis but instead nailed his colours to the mast and set sail on the course that I have already described. Second, and apart from that, there was no evidence at all that the substance, in truth, was a placebo. The jury must be taken to have rejected this argument, and rightly so.
- The real answer to the Crown’s case was not this sideshow. The real case was that which the appellant swore to in his oral evidence. As I have said, and as Mr Nolan acknowledged, the jury must be taken to have rejected the appellant’s story because it found him guilty.
- The rejection of that evidence had two possible results.
- The appellant’s offering of an innocent explanation for the Crown’s circumstantial case had the effect of narrowing the scope of any inquiry. Concerning a hypothesis offered by an accused, Griffith CJ said in Peacock, approving a passage from Starkie on Evidence:
“… his account of the transaction is for this purpose always most material and important. The effect may be on the one hand to suggest a view of the case which consists with the innocence of the accused, and which might otherwise have escaped observation. On the other hand its effect may be to narrow the question to the consideration whether that statement be or be not excluded and falsified by the evidence.” (Emphasis added)
- That is to say, once the appellant volunteered an explanation for the Crown’s circumstantial case, which, if true, exonerated him, it followed that the question for the jury in practical terms ultimately became whether the Crown had satisfied the jury, beyond a reasonable doubt, that the appellant’s explanation was false. Once the jury concluded that the explanation was indeed false, it followed that there was no longer any inference competing with the one urged by the Crown and this absence of any competing inference was capable of acting to reinforce the rightness of the prosecution’s circumstantial case. As a consequence the rejection of the appellant’s evidence as fabricated meant that it was open for the jury to conclude that the circumstances proved by the Crown, while inconclusive in the abstract, acquired a conclusive character from the appellant’s failure to explain them.
- The second result of a rejection of the appellant’s evidence as a lie is that the appellant’s fabrication may itself be taken by a jury to be evidence of his guilt if the jury were to conclude that the appellant had lied because he was conscious that if he told the truth, then the truth would convict him. The lie meant that the jury could have concluded that the appellant had no honest answer to the Crown’s contention that the white powder was a dangerous drug. The jury could have concluded that the false reasons for secreting the packet of white powder, the false reasons for the elaborate drive to the greater privacy of Thynne Road, the false reason for the appellant’s reaction at the appearance of the security guard, was further evidence that the white powder that the appellant had given to Brady was, as he knew, a dangerous drug.
- These being paths of reasoning to a guilty verdict that were open to the jury, it cannot be accepted that the verdict of guilty was either unreasonable or not supported by the evidence. There was sufficient evidence to support the verdict of guilty and that evidence was reinforced by the jury’s rejection of the appellant’s evidence. The available process of reasoning was a rational process. In short, this was simply another case where the Crown sought to prove the charge it had laid by means of circumstantial evidence and in which an accused person’s lies to explain that case strengthened the argument for a guilty verdict.
- I would dismiss the appeal.
- McMURDO JA: The appellant was convicted of one offence of supplying a dangerous drug, in contravention of s 6(1) of the Drugs Misuse Act 1986 (Qld) (“the DMA”). The prosecution did not particularise or seek to prove what was the drug which was supplied. Section 129(1)(b) of the DMA provided that it was unnecessary to do so. What had to be proved, nevertheless, was that a dangerous drug was supplied by the appellant.
- The term “dangerous drug” is defined by s 4 of the DMA by reference to substances prescribed in the Drugs Misuse Regulation 1987 (Qld), schedules 1 and 2. It is unnecessary to go to that list, because the appellant’s case, both at the trial and on this appeal, is that he was supplying something which was undoubtedly not on these lists and, more generally, not a dangerous drug as defined. But, as I will discuss, his case on appeal is markedly different from that which was argued to the jury and upon the basis of his evidence.
- The appellant’s argument is that the verdict was unreasonable, in that it was not open to the jury to be satisfied to the requisite standard that what was supplied by him was a dangerous drug. For the reasons that follow, I have concluded that it was open to the jury to convict the appellant and that his appeal should be dismissed.
- The prosecution called two witnesses. One was Detective Sergeant Sala, who was the officer in charge of the investigation of a man called Brady. The other was Sergeant Cooke, who gave evidence of surveillance which he conducted in relation to Brady.
- On the day in question, Brady was seen to be driving a car when he signalled to the driver of a van to follow him. It was admitted at the trial that the appellant was the driver of the van. The appellant was then observed to follow Brady for about five minutes before stopping at a place in an industrial precinct, where the appellant joined Brady in his car. A surveillance device had been placed in Brady’s car, which made audio and visual recordings of the two men. The appellant was seen to remove a clip seal plastic bag from the front of his boardshorts. The bag appeared to contain crystals or a powdered substance with a white hue. The appellant placed the bag in the centre of the console between the two men. The appellant then said to Brady, referring to the bag: “You’d want to dack that”. Brady was then seen to put the bag down the front of his own pants. Brady then commenced to drive and the two travelled for a short time before the appellant said: “what was that? Security guard?” This exchange occurred:
“BRADY: "Fucks me"
KADDOUR: "Get me out of here cunt"
BRADY: "thought he was pulling in behind me for a second.. Alright brother"
KADDOUR: "all right bro" (and they shake hands)
BRADY: "I’ll speak to you soon"
KADDOUR: "See ya bro. Have a good weekend. I shall chat to you soon. Let me know what you think"”
- The jury also saw footage of what occurred in Brady’s car a few minutes later. Brady was driving and another person was in the front passenger’s seat. At one point, Brady was seen to pass a small item appearing to be a clip seal bag to the other man, who secreted the item in his pants. Referring to the bag, Brady was heard to say: “Sorry, bit sweaty Bra, it’s all clear stuff …”
- Detective Sala gave evidence that in his considerable experience, it was common for dangerous drugs to be carried by people in clip seal bags. He gave evidence about the usual appearance of various dangerous drugs. It is unnecessary to detail that evidence here. The effect of the evidence was that the material which was supplied by the appellant to Brady had an appearance which made it possible that it was a dangerous drug.
- In the cross examination of Detective Sala, it was suggested that (legally available) sports supplements also came in a powder or crystal form which might be white in colour. He agreed, but said in re-examination that in his experience, material of that kind was not normally carried in clip seal bags.
- The appellant gave evidence at the trial. He admitted that he knew Brady and had offered him some sports supplements, because Brady had said that he was struggling with his gym workout. He admitted meeting Brady on this occasion and handing him the clip seal bag, but said that this contained a sports supplement which, as he subsequently told Brady, the appellant had purchased from a shop in Bulimba where Brady could purchase the same product for himself. The appellant said that on the day in question, he already had some of this material within his own gym bag in his van. He said that he had put the material down his pants because he did not have any pockets in his shorts. He explained that when he told Brady to “dack” the bag, he was simply being humorous.
- The jury was entitled to reject the appellant’s evidence, as plainly they did. The question here is whether, with the rejection of that evidence, the prosecution had proved that what was in the bag was a dangerous drug.
- There was no direct evidence of the nature of the material which the appellant supplied. The nature of the material was necessarily a matter of inference from other facts found by the jury. The facts which were the subject of evidence in the prosecution case were uncontroversial. The jury had to consider, in particular, the significance of the following matters in combination:
- the way in which the rendezvous occurred, with the appellant’s van following Brady’s car before the appellant then travelled with Brady for a short time;
- the fact that the material was stored in a clip seal bag;
- the fact that the bag was stored in the appellant’s pants, rather than being carried by him as he approached Brady;
- the fact that when the appellant handed the bag to Brady, he suggested that Brady put the bag in his pants, and Brady did so;
- the statement of the appellant’s apparent concern that they had been seen by a security guard; and
- the timing and circumstances of the meeting between Brady and the other man, which occurred shortly afterwards in Brady’s car and in which a similar package was handed by Brady to that man, who put the package into his own pants.
- Those circumstances, considered together, were capable of founding a rational inference that the material was a substance, the possession or supply of which was unlawful. However that inference, even if it were the only inference open to the jury, would have been insufficient to establish the appellant’s guilt of this offence. The jury had to be able to infer that the material was a dangerous drug (as defined). And the jury had to further find that there was no hypothesis, consistent with innocence of this charge, which was open.
- In this Court, the appellant’s argument was that the substance may have been an illegal poison, explosive or drug which was not a “dangerous drug”. There was no evidence which supported any of those possibilities. It is argued that the jury could not have excluded these possibilities, which I will describe as “the new hypothesis”, and that, consequently, the prosecution case was not proved beyond reasonable doubt.
- The difficulty with the appellant’s argument is that it ignores his own evidence at the trial. The rejection of that evidence did not make it irrelevant when the jury was considering whether there was some hypothesis which was consistent with the appellant’s innocence. The appellant’s evidence, although rejected, remained relevant for the reason explained by the High Court in R v Baden-Clay. The facts of that case are notorious, but the way in which the present question arose should be noted. The defendant was charged with murdering his wife. The prosecution case was that they had become involved in an altercation in which he had killed her, with the intention of doing so or causing her grievous bodily harm. At his trial, the defendant’s case was that he had had nothing to do with his wife’s death, and he gave evidence to that effect. That evidence was rejected by the jury and he was convicted of murder. This Court held that the jury could not have rejected the hypothesis, raised by the defendant for the first time on appeal, that there had been a physical confrontation between the defendant and his wife in which he had killed her without the requisite intention to be guilty of murder. The High Court held that that hypothesis was not available on the evidence and that the conviction of murder should be restored. Of present relevance is the High Court’s use of the defendant’s testimony to exclude that hypothesis.
- The Court referred to its decision in Weissensteiner v The Queen, where it was said that:
“[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”
In Baden-Clay, the court explained that Weissensteiner:
“… was a case in which, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused and thus could not be the subject of evidence from any other person or source.”
The court then discussed the relevance of Weissensteiner to the case before it:
In any event, this is not a case where the accused remained silent. It is a case where the accused gave evidence. The present case is stronger for the prosecution than the Crown case in Weissensteiner because here the respondent gave evidence, which not only did not support the scenario hypothesised by the Court of Appeal, but was inconsistent with that scenario. The respondent's evidence was that he had nothing to do with the circumstances in which his wife was killed. On his evidence he simply was not present when her death occurred; and he could not have been the unintentional cause of her death.
The evidence given in the present case by the respondent narrowed the range of hypotheses reasonably available upon the evidence as to the circumstances of the death of the respondent's wife. Not only did the respondent not give evidence which might have raised the hypothesis on which the Court of Appeal acted, the evidence he gave was capable of excluding that hypothesis.
The Court of Appeal's conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence. In this case, there was no evidence led at trial that suggested that the respondent killed his wife in a physical confrontation without intending to kill her. There were "no positive proved facts from which the inference" drawn by the Court of Appeal could be made …
The Court of Appeal appears to have reasoned that the respondent's evidence could be disbelieved by the jury, as it plainly was, so that there was no evidence at all in relation to the hypothesis. If it were truly the case that there was no evidence from the respondent as to the circumstances of his wife's death, the application of the principles explained in Weissensteiner would have required consideration; and they were not adverted to by the Court of Appeal. But the respondent chose to give evidence. To say that the respondent's evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent's innocence of murder. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.” (emphasis added; footnotes omitted)
- In the present case, the nature of the substance was within the appellant’s knowledge. The only other possible witness on that question would have been Brady, who, assuming that he was available, would not have been a compellable witness. In this case, as in Baden-Clay, the only witness who could have given evidence to support the new hypothesis was the appellant, who gave evidence which necessarily excluded it as a possibility.
- As in Baden-Clay, the appellant contends for a hypothesis which was not put to the jury for tactical reasons, which is directly contrary to the evidence of the appellant at trial and which is directly contrary to way in which his trial counsel conducted his defence. Therefore “the issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial.”
- The jury was able to exclude the hypothesis that the substance was something which was lawfully possessed and supplied by the appellant, having regard to the surreptitious way in which he delivered this substance to Brady. That left the possibilities that the substance was a dangerous drug (as defined) or the new hypothesis, which is that the meeting occurred as it did because this substance, although not a dangerous drug as defined, was an unlawful substance. It was open to the jury to conclude that the new hypothesis was not open because of the way in which the defence case was conducted, including the appellant’s evidence. Once the new hypothesis is rejected, there is no other hypothesis consistent with his innocence of this offence. The verdict of the jury was not unreasonable.
- I would dismiss the appeal.
- BODDICE J: I have had the considerable advantage of reading the judgments of the President and McMurdo JA.
- Their comprehensive summary of the facts, which I gratefully adopt, allows me to shortly state my reasons for respectfully disagreeing with their conclusions that the evidence led at the appellant’s trial was sufficient to establish beyond reasonable doubt that the appellant had supplied a dangerous drug.
- Whilst the jury’s obvious rejection of the appellant’s account at trial was a relevant consideration for the jury as it narrowed the range of hypotheses reasonably available upon the evidence, it was not permissible for the jury to use that rejection to convict the appellant if the evidence led by the prosecution was insufficient to exclude, beyond reasonable doubt, a hypothesis consistent with innocence.
- The rejection of the appellant’s evidence enabled the jury to exclude a hypothesis that the substance was something that was lawfully possessed and supplied by the appellant. That left two possibilities, namely: (1) that the substance was a dangerous drug, or (2) that it was an illicit substance which was not a dangerous drug, but the possession or supply of it was still unlawful.
- A rejection of the appellant’s evidence did not exclude that latter hypothesis. It was still for the prosecution to exclude that hypothesis beyond reasonable doubt. It could not do so on the available evidence, especially having regarding to Detective Sergeant Salas’ concession that some substances seized by police were later found on analysis not to be a dangerous drug. The fact that his personal experiences related to circumstances when he did not also believe the substances were dangerous drugs did not detract from the force of that concession.
- The circumstances in which the substance was secreted by the appellant and others did not diminish the force of that concession. That conduct was equally consistent with the substance being an illicit substance not able to be lawfully possessed by the appellant rather than being a dangerous drug.
- I would order:
- The appeal be allowed.
- The verdict of guilty be set aside.
- A verdict of acquittal be entered.
 The full terms of the relevant provisions are set out later in these reasons.
 Slaterie v Pooley (1840) 151 ER 579 at 581.
 (1990) 46 A Crim R 282 at 298 per Malcolm CJ and Kennedy J.
 Marinovic, supra, at 301; see also R v Italiano  WASCA 260 at ; Czako v R  NSWCCA 202 at -.
 See e.g. Myers v The Queen  3 WLR 1145 at .
 Health Act Amendment Act 1971, inserting a new s 130J.
 Wills, The Principles of Circumstantial Evidence, Fourth London Edition, reprinted by Fred B Rothman & Co, 1981, at 232.
 ibid at 233.
 Doney v The Queen (1990) 171 CLR 207 at 212 per Deane, Dawson, Toohey, Gaudron and McHugh JJ.
 M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ.
 M v The Queen (1994) 181 CLR 487.
 Plomp v The Queen (1963) 110 CLR 234 at 252; Barca v The Queen (1975) 133 CLR 82 at 104; R v Baden-Clay (2016) 258 CLR 308 at .
 Peacock v The King (1911) 13 CLR 619 at 651-652 per Barton J, 670-671 per O’Connor J; and see KJ Heller, The Cognitive Psychology of Circumstantial Evidence, (2006) 105 Michigan Law Review 241 at 292.
 per Griffith CJ in Peacock, supra, at 629; In re Hodge (1838) 168 ER 1136 at 1137; Plomp supra at 243 per Dixon CJ, 252 per Menzies J; Barca v The Queen (1975) 133 CLR 82 at 104 per Gibbs, Stephen and Mason JJ; Shepherd v The Queen (1990) 170 CLR 573 at 578 per Dawson J.
 Peacock v The King (1911) 13 CLR 619 at 661.
 Baden-Clay, supra, at .
 supra at 661.
 supra at .
 ibid at 629.
 Weissensteiner v The Queen (1993) 178 CLR 217; Chalmers v R (2011) 37 VR 464 at .
 Cf. Peacock, supra at 669 per O’Connor J.
 Edwards v The Queen (1993) 178 CLR 193 at 209 per Deane, Dawson and Gaudron JJ.
 Knight v The Queen (1992) 175 CLR 495 at 503;  HCA 56.
 (2016) 258 CLR 308;  HCA 35 (‘Baden-Clay’).
 (1993) 178 CLR 217;  HCA 65 (‘Weissensteiner’).
 Ibid at 227-228, per Mason CJ, Deane and Dawson JJ; quoted in Baden-Clay at 325 .
 Baden-Clay at 325 .
 Ibid at 325-327.
 By testifying in support of the new hypothesis, Brady would have incriminated himself.
 Baden-Clay at 328-329 .
 R v Baden-Clay (2016) 258 CLR 308 at .
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC1160/16 (No Citation)||16 Dec 2016||Date of Conviction (Muir DCJ).|
|Appeal Determined (QCA)|| QCA 37  3 Qd R 575||16 Mar 2018||Appeal against conviction dismissed: Sofronoff P and McMurdo JA (Boddice J dissenting).|