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  • Unreported Judgment

R v Ma

 

[2019] QCA 1

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ma [2019] QCA 1

PARTIES:

R
v
MA, Paul Julting
(appellant)

FILE NO/S:

CA No 108 of 2018
SC No 45 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 23 April 2018 (Henry J)

DELIVERED ON:

Date of Orders: 11 December 2018
Date of Publication of Reasons: 29 January 2019

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2018

JUDGES:

Fraser and Morrison JJA and Davis J

ORDERS:

Date of Orders: 11 December 2018

  1. The appeal be allowed.
  2. The conviction and sentence be set aside.
  3. A verdict of acquittal be entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was found guilty of an offence of trafficking in dangerous drugs – where police searched a property where the appellant was present – where the appellant did not live at that property – where two witnesses who did or had lived at that property at or about the time of the offence were involved with dangerous drugs – whether the appellant’s guilt was the only rational inference open to the jury – whether it was open to the jury to find the appellant guilty beyond reasonable doubt of the offence as charged

Criminal Code (Qld), s 668E

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, considered

Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, cited

Johnson v The Queen (2018) 92 ALJR 1018; [2018] HCA 48, cited

Peacock v The King (1911) 13 CLR 619; [1911] HCA 66, considered

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, considered

R v Clapham [2017] QCA 99, followed

R v Kaddour [2018] QCA 37, considered

R v Sharma; R v Agrawal [2017] QCA 209, considered

COUNSEL:

A J Glynn QC for the appellant
G J Cummings for the respondent

SOLICITORS:

Philip Bovey & Company Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of Davis J and the orders proposed by his Honour.
  2. [2]
    MORRISON JA:  I have had the advantage of reading the draft reasons of Davis J.  I have come to a different conclusion from his Honour as to the resolution of this appeal.  As mine is the minority view I shall attempt to express my reasons as briefly as may be.
  3. [3]
    I am able to generally adopt the synopsis of the evidence and the trial as set out in the reasons of Davis J.[1]  However, there are some matters I will attempt to identify which, in my respectful view, matter to the outcome of the appeal.
  4. [4]
    Where I differ from the majority is in respect of the alternative inferences which are said to have been open and not able to be excluded.
  5. [5]
    A reasonable hypothesis consistent with innocence means a reasonable hypothesis having regard to the whole of the evidence, not to each individual item of circumstantial evidence regarded separately.[2]
  6. [6]
    In Peacock v The King[3] O’Connor J said:[4]

“The duty of a jury in regard to circumstantial evidence is often in practice stated briefly, and, I think, accurately, in these words:—‘The circumstances must be such that the jury may reasonably draw from them an inference of the prisoner's guilt, and can reasonably draw no other inference.’ It is, I think, necessary for the purposes of this case to add that 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. There are some observations in Starkie on Evidence, 3rd ed., on this aspect that are worthy of attention. At page 577 the learned author says:—

‘What circumstances will amount to proof can never be matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury. On the one hand, absolute, metaphysical and demonstrative certainty, is not essential to proof by circumstances. It is sufficient if they produce moral certainty to the exclusion of every reasonable doubt; even direct and positive testimony does not afford grounds of belief of a higher and superior nature. To acquit upon light, trivial and fanciful suppositions and remote conjectures, is a virtual violation of the juror's oath, and an offence of great magnitude against the interests of society, directly tending to the disregard of the obligation of a judicial oath, the hindrance and disparagement of justice, and the encouragment of malefactors. On the other hand, a juror ought not to condemn unless the evidence excludes from his mind all reasonable doubt as to the guilt of the accused, and, as has been well observed, unless he be so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest; and in no case, as it seems, ought the force of circumstantial evidence, sufficient to warrant conviction, to be inferior to that which is derived from the testimony of a single witness, the lowest degree of direct evidence.’

In drawing an inference of guilt, or in declining to draw it, the jury must act upon the facts established in evidence, and if the only inference that can reasonably be drawn from those facts is that of the prisoner's guilt, it is their duty to draw it. They cannot evade the discharge of that duty because of the existence of some fanciful supposition or possibility not reasonably to be inferred from the facts proved.”

  1. [7]
    The reasons of O’Connor J in Peacock were adopted in Barca v The Queen,[5] per Gibbs, Stephen and Mason JJ:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King (1911) 13 CLR 619, at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen (1963) 110 CLR 234, at p 252; see also Thomas v. The Queen (1960) 102 CLR 584, at pp 605-606. However, ‘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.’ (Peacock v. The King (1911) 13 CLR, at p 661). These principles are well settled in Australia.”

  1. [8]
    That passage in Barca was adopted by the High Court in Knight v The King.[6]  Referring to Knight, this Court has recently held that the established principles are that: neither this Court nor the jury need to be concerned with mere conjecture; the hypotheses that are of significance are those that are reasonable, and a hypothesis that ignores the facts is not a reasonable one.[7]  As it was put by Fryberg J in R v Rae,[8] “inferences must be rational inferences based upon evidence; guesswork, speculation or intuition are not permitted”.  And the competing inference “must be logically based, that is, it must bear some logical relationship to the evidence from which it proceeds”.[9]
  2. [9]
    In R v Kaddour,[10] Sofronoff P said:

[29] 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.

[30] 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.’”

  1. [10]
    The statement of principle, that in order for a hypothesis to be a reasonable one in that sense it must be based upon something more than mere conjecture, was established by Peacock and most recently restated by R v Baden-Clay[11] where the court said:

“For an inference to be reasonable, it ‘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’ (emphasis added). Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’ (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”

  1. [11]
    In my view, the critical feature here is the statement in Baden-Clay, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

What did the evidence establish?

  1. [12]
    The offence occurred on 1 April 2016.  Police had a search warrant naming Martin in respect of the supply of dangerous drugs.[12]
  2. [13]
    The sequence of events established on the evidence was:
  1. (a)
    8.10 am: Ma arrived from Sydney;
  2. (b)
    8.39 am: he caught a taxi away from the airport;[13]
  3. (c)
    8.56 am: Stewarts reversed her car out of the driveway and parked in front of the house; she then went inside again;
  4. (d)
    9.00 am: Goodier (Stewarts’ mother) drove into the driveway; Ma in the front passenger seat; both went into the house;
  5. (e)
    9.28 am: Goodier got back into her car and left;
  6. (f)
    9.30 am: Goodier’s vehicle was intercepted and searched; nothing was found;
  7. (g)
    10.00 am: police entered the house at the second story; Stewarts was on that floor inside the door;[14]
  8. (h)
    Stewarts was restrained at the bottom of the stairs;
  9. (i)
    Ma was found sitting at the table; he had two phones (an iPhone on the table and a Nokia in his pocket); in his pocket was about $160, and about $250 in his wallet;[15] there was $11.75 in his backpack;[16] a sum of cash was stacked on the table next to the iPhone,[17] and a return boarding pass from Cairns to Sydney;
  10. (j)
    also on the table was some partly eaten food,[18] and an ice-pipe and lighter;
  11. (k)
    Ma said he had smoked some ice using the pipe;[19]
  12. (l)
    a small clip seal bag of methylamphetamine was behind the TV;
  13. (m)
    a package of 394.1g of methylamphetamine (at 73.7 per cent purity) was on the fish tank; it contained 288.4g of methylamphetamine; and
  14. (n)
    upstairs was a small clip seal bag containing methylamphetamine, about 50 clip seal bags, MSM (a cutting agent) and a scraper.
  1. [14]
    As for the cash present where Ma was sitting, it was at least $2,900, assuming that the individual sums mentioned ($160 in his pocket, $250 in the wallet) are included in the $3,310 put to Detective Sergeant Milner in cross-examination.[20]  The evidence was that the pile of cash on the table consisted of currency in denominations of $100, $50, $20 and a single $10.[21]
  2. [15]
    Detective Sergeant Camp was cross-examined by Defence Counsel, who established that Stewarts and Martin were known to Det Sgt Camp through “professional dealings”.  But there was no suggestion that Goodier was known to police professionally.[22]  Dt Sgt Camp was not there because of a prospect of Stewarts or Goodier dealing in drugs, nor was the defence suggesting that.[23]
  3. [16]
    Defence Counsel established the criminal history of each of Stewarts and Martin.
  4. [17]
    Stewarts had been convicted twice in relation to amphetamine related offences, one in February 2016 and the other in April 2016.[24]  She admitted to appearing twice in the Magistrates Court for drug offences, including in April 2016 for possession of a dangerous drug and possession of utensils.
  5. [18]
    Martin agreed that he had been convicted of possession and selling dangerous drugs.[25]  He admitted being convicted of the following:[26]
  1. (a)
    January 2007: possession of an ice pipe; possession of tainted property;
  2. (b)
    February 2007: possession of an ice pipe;
  3. (c)
    April 2008: possession of an ice pipe;
  4. (d)
    May 2013: 2 counts of possession of dangerous drugs; (amphetamine); possessing things used in the commission of a crime and possession of utensils;
  5. (e)
    November 2013: possession of a dangerous drug (methylamphetamine);
  6. (f)
    December 2013: possession of tainted property;
  7. (g)
    January 2014: possession of relevant substances; possession of a dangerous drug (methylamphetamine);
  8. (h)
    February 2014: unlawful possession of a weapon (an extendable baton); possession of an ice pipe;
  9. (i)
    May 2014: possession of explosives (ammunition in a magazine); possession of an ice pipe;
  10. (j)
    Nov 2014: possession of a dangerous drug (methylamphetamine);
  11. (k)
    February 2017: unlawful use of a motor vehicle;
  12. (l)
    October 2017: 2 counts of stealing;
  13. (m)
    November 2017: 2 counts of unlawful use of a motor vehicle; assault or obstruct police; 4 counts of stealing; dangerous operation of a vehicle; 2 counts of wilful damage; and
  14. (n)
    January 2018: assault or obstruct police; possession of an ice pipe.
  1. [19]
    On any view the evidence established that Martin and Stewarts were involved with drugs, and with methylamphetamine.  In fact, Martin described himself as a drug addict,[27] and methylamphetamine was his drug of choice in so far as his history of offending shows.
  2. [20]
    However, in my view, the evidence does not show, nor permit the reasonable inference, that Martin was ever in the league of offenders who could afford to buy a package of methylamphetamine worth between $90,000 and $120,000.  His history of offending, established by the defence, was for possessions and use of pipes.  It did not even include an offence of supply.
  3. [21]
    Further, Stewarts’ history, also established by the defence, was minor to say the least, being limited to two appearances in the Magistrates Court.  On no rational view could that evidence support the conclusion that she was in a position to obtain methylamphetamine worth between $90,000 and $120,000.
  4. [22]
    And, given that Martin was an addict it cannot safely be inferred that he was in a position where some supplier of methylamphetamine would give him possession of a package of such size or value as was found in the room with Ma.
  5. [23]
    As for Stewarts’ mother, Goodier, the evidence is even thinner.  There is nothing in the evidence to link her to drugs at all.  She picked up Ma at some point on 1 April 2016.  But he left from the airport by taxi.  She and her car were searched on the day and nothing was found.  Police were not at the house thinking that she was likely to be involved in buying, selling or supplying any drugs.
  6. [24]
    Davis J postulates several “obvious and reasonable hypotheses”, namely:[28]
    1. Stewarts’ mother brought the drugs to the house.
    2. Ma did not bring the large parcel of drugs to the house but brought the small amount found behind the television and sold those drugs to Stewarts.  That would mean that the $3,000.00 cash was the proceeds of sale of that small amount of drugs.  That conduct would constitute an offence but not the offence of trafficking as charged and put to the jury.
    3. Ma was at the house to purchase (with the $3,000.00) a small amount of drugs.
    4. Ma’s attendance at the house was not to engage in any drug transaction at all but simply to collect money on behalf of some third person unknown.
    5. Ma’s attendance at the house was for the sole purpose of acquiring a small amount of drugs which he consumed using the ice pipe that was found.
  7. [25]
    In my respectful view, none of those scenarios are reasonably available on the evidence.  To put it differently, those inferences do not arise on the circumstances established by the evidence.
  8. [26]
    Scenario 1 is not credible, given that there is simply no evidence of Goodier’s involvement in drugs at any time.  True it is that she delivered Ma to the house but she left shortly after, and there is no suggestion that she was returning except, perhaps, to collect Stewarts’ children to take them to day-care.[29]  The suggestion that she would have had, let alone left, $90,000 to $120,000 worth of drugs is irrational.
  9. [27]
    Scenarios 2-5 all depend on Stewarts and/or Martin owning or having possession of a package of methylamphetamine worth between $90,000 and $120,000.  As mentioned above the evidence does not support that conclusion.  Indeed, any rational assessment of the evidence leads to the conclusion that that is an entirely improbable state of affairs.
  10. [28]
    The other methylamphetamine in the house consisted of very small quantities:
  1. (a)
    the one behind the TV was 1.514g of powder, yielding 1.14g of the drug;
  2. (b)
    the one in the kitchen was 0.045g of powder, which yielded 0.033g of the drug; and
  3. (c)
    the one in the wall hanging was 0.353g of substance, which yielded 0.253g of the drug.
  1. [29]
    When seen against the 391.4g package, those quantities are tiny, and consistent with the history of Martin and Stewarts.  More importantly, seen with the history of Martin and Stewarts and compared to the 394.1g package, the evidence is wholly inconsistent with the prospect that either Martin or Stewarts were the owners or possessors (for themselves or anyone else) of such an amount or value of methylamphetamine.
  2. [30]
    It is true to say that the Crown Prosecutor acknowledged the weakness of the evidence of both Martin and Stewarts.[30]  It is quite another to say that it was surprising that the Prosecutor called them,[31] or that their evidence was worthless[32] or that the Prosecutor disavowed reliance upon their evidence.[33]  Still less could it be suggested that the jury could not have accepted their denials that the package was theirs.  The jury were directed that they could accept parts of a witness’ evidence,[34] and that they could act on the evidence of Stewarts and Martin if, after carefully scrutinizing it, they concluded they could accept it as reliable.[35]
  3. [31]
    In address the Prosecutor emphasised the fact that the defence had exposed their criminal histories and submitted that in light of that the jury could conclude that the package was not that of either Martin or Stewarts.  That was for the very reason that they were never involved in anything so large or so valuable as this package.  Thus:[36]

“Now, they were hardly the greatest witnesses, ladies and gentlemen. I know that. Mr Eberhardt was at pains to point out their criminal histories. They both have convictions for drug offences. Both of them have convictions related to methylamphetamine. Lauren Stewarts has convictions relating to that very day and the drugs found upstairs.

Her explanation of these and the way they got there was, let’s say, unconvincing, but you can be satisfied that both of them live there either on the day in question or it seems fairly recently before, so they have links to drugs, they have convictions for drugs, and there are other amounts of methylamphetamine in the house. There was even some clip-seal bags and MSM, that cutting agent we heard about, upstairs. So, based on that, is it reasonable to hypothesise that one or both of them had put the pound of methylamphetamine on the fish tank because of their connections with drugs? No. Of course it’s not, because we’re not talking about a small amount.

We’re not talking about a medium amount. Detective Grace told us about methylamphetamine being sold in amounts as low as a point, 0.1 of a gram.

Ladies and gentlemen, we’re talking about an amount of methylamphetamine that around this time in Cairns would sell for between ninety and a hundred and twenty thousand dollars, so before you can say it’s reasonable that either Lauren or Daniel or both are the owners of it and put it there, you need to consider whether you think it is rational to suggest that they could have acquired such an amount of methylamphetamine, and if somehow you got to that point, is it rational to suggest they would leave it lying around downstairs? That package is a lottery ticket, ladies and gentlemen, worth between ninety and a hundred and twenty thousand dollars, and someone leaves it lying around, poorly hidden under a fish tank ornament, in a room which according to Lauren Stewarts family and friends would stay in? No. That is not rational, ladies and gentlemen. It is not logical and defies common sense.”

  1. [32]
    The jury also had Defence Counsel explaining to them that the Prosecutor had no choice but to call Stewarts and Martin.[37]  Given these matters why would the jury conclude that the prosecutor effectively abandoned, or that they could not accept, the real utility of their evidence, namely that they were never in the league of owning or possessing anything like 394 g of methylamphetamine.
  2. [33]
    There are difficulties with Scenarios 2-5 quite apart from the ownership/possession problems.
  3. [34]
    Scenario 2 postulates that Ma may have purchased the methylamphetamine behind the TV, with the result that the $3,000.00 cash was the proceeds of sale of that small amount of drugs.  There is nothing in the evidence that supports that as a reasonable or rational inference.  The drugs behind the TV consisted of 1.514g of powder, yielding 1.14g of the drug.  The evidence of sale prices was that an ounce (28.345g) sold for between $7,000 and $10,000.[38]  There was no evidence before the jury that the price would be different if smaller quantities were sold, e.g. a point, a half-ball or an eight-ball.  Assuming the $10,000 figure and the 1.514g, that amount of the drug would have only attracted a price of about $534.  The price in Sydney was $4,000 to $11,000,[39] which would result in a sale price of about $587.  Either way it is an unbridgeable gulf to $3,000.  Even if the price was trebled, it is still unbridgeable.
  4. [35]
    Scenario 3 postulates that Ma was at the house to buy a small amount of drugs.  Why would he fly to Cairns to buy a small amount of drugs when methylamphetamine was available in Sydney?  Further, the evidence showed frequent deposits of large sums into his bank accounts roughly matching his frequent flights to Cairns.[40]  The evidence of the flights and deposits were accurately summarised in address and in the summing up.  There were 31 return fights over 10 months.[41]  Over the same time there were 38 cash deposits into Ma’s various bank accounts totalling over $200,000.[42]
  5. [36]
    The deposits were all cash and $164,325 of them were made in Cairns on days when the evidence suggests Ma was not there.  None of them suggest they were the proceeds of the sale of something like 394g of methylamphetamine, but then there is no evidence of Ma’s selling such a quantity prior to 1 April 2016.
  6. [37]
    In my view, the evidence referred to in paragraphs [35] to [36] above tells strongly against the inference that Ma was a buyer on 1 April 2016.
  7. [38]
    In my respectful view, that evidence also puts scenario 4 to rest; at best that scenario engages in mere conjecture.
  8. [39]
    Scenario 5 is, in my respectful view, unsustainable on the evidence.  If Ma was at the house for the sole purpose of acquiring a small amount of drugs which he consumed using the ice pipe, why was there nearly $3,000 in cash out on the table?  There was never any credible suggestion that either Stewarts or Martin owned the cash.
  9. [40]
    All scenarios also falter when the evidence of where and how the package was found are examined.
  10. [41]
    It was 394.1g of methylamphetamine substance,[43] with a value of between $90,000-$120,000, and was not well hidden; on top of a fish tank under a piece of fake coral.
  11. [42]
    The search sequence was: Senior Constable McManus and Detective Senior Constable Odmark went upstairs to the front door, while Detective Sergeant Milner went to the rear of the house.[44]  McManus and Odmark entered via the front door.  McManus detained Stewarts at the bottom of the stairs.[45]  Then McManus and Odmark entered the room where Ma was sitting.[46]  He was detained and McManus searched his pants pockets.[47]  McManus checked down the hallway.[48]  Detective Sergeant Milner and other police arrived at the room, and Odmark left the room to speak to Stewarts.[49]  After that Odmark went back down to speak to Ma.[50]
  12. [43]
    McManus told Odmark where the package was, and that it contained a crystalline substance.[51]  Odmark went over to look at it.[52]  Milner moved it to the table.[53]  He peeled a bit of tape off to see inside,[54] then put it back where it had been found, with the plastic piece on top again.
  13. [44]
    DS Milner explained finding the package:[55]

“I found that when I was searching. I initially thought it was fish tank rocks because of the … the weight and the … texture of the items inside, and it was on top of the fish tank, and initially I thought it was fish tank rocks and I didn’t move it straightaway. On later inspection, afterwards, I had another look at it and seen that it was taped up and it had no dust or anything on it, and so I pulled a little bit of the masking tape back, and that’s when I saw that there was white crystals inside it, and that’s when I moved it onto the table to have a look at it … a bit closer there.”

  1. [45]
    The evidence therefore was that it was in plain sight, but initially missed because the package looked like rocks for the fish tank.
  2. [46]
    There was no evidence that Stewarts (or anyone else) knew of the police presence at the house before they knocked on the front door.[56]  At that time Stewarts was upstairs and near the front door.  It was never put to Stewarts that she knew of the police being there before that moment.  Martin was not there and there was no suggestion that he was expected to be.
  3. [47]
    That being the state of the evidence, one can test what inference could rationally be drawn about the hiding of the package.  That Stewarts hid it on the fish tank while Ma was in the room can be rejected; this was a large quantity of very valuable drugs.  Equally it can be rejected that it was hidden there before Ma arrived, when there would have been any number of other places in the house to use, and when there was a real possibility that Ma might be left alone in the room (as he was).  It is not rationally open that Stewarts hid it after realising that the police were arriving.  That leaves the obvious inference that Ma tried hastily to hide it when he realised the police were upstairs banging the door down.
  4. [48]
    For these reasons I would have dismissed the appeal.
  5. [49]
    DAVIS J:  The appellant was charged on indictment of one charge against s 5 of the Drugs Misuse Act 1986 (Qld):

“That between the 18th day of July 2014 and the 2nd day of April 2016 at Cairns or elsewhere in the State of Queensland, Paul Julting Ma carried on a business of unlawfully trafficking in the dangerous drug methylamphetamine.”

  1. [50]
    During the trial, the charge was amended limiting the period of the alleged trafficking to 27 May 2015 to 2 April 2016.[57]
  2. [51]
    The appellant was convicted and sentenced to 12 years’ imprisonment.  He appeals against the conviction.

The evidence

  1. [52]
    Daniel Martin and Lauren Stewarts were the occupiers of a house in Manunda in Cairns (the house).  There was some doubt as to the status of Martin as an occupier of the house on the day the police searched it, namely 1 April 2016.  Martin and Stewarts had lived in the house together with their two young children.[58]  Martin had struck up a relationship with a female neighbour and had not been at the house in the couple of days prior to the police search.[59]  Martin’s view of things was that by 1 April 2016 he had ended the relationship with Stewarts.[60]  She was of a different view and considered that the relationship was still intact even though Martin was physically absent.[61]  There was no doubt that the property of both Stewarts and Martin was at the house when the police searched it.[62]
  2. [53]
    On 1 April 2016, Cairns detectives were in possession of a warrant authorising the search of the house.[63]  The basis for the warrant was a suspicion that Martin had committed the offence of supplying dangerous drugs.[64]
  3. [54]
    Before the house was searched, it was placed under surveillance.  Detective Sergeant Camp, on the morning of 1 April 2016, positioned himself near the house although it seems that from where he was, he could not actually see people passing through the front door.  At 8.56 am he saw a vehicle being reversed out of the driveway and parked in the street in front of the house.[65]  Stewarts was driving the car.  After parking the car, Stewarts walked back towards the house and the inference is that she entered it.[66]  A few minutes later at about 9.00 am another vehicle arrived at the house.[67]  Two persons were in that car: Karyn Goodier (Ms Stewarts’s mother) and a male wearing a black cap, black shirt and black jeans.[68]  The Crown case was that the man who arrived with Goodier was the appellant.  Both alighted from the vehicle and walked towards the house.[69]  Goodier was holding food from McDonald’s.[70]  The male was carrying a black backpack.[71]  He disappeared from Camp’s view and presumably entered the house.  Goodier also apparently entered the house but later returned to the car and drove off.[72]  She was intercepted by other police but no drugs were located with her.[73]
  4. [55]
    At about 10.00 am Camp saw police approach the house[74] and other evidence proves that they entered and searched it.  Those police included Detective Senior Constable Odmark, Detective Senior Constable Milner and plain clothes Senior Constable McManus.
  5. [56]
    The house consists of two stories.  There is a set of external stairs at the front of the house leading to an upstairs entrance.  There is also a door at ground level leading into the lower level of the house.  An internal staircase connects upstairs and downstairs.[75]  There is also a back entrance at ground level.[76]
  6. [57]
    Odmark and McManus climbed the stairs and entered through the door on the upper level.[77]  Other police entered the house through the lower door with some police coming through the back entry to the house.[78]
  7. [58]
    The entry to the house by police was somewhat dramatic.  When Odmark knocked on the upstairs door he heard Stewarts’ voice and saw through the glass door Stewarts moving away from the door and further into the house.[79]  Odmark feared that Stewarts may destroy evidence.[80]  McManus followed Odmark’s directions and broke the door open.  Odmark and McManus then chased Stewarts through the house and downstairs.  At least by the time police were inside the house the only other people present were Stewarts, the appellant and the two infant children of Stewarts and Martin.[81]  The children were upstairs and remained upstairs when Stewarts and police went through the upper level of the house and downstairs.[82]
  8. [59]
    Downstairs is a room.  It was in this room that police located the appellant.[83]
  9. [60]
    Looking from the entrance to the room, the following scene greeted police:
  1. (i)
    Against the back wall was a timber table.
  2. (ii)
    There were three chairs at the table.  Two were positioned on the left side of the table facing across the table to the wall on the right side of the room.  One was positioned on the right side of the table facing across the table to the wall on the left side of the room.
  3. (iii)
    On the right side wall of the room and forward of the table was a cabinet on top of which was a television.
  4. (iv)
    In the left hand rear corner of the room was a corner shaped cabinet on top of which was a fish tank.  The fish tank was, at the time of the search, not holding water.
  5. (v)
    On top of the fish tank was a moulded plastic container in which was some artificial coral, which at some time was probably in the fish tank.
  6. (vi)
    On the left side of the timber table was a McDonald’s hamburger and a partially consumed drink.
  7. (vii)
    On the opposite (the right side) of the table sitting on the chair positioned at that side was the appellant.[84]
  8. (viii)
    The appellant made no attempted to flee.  Police saw that he was playing an electronic game on his mobile telephone.[85]  Another mobile telephone was either on the table or on the appellant.[86]
  9. (ix)
    The appellant was wearing a black shirt, long black jeans, a black cap and a pair of black sunglasses.[87]
  10. (x)
    On the table was cash in an amount of $2,888.25.[88]
  11. (xi)
    On the floor near the table was a black backpack.[89]
  12. (xii)
    On the table was an “ice pipe” obviously used for the smoking of some form of methylamphetamine.  The appellant admitted to police that he used the pipe to consume “ice”, a reference to methylamphetamine or methylamphetamine based-drugs.[90]
  1. [61]
    The police then searched the house and the appellant with the following results:
  1. (i)
    Under the plastic container containing the artificial coral was discovered a package.  In that package was another package, and in that package was powder which, upon analysis, was found to contain 391.4 grams of methylamphetamine at a purity of 73.77 per cent.[91]
  2. (ii)
    Behind the television in the room in which the appellant was located was discovered a bag containing powder which, upon analysis, was found to contain 1.514 grams of methylamphetamine at a purity of 75.3 per cent.[92]
  3. (iii)
    In a cupboard in the kitchen was a bag containing powder which, upon examination, contained 0.45 grams of methylamphetamine at a purity of 75.15 per cent.[93]
  4. (iv)
    Secreted in a wall hanging in the upstairs story of the house was a bag which, upon analysis, was found to contain 0.35 grams of methylamphetamine at a purity of 71.9 per cent.[94]
  5. (v)
    In a bedroom usually occupied by Stewarts and Martin was a quantity of a substance, methylsulfonylmethane, commonly called MSM.[95]  MSM is a cutting agent used to dilute the purity of methylamphetamine.
  6. (vi)
    Also in the same bedroom were a large number of clip seal bags typically used for holding illicit drugs.[96]
  7. (vii)
    In the black backpack was a boarding pass for a Jetstar flight from Sydney to Cairns, arriving at 8.10 am on 1 April 2016.  That boarding pass showed the passenger’s name as Simon Ng.[97]
  8. (viii)
    On the person of the appellant was located a boarding pass for a Jetstar flight from Cairns to Sydney departing Cairns at 6.25 pm on 1 April 2016.[98]  That boarding pass also showed the passenger’s name as Simon Ng.
  9. (ix)
    Also in the appellant’s possession were three debit cards.  These all bore the name of the appellant.  Two related to accounts held at the Bendigo Bank and one related to an account held at the St George Bank.[99]
  1. [62]
    Further investigation by police revealed the following:
  1. (i)
    Closed-circuit television footage taken by a camera situated at Cairns airport showed the appellant entering a taxi at 8.39 am on 1 April 2016.[100]
  2. (ii)
    Over the period of trafficking alleged in the indictment (as amended), Simon Ng (said to be an alias for the appellant) made 28 flights from Sydney to Cairns, including the flight on 1 April 2016.  On one occasion, the appellant flew under his own name.[101]  On all occasions apart from two, the passenger returned to Sydney on a flight the same day he flew to Cairns.  The two exceptions were 25 July 2015, when the passenger returned to Sydney on 26 July 2015, and 1 April 2016.  On 1 April 2016, the appellant held a boarding pass for a return flight that day, but did not fly as he was detained by police.  Most flights were with Jetstar, but others were with Qantas and Virgin.[102]
  3. (iii)
    Deposits of cash had been made to the accounts of the appellant at the Bendigo and St George Banks.  Over the period of the alleged trafficking, a total of $236,855 was deposited.  The largest single deposit was $9,400 on 7 March 2016 and the smallest was $50 on 5 March 2016.  On some days, multiple deposits were made.[103]  The largest total deposit on a single day was made on 7 March 2016, being $22,270.  The records of the Bendigo Bank showed that the deposits were made in Cairns.  The records of the St George Bank didn’t disclose the place of deposit.[104]
  4. (iv)
    An examination of the appellant’s mobile telephone revealed various text messages which are considered later.
  5. (v)
    The value of the large parcel of methylamphetamine found on the fish tank was between $90,000 and $120,000, depending on how it was to be sold.[105]
  1. [63]
    In 1995 or thereabouts, Sai Kit Calson (Calson) Chan met a man who the appellant, through his counsel, admitted was him.[106]  Mr Chan initially knew the appellant by the name of Paul.  Mr Chan’s sister worked as a travel agent.  The appellant asked Mr Chan to help him purchase airline tickets through Mr Chan’s sister.  The tickets were purchased by the appellant in the name of Simon Ng.[107]
  2. [64]
    The text messages were of limited use because there was no evidence identifying the persons with whom the appellant was communicating.
  3. [65]
    Specific text messages were relied upon by the Crown prosecutor in his address.  The first of these text messages was sent by the appellant on 29 October 2015.  It was in these terms:

“Hey can u put 6 with the dragons and 6 with the doggies tmr[108]

  1. [66]
    The next two messages were on 30 October 2015.  The details were as follows:
    1. A message sent by the appellant was “Karen, put 6 on the dragons and 6 on the doggies for me please.”
    2. The recipient of that message is “Karen 0413207771”.
  2. [67]
    The prosecutor suggested that the reference to “dragon” was a reference to the St George Bank, as that bank’s emblem is a dragon.  He then pointed to deposits made on 2 November 2015 of approximately $6,000 made to each of the St George Bank account and a Bendigo Bank account.  The inference to be drawn then is that the reference to “6” is a reference to $6,000, the “dragons” refers to the St George Bank and the “doggies” refers to the Bendigo Bank.
  3. [68]
    The prosecutor then submitted:

“The recipient of that message … is Karen.  You will recall, ladies and gentlemen, that Lauren [Stewarts] told us her mother dropped the defendant at her house on the morning of the 1st of April and her mother’s name, she said, was Karyn [Goodier].”[109]

  1. [69]
    There are other text messages that refer clearly enough to the appellant travelling.
  2. [70]
    It is clearly not open to infer that the “Karen” referred to in the text messages is Ms Goodier.  The text message was sent five months before the events the subject of the alleged offence.  “Karen” is hardly a unique or even uncommon name.  In fact Ms Goodier spells her name “Karyn”.
  3. [71]
    The text messages go some way to linking the flights, and therefore the appellant’s movements, to the deposits of money, but that’s all.
  4. [72]
    At the trial, there were admissions made by the Crown pursuant to s 644(2) of the Code.  The defence consented to those admissions and they became proof of the facts admitted.  They were:

Fingerprints:

Both the packages containing methylamphetamine found in the downstairs room of [the house] on 1 April 2016 were tested for fingerprints on that day.  These packages were the larger package found on the fish tank and the clip-seal bag found behind the TV.  The testing on this occasion was on the outside surfaces of each package.  Neither package tested positive for fingerprints on this occasion.

The larger package was tested a second time on 3 April 2016.  On this occasion the plastic interior package and the underside of the exterior package were tested.  Neither area tested positive for fingerprints on this occasion.

DNA:

Testing for DNA was done on the outside of both of the packages located in the downstairs room at [the house].  This involved taking samples and later analysing them.  The analysis revealed that due to the complex nature of the DNA profiles obtained, including uncertainty regarding the number of contributors, the DNA profiles were not suitable for meaningful interpretation or comparison.

On 3 April 2016 a second sample was obtained from larger package.  This sample was taken from the plastic interior package.  At the direction of the Queensland Police Service this sample was not analysed.

The glass pipe found on the table in the downstairs room at [the house] was tested for DNA.  This returned a mixed DNA profile indicating the presence of DNA from three contributors.  The results of the statistical analysis were that it is estimated to be greater than 100 billion times more likely that Paul MA contributed DNA to the sample than if he had not.  Further it is estimated that it is approximately 130 thousand times more likely to have occurred if Lauren [STEWARTS] contributed DNA to the sample than if she had not.”[110]

  1. [73]
    Admissions were also made as to the weight and chemical constitution of the various substances found during the search.[111]  I have already referred to this evidence.[112]
  2. [74]
    The police search seems, with respect, to have been somewhat disorganised.  Obviously, some items were not photographed in situ but were moved and then photographed.[113]  Although Milner was the designated exhibit officer, his notes left much to be desired and it is not possible to identify with precision which officer actually located some of the relevant items.[114]
  3. [75]
    Of critical importance is the package of methylamphetamine apparently located on the fish tank.  In his examination-in-chief, Milner was taken to exhibit 4.5, which is a photograph showing the table and the fish tank, and asked the following:

“Okay. Did any other officer point that out to you or did you find that when you were searching?---That was – I found that when I was searching. I initially thought it was fish tank rocks because of the – well, the weight and the – and the texture of the items inside, and it was on top of the fish tank, and initially I thought it was fish tank rocks and I didn’t move it straightaway. On later inspection, afterwards, I had another look at it and seen that it was taped up and it had no dust or anything on it, and so I pulled a little bit of the masking tape back, and that’s when I saw that there was white crystals inside it, and that’s when I moved it onto the table to have a look at it – to have a look at it a bit closer there. I’ve never seen that much methylamphetamine in my career so that’s - - -”[115]

  1. [76]
    Photograph 4.5 shows the table with various things on it, including the half eaten McDonald’s burger and, behind the McDonald’s burger and closest to the back wall, what appears to be a plastic bag with a white substance in it.
  2. [77]
    In evidence in chief, Milner went on as follows:

“And just next to the table on one of the chairs, there’s an item. Do you know what the item is?---That was on top of the fish tank and on top of the package with the masking tape on it.

Yes, thank you. You can take that photo of. The photograph is 3.7.

Is that the fish tank you’re referring to?---Yes.

And that was in the corner of the room?---Yes.

And is that the item, the - - - ?---Yeah, the coral - - -

- - - coral?--- - - - n the plastic tub.

Okay. Was that how that appeared when you first entered the room?---Yes.”[116]

  1. [78]
    Exhibit 3.7 shows the plastic tray-like container on top of the fish tank with the coral inside the tray.  The evidence is that the package containing the large amount of methylamphetamine was under the tray.[117]
  2. [79]
    Still in examination-in-chief, Milner said:

“Okay. I’ll show you this photograph, which is 3.8. What does that photograph show?---That’s where the package was located.

And that’s that package we were talking about before that?---Yeah. And the coral was on top of it. So that’s the rear part of the fish tank. It’s like – there’s like a little cut-out at the back there. I’m not sure what the cut-out is but that’s where it was.

Okay. Just in terms of that fish tank, obviously it’s in the corner of the room. Was there any space between it and either of the walls?---I can’t recall.

Okay. So in that photograph, obviously the plastic container with the coral has been removed. But is that where you first saw that package?---Yes.”[118]

  1. [80]
    Exhibit 3.8 shows that in the top part of the fish tank is a recessed area.  The recessed area is clearly part of the original design and manufacture of the fish tank.  The package was apparently situated in that recessed area with the tray containing the coral then on top of the package.
  2. [81]
    What is obvious, is that the package was not in the plain unobstructed view of a person in the room.  Indeed, it seems that Milner almost overlooked the package notwithstanding that he was searching for drugs.[119]
  3. [82]
    The package itself is shown clearly in the photograph which is exhibit 10.  The package consists of a plastic bag covered in a white adhesive tape.  With the tape in situ, the contents are not visible.  That being said, the package certainly looks suspicious.  Surprisingly, police did not arrange for either the plastic tray or the coral to be the subject of fingerprint examination.[120]
  4. [83]
    The Crown called Martin and Stewarts to give evidence.  The point of calling them was apparently so they could disclaim knowledge of the large parcel of methylamphetamine therefore enabling the jury to draw the inference that the appellant brought the drugs to the house.
  5. [84]
    A prosecutor must only call witnesses who they believe to be credible.[121]  Martin and Stewarts had previously been convicted of drug offences.  Apart from the large parcel of methylamphetamine, other drugs were located in various places in both levels of the house.  Police suspected Martin of supplying dangerous drugs: a search warrant was issued based on that suspicion.  Police saw Stewarts’ mother, Goodier, bring the appellant to the house.  The Crown’s case theory was that the appellant was at the house to sell drugs.  As Goodier had left the house, been intercepted, searched and found to have not been in possession of drugs, the likely customers of the appellant (on the Crown case) were Martin and Stewarts.  Alternatively, Goodier’s involvement made it likely that at least Stewarts was complicit in any illegal activity.  Against that background, it is somewhat surprising that the Crown was prepared to call Martin and Stewarts to swear that they knew nothing of the drugs and invite the jury to act on that evidence.
  6. [85]
    As it turned out, perhaps unsurprisingly, the evidence of Martin and Stewarts was worthless and the Crown effectively abandoned reliance upon it.[122]
  7. [86]
    Martin was called first.  In evidence-in-chief, he stated that by 1 April 2016 he had ceased living at the house but couldn’t say when he stopped living there.[123]  He confirmed that Stewarts was the occupier of the house as at that day.  He couldn’t recall the last time he’d been at the house but was aware of the search by police.[124]  The only evidence of any real relevance was:

“Did you own or have possession of any methylamphetamine in that room downstairs on the 1st April 2016?---No.

Did you have any knowledge of drugs in that room downstairs, and that’s methylamphetamine specifically?---No.”[125]

  1. [87]
    The beginning of Martin’s cross-examination was hardly promising.  This exchange occurred:

“MR EBERHARDT: You’re a criminal?---Yeah.

A thief?---No.

You are a thief, aren’t you? You’ve been convicted on many occasions for stealing?---No.

You haven’t?---All right. Yeah, I’m a thief.

Are you’re a liar; yes?---No.

Well, that last answer, when you denied being a thief, was a lie, wasn’t it?---No. You just got me off guard.

What, you just forgot all your convictions for stealing, did you?---Yeah, did.”[126]

  1. [88]
    His evidence did not improve:

“Yeah. Because you have been convicted on a number of occasions of possessing cash in the context of being found in possession of drugs, haven’t you?---Yep.

Yeah. That’s because you were selling drugs, weren’t you?---Probably was.

Not probably; you were selling drugs, weren’t you?---I might have been.

Is that the best we’re going to get or are we going to tussle all day?---We could. I don’t know, mate. It’s up to you.”[127]

  1. [89]
    That exchange highlights the difficult position in which the prosecutor had placed himself.  The police investigation which led to the search was an investigation into Martin.  As already observed, the search warrant which authorised the search was based on a suspicion that Martin was supplying dangerous drugs.  Martin had been warned by the learned trial judge and advised of his right to claim privilege against self-incrimination[128] and chose not to.  The prosecutor, though, obviously knew that police must have been in possession of evidence that Martin had been selling drugs.
  2. [90]
    During his cross-examination Martin said:
  1. (i)
    he did at some stage have MSM at the house;[129]
  1. (ii)
    he couldn’t say why he had MSM at the house;[130] but later
  2. (iii)
    said that MSM was used for cutting drugs;[131] but
  3. (iv)
    he didn’t sell drugs;[132]
  4. (v)
    he had no knowledge of the MSM that was in the house when the police searched on 1 April 2016;[133] and
  5. (vi)
    he had no knowledge of any other drugs found by police on 1 April 2016.[134]
  1. [91]
    Stewarts was then called.  The jury must have been waiting for her to explain the presence of the appellant in her house.  That explanation never came.  In evidence-in-chief, she told of Martin’s affair with the neighbour and told how the police had smashed the front glass doors.[135]  Then this exchange occurred:

“Okay. Was anyone else at the house at that time?---Yes.

Who?---There was a man downstairs in one of the spare rooms. There’s like a lounge room and there’s two spare rooms.

Okay?---It’s like a full living area downstairs.

Was anyone else at the house?---Yes.

Who were they?---Just the two children were upstairs. They were asleep quite early and then there was, yeah, a bloke downstairs.

When had he arrived, the man downstairs?---It was only like about 15 to 20 minutes before police came.

Okay. Did you know that person?---No. I’d only just, like, in – yeah. I don’t recall meeting him before, like.

I should just - - - ?---I think that was the first time I’d met him.

So you met him on that day?---Yep.

Is that what you’re saying?---Yep.

And when you said you didn’t think you’d met him before, do you mean on an earlier day?---I don’t recall meeting him before, no.”[136]

And little later:

“If I can just take you back you said this man had arrived. Was he with anyone else when he arrived?---My mum and there - - -

Who’s that?---And my mum bought McDonald’s as well.

What’s your mum’s name?---Karyn [Goodier].”[137]

In cross-examination, she was asked:

“So tell me this. What did you know about what was going on downstairs between your mother and Mr Ma?---I don’t know. All I know – they said - - -

Didn’t know anything?---He wanted to stay somewhere for at least a day or two until his next – till he’s going back home. He didn’t know anyone in Cairns. I’ve also rented that room out quite a number of times – both of the spare rooms downstairs because it’s got a full kitchen, living room, bathroom downstairs. It’s a self-contained place.

Right. And it was your mum who brought him over?---Yes.

And you didn’t discuss it with your mum, did you?---Discuss what?

Didn’t discuss with your mum the fact that the police had been there and taken him away?---I don’t know if I did discuss it or didn’t discuss it with my mum.

Okay. You have never before mentioned, have you, to the police that there was some plan communicated with you from your mother for him to stay there for a couple of days?---Sorry?

You’ve never mentioned that there was some plan for him to stay at your house for a couple of days?---I don’t know.

Who told you that he was planning to stay for a couple of days?---I don’t know. I was just assuming that.

See, I suggest you just made that up right then and there?---No, I didn’t.

And the reason I’d suggest you made that up right and there is that - - -?---Why?

Is that Mr Ma had in his possession a return flight for that evening?---How do I know that?

It’s unlikely though, isn’t it, that he would’ve told you or anyone would’ve told you he was staying for a couple of days if he was booked on a return flight?---He was there for 15 minutes.

All right. And you don’t know why he was there?---No.”[138]

  1. [92]
    Stewarts contradicted Martin when she said the MSM powder which was found at the house was his not hers.[139]  As MSM powder is a cutting agent, that evidence supported the notion that Martin was a supplier of methylamphetamine.  She denied knowledge of the amphetamine found in the wall hanging.[140]  She gave a rather bizarre account that she had received the wall hanging from the belongings of her late father and hadn’t noticed that there was a rock of methylamphetamine in it.[141]  In February 2016, she had been found with methylamphetamine, which she had explained away as accidently coming into her possession from her father’s belongings.[142]  Apparently being charged and convicted as a result of taking possession of her father’s belongings gave her no cause to search the wall hanging.  She denied knowledge of the methylamphetamine found behind the television downstairs and denied any knowledge of the large package of methylamphetamine located on the fish tank.[143]  She denied knowledge of the clip seal bags.[144]  Stewarts was cross-examined about statements she’d made to police during the search.[145]  Many of the statements were inconsistent with her sworn evidence.

The trial

  1. [93]
    When the Crown case was closed, the appellant elected to neither give nor call evidence.  His Honour then heard submissions in relation to appropriate directions to be given to the jury.  Mr Eberhardt then made submissions[146] that the Crown had no evidence to support trafficking in the earlier period of the trafficking period charged.  His Honour accepted that submission,[147] which then lead to the amendment of the indictment.[148]
  2. [94]
    In the course of submissions before addresses, the learned trial judge raised the question of whether the Crown had to prove a connection between the appellant and the large parcel of methylamphetamine found on the fish tank, as an indispensable link to the jury drawing the inference of guilt of trafficking.[149]  The Crown prosecutor conceded that a Shepherd[150] direction was necessary.[151]
  3. [95]
    That concession was, with respect, obviously correct.  While the presence of the cash on the table, and the deposits of cash in the bank accounts together with the evidence of the appellant travelling apparently under a false name, was all evidence which raised heavy suspicion, the Crown had to prove beyond reasonable doubt that the suspicious behaviour had a connection with dangerous drugs.  Only in that way could the Crown have the jury draw the inference that the appellant was conducting a business of trafficking in dangerous drugs.  Two separate bags of drugs were found in the downstairs room of the house; the large package on the fish tank, and the smaller package behind the television.  Connection of the appellant with the smaller package was hardly going to prove trafficking.  The Crown case was that the appellant brought the large package from Sydney and was selling the drugs in Cairns.  To prove that, the Crown clearly had to tie the appellant to the large parcel of drugs.
  4. [96]
    Two intermediate facts were identified.  Proof of either, but not both, was necessary before the Crown could secure a conviction.  The intermediate facts were:
  1. (i)
    The appellant was in actual possession of the large parcel of drugs when the police searched on 1 April 2016; and
  2. (ii)
    The appellant had brought the large parcel of drugs to the house on 1 April 2016.
  1. [97]
    There was no submission made to the learned trial judge that the evidence was not capable in law of supporting proof of the intermediate fact.  In other words, it seemed to be understood that one inference open on the evidence was that the appellant was in actual possession of the package when police arrived, and another inference which was open was that he had brought the package to the home that morning.  Therefore, the case had to be left to the jury.[152]  Of course different considerations arise on appeal.
  2. [98]
    In the summing-up, his Honour gave detailed and careful directions about the essential intermediate facts.  His Honour directed the jury:

“The burden of proof. The burden rests on the prosecution to prove the guilt of the defendant. There is no burden on a defendant, the charged citizen, to establish any fact, let alone his or her innocence. The defendant is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence charged.

By what standard? The standard of proof? For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict, you must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. I will return to those elements. I discussed them with you at the start of the trial.

The prosecution must also satisfy you beyond reasonable doubt of any other matter which I tell you you must be satisfied about in order to find the defendant guilty. This will be a topic I discuss a little later. There are some facts in this case which are really quite critical, and they are, as I think has been described, rather more like links in a chain than strands in a rope. I will come to those concepts with you shortly. Ultimately, they are quite easy to explain and you will grasp them readily, I suspect. But more on that later. The point is that you must be satisfied beyond a reasonable doubt of the elements of the offence, and you must also be satisfied beyond reasonable doubt of any additional intermediate fact I tell you you have to be satisfied beyond reasonable doubt of.

Cutting to the chase on that topic, an intermediate fact in the circumstantial case that you would have to be satisfied of beyond a reasonable doubt in order to convict would be that as at the time of the search on the 1st of April at [the house], the accused was either in actual possession of the package at that point in time or that he had earlier brought it to the house that morning. If he was not so criminally involved with the package, Members of the Jury, the whole case fails. As even the Crown acknowledges, the case is anchored on you being satisfied of that circumstantial inference.

Now, that alone is not enough to prove trafficking. The accused is not in fact charged with possession of the drugs that day or the supply of the drugs that day. The charge is carrying on the business of unlawfully trafficking dangerous drugs, so whether or not you are satisfied beyond reasonable doubt that he was in possession of the drugs or had brought them to the house that day is not enough to prove the charge. It might be if the charge was possession or supply on that day. That is not what we’re dealing with, but it is an indispensable part of the case that it be proved, because without that being proved beyond a reasonable doubt, the other categories of evidence that have been referred to, the text messages, the evidence of the flights and the evidence of the deposits falls away as meaning nothing. Whether or not it is capable of bearing the meaning the prosecution contend for is another argument and we will deal with those issues shortly, but you do not even get to that if the prosecution have not satisfied you beyond a reasonable doubt that Mr Ma was either at the time of the search at [the house] in actual possession of the package, and by that, I mean the package of methylamphetamine wrapped in masking tape, or had earlier brought it to the house that morning.[153] (emphasis added)

  1. [99]
    Later, his Honour gave a standard direction about circumstantial evidence in these terms:

“Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly, typically, when the witness testifies about something which that witness personally saw or heard. To bring in a verdict of guilty in a case like this cbsed entirely upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.

To further explain that, let me emphasise a number of points. The circumstantial evidence must be sufficient to logically and rationally sustain the guilty inference. That is essential, but that alone is not enough. The circumstantial evidence must also exclude any inference or hypothesis consistent with innocence. That is because guilt should not only be a rational inference but it should be the only rational inference that can be drawn from the circumstances proved. If it is not, then you could not be satisfied beyond reasonable doubt. If there is an inference reasonably open which is adverse to the defendant, that is, if it points to the defendant’s guilt, and if there is an inference, or one or more inferences, in his favour, that is, which are consistent with innocence, you may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in your minds.”[154]

  1. [100]
    His Honour then identified four categories of evidence which the Crown relied upon in proof of its circumstantial case, namely:
  1. (i)
    the events of 1 April 2016;
  1. (ii)
    the text messages;
  2. (iii)
    the flights between Sydney and Cairns; and
  3. (iv)
    the deposits of money into the appellant’s bank accounts.[155]
  1. [101]
    After referring to various aspects of the events of 1 April 2016, his Honour directed the jury as follows:

“There was some more evidence about the events of the 1st of April 2016, but the core feature that the prosecution relies upon is that the accused had flown to Cairns, that he was in the same room as where a large amount of cash was on the table, and hidden up above, albeit on the other side of the room from him, was the large package of methylamphetamine. And the Crown invites the inference that either he was at the time of the search in actual possession of that package or that he had brought it to the house that morning. If you’re not satisfied beyond a reasonable doubt of that, then the case is over. If you are, then if he was charged with possession or supply, then maybe you would find him guilty, but that is not your task. We are not worried about that, but it is a critical part of the case.[156] (emphasis added)

  1. [102]
    Later, his Honour returned to the topic of the significance of the finding of the large parcel of methylamphetamine on the fish tank.  His Honour said this:

“As to the first category, I want to make a much more important point still, and it is really emphasising something I have already said. It is so fundamental to the prosecution case that you are persuaded beyond a reasonable doubt that on the 1st of April when the search went down, the accused was either in actual possession of the package or had brought it to the house that morning, that if you are not satisfied of that fact, the case must fail.

That intermediate fact is so important, critical to the case. Why? Look, there is no secret about that. There is no complaint made by the prosecution about this. It accepts this is the way that their case has to work. It is, as the learned Crown prosecutor described it, an anchor. If you do not have that, you do not have any connection with the drugs at all, members of the jury, none whatsoever. Now, if you have got it, whether that means he was carrying on the business of unlawfully trafficking in a dangerous drug by regard to the text messages, the deposits and the plane trips is another matter, but if you do not have it, you do not even need to consider the other categories. The case would be over.[157] (Emphasis added)

  1. [103]
    The summing-up had commenced on Friday, 20 April 2018 but was not concluded.  His Honour continued the summing-up on Monday, 23 April 2018.  When the case resumed, his Honour returned to the topic of the methylamphetamine found on the fish tank and directed the jury as follows:

“I now remind you of the direction I did give you on Friday. It relates to the category 1 evidence.[158] It is essential that the circumstantial evidence of that day satisfies you beyond a reasonable doubt that at the time of the search on the 1st of April 2016 the accused was either in actual possession of the large package of methylamphetamine allegedly found on the fish tank, or had brought it to the house that morning. If you are not so satisfied then your verdict must be not guilty. That is because the 1st of April 2016 is the only occasion on which the accused is linked at all to drugs. On that point I remind you that the text messages do not specifically allude to drugs, and even the learned Crown prosecutor only took you to messages which he suggests appear to relate to deposits of money.

So if the accused had not been in actual possession of the large package of methylamphetamine at the time of the search, or had not brought it to the house that morning, then the rest of the case is meaningless. If that fact cannot be proved beyond reasonable doubt, then the whole case must fail. The fact alleged by the prosecution that he was in actual possession of the package at the time of the search, or had brought it to the house that morning, is itself an inference the prosecution asks you to draw from the whole of the circumstantial evidence in this case. It follows that the evidence must, to your satisfaction, not only be capable of sustaining the inference that the accused possessed or had brought the package to the house, but also excluding any reasonable inference to the contrary and doing so beyond a reasonable doubt.

As to competing inferences consistent with innocence, there is evidence a range of persons had ready access to the room in question. Defence counsel has highlighted [Karyn Goodier], Lauren [Stewarts] and Daniel Martin as persons who may have possessed or brought the package to the house. The hypothesis that it was one or more of those three, finds further potential support in the evidence of methylamphetamine, clipseal bags and MSM found upstairs, and in [Stewarts’s] rush to get away downstairs when the police arrived. Further to that list, I remind you, renovations were occurring, so workers unnamed in this case might also have had access to the room.

An inference consistent with innocence is that the accused was merely present and had no knowledge of or connection with the package. An inference consistent with innocence, taken a little further by submissions by defence counsel, is that the accused may simply have been present as a user to smoke some methylamphetamine supplied to him by someone, such as [Goodier], or her daughter Lauren [Stewarts], and/or to buy some relatively small amount of methylamphetamine. That is, he may simply have been present as a user and/or buyer of some methylamphetamine. In this context you would bear in mind the apparently mixed DNA found of the accused and [Stewarts’s] on the glass pipe. You would also bear in mind the McDonald’s food and drink on the table suggesting the likely recent presence of another person in the room other than the accused.”[159] (emphasis added)

  1. [104]
    His Honour warned the jury that caution was required when considering the evidence of Martin and Stewarts.  His Honour pointed to their potential criminal liability for the drugs and the danger of them fashioning their evidence to ingratiate themselves to police.  In the course of giving the warning, his Honour said:

“You have heard submissions made one way or the other about their truthfulness and reliability. It is fair to say, I think, dealing with this quite briefly, really, that the prosecution acknowledge that there are aspects of their evidence which, of course, give rise to a need for you to take great care in considering the reliability of their evidence. Certainly though, the point has been made not only that they are potentially criminally involved in some way in what was occurring at the premises, vis a vis drugs that morning. They remain, as you know, vulnerable to charging in relation to possession of drugs in that house. Additionally, you have the performance of each of them in the witness box and there were instances in respect of each of them, you might think – this is a comment but you might think it is a pretty straightforward one – where it seems that they were not being entirely candid with the court.

Now, the mere fact that they told some lies, as you may infer, does not necessarily mean that all of their evidence was a lie, of course, but again, you would bear in mind that fact of the way in which they performed in the witness box, the way in which some of their evidence is clearly contrary to evidence given by others in the case who you might accept. It’s a matter for you. So you bear in mind those features of their evidence along with the criminal history background, along with the prospect that they may be involved as accomplices or themselves as principal offenders, along with the fact that they remain vulnerable to charging and therefore there is something in it for them, as it were, to cooperate with this process, to keep in good with the authorities, as a lay person might put it.”[160]

  1. [105]
    When his Honour was dealing with the various categories of circumstantial evidence, the denial by Martin and Stewarts of knowledge of the large parcel of drugs was not referred to.  His Honour concentrated on the evidence of what was found and seen by police.  When recounting the Crown prosecutor’s submissions, his Honour said:

“He acknowledged that [Stewarts] and Martin are not good witnesses.”[161]

  1. [106]
    Nowhere in the Crown prosecutor’s address to the jury did he seek to rely upon the sworn evidence of Martin and Stewarts.  In fact, he said this:

“But I want to touch briefly on another matter that arises from the search and the items found. Ladies and gentlemen, we all saw Lauren [Stewarts] and Daniel Martin given their evidence yesterday. Neither of them really covered themselves in glory, I think it would be fair to say. But in my submission, their evidence is not determinative. Indeed, your opinion of them – and I – I’ll freely admit – their credibility and reliability is not determinative. Because it’s not a question, ladies and gentlemen, of whether you’re satisfied that they are guilty of something in relation to those items downstairs. It’s not a question of whether – sorry, I rephrase that – it – the question is about the defendant’s guilt of the charge. That’s what you’re considering. Their involvement or otherwise is – in my submission to you – largely irrelevant.”[162]

  1. [107]
    Of course, the involvement of Martin and Stewarts is far from “irrelevant”.  The Crown prosecutor later contradicted himself by accepting that there was a real issue in the case as to whether the drugs were under the control of Martin and Stewarts and then tried to explain to the jury that it was more likely that the drugs were under the control of the appellant.  The Crown prosecutor said this to the jury:

“Whose drugs are they? The obvious answer to that question is either Lauren Stewarts’ and/or Daniel Martin’s. Now, they were hardly the greatest witnesses, ladies and gentlemen. I know that. Mr Eberhardt was at pains to point out their criminal histories. They both have convictions for drug offences. Both of them have convictions related to methylamphetamine. Lauren Stewarts has convictions relating to that very day and the drugs found upstairs.

Her explanation of these and the way they got there was, let’s say, unconvincing, but you can be satisfied that both of them live[d] there either on the day in question or it seems fairly recently before, so they have links to drugs, they have convictions for drugs, and there are other amounts of methylamphetamine in the house. There was even some clip-seal bags and MSM, that cutting agent we heard about, upstairs. So, based on that, is it reasonable to hypothesise that one or both of them had put the pound of methylamphetamine on the fish tank because of their connections with drugs? No. Of course it’s not, because we’re not talking about a small amount. We’re not talking about a medium amount. Detective Grace told us about methylamphetamine being sold in amounts as low as a point, 0.1 of a gram.

Ladies and gentlemen, we’re talking about an amount of methylamphetamine that around this time in Cairns would sell for between ninety and a hundred and twenty thousand dollars, so before you can say it’s reasonable that either Lauren or Daniel or both are the owners of it and put it there, you need to consider whether you think it is rational to suggest that they could have acquired such an amount of methylamphetamine, and if somehow you got to that point, is it rational to suggest they would leave it lying around downstairs? That package is a lottery ticket, ladies and gentlemen, worth between ninety and a hundred and twenty thousand dollars, and someone leaves it lying around, poorly hidden under a fish tank ornament, in a room which according to Lauren Stewarts family and friends would stay in? No. That is not rational, ladies and gentlemen. It is not logical and defies common sense.”[163]

The ground of appeal

  1. [108]
    There is only one ground of appeal.  It is;

“The conviction of the appellant on the charge of trafficking methylamphetamine is unsafe in that no reasonable jury, properly instructed, could have excluded beyond reasonable doubt all reasonable hypotheses consistent with the appellant’s innocence.”

  1. [109]
    Section 668E(1) of the Code provides, relevantly, as follows:

668E Determination of appeal in ordinary cases

  1. (1)
    The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal…”
  1. [110]
    The notice of appeal raises the ground defined in s 668E as “the verdict is unreasonable”.  The role of the Court of Appeal when considering that ground of appeal has been considered in various decisions of the High Court of Australia.[164]  In R v Clapham,[165] Fraser JA summarised the relevant principles as follows:

[4] The principles to be applied in determining whether a verdict of a jury is unreasonable, or cannot be supported having regard to the evidence, are collected in SKA v The Queen.[166] The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if “it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.[167] The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted. In considering this ground of appeal the “starting point … is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses”, but:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”[168]

[5] In R v Baden-Clay,[169] the High Court emphasised that the jury is “the constitutional tribunal for deciding issues of fact”[170] and observed that, “the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”, “a court of criminal appeal is not to substitute trial by an appeal court for trial by jury”, and “the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.”[171]

The parties’ submissions

  1. [111]
    The ground of appeal asserts that the verdict is unreasonable because the jury could not have excluded all reasonable hypotheses consistent with innocence beyond reasonable doubt.  However, the real issue is somewhat more focused.  Both parties accepted on appeal (rightly) that the learned trial judge had correctly identified the two alternative intermediate facts, proof of either of which was necessary to sustain a conviction.  The jury could not convict unless satisfied beyond reasonable doubt that the appellant was either in possession of the large parcel of methylamphetamine or, at least, had brought the parcel to the house.  The real issue on appeal was whether it was open to the jury to be satisfied beyond reasonable doubt of either intermediate fact.
  2. [112]
    Mr Glynn QC’s submission was that there was nothing that linked the appellant to the large parcel of methylamphetamine and nothing to exclude the hypothesis that the drugs were owned by Martin and/or Stewarts or someone else.  During argument on the appeal, it was put by the Court to Mr Glynn QC, counsel for the appellant, that there were many alternate hypotheses consistent with innoncence other than that the drugs were owned by Martin and/or Stewarts.  Mr Glynn QC, naturally, perhaps, accepted that to be so.
  3. [113]
    The Crown’s theory was expressed in written submissions as follows:

“…[the] jury were entitled to conclude that the only rational inference is that the appellant had travelled from Sydney that morning with the large package of methylamphetamine and was in the process of negotiating the sale of some of it when police arrived or was being paid for courier services rendered.

The jury were entitled to infer that he [the appellant] heard the police enter the house and upon doing so he quickly tried to hide that package and sat down on a chair further away from the package just as police reached the room. This was not where he had been originally sitting, giving rise to a partially eaten McDonald’s meal at a place at the table other than where he was sitting.

Further, that he had successfully wiped the package of fingerprints, leaving the discordant evidence of multiple DNA contributors.”

  1. [114]
    In oral submissions, Mr Cummings of counsel, who appeared for the Crown, submitted that it was unlikely that the large package of drugs was Stewarts’, because she was upstairs when the police arrived.  That meant that if she knew of the presence of the drugs and they were hers, she had left the appellant alone with them downstairs.  Mr Cummings submitted that it was unlikely that she would trust the appellant in that way.
  2. [115]
    Mr Cummings submitted that it was likely that the appellant was eating the McDonald’s meal while seated at that side of the table where the McDonald’s food was later found.  He then hid the drugs and distanced himself from them and moved to the other side of the table.
  3. [116]
    Mr Cummings submitted that Martin and Stewarts were unlikely to have the financial means to own or control such a large quantity of methylamphetamine as was found on top of the fish tank.  Those drugs were valuable.  Stewarts and Martin appeared to be low level drug dealers.  Mr Cummings relied upon the evidence of the bank deposits and flights and submitted that the evidence was consistent with the appellant being a seller of drugs.

Discussion

  1. [117]
    It is easy to draw an inference that the appellant was involved in some nefarious activity.  It is also clearly open to find that the appellant’s activities were probably drug related.  However, the Crown charged him with trafficking in dangerous drugs and the Crown case was, in effect, that he was trafficking in the large parcel of methylamphetamine found on top of the fish tank.
  2. [118]
    Stewarts and Martin were obviously involved with dangerous drugs.  The finding that either or both of them were selling dangerous drugs is inevitable.  Apart from the drugs downstairs, drugs were found throughout the house.  Clip-seal bags were found, as well as a quantity of the substance MSM, often used in diluting drugs (a cutting agent).  The purity of the drugs found upstairs was similar to the purity of the methylamphetamine in the large parcel of drugs found on the fish tank.  The clear inference is that Stewarts and Martin were acquiring drugs at a purity of about 70 per cent, then cutting and selling the drugs.
  3. [119]
    At least hypothetically, the evidence of Stewarts and Martin that they knew nothing of the large parcel of drugs is important evidence.  That evidence, if accepted, very much narrows the possibilities of who owned or controlled the drugs.  The jury saw Stewarts and Martin give evidence and therefore, enjoyed an advantage over this Court in assessing their evidence.
  4. [120]
    Notwithstanding that, I find that any conclusion of guilt drawn by the jury in reliance upon the evidence of Stewarts and Martin is not open.  The general circumstances of the case are such that it was highly unlikely that Stewarts and Martin, would, if called, give reliable evidence.  They (or at least one of them) were obviously dealing in dangerous drugs.  Stewarts’ mother was involved at least by bringing the appellant to the house.  They both had prior convictions for drug offences.  Drugs and drug paraphernalia were found throughout the house.  The presence of the appellant was completely unexplained.
  5. [121]
    The evidence of Stewarts and Martin is highly unlikely to be truthful.  They contradicted each other.  Much of their evidence was inherently unlikely to be true.
  6. [122]
    While this Court did not see Stewarts and Martin give evidence, the learned trial judge and the prosecutor both did.  The prosecutor disavowed reliance upon their evidence.  The learned trial judge, as already observed, did not, in his summing up, refer the jury to the denials of involvement and knowledge of the drugs made by Stewarts and Martin.  His Honour concentrated the jury’s attention on the objective evidence: things found by the police at the house and subsequent evidence.  No criticism can be laid upon the learned trial judge in taking that approach.  His Honour was obliged to direct the jury’s attention to the real issues.  His Honour did so.  The real issue was that, since the evidence of Stewarts and Martin was hopelessly unreliable and could not be accepted, whether the Crown could prove either of the intermediate facts on the objective evidence.
  7. [123]
    Where drugs are located in a place and more than one person either is in occupation of the place or has access to the place it is notoriously difficult to attribute possession of the drugs to a particular individual.[172]  These difficulties led to the enactment of s 57(2) of the Drugs Misuse Act, which is the predecessor of s 129(1)(c), which attributes possession to an occupier of a place unless the occupier proves to the contrary.  Section 129(1)(c) was not available to the Crown in the present case.  It was never alleged that the appellant was an occupier of the house.  Stewarts definitely was, and Martin probably was.
  8. [124]
    There was no evidence that directly tied the appellant to the large parcel of drugs.  His DNA was not found on the parcel and neither were his fingerprints.  No witness gave evidence as to what was in the backpack when the appellant arrived at the house with it.  There was no evidence of any persons supplying the appellant with the parcel.
  9. [125]
    There is nothing from the evidence of the applicant’s presence in the downstairs room to enable the jury to conclude that he must have known that the large parcel of drugs was also in the room.  The only evidence is that the parcel was in the recessed area on the top of the fish tank and was covered with the plastic container which itself contained coral.  A person in the room could not have seen the parcel without removing the plastic container.  There is no evidence that the appellant did that.  The container was not examined for fingerprints.
  10. [126]
    It was not open to the jury to be satisfied beyond reasonable doubt that the appellant was, when the police searched the house, in possession of the large parcel of drugs.
  11. [127]
    The evidence raises the possibility that the appellant brought the large parcel of drugs to the house, although Goodier may have done so.  Goodier had no drugs in her possession when she was intercepted by police after she left the house.  She was not intercepted before she reached the house.  There is no evidence of Goodier’s movement before she arrived at the house.  No evidence excludes the possibility that Goodier brought the drugs to the house.
  12. [128]
    It is highly likely that Stewarts knew that the large parcel of drugs was in the downstairs room.  As police were gaining entry through the front door, she, in what was obviously a state of panic, abandoned her two young children (who were upstairs) and ran to the downstairs room where the drugs were located.
  13. [129]
    While there was surveillance on the house for a short time before the appellant and Goodier arrived, there is no earlier surveillance and therefore, no evidence of who else came and went from the house.
  14. [130]
    There might be some force in the Crown’s submission that Stewarts and Martin do not appear affluent enough to own and control such a valuable parcel of drugs.  That, though, does not exclude obvious other possibilities that they were in possession of the drugs on behalf of some other person.
  15. [131]
    The evidence of banking records hardly supports the Crown case.  Those records show deposits of cash in sums of a few thousand dollars at a time.  The idea that a drug dealer would deposit or have deposited cash into a bank account in his own name is, in itself, odd.  The sums which are deposited are certainly not the sale proceeds of anything like 391 grams of methylamphetamine.  Those proceeds would be in the amount of many tens of thousands of dollars.  Therefore, the bank deposits are what?  The proceeds of earlier smaller sales?  The appellant’s commission?  Completely unrelated to drugs?
  16. [132]
    There are obvious and reasonable hypotheses inconsistent with the Crown case.  These include:
    1. Goodier brought the drugs to the house.
    2. The appellant did not bring the large parcel of drugs to the house but brought the small amount found behind the television and sold those drugs to Stewarts.  That would mean that the $3,000.00 cash was the proceeds of sale of that small amount of drugs.  That conduct would constitute an offence but not the offence of trafficking as charged and put to the jury.
    3. The appellant was at the house to purchase (with the $3,000.00) a small amount of drugs.
    4. The appellant’s attendance at the house was not to engage in any drug transaction at all but simply to collect money on behalf of some third person unknown.
    5. The appellant’s attendance at the house was for the sole purpose of acquiring a small amount of drugs which he consumed using the ice pipe that was found.
  17. [133]
    On the facts of this case, the Crown had to prove more that the appellant was involved in some activity concerning drugs.  The Crown had to prove that he was trafficking and, in particular, had to prove that he was either in possession of the large parcel of drugs found on the fish tank or had brought those drugs to the house.  It was not open to the jury to be satisfied beyond reasonable doubt of either of those essential ingredients of the Crown case.
  18. [134]
    In my view, the appeal should be allowed.  As the Crown case has failed for want of proof, the conviction should be set aside and a verdict of acquittal entered.
  19. [135]
    I would order:
    1. The appeal be allowed.
    2. The conviction and sentence be set aside.
    3. A verdict of acquittal be entered.

Footnotes

[1]  There are some differences in my analysis, but for the most part they are not determinative; for example, Senior Constable McManus may have said that Ma was playing Candy Crush on his phone but that was said to lighten the mood, and he did not see what Ma was doing on his phone and was unable to say now what it was: Reasons of Davis J paragraph [60](viii), Appeal Book (AB) 70 line 11, AB 71 lines 28-39, AB 72 lines 1-11.

[2] R v Beble [1979] Qd R 278 at p. 290.

[3]  (1911) 13 CLR 619.

[4] Peacock at 661.

[5]  (1975) 133 CLR 82 at 104.  See also Doney v The Queen (1990) 171 CLR 207 at [8].

[6]  (1992) 175 CLR 495 at 509.

[7] R v Sharma; R v Agrawal [2017] QCA 209 at [72].

[8] R v Rae [2006] QCA 207 at [55].

[9] Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 at [372].

[10]  [2018] QCA 37 at [29]-[30]; internal citations omitted.

[11] R v Baden-Clay (2016) 258 CLR 308 at 324 [47]; internal citations omitted.

[12]  AB 33 lines35-44; AB 45 lines 13-20.

[13]  AB 196.

[14]  AB 20-21, AB 66-67.

[15]  AB 99 lines 38-39.

[16]  AB 99 line 31.

[17]  AB 99 line 33.

[18]  McDonald’s, which Stewarts said had been brought by Goodier: AB 131 line 19.

[19]  AB 35 line 33.

[20]  AB 99 line 33.

[21]  AB 33 lines 13-14.

[22]  AB 18.

[23]  AB 18 lines 40-44.

[24]  AB 58 lines 30-33.

[25]  AB 120 line 46 to AB 121 line 3.

[26]  AB 119-125.

[27]  AB 117 line 6.

[28]  His Honour’s reasons at paragraph [132].

[29]  AB 39-40.

[30]  AB Vol 1, p 27 lines 4-14.

[31]  The Prosecutor could have formed the view that however else Martin and Stewarts were doubtful witnesses, they were credible in their denials that the particular package of drugs was theirs.

[32]  Reasons of Davis J at paragraph [85].

[33]  Reasons of Davis J at paragraph [122].

[34]  AB Vol 1, p 88 lines 12-15.

[35]  AB Vol 1, pp 90-92.

[36]  AB Vol 1, p 54 line 33 to p 55 line 14.

[37]  AB Vol 1 p 75 line 25.

[38]  AB 208 line 34.

[39]  AB 214 line 26.

[40]  For example, $82,500 between 17 September and 16 December 2015, AB 589.  There is no evidence to warrant the conclusion that the subpoenas caught all Ma’s bank accounts, particularly given that he was shown to use a false name.  The evidence was that search warrants were executed on the banks from which Ma had bankcards in his wallet.

[41]  AB Vol 1 pp 29-35, AB Vol 1 p 35 line 36; leaving aside the fact that on 1 April Ma did not return to Sydney.

[42]  AB Vol 1 pp 39-51, AB Vol 1 p 51 line 11.

[43]  AB 26 line 1; AB 37 line 44 to AB 38 line 32; AB 39 line 30; AB 47 line 21-AB 47 line 34; AB 48 line 44; AB 77.

[44]  AB 66 line 31.

[45]  AB 21 line 8; AB 51 lines 29-.39; AB 67 line 15.

[46]  AB 21 line 22.

[47]  AB 22 line 33; AB 68 line 4.

[48]  AB 22 line 40.

[49]  AB 22 line 42; AB 39 lines 32-.39.

[50]  AB 40 line 34.

[51]  AB 46 line 44.

[52]  AB 38 lines 6-32.

[53]  AB 78 line 8; AB 79 line 45; AB 94 line 44.

[54]  AB 78 line 46.

[55]  AB 95 line 2.

[56]  When Goodier was intercepted she was prevented from using her phone, which was seized.

[57]  Transcript of the trial: AB vol 2 at 231 and following (Argument), 245–6 (Ruling).

[58]  Evidence of Lauren Janelle Stewarts: AB vol 2 at 128–129.

[59]  Evidence of Daniel Garcia Martin: AB vol 2 at 112, 115–116.

[60]  At 113, 119.

[61]  Evidence of Lauren Janelle Stewarts: AB vol 2 at 129, 134.

[62]  At 135; Evidence of Daniel Garcia Martin: AB vol 2 at 118.

[63]  Evidence of Trent Collen Odmark: AB vol 2 at 33; Search warrant, exhibit 5: AB vol 2 at 279–281.

[64]  Evidence of Trent Collen Odmark: AB vol 2 at 33; Search warrant, exhibit 5: AB vol 2 at 279–280.

[65]  Evidence of Graham Stuart Camp: AB vol 2 at 16.

[66]  At 16.

[67]  At 16.

[68]  At 16.

[69]  At 16.

[70]  Evidence of Lauren Janelle Stewarts: AB vol 2 at 131.

[71]  Evidence of Graham Stuart Camp: AB vol 2 at 16.

[72]  At 16.

[73]  Evidence of Lachlan John McManus: AB vol 2 at 66.

[74]  Evidence of Graham Stuart Camp: AB vol 2 at 17.

[75]  Evidence of Trent Collen Odmark: AB vol 2 at 51; Evidence of Lauren Janelle Stewarts: AB vol 2 at 129.

[76]  Evidence of Jason Gordon Milner: AB vol 2 at 92.

[77]  Evidence of Trent Collen Odmark: AB vol 2 at 20–21; Photograph of residence, 29 Headrick Street, Manunda, exhibit 2.

[78]  Evidence of Trent Collen Odmark: AB vol 2 at 20–21.

[79]  At 20–21.

[80]  At 50.

[81]  At 21.

[82]  At 21; Evidence of Jason Gordon Milner: AB vol 2 at 85; Evidence of Lauren Janelle Stewarts: AB vol 2 at 130.

[83]  At 21.

[84]  At 21–26; Photographs of relevant room, exhibits 3.1–3.9.

[85]  Evidence of Lachlan John McManus: AB vol 2 at 70.

[86]  Evidence of Trent Collen Odmark: AB vol 2 at 24–25; Evidence of Lachlan John McManus: AB vol 2 at 68; Evidence of Jason Gordon Milner: AB vol 2 at 94, 100.

[87]  At 67–68.

[88]  Evidence of Trent Collen Odmark: AB vol 2 at 52; Evidence of Jason Gordon Milner, AB vol 2 at 60; Photograph of cash, exhibit 3.4; Photograph of cash found, exhibit 4.12.

[89]  Evidence of Trent Collen Odmark: AB vol 2 at 23; Photograph of black backpack, exhibit 3.2.

[90]  Evidence of Trent Collen Odmark: AB vol 2 at 41.

[91]  Evidence of Trent Collen Odmark: AB vol 2 at 39; Evidence of Lachlan John McManus: AB vol 2 at 77; Document of admissions, exhibit 19: AB vol 2 at 616; Photographs of fish tank: exhibits 3.7 and 3.8.

[92]  Evidence of Trent Collen Odmark: AB vol 2 at 44; Evidence of Lachlan John McManus: AB vol 2 at 69; Evidence of Jason Gordon Milner, AB vol 2 at 95–96; Document of admissions, exhibit 19: AB vol 2 at 616; Photograph behind television, exhibit 3.9.

[93]  Evidence of Jason Gordon Milner, AB vol 2 at 100; Document of admissions, exhibit 19: AB vol 2 at 616; Photograph of contents of cupboard, exhibit 8.  There was evidence that Ms Stewarts believed the substance to be methylsulfonylmethane: Evidence of Trent Collen Odmark: AB vol 2 at 52; Evidence of Lauren Stewarts: AB vol 2 at 139.

[94]  Evidence of Trent Collen Odmark: AB vol 2 at 53; Evidence of Jason Gordon Milner, AB vol 2 at 101; Document of admissions, exhibit 19: AB vol 2 at 616; Photographs of wall hanging and contents, exhibits 7.1–7.3.

[95]  Evidence of Trent Collen Odmark: AB vol 2 at 56; Evidence of Jason Gordon Milner, AB vol 2 at 101; Document of admissions, exhibit 19: AB vol 2 at 616; Photographs of dresser: exhibits 9.1 and 9.2.

[96]  Evidence of Trent Collen Odmark: AB vol 2 at 56; Evidence of Jason Gordon Milner, AB vol 2 at 101; Photographs of dresser: exhibits 9.1 and 9.2.

[97]  Evidence of Trent Collen Odmark: AB vol 2 at 32; Evidence of Lachlan John McManus: AB vol 2 at 68; Photographs of Jetstar boarding pass, exhibit 3.10.

[98]  Evidence of Trent Collen Odmark: AB vol 2 at 31; Photographs of Jetstar boarding pass, exhibit 3.5.

[99]  Evidence of Trent Collen Odmark: AB vol 2 at 29, 32; Photographs of bank cards, exhibits 4.4 and 4.10.

[100]  CCTV footage, exhibit 16.

[101]  On 23 March 2016: Table of flights, exhibit for identification B: AB vol 2 at 647.

[102]  Flight records, Qantas flights, exhibit 13: AB vol 2 at 339; Flight records, Virgin flights, exhibit 14: AB vol 2 at 469; Table of flights, exhibit for identification B: AB vol 2 at 643–648.

[103]  9 October 2015, 2 November 2015, 16 November 2015, 7 January 2016, 21 January 2016, 5 March 2016 and 7 March 2016: Table of cash deposits, exhibit for identification A: AB vol 2 at 640–642.

[104]  Transcript of the trial: AB vol 2 at 258–259.

[105]  Evidence of Bradley James Grace: AB vol 2 at 208.

[106]  Evidence of Calson Chan: AB vol 2 at 173.

[107]  At 171–174.

[108]  Presumably shorthand for “tomorrow”.

[109]  AB vol 1 at 48.

[110]  Reproduced including grammatical errors.  Document of admissions, exhibit 19: AB vol 2 at 614–615.

[111]  Document of admissions, exhibit 19: AB vol 2 at 616.

[112]  At paragraph [61] of these reasons.

[113]  Evidence of Lachlan John McManus: AB vol 2 at 80–83; Evidence of Jason Gordon Milner: AB vol 2 at 94–95, 104, 106.

[114]  Evidence of Jason Gordon Milner: AB vol 2 at 105.

[115]  At 94–95.

[116]  At 95.

[117]  Evidence of Lachlan John McManus: AB vol 2 at 81.

[118]  Evidence of Jason Gordon Milner: AB vol 2 at 96.

[119]  At 95.

[120]  At 109.

[121] Dyers v The Queen (2002) 210 CLR 285 at [11]; R v Manning [2017] QCA 23 at [19].

[122]  Crown closing address: AB vol 1 at 27.

[123]  Evidence of Daniel Garcia Martin: AB vol 2 at 113.

[124]  At 114.

[125]  At 114.

[126] At 114.

[127]  At 120–121.

[128]  At 111–112.

[129]  At 116.

[130]  At 116.

[131]  At 117.

[132]  At 117.

[133]  At 117.

[134]  At 115.

[135]  At 129.

[136]  Evidence of Lauren Janelle Stewarts: AB vol 2 at 130.

[137]   At 131.

[138]  At 167–168.

[139]  At 139.

[140]  At 140–141.

[141]  At 140–141.

[142]  At 142.

[143]  At 153.

[144]  At 152.

[145]  At 155 and following.

[146]  Transcript of the trial: AB vol 2 at 232 and following.

[147]  At 244–245.

[148]  At 245, 254 and see [2].

[149]  At 251.

[150] Shepherd v The Queen (1990) 170 CLR 573.

[151]  Transcript of the trial: AB vol 2 at 251–252.

[152] Doney v The Queen (1990) 171 CLR 207 and the cases referred to therein at 212, followed in Johnson v The Queen [2018] HCA 48 at [61].

[153]  Summing up: AB vol 1 at 86–87.

[154]  At 93.

[155]  At 94.

[156]  At 97.

[157]  At 101.

[158]  A reference to the evidence of the events of 1 April 2016.

[159]  At 105–106, and see also at 106 lines 45–50.

[160]  At 91.

[161]  At 110.

[162]  Crown closing address: AB vol 1 at 27.

[163]  At 54–55.

[164] M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; SKA v The Queen (2011) 243 CLR 400; GAX v The Queen (2017) 91 ALJR 698; R v Baden-Clay (2016) 90 ALJR 1013.

[165]  [2017] QCA 99.

[166] BCM v The Queen at [31], referring to SKA v The Queen at [11]-[14].

[167] SKA v The Queen at [14], quoting M v The Queen (1994) 181 CLR 487 at 492-493.

[168] SKA v The Queen at [13], quoting M v The Queen at 493-94.

[169]  (2016) 334 ALR 234 at [65]-[66].

[170] Hocking v Bell (1945) 71 CLR 430 at 440.

[171] R v Baden-Clay at [65]-[66], quoting M v The Queen at 494-5.

[172] R v Diefenbach [1997] QCA 60 is just one example of a failed prosecution in those circumstances.

Close

Editorial Notes

  • Published Case Name:

    R v Ma

  • Shortened Case Name:

    R v Ma

  • MNC:

    [2019] QCA 1

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, Davis J

  • Date:

    29 Jan 2019

Litigation History

No Litigation History

Appeal Status

No Status