R v Willis[2023] QSC 190

SUPREME COURT OF QUEENSLAND

1. [1]
   HENRY J:  The defendant is charged that on the 6^th day of June 2021, at Bungalow in the State of Queensland, he unlawfully supplied the dangerous drug 3,4-Methylenedioxymethamphetamine (MDMA) to himself.  The prosecution case having closed, the defence submit there is no case to answer. 
2. [2]
   The evidence in the case was very brief, essentially involving the evidence of the arresting officer, the evidence of a friend who dwelt, for an unspecified time, at the same residence as the defendant and a variety of evidentiary admissions.  At the outset of the trial, the accused pleaded guilty to a charge of possession of a dangerous drug, but not guilty to the charge which is the subject of the no case to answer submission. 
3. [3]
   On 6 June 2021 the police attended at the Bungalow Mail Centre.  Bungalow is a suburb of Cairns. A postal package was opened.  There was found the quantity of MDMA, the subject of the supply charge.  The parcel was directed to a female person, one Lilly Ryan, at 89 Woodlock Drive, Edmonton, 4869, Queensland. 
4. [4]
   No evidence has been adduced in the trial as to who Lilly Ryan is, whether she is a real person or whether she is ever known to have had any association with that address.  The police, having seized the package, procured a search warrant and, two days later, executed it at 89 Woodlock Drive.  No one was home. 
5. [5]
   In a bedroom of that home, they found three other mail packages addressed in a like way as the package seized by police.  Each had been opened and was empty.  Each bore handwritten code of a like kind to handwritten code also found on the seized package.
6. [6]
   Property in the bedroom in question apparently included some identifying information of the defendant, and it was conceded as common ground in the course of the trial that it was his bedroom.  What was not conceded was whether he was the sole occupier of that bedroom, or how regularly he occupied it, or indeed, how long he had been a resident at the house and whether it was on a full-time basis. 
7. [7]
   Mr Leotta-Marks, a friend of the defendant’s, was called as a witness against him.  He claimed privilege in respect of many of the questions that he was asked.  The upshot of his evidence is that he had been living at the address with the defendant.  As to how long for, he provided no evidence.  As to how regularly the defendant would stay at the residence or be at the residence, he provided no evidence. 
8. [8]
   No evidence was adduced about the defendant, for example, whether he is employed locally in Cairns, whether he is known to generally remain about Cairns in his private life or whether he has work or recreational interests that take him away from Cairns, including interstate. 
9. [9]
   The defendant’s counsel at the close of the prosecution case, in argument, highlighted a variety of difficulties with the prosecution case. 
10. [10]
    They were met to a large extent by emphasis from the prosecution that in a circumstantial case, which this is, the proper approach to take as to the alleged inference of guilt is that identified by McPherson J, as he then was, with whom Andrews CJ and Demack J agreed in R v Stewart; ex parte Attorney-General [1989] 1 Qd R 590 at 592, namely:

3. “Only if the evidence had been such that an inference to that effect was incapable of being drawn beyond reasonable doubt could it be said that there was in law no material in which a verdict of guilty might be found; that there might remain a possible inference consistent with innocence does not serve to remove the question from the province of the jury.” 

11. [11]
    His Honour there endorsed an extra-curial proposition of Justice Glass in Acquittals by Direction (1986) 2 Australian Bar Review 11 at 12, namely:

3. “8.
   The trial judge never asks himself the question whether the facts and inferences which the Crown evidence is sufficient to establish are reasonably open to an explanation consistent with innocence.

3. 9.
   Whether the Crown has excluded every reasonable hypothesis consistent with innocence is a question not for the judge, but for the jury.”

Also see R v MDP [2023] QCA 134 at [35].

12. [12]
    I have considered the state of the evidence, giving full force to that legal equation, conscious that my role is not to usurp that of the jury’s.  The critical issue then is not whether the prosecution can exclude rational inferences consistent with innocence, but whether there is sufficient evidence to rationally support – that is to say, to sustain – the inference sought by the prosecution. 
13. [13]
    Approaching the matter objectively and focusing on what guilty inference the known facts might sustain, I bear in mind there is a connection between the defendant and the bedroom at the premises, to which I have referred.  I bear in mind that in that room was found a like drug, MDMA, to that which is the subject of the charge.  I bear in mind it is admitted that the defendant pleaded guilty to possession of that drug, although, I note it remains to be seen whether or not that plea of guilty was based on actual possession or the deemed possession that can arise from an inability to displace the evidentiary provision of the Drugs Misuse Act 1986 that relates to occupiers. 
14. [14]
    Additionally, there is evidence in respect of the same bedroom, that three empty packages of strikingly similar form to the seized package were found in the bedroom.  It is known of all of those packages that they were processed through the Alexandria Delivery Facility in Alexandria, a suburb of Sydney, New South Wales, and each had been lodged in a streetside posting box within the surrounding area serviced by that facility, such boxes being cleared daily.  The recorded transit dates of each vary.  Obviously, the three packages that had already made their way to the bedroom transited earlier.  The package with which this case is concerned had to have been posted on or before the 3^rd of June in Alexandria, New South Wales. 
15. [15]
    In my view, the proved facts sustained the inference that the accused had some knowing role in the process by which the content of the seized package came to be sent and was to be received.  But that inference is too vague of itself to constitute the offence charged. 
16. [16]
    Taking that process in reverse order, merely having a role as the agent of the intended receipt of the drug might make one an attempted possessor of the drug.  But the charge is one of supply based on an act of procurement, specifically, procuring the postage of the drug.  Had the police substituted the drug, let the package be delivered, and then gathered evidence of what followed, they might have gathered evidence of an attempted possession.  However, this was not that type of proactive investigation.
17. [17]
    Turning then to the process by which the package content, an illicit substance of commercial value, came to be sent away, it may reasonably be inferred it was sent from New South Wales.  It was ordered by someone off someone, someone likely paid for it and someone packaged it and someone posted it in the suburb of Alexandria.  There is no evidence of how many persons were involved in that process or who they were.  The phase of that process involving the packaging and sending of the drug evidently occurred outside Queensland apparently in New South Wales.  There is no evidence the accused was or was not in New South Wales when that occurred.
18. [18]
    Save for the skeletal fact the accused was an occupier of a residence in Cairns, there is no basis to assume he was not at some point in New South Wales such that he sent the package from there to himself, which is not the charged act of procuring another to do so.  One cannot supply a drug to another who is the same person.  It would, further, have been an event that occurred beyond the jurisdiction of Queensland and that is not an offence of which the accused could have been convicted in Queensland – see R v Lovett [2020] QCA 86 at [35].
19. [19]
    The phase of that part of the process which the prosecution landed on to found its case was the procurement phase, that is, the ordering and or paying for the drug phase inclusive of the process by which it was packaged and sent.  The prosecution evidently focused on that end of things because its best, indeed, only potential evidence of connection was that the accused was the occupier of a bedroom of the house in Cairns to which the package was sent.  The assumption seems to be that because he was an occupier of a bedroom geographically located in Far North Queensland, his knowing role in the process must have been committed in Far North Queensland rather than New South Wales and thus it must have been a role of procurer, in effect from afar, of the posting of the parcel.
20. [20]
    As the role was as an alleged procurer, the inference presumably sought was that from Far North Queensland, by some unknown means, perhaps by telephone, perhaps by internet or perhaps by directly communicating with an agent engaged to make the order, he procured someone to supply the drug by posting it from New South Wales.  But there is simply no evidence of what that means was.  This is not, for example, a case in which the police found evidence of what occurred on a computer or obtained evidence from surveillance or obtained evidence from another witness.  The evidentiary foundation of the prosecution’s allegation the accused procured the supply, namely, that the accused occupied a bedroom in Cairns, is itself bereft of relevant accompanying evidence.  Most obviously, there is no evidence that he resided only there as distinct from also residing elsewhere such as interstate nor is there evidence whether he worked in Cairns or also worked interstate.  There is simply no evidence of what life he was leading or what continuity of connection that had with Cairns to sustain the inference he would have been in Cairns let alone Bungalow, as the indictment alleges, as at the time of the alleged procurement.  It follows there is no evidence sufficient to sustain the inference the defendant was a procurer. 
21. [21]
    I reiterate my focus here is on whether there is evidence sufficient to rationally sustain the inference sought.  That there are many gaps in the evidence might of course also have founded arguments about the availability of innocent hypotheses.  But that not ought blind the court to the point that there is a lack of evidence capable of proving, in the positive, the guilty inference sought. 
22. [22]
    These reasons collectively expose the unfilled evidentiary void beyond the open and sustainable inference that the accused had some knowing role in some stage of the process by which the sending of the package was requested, sent, and was to be received.  There is no evidence that role constituted an offence in Queensland and, if so, what that offence was. 
23. [23]
    That conclusion is of itself fatal to the prosecution case.  There were other difficulties raised. 
24. [24]
    The indictment charged that the offence occurred on the 6^th of June 2021 at Bungalow.  The 6^th of June was the date of the Bungalow seizure.  Bungalow is the location of the relevant mail centre at which the seizure occurred.  There is no geographic connection between the accused and Bungalow save that his place of residence is, like Bungalow, a suburb of Cairns.  The Crown, in responding to the no case submission, sought my leave to amend the place nominated in the indictment to read instead, “Cairns and elsewhere in the state of Queensland.”  I cannot perceive of such an amendment occasioning material disadvantage to the defence given the conduct of the case and were it the only problem, I would have given the leave sought.  It is not the only problem. 
25. [25]
    The Crown also sought leave to amend the date of the alleged offence to a wider date span.  The date currently alleged, 6 June, is three days after the package was posted from New South Wales on or potentially before 3 June.  The act charged here is the act of procuring a person to send that package.  On the evidence about the transit of the package, such an act of procuring, if it occurred, had to have occurred on or before 3 June.  The offence, as the Crown chose to particularise it, namely, the act of procuring the postage of the package, could not have been committed on the date alleged. 
26. [26]
    I am conscious the alleged date of an offence will not always constitute an elemental particular of the offence.  Whether the date is a particular so crucial to the prosecution case that the charge will fail if it is not proved to have been committed on the alleged date depends on the circumstances of the case – see R v AP [2003] QCA 445 [19].  Similarly, whether amendment of the date should be refused because of the timing of the application and the way in which the case has been conducted to that point, and thus the potential for injustice occasioned by such amendment, also depends on the circumstances of the case. 
27. [27]
    In the course of argument, it was confirmed that the date alleged is the date that has always been alleged.  That is to say it has always been the date which the defence prepared to meet at trial.  Further, in the course of the trial, in the absence of the jury, I was informed that an earlier attempt was made to litigate this case by way of a no case submission, premised on the agreed known facts.  But such a course was not agreed to by the Crown and, thus, that application did not proceed.  It can scarcely be said that the Crown could be surprised that the defence were going to test at trial whether, indeed, it had a case to answer. 
28. [28]
    The very nature of the case, based as it was on the transit of the package, made the date of the offence sufficiently important to the case as to require proper proof the offence was committed on that date.  Further, to permit amendment after the close of the prosecution case creates an objectively unjust result in that the nature of the litigation of the case is likely to have been very different, on an objective assessment.  That would be most obviously in respect of the conduct of the defence cross-examination of the witnesses who were called and, for that matter, the defence decision-making regarding an array of admissions that were made, as well as a decision not to object to lax proof of matters of minor importance in the context of the known charge date.  That is to say nothing of other prospective, disadvantageous consequences attaching to potential alibi and inquiries that might otherwise have been made in pursuit of other evidence of what otherwise would have been of irrelevant significance given the charged date. 
29. [29]
    For those reasons, I would not have allowed the amendment of the date.  That the offence has not been proved to have occurred when alleged, thus joins the reasons I have already given as to why the prosecution case has not proved a prima facie case.
30. [30]
    The consequence is there is no case to answer and I will direct a verdict of acquittal be returned by the jury.