Court of Appeal (WA)|2011-03-14|Before: Pullin JA

TEMA -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 41 (14 March 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : TEMA -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 41

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against conviction - Possession of methylamphetamines with intent - Late disclosure during trial that third party involved in offence was a police undercover officer - Trial continued without undercover officer being called as a witness - Whether a miscarriage of justice as a result of late disclosure and/or failure of witness to testify

Criminal law and procedure - Sentencing - Possession of 450 g of methylamphetamines with a purity of 14% - Sentence of 7 1/2 years' imprisonment - Whether sentence manifestly excessive

CACR 7 of 2010 - Application for leave to appeal refused for grounds of appeal 2 6. Leave granted for ground of appeal 7

CACR 8 of 2010 - Application for leave to appeal refused

Appellant : Mr T F Percy QC, Ms B J Lonsdale & Mr M Bagaric

Aconi v The Queen [2001] WASCA 211

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

'D' v The State of Western Australia [2007] WASCA 272

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370

Marker v The Queen [2002] WASCA 282

MNO v The State of Western Australia [2009] WASCA 59

Pedersen v The State of Western Australia [2010] WASCA 175

Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533

Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116

Scook v The Queen [2008] WASCA 114

Stapleton v The Queen [2004] WASCA 130

The State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514

The State of Western Australia v 'R' [2007] WASCA 42

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

2 BUSS JA: I agree with Blaxell J, for the reasons he gives, that the appeal against conviction and the appeal against sentence should be dismissed.

3 I have some additional observations about the grounds of appeal in the appeal against sentence.

4 Ground 1 alleges that the sentence was manifestly excessive. However, the particulars to ground 1 assert that the sentencing judge erred in failing to give 'sufficient weight' to various mitigating features. Ground 2 alleges that his Honour erred in failing to give 'sufficient weight' to the delay between the commission of the offence and the imposition of the sentence. Ground 3 alleges that his Honour erred by giving 'excessive weight' to general deterrence.

5 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It invites the appellate court to infer (after having regard to the maximum available sentence for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the particular criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender) that the sentencing outcome was plainly unreasonable or unjust.

6 By contrast, an alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 330; Pedersen v The State of Western Australia [2010] WASCA 175 [37]. A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.

7 BLAXELL J: Following a trial in the District Court in October 2009 the appellant was convicted of an offence that on 23 December 1996 he possessed a quantity of methylamphetamines with intent to sell or supply to another. He was sentenced to a term of 7 1/2 years' immediate imprisonment and made eligible for parole.

8 Prior to his arrest in 1996 the appellant had travelled by air from Melbourne to Perth and booked into a motel room at Rivervale. Soon afterwards he met another man named 'Eddie' who had flown from Melbourne that same day and booked into an adjoining motel. Unbeknown to the appellant, 'Eddie' was a police informant and an authorised undercover officer.

9 From the time of his arrival the appellant was under police surveillance as a result of information from a Victorian detective who had also travelled to Perth. When the police executed a search warrant at the appellant's motel room they found a large quantity of methylamphetamines in the bathroom. The Victorian detective was present during that search.

10 The prosecution case at trial was entirely circumstantial, and the appellant contended that the drugs had been planted in his bathroom by either 'Eddie' or the Victorian detective. This defence was largely based on evidence that the detective had been generally involved in unrelated offences of police corruption subsequent to the appellant's arrest.

11 The appellant now appeals from his conviction on seven grounds (one of which is the subject of leave granted by Mazza J on 6 May 2010). He also appeals from the sentence imposed.

12 Prior to 2006 the appellant (Mr Tema) had the legal name of Mile Temelkov. On Sunday, 22 December 1996 he flew from Melbourne to Perth using a one way airline ticket in the false name of Danelkov. He arrived at Perth Airport at 8.30 pm and then booked into room 12 at the Great Eastern Motel in Rivervale. He did so using his correct legal name of Temelkov. At all times following his arrival in Perth Mr Tema was subject to police surveillance.

13 Earlier that same day an authorised West Australian undercover officer using the false name of 'Eddie Bajaranovski' (Eddie) had taken a separate flight from Melbourne to Perth. Upon arrival Eddie had booked into another motel in Rivervale adjoining the Great Eastern Motel. At approximately 10.30 pm Eddie met Mr Tema at the Great Eastern Motel, and the two men then went to the Burswood Casino and to night clubs where they socialised together for a number of hours.

14 Mr Tema returned to his motel room in the early hours of the morning. At 4.00 am police executed a search warrant in his presence and located 449.72 g of methylamphetamines (with a purity of approximately 14%) in the bathroom. The drugs were secreted behind the cover of an exhaust fan mounted on the wall of the bathroom. Prior to being removed the fan cover was loosely seated in place, and it protruded slightly from its normal position.

15 The methylamphetamines were in two plastic bags (containing 448.6 g and 1.12 g respectively). The two plastic bags were taped together and wrapped in a single sheet from a Victorian newspaper, the Herald Sun. The sheet of newspaper was dated 19 December 1996 and it comprised pages 47 - 48 and 57 - 58 of that issue of the Herald Sun.

16 The police officers who carried out the search included Detective Senior Constable R J Kirby (who was Inspector Kirby by the time of trial), and the Exhibits Officer, Detective S J Clark. Also present was Detective Senior Constable S A Paton of the Victorian police who had flown from Melbourne on 22 December 1996. It was Detective Paton who provided the West Australian police with the information which resulted in the surveillance of Mr Tema and the execution of the search warrant.

17 Detective Paton met Eddie prior to flying to Perth, and was first introduced to him on 12 December 1996 by Detective Sergeant Cockburn of the Victorian police. Eddie was a police informer and Detective Sergeant Cockburn was his 'handler or controller'. Detective Sergeant Cockburn continued to act in that capacity at all material times (ts 210).

18 Each exhibit seized in the course of the search was handed to Detective Clark who recorded it in an exhibits log (exhibit 6). While doing this Detective Clark was seated at a small coffee or writing table in the main motel room and after recording each exhibit he secured it in either a drug or forensic bag (ts 111).

19 The fan cover from the bathroom was seized as an exhibit but it was handled a little differently. After being removed from the bathroom by Detective Kirby it was recorded in the exhibits log by Detective Clark but then placed upon the kitchen bench. At 4.20 am (approximately 20 minutes after the search had commenced) the fan cover was examined by a fingerprint expert, Constable M J Anicich (ts 162). Constable Anicich attempted to fingerprint the item but could not do so because there was moisture present. For this reason he placed the fan cover in a sealed evidence bag intending to fingerprint it once it had dried. When Constable Anicich left the motel he took the bag containing the fan cover with him and placed it in a locked filing cabinet in his office.

20 While the exhibits were being processed Mr Tema was seated nearby in the company of Detective C W Mickle (ts 111, 122). Mr Tema was initially handcuffed but the handcuffs were later removed. He was not permitted to move around the room (ts 122 - 123).

21 Through oversight, Constable Anicich did not examine the fan cover again until 21 June 1999. In the meantime it had remained inside the sealed evidence bag in the locked drawer of the filing cabinet. He obtained three fingerprints from the left hand side of the fan cover which matched fingers from Mr Tema's left hand. No fingerprints were ever found on the packaging of the drugs.

22 Later on 23 December 1996 Mr Tema participated in a videotaped interview with police. He made admissions and assertions to the following effect:

Mr Tema had decided to come to Western Australia a 'few days back'. It was the idea of 'Eddie, my mate' whom he had known for 'maybe couple of months'. Mr Tema was introduced to Eddie by Eddie's brother (VROI 8).
Eddie was a computer seller and also in the 'import/export business'. Mr Tema did not know what it was that Eddie imported or exported. Mr Tema himself was an importer and exporter of 'beef, sheepskin, and clothes'. He imported 'to Macedonia' and was also going to import into Australia (VROI 9).
Eddie had grown up in Perth and knew people in the clothing business. Mr Tema's and Eddie's plan in coming to Perth together was to see some companies for the purpose of transacting business involving the importation of clothes (VROI 12).
The present occasion was the first time that Mr Tema had been to Western Australia in 20 years (VROI 12).
Eddie had given Mr Tema the money to pay for his air ticket before coming to Perth. When buying the ticket at Melbourne Airport Mr Tema had used the name Temelkov and he could not explain why it was issued in the name of Danelkov (VROI 13 - 14). Eddie was going to pay for his return ticket because Mr Tema did not have any money. Although the return flight had not been booked, their intention was to return to Melbourne 'today or tomorrow' (VROI 15).
Mr Tema had only $80 when he arrived in Perth, and some of that had been spent the previous night. Eddie had also given him '$150 or something' to pay for one night's accommodation at the motel (VROI 15).
Following his arrival at Perth Mr Tema had waited in his motel room for Eddie to come. When Eddie arrived the two of them went to the Burswood Casino and to some night clubs in the city (VROI 19 - 20). They later returned to their motels, and Mr Tema used the bathroom at Eddie's motel room before returning to his own room (VROI 21).

23 Mr Tema denied that he ever entered the bathroom in his own motel room. In light of the issues raised on appeal it is important to note that he made no statement to the effect that Eddie used his bathroom. The relevant passages from the interview were as follows:

You waited for Eddie. Did you go to the bathroom at all?
No.
You never went in the bathroom at all?
No.
Okay. So Eddie came, and what time did Eddie come?
Oh, he come before we went out and after.
Okay. So, right. So when you went - - when Eddie came, you went out, did you?
Yeah.

And what did you do when you went into the city?
We had a couple of drinks.

Then you went back to where? Your room or Eddie's room?
Eddie room I think. He say, 'Come for - -' and I said, 'I go to sleep now'.
Right. So you went back to Eddie's room, or did you just go back to your room?
I went to Eddie's room.
All right. So you went to Eddie's room. How long did you stay at Eddie's room for?
I don't know. Not long.
Not long?
Not long, no.
Then you went back to your room?
Yeah.
When you got back to your room, did you go into the bathroom?
No.
Never been in the bathroom? So the whole time you've been in that motel unit, you've never been to the bathroom?
No. No use the bathroom.

Now, you have never been inside the bathroom of unit 12, the unit you were staying in?
No.
All right. Okay.
I been to my mate's bathroom. But not in mine.

24 On 31 December 1996 Victorian detectives (including Detective Paton) executed a search warrant at Mr Tema's home in Mill Park, Melbourne. Mr Tema was present during that search (ts 177, 251, 255, 270). In the basement of the house they found a cardboard box containing a number of newspapers including a copy of the Herald Sun dated 19 December 1996. Missing from this newspaper was the sheet comprising pages 47 - 48 and 57 - 58. In Mr Tema's bedroom the detectives found a small set of electronic scales with traces of methylamphetamines and heroin, as well as used airline tickets in Mr Tema's name for return flights from Perth to Melbourne in June 1995.

25 The defence case was based upon the version of events as asserted by Mr Tema in his video record of interview. It was put to the jury that the evidence overall could not satisfy them beyond reasonable doubt that Mr Tema had placed the methylamphetamines in the motel bathroom. An alternative reasonable inference open on the evidence was that Eddie and/or Paton were responsible. Paton was present at the searches in both Perth and Melbourne, and it was reasonably possible that he had also planted the newspaper and other items in Mr Tema's home.

26 The defence case was largely based upon evidence of Paton's subsequent corruption. Paton admitted during the trial that in 2003 he was convicted of two counts of trafficking a commercial quantity of drugs and sentenced to 6 years' imprisonment with a minimum of 3 years. Those offences had occurred between 1998 and 2000 while he was a member of the Victorian Drug Squad (Paton had become a member of the drug squad some time in 1997).

27 The offences had involved the trafficking of a total of 5.5 kg of pseudoephedrine, and 25.5 kg of Sudafed tablets, in the course of which Paton had received illicit payments totalling $23,000. As a member of the drug squad Paton was aware of other police officers planting evidence on suspects (but had not done so himself). Some of his police colleagues were also convicted of offences (ts 215 - 225).

28 Although Paton was not a member of the Victorian Drug Squad when Mr Tema was arrested, he had dealings with the drug squad at that time. The other detectives present at the search of Mr Tema's home were members of the drug squad.

29 Mr Tema was arrested on 23 December 1996 and charged with possessing methylamphetamines with intent to sell or supply to another. However, following a two day preliminary hearing in the Magistrates Court in August 1997 the complaint was dismissed. The magistrate did this after determining that one of the search warrants was invalid and that the drug analysis certificates were inadmissible.

30 On 29 August 1997 Mr Tema was arraigned in the District Court on an ex officio indictment alleging the same offence and he pleaded not guilty. That indictment was first listed for trial on 21 September 1998, but the trial was adjourned due to the absence of a material prosecution witness.

31 The trial was relisted for 21 June 1999, but was adjourned once again because of the late disclosure of Constable Anicich's fingerprint examination. Prior to the adjournment French DCJ was asked to make a number of rulings, two of which are relevant to the issues on appeal. Senior counsel for Mr Tema firstly applied for a ruling that the Victorian warrant for the search of his home on 31 December 1996 was invalid. After hearing lengthy submissions the judge made no final determination of this application (ts 190).

32 The second matter concerned a claim by the WA Commissioner of Police to public interest immunity in respect of a subpoena seeking documents relevant to the 'informer status or any application for indemnity' by Eddie. In this regard, the submissions from Mr Tema's counsel included the following:

Mr Bajaranovski on at least the material that we have seen so far appears to be acting either on the behalf of the West Australian police or on behalf of the Victorian police and there is a very strong likelihood that he was - if anyone brought drugs into this state, he did. So it is not a fishing expedition when we seek specific material in respect of Mr Bajaranovski. He is the Eddy referred to (ts 56).

...

We say we have a legitimate forensic purpose and that is to assist in establishing, at the very least, that the person who was responsible, if drugs were found, for the possession of those drugs, was Mr - this person who goes by various names but apparently one of those is Bajaranovski (ts 61).

However French DCJ upheld the Commissioner's claim to public interest immunity (ts 64 - 65). (It should be noted that that ruling is not the subject of any appeal.)

33 At a status conference on 27 August 1999 the trial was re-listed for 13 March 2000. Prior to then there was a further directions hearing on 29 - 30 November 1999 before Jackson DCJ. The defence applied once again for the Victorian search warrant to be ruled invalid and Jackson DCJ upheld this application. However, in the exercise of discretion (in accordance with Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54) his Honour ruled that the items seized from Mr Tema's house on 31 December 1996 were nevertheless admissible (ts 327 - 330).

34 On 8 March 2000 Mr Tema applied for an adjournment of the trial but that application was refused. He then failed to appear for his trial on 13 March 2000 and a bench warrant was issued. That warrant remained unexecuted for more than eight years, and during that period Mr Tema legally changed his name to Michael Tema.

35 Mr Tema was ultimately arrested on the bench warrant at Melbourne airport on 27 March 2009 when he arrived in Australia on a flight from Macedonia. He was extradited to Perth where he appeared in the District Court on 15 April 2009. His trial was set down for 20 August 2009, but on that date he was unrepresented and the trial was adjourned. However, Mr Tema became legally represented following a grant of legal aid, and his trial (before Scott DCJ and a jury) took place between 12 - 14 October 2009.

36 In the meantime, and while Mr Tema was at large, Detective Paton had been convicted in Victoria of serious corruption offences. Mr Tema's counsel referred to this fact and also to 'the mysterious man named Eddie' during his opening address to the jury (ts 21). The jury were told that it was Mr Tema's defence that he had 'been set up by somebody he doesn't know' (ts 23).

37 Later, while counsel was cross-examining Inspector Kirby, the following occurred:

Inspector, you were aware though that Mr Tema (was) in Perth with a gentleman by the name of Eddie Bajoramovski(?).---Yes. Well, I didn't know the name at the time.

No, but you were aware that he was in Perth with someone?---Yes.

That information came from Steven Paton?---Yes.

Prior to you going to the room at 4 am in the morning or thereabouts?---Yes, yes.

So immediately, given the fact that two people are in Western Australia together, you would agree with me that Eddie Bajoramovski - - -then also becomes a person very much of interest as far as the West Australian Police are concerned?---We were aware of Eddie.

I'll ask you the question again. He would become a person of interest, wouldn't he?---I don't know whether I can answer this one.

DEMPSTER, MR: Well, there might be a difficulty here, your Honour.

RAFFERTY, MR: If there's something I don't know about, I'd like to.

SCOTT DCJ: Well, if there is you ought to have a discussion about (ts 46).

38 The trial judge asked the jury and the witness to leave the courtroom, and was then told by the prosecutor that Inspector Kirby probably had difficulty in answering the question because of the ruling by French DCJ in 1999. After examining the transcript of that ruling his Honour asked what relevance the matter raised with Inspector Kirby had to the issues in the trial.

39 Mr Rafferty's response was that the 'state of play has very much changed since 1999' and that he intended to pursue with Paton the fact that he had been prepared to engage in corrupt relationships with informants. That fact was relevant to the credibility of Paton's evidence and 'how the drugs got to be in that [bathroom]'. For this reason the defence was entitled to establish whether Eddie was an informer, and after the lapse of 13 years it was likely that 'the issue of public interest would have long past' (ts 48 - 49).

40 In the course of what followed the prosecutor accepted that there had been a change of circumstances since 1999, and the trial judge decided to hear evidence on a voir dire from Inspector Kirby (ts 56 - 60). It was Inspector Kirby's evidence that in December 1996 Eddie was an authorised undercover officer within the meaning of s 31 of the Misuse of Drugs Act 1981 (WA). Following further submissions his Honour made the tentative ruling that:

I would need to be persuaded that there was a good reason why the defence ought to be fettered in its cross-examination; his cross-examination as to the status and association of the person by the name of Eddie to Mr Paton, given that he's done more than just provide information. He's travelled on the same day, he's been in communication with Mr Paton, he's in the adjoining motel room of a motel and apparently had access to the room, and the jury must be able to be made aware of that in the event that there's anything to be made of it (ts 69).

41 The prosecutor then agreed to disclose to the defence any record of convictions of Eddie (ts 78). The trial judge also ruled that following the disclosure of that information he would (if necessary) entertain an application for the recall of Inspector Kirby for further cross-examination (ts 80). The jury then returned and Inspector Kirby completed his evidence without answering the question whether Eddie was a 'person of interest'.

42 Prior to the resumption of trial on the following day the defence was provided with Eddie's record of convictions together with an accompanying statement by Detective Cockburn of the Victorian police. There was then the following exchange (in the absence of the jury) between defence counsel and the trial judge:

RAFFERTY, MR: I think my learned friend wants to recall Mr Kirby in respect of the one issue of the question I asked. 'Was Mr - was Eddie' - his pseudonym - 'a person of interest?' Difficult to have, sir, as given the information that's been disclosed this morning - and I say this as no criticism of anyone, but given the information I've had disclosed this morning, I may well not have asked that question yesterday.

It was never apparent from the materials and particularly, the cross - the evidence-in-chief and the cross-examination of Mr Kirby at the preliminary hearing, that Mr Bajoramovski - Eddie, whatever his name is, was a person of interest. Because it was suggested that there may have been police officers who went and attended his room.

That was actually an answer that was given at page 21 of the transcript, and that really causes me some difficulty now, sir, in respect of what that's opened up. Because what I understand my learned friend now wants to do is ask Mr Kirby, 'Was he at the - was he a person of interest?' 'No.' 'Was he - what was his role?' 'He was passing us on the information in relation to my client.'

And that now poses us some difficulty, sir. And I've only had this document for a brief period of time and my client's only had a very brief opportunity to look at it. And I really do need to consider our position, sir, in light of what is now included in this statement, now that we're - - -

SCOTT DCJ: All right. Well - - -

RAFFERTY, MR: - - - at a position we know - we now know after 13 years who this man is.

SCOTT DCJ: I can understand your dilemma and I think the appropriate way to deal with it is not on the run.

RAFFERTY, MR: No.

SCOTT DCJ: As I said to you yesterday, it was unfortunate that a question was asked whether or not this particular person was a person of interest. There was no response to it and the question is whether it is safe to leave it to the jury unanswered, with the usual direction that the questions asked are not evidence or whether in fact there's any significant disadvantage to the accused to now have the jury being made aware of the true status of that particular person. I must say from a - - -

RAFFERTY, MR: And what he was doing.

SCOTT DCJ: I must say from the papers and again, it's no criticism of anyone here, but it was certainly not [evident] to me on the papers that the person by the name of 'Eddie' was not said to have been a bona fide accomplice. But look, I think the appropriate way to deal with it Mr Rafferty, is to allow you the time to consider your position and we can then have the matter ventilated - - -

...

SCOTT DCJ: So what I'll do is adjourn pro tem, gentlemen.

RAFFERTY, MR: It won't take long, sir, but obviously I need to go through the materials with my client and then take instructions as to how and if he wants the trial to proceed given the fact that what is disclosed in this document and the timing of the disclosure and the effect it's had on the cross-examination that's already been put forward (ts 137 - 140).

43 The court resumed after defence counsel had obtained instructions from Mr Tema. Although counsel did not expressly say so, it was clear from what followed that his instructions were to proceed with the trial subject to agreement from the prosecution as to the manner in which it would complete its case. In that regard there was an lengthy exchange between counsel resulting in an agreement on what further questions the prosecution would put to Inspector Kirby, and on what evidence would be called from Detective Sergeant Cockburn and Mr Paton (ts 143 - 156).

44 The trial proceeded in accordance with what was agreed (and in accordance with further submissions from the defence as to the appropriate evidence from Detective Sergeant Cockburn - ts 179 - 206). Mr Tema did not testify and the jury ultimately returned with a verdict of guilty.

45 Mr Tema appeals from his conviction on seven grounds, and has leave to appeal on the first. On 6 May 2010, Mazza J ordered that the application for leave in respect of the remaining grounds should be heard with the appeal.

46 It is appropriate that I outline and then address each ground of appeal individually, and that I start with ground 2 (given that the first ground in part turns upon the other grounds).

Ground 2: the failure to call Eddie as a witness

The failure of the prosecution to call a material witness [Eddie] to give evidence constituted a miscarriage of justice.

Particulars

2.1 [Eddie] had known the appellant for several weeks prior to the arrest.

2.2 [Eddie] flew to Perth from Melbourne on the same day as the appellant.

2.3 [Eddie] stayed in a nearby hotel room to the appellant.

2.4 [Eddie] had access to the appellant's room and went into the appellant's room.

2.5 [Eddie] was in communication with Paton (T53).

2.6 There was no suggestion by the prosecution that at the time of the trial [Eddie] was still (13 years after the arrest of the appellant) an undercover officer or informant.

48 In relation to particular 2.4, there was no evidence to show that Eddie had 'access' to the appellant's room. According to Mr Tema's version of events in the record of interview he was alone when he booked into the motel, and (in the absence of evidence to the contrary), it was reasonable to assume that Eddie did not have keys to his room. He then waited in his room for Eddie to come, after which they went out together. Although Mr Tema did not say that Eddie entered the room before they went out, he was necessarily present if that in fact occurred. It follows that Mr Tema was in the position to give evidence of any opportunity that Eddie might have had to plant drugs in the bathroom.

49 Nevertheless, and even if Eddie did not go into the room, he clearly played a significant role in the events which gave rise to the charge against Mr Tema. If called as a witness, he would (at the very least) have been able to testify as to the reasons why he and Mr Tema had travelled to Perth, and whether or not their visit had anything to do with the methylamphetamines found in the motel bathroom. Accordingly, Mr Tema contends that Eddie was potentially a very important witness, and that the prosecution's failure to call him resulted in a miscarriage of justice.

50 The principles governing the obligation on the prosecution when deciding whether or not to call a witness are well established, and in R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575 they were condensed into the following general propositions:

The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice (575).

51 In elaborating on the first of the above propositions the High Court confirmed (as held in Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116, 119) that a prosecutor has a responsibility to ensure that the prosecution case is presented with fairness to the accused. In this regard:

A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment, but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined (576).

52 The decision by a prosecutor whether or not to call a witness does not involve the exercise of a discretionary power which is in some way reviewable by the court (Richardson (119)). Even when there is a misjudgment in the making of that decision, the question on appeal is always whether the absence of the witness resulted in a miscarriage of justice (Apostilides (577 - 578)).

53 In the present case, Mr Tema contends that there was a miscarriage because the absence of Eddie prejudiced him in the conduct of his defence. He was denied the opportunity of establishing Eddie's role in the relevant events, the extent of Eddie's links with Detective Paton, and of putting to Eddie that the drugs were planted in the bathroom. The unavailability of Eddie also denied Mr Tema the opportunity of rebutting attacks on his credibility by establishing that the two men had been on a business trip, and that Eddie was to purchase the return ticket to Melbourne as well as pay for their expenses (thus confirming the reasons why Mr Tema arrived in Perth with little money).

54 The question whether there was a miscarriage of justice should be viewed against the course of the proceedings as a whole including the manner in which Mr Tema conducted his defence. In this regard it is significant that Mr Tema and the senior counsel then representing him were aware at a very early stage of most of the matters now relied upon in support of ground 2.

55 As a result of the preliminary hearing on 4 August 1997 Mr Tema was aware that he had been under police surveillance from the time of his arrival at Perth airport and that that surveillance had continued while he was in the company of Eddie (ts 18 - 19, 30). The police had mounted the surveillance operation as a result of information from Detective Paton (ts 11). That information was that Mr Tema would be bringing amphetamines into Western Australia and that he would be in the company of Eddie (ts 19, 29 - 31). Detective Paton had also told Detective Kirby of the two motels where Mr Tema might stay (ts 31). Detective Paton was present when room 12 was searched (ts 11), and that same night had been in contact with Eddie by telephone (ts 20).

56 The obvious inference in these circumstances was that Eddie was a police informant who was acting in that capacity during the surveillance operation. Although Mr Tema and his counsel did not know that Eddie was an authorised undercover officer, it was obvious that his role had been much more than that of a passive police informant. That Mr Tema was alert to this fact was confirmed when his counsel submitted to French DCJ (on 21 June 1999) that there was 'a very strong likelihood' that Eddie had brought the drugs into Western Australia (ts 56). Counsel also referred specifically to the fact that there had been conversations between Paton and Eddie prior to the drugs being found (ts 46, 56).

57 Although Eddie was not named on the indictment as a prosecution witness it was always open to Mr Tema to request that he be called. In the event of the prosecution refusing that request, the issue could have been aired with the judge (pursuant to Apostilides proposition 2) on any of the occasions when the matter was before the court during 1998, 1999, 2000 and 2009. The ruling by French DCJ upholding public interest immunity in respect of Eddie's status as a police informer did not prevent Mr Tema from taking this course.

58 By the time of Mr Tema's trial in 2009 he and his counsel were also well aware that Detective Paton had been convicted of offences involving police corruption in 2003. As shown by his counsel's opening address, that fact was the main string in the bow of the defence. If this new information about Paton combined with what was known about Eddie necessitated the latter being called as a witness then it was still open for Mr Tema to request that this occur. That option remained available when it also became known that Eddie had been an authorised undercover officer with a criminal record.

59 In the end, and after all of the matters now relied upon were made known to Mr Tema, the trial was adjourned to allow him to consider his position. That adjournment was specifically for the purpose of enabling Mr Tema to instruct his counsel whether he wanted the trial to continue. In that regard, it was clear from the trial judge's remarks made before the adjournment that any application to abort the trial would have received serious consideration.

60 Following that adjournment Mr Tema did not apply to abort the trial. It was entirely a matter between him and his counsel as to why he did not give those instructions, but it may well be that he saw some advantage in the trial proceeding in Eddie's absence. That would be particularly so if he believed that Eddie's evidence would potentially strengthen the case against him.

61 Whatever the reason, Mr Tema effectively elected to proceed with the trial rather than apply for an adjournment with a view to Eddie being called. Mr Tema made that decision upon advice, and with knowledge of all of the circumstances that he now raises in support of ground 2 of his appeal. In my view it necessarily follows that he was not prejudiced in the conduct of his defence and that there was no miscarriage of justice. Ground 2 must fail.

62 Ground 3 of the appeal is closely linked to ground 2 and is as follows:

The appellant was denied a fair trial as a result of the late disclosure, during the course of the trial, of details pertaining to the role and status of [Eddie].

Particulars

3.1 The appellant was not aware that [Eddie] was an undercover officer until after the trial commenced.

3.2 The role and responsibility of an undercover officer is profoundly different to that of a lay person.

3.3 Prior to the commencement of a trial, it is essential for defence counsel to be informed whether a potential witness or individual involved with the facts surrounding the offence is a lay person, a police officer or an undercover agent.

3.4 As a result of the ignorance of defence counsel about the matters at paragraph 3.3, defence counsel stated during his opening to the jury that [Eddie] was a 'mysterious man'. Defence counsel was corrected in front of the jury about the status of [Eddie] and this became a major theme in the trial. This is likely to have caused the jury to speculate as to the reason why the undercover officer had close dealings with the appellant prior to the arrest.

3.5 As a result of the late disclosure of the status of [Eddie] defence counsel was denied the opportunity to make an informed forensic decision about how to conduct a central plank of the defence case.

63 In the present case s 45 and s 95 of the Criminal Procedure Act 2004 (WA) did not govern the prosecution's disclosure obligations. Those provisions have no application to proceedings commenced by ex officio indictment, and the Act in any event did not take effect until 2 May 2005. However, nothing turns on this because the common law obligations of disclosure are very clear and extend to any material in the prosecution's possession or power which would tend to assist the defence case. The obligation to disclose such materials arises from the prosecution's duty to present its case with fairness to the accused ('D' v The State of Western Australia [2007] WASCA 272 [4] - [8]; The State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514, 517.

64 The transcript shows that the prosecution did not possess information on Eddie or on his status as a police informer prior to the trial in 2009. If the prosecution had taken steps to obtain that information it would have been subject to French DCJ's ruling upholding the claim by the Commissioner of Police to public interest immunity. Accordingly, and pending the review of that ruling by the trial judge in 2009, the prosecution did not have the power to disclose the information.

65 Nevertheless, it was always within the power of the prosecution to request the Commissioner of Police to waive the claim to public interest immunity in view of the lapse of time and changed circumstances. It was also always open to the defence to apply for the ruling to be reviewed because of the changed circumstances. In light of these considerations I do not consider that the prosecution was at any time in breach of its disclosure obligations.

66 However, there can be little doubt that because of the changed circumstances in the lead up to trial in 2009, Mr Tema had a valid forensic interest in obtaining the information. The question to be determined is whether he was denied a fair trial as a result of late receipt of that information.

67 In arriving at the answer to that question it is again relevant to note the disclosures that were made at the preliminary hearing in 1997. Those disclosures were sufficient for Mr Tema to know that Eddie had been communicating with Detective Paton prior to the methylamphetamines being found. They were also sufficient for senior counsel to assert that there was a very strong likelihood that Eddie had brought the drugs into Western Australia. Yet it was also known that Eddie had not been charged as a co-offender.

68 In these circumstances it did not require great powers of deduction to realise that if Eddie was responsible for the drugs being secreted in the bathroom then he must have been an undercover officer with the immunity conferred by s 31(3) of the Misuse of Drugs Act 1981.

69 For these reasons, I find it difficult to accept that there is any substance in the claim that Mr Tema was taken unawares by the disclosure that Eddie was an authorised undercover officer. Even so, if he was in fact taken by surprise, then he had the opportunity to consider his position and to apply to abort the trial. As he chose not to take this course there can be no basis for the contention that he was denied a fair trial. Ground 3 of the appeal must fail.

The warning about accepting the evidence of corrupt former Victorian Police Officer Steven Paton was insufficient and inadequate.

Particulars

4.1 The key investigating officer in this case committed and was convicted of a number of serious offences, including trafficking drugs, when he was a member of the Victorian Drug Squad between 1997 and 2000.

4.2 Paton was the only police officer present at both the search of the hotel room and the appellant's premises in Victoria, 8 days after the arrest at which point the scales were found.

4.3 Paton was the police officer who initiated and directed the investigation regarding the appellant (T41).

4.4 Paton admitted to corrupt dealings with informants.

4.5 Paton admitted to doing nothing when other police planted evidence several months after the appellant was charged (T20).

4.6 Several police colleagues of Paton have also been found guilty of serious criminal offences.

4.7 While the learned trial judge directed the jury that it had to exercise caution before accepting the evidence of Paton, this warning was inadequate in informing the jury of the dangers involved with accepting the evidence of Paton.

4.8 An appropriate warning needed to specifically inform the jury of all the matters particularised at 4.2 to 4.6 above.

70 Paton was not a critical witness for the State because it was able to prove all elements of the alleged offence without his evidence. However, Paton's evidence was central to the defence case that he (either himself or as a party) was responsible for planting the methylamphetamines in the motel bathroom and the other incriminating items in Mr Tema's home. Accordingly, it was necessary that the jury carefully assess the credibility of Paton's denial that he had in any way falsely implicated Mr Tema in the crime. Given the history of Paton's corruption, fairness also required that the trial judge warn the jury of the dangers of accepting his evidence without that careful scrutiny. The warning that was given to the jury was in the following terms:

Now, the last thing I want to talk to you about in a special direction refers to the evidence of Steven Paton, and it's an important matter in this trial. Now, evidence has been given that Steven Paton, who gave evidence for the State, has two previous convictions for trafficking drugs, those convictions arising out of offences committed by him when he was a member of the Victorian Drug Squad, about which you'd heard evidence that he was a member between 1997 and 2000.

And during the course of that period, for 18 months, he said, during 1998 to 2000, he was the head of the drug diversion desk. In addition, you've heard him give evidence that he was involved in other unlawful activities whilst he was a member of the Drug Squad, including the stealing of about $5000 which was seized subsequent to a crime having been committed. You heard evidence from him that he witnessed a number of incidents of illegal conduct on the part of police officers and turned a blind eye.

These are matters which are to be taken into account when considering his credibility and the weight to be given to his evidence. The fact that someone has previous convictions or has acted unlawfully does not necessarily mean his evidence has to be rejected out of hand. It is a matter for you what weight you give to the fact that he's previously been convicted and has acted in this way. He was, at the time of the execution of the search warrant in room 12, and the execution of the search warrant eight days later on 31 December 1996 at the accused's home, an investigating police officer.

He was in the local CIB at the time. He was not the only officer involved in either search. A number of other officers have given evidence. The fact that he has a history of criminal behaviour does not necessarily mean he's lying on this occasion. But because of the extent and the nature of his criminal record; that is, two drug trafficking convictions when he was a serving officer, the kind of offences for which he has been convicted, and the other matters about which he made admissions relating to his conduct, you should keep in mind the dangers in accepting him as a truthful witness.

You have to exercise caution before you act on his evidence. But if you are satisfied that he is a truthful witness after having seen him give evidence, and having considered his evidence in conjunction with the other evidence in this trial, and give due weight to the dangers of acting on his evidence as I have spoken to you about, you can act on his version of facts which he has given in this trial (ts 293 - 294).

71 The trial judge went on to thoroughly summarise each of the prosecution and defence submissions relevant to the issue whether Paton might have falsely implicated Mr Tema in the crime (ts 299 - 303). In my view, when regard is had to all that the trial judge had to say on the subject, the warning to the jury was completely adequate. It summarised the particular aspects of Paton's misconduct as well as his turning of a blind eye to other police officers' illegal conduct, and also reminded the jury that he was present at both searches. It directed the jury to take these matters into account when assessing Paton's credibility, and to exercise caution before acting on his evidence. It also warned the jury to keep in mind the dangers of accepting him as a truthful witness, and to only act on his version of the facts after giving due weight to those dangers, and being satisfied that he was a truthful witness.

72 In my view there is no merit in ground 4 of the appeal.

Ground 5 - the direction as to the fingerprint evidence

The learned trial judge erred in failing to direct the jury that if it was not satisfied that the fingerprints of the appellant were placed on the fan cover when he secreted the drugs behind the fan that it could not convict the appellant. This was an intermediate fact which constituted an indispensable link in a chain of reasoning towards guilt.

Particulars

5.1 It was an indispensable link in the prosecution case that the appellant touched the fan cover when he placed the drugs behind the fan.

5.2 This was acknowledged by the learned judge.

5.3 A direction to this effect was not given to the jury. Instead the learned trial judge directed the jury that before it could use the fingerprint evidence it had to be satisfied that the fingerprints were placed on the fan cover when the appellant secreted the drugs.

5.4 The prosecution could not disprove as a reasonable hypothesis that the appellant touched the fan cover after it was removed by police and placed in the small room where he was arrested.

73 It was not in issue that three fingerprints from Mr Tema's left hand were found on the left hand edge of the fan cover. Although the angle and position of these fingerprints was consistent with the fan cover being removed or replaced, there was insufficient room for any fingers to fit between the wall and the normal position of the left hand edge of the cover when in place.

74 The defence contended that the evidence left open the reasonable possibility that the fingerprints came to be on the fan cover as a result of an inadvertent touching after it was seized as an exhibit by the police. In this regard, Mr Tema was in the same small room as the fan cover while it was being processed as an exhibit and while it was on the kitchen bench awaiting fingerprint examination. (The State's response to this contention was that Mr Tema was in the custody of Detective Mickle and was not permitted to move around the room.)

75 During closing addresses, the defence submitted that the jury could not find Mr Tema guilty without being satisfied beyond reasonable doubt that his fingerprints were placed on the fan cover while secreting the drugs. In the course of subsequent submissions in the absence of the jury the prosecutor conceded such a direction to be appropriate. Consequently, the trial judge gave the following direction to the jury:

Now, it's important you understand this with respect to this piece of evidence; that is, the fingerprint evidence. Before you can use the fingerprint evidence to support the State's case, you would have to be satisfied beyond reasonable doubt that the fingerprints of the accused were placed on the cover during the course of the accused secreting the drugs (ts 298).

76 The issue on appeal is whether the trial judge erred in directing the jury (to the effect) that it 'could not use the evidence' unless satisfied beyond reasonable doubt that Mr Tema's fingerprints were placed on the fan cover while secreting the drugs. It is said that the fingerprints were an indispensible link in the chain of evidence establishing guilt and that the direction should have been that the jury 'could not convict the accused' unless satisfied beyond reasonable doubt as to that intermediate fact.

77 In my opinion, the direction was erroneous, but not in the way contended in ground 5. Although the fingerprints were an important part of the prosecution case, they were not an essential ingredient in the proof of guilt. There were other circumstances capable of sustaining the inference (as the only reasonable inference) that Mr Tema had possessed the drugs. These were the facts, that the drugs were found in the motel room of which he was the sole occupant, he had flown from Melbourne the previous day, the drugs were wrapped in a particular sheet of a recent issue of a particular Melbourne newspaper, and the same issue of that newspaper found in Mr Tema's home was missing that particular sheet.

78 For these reasons I consider that the trial judge's direction on the fingerprint evidence was unduly favourable to Mr Tema. The correct direction was that the fingerprint evidence was only one of the circumstances relied upon by the prosecution to establish guilt. The prosecution did not have to prove any particular circumstance beyond reasonable doubt, and the jury was required to consider the whole of the circumstances established by the evidence to determine whether the only reasonable inference was that Mr Tema had possessed the methylamphetamines. In order to be satisfied beyond reasonable doubt of Mr Tema's guilt, the uniting force of all relevant circumstances had to exclude any reasonable hypothesis consistent with innocence (Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 535 - 536; R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 637 - 638).

79 Furthermore, there was another aspect of the trial judge's directions which was unduly favourable to Mr Tema, and which the jury would logically have taken into account when assessing the fingerprint evidence. This was his Honour's direction as to the element of possession. That direction was to the effect that there were two requirements for possession, firstly knowledge of the existence of the drug, and secondly an intention to control the drug. The jury was also told that this required proof beyond reasonable doubt that the accused knew that the substance in the packet was a prohibited drug (ts 287).

80 Accordingly, the trial judge effectively directed the jury that it could only find that Mr Tema possessed the methylamphetamines if it was satisfied that he knew that the package was in the bathroom and also knew that it contained a prohibited drug. This direction placed too high a burden on the prosecution, because all that was required to be proved was that Mr Tema had an awareness or belief in the likelihood of a prohibited drug being under his dominion or control (The State of Western Australia v 'R' [2007] WASCA 42 [67], [228]).

81 For the above reasons ground 5 of the appeal must fail.

Ground 6 - admissibility of items seized under the Victorian warrant

The learned trial judge erred in admitting evidence of the items seized at the appellant's home.

Particulars

6.1 The Victorian warrant was invalid because the statutory power pursuant to which it was purportedly authorised does not permit warrants to be issued in relation to offences committed outside Victoria.

6.2 The Victorian warrant stated that it was issued pursuant to s 465 of the Crimes Act 1958 (Vic). This provision relates to offences committed in Victoria.

6.3 Section 341 of the Crimes Act 1958 (Vic) authorises warrants to be issued in Victoria regarding offences committed outside Victoria.

6.4 The learned trial judge erred in not excluding the evidence obtained pursuant to the Victorian warrant in the exercise of the Bunning v Cross discretion.

82 It is common ground that the search warrant executed in Victoria was invalidly issued under s 465 of the Crimes Act 1958 (Vic) which applied only to offences committed within that State. In respect of offences committed outside Victoria, any search warrant had to issue under s 341 of that Act. At the directions hearing in November 1999 Jackson DCJ ruled that the search warrant was invalid, but exercised the discretion under Bunning v Cross to allow admission of the evidence.

83 The trial judge was not asked to review or depart from Jackson DCJ's ruling, but ground 6 nevertheless contends that his Honour erred in admitting the items seized under the Victorian warrant into evidence.

84 In this regard, it is said that Jackson DCJ's ruling was based on the erroneous assumption that the Victorian search took place 'immediately after' the search in Western Australia. It is also said that the fact that Paton was present in Mr Tema's home at the time of the search combined with his subsequent convictions significantly compromised the weight that could be given to the evidence obtained and should have resulted in a ruling that the items seized were inadmissible.

85 In all of these circumstances the correct approach to ground 6 is to determine whether or not there was any miscarriage of justice as a result of the electronic scales, the newspaper with the missing page, and the airline tickets being admitted into evidence. The lack of any objection at trial to the items being admitted does not prevent this issue being considered on appeal (Crampton v The Queen (2000) 206 CLR 161 [47] - [57]; Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [22]).

86 The above issue in respect of the airline tickets can be separately considered under ground 7. However, it is my view generally that the admission of the items did not result in any miscarriage, and I have come to that conclusion for the following reasons.

87 Firstly, and if it can be said that Jackson DCJ wrongly described the Victorian search as occurring 'immediately after' the West Australian search, that was not an error of any significance. Christmas had intervened, and the Victorian search was carried out after Mr Tema had been released to bail and had returned to his home State. The fact that eight days had elapsed in the meantime has little (if any) bearing on the question whether his Honour should have allowed admission of the evidence in the exercise of the discretion under Bunning v Cross.

88 That matter aside, it is not submitted that Jackson DCJ in any way erred when weighing the various factors relevant to the exercise of his discretion. In this regard there was no suggestion of any deliberate or reckless disregard of the law, the evidence obtained was highly probative, and its cogency was not affected by the illegality of the warrant. (The fact that Mr Tema was present, and in the position to testify as to any irregularity, added to its cogency.)

89 By the time of trial in 2009 additional circumstances had become known, namely, Paton's convictions and his involvement generally in police corruption. However, the evidence fully appraised the jury of all of those circumstances, and as a result of hearing and seeing Mr Paton they were in a position to judge the credibility of his denial that he had planted the newspaper and electronic scales in Mr Tema's home. The jury also had the benefit of hearing and seeing Detectives Cleaves and Kennedy who had accompanied Paton at the material time. On the evidence it was highly unlikely that Paton could have planted items without the knowledge and concurrence of those two witnesses.

90 Mr Tema was present at the time of the search, and if the items had been planted he was in the position to give evidence to that effect. However, he elected not to testify (as he was fully entitled to do). Consequently the evidence of Paton and the other two detectives was uncontradicted, and the jury were entitled to give it full weight.

91 In these circumstances there was no miscarriage of justice and ground 6 must fail.

The learned judge erred in admitting evidence of the airline tickets to Perth dated 1995 in the name of the appellant dated 22 June 1995.

Particulars

7.1 No boarding passes were located.

7.2 Airline tickets alone do not establish or meaningfully support the hypothesis that the appellant in fact used the tickets to travel to Perth.

7.3 Business records are not admissible unless the representation contained in them is relevant.

7.4 The fact that an airline ticket bears the name of the appellant does not establish that the appellant travelled in accordance with the details set out in the ticket.

7.5 Alternatively to paragraph 7.4, the tickets are so marginally relevant that they should be excluded in the exercise of the judge's discretion given that they are likely to be given undue weight in light of the statement by the appellant in his record of interview that he had not been to Perth in the past 20 years or so.

92 This ground incorrectly states that the tickets were 'to Perth' when in fact they were return tickets from Perth to Melbourne. Two separate tickets were paid for in cash at Perth Airport on 21 June 1995 for flights to Melbourne that day and from Perth to Melbourne on 29 June. Both tickets were issued in the name of Mr M Temelkov, and the slips missing from the butts of the tickets indicates that they had been used.

93 Ground 7 contends that the presence of the used tickets in Mr Tema's home did not prove that he was the one who used them to fly from Perth to Melbourne and return. This is clearly a correct assertion in respect of at least one of the tickets given that they were for flights by two people travelling at the same time.

94 Furthermore, particular 7.5 correctly asserts that the airline tickets were marginally relevant. They were not directly relevant to any factual issue in the trial, and did not establish any course of conduct which might be admissible as propensity evidence. At most the tickets could only prove that what Mr Tema said during his interview about not being in Perth for 20 years was a lie. Accordingly, evidence which tended to show that he was in Perth during that period went to a collateral issue and was relevant only to his credit.

95 It is a well known rule that evidence of collateral facts is generally inadmissible, but witnesses can be cross-examined about facts relevant to their credit. It is also a general rule that the answers to questions about collateral matters are final and cannot be contradicted by other evidence (Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 [32] - [33]). This latter rule is a 'rule of convenience' (Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533, 551), and there is no reason in principle why it should not extend to answers to questions about collateral matters in an accused's video record of interview with the police. In this regard, the primary reason for the rule (the avoidance of a multiplicity of issues) logically applies to an answer relevant only to credit regardless of whether the question is put in a recorded interview or in cross-examination in court.

96 Accordingly, I consider that the airline tickets were inadmissible and should not have been received into evidence. This is so notwithstanding the lack of any strenuous objection to their reception at the time. For these reasons ground 7 of the appeal should be upheld.

Ground 1 - unreasonable or unsupportable verdict

The verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence. it is unreasonable or cannot be supported.

Particulars

1.1 There was no direct evidence linking the appellant to the drugs. The evidence against the appellant was entirely circumstantial.

1.2 The main investigative officer, Steven Paton formerly a police officer in the Victorian Drug Squad, was corrupt. He was present when the drugs were found in the motel room. He was present when the newspaper and scales were found at the appellant's house. He was the only police officer present at both searches.

1.3 Paton was in communication with 'Eddie Bajoramovski' (not his real name - 'an undercover civilian officer' - referred to as E in the submissions below), who had the opportunity to plant the drugs in the motel given that he was staying in a nearby hotel and had been in the appellant's room.

1.4 It was irregular that the search of the appellant's house would not be co-ordinated with the search of the motel room. The house was searched eight days after the drugs were found in the motel room and after the appellant had returned back to Melbourne.

1.4 A key witness (E) was not called to give evidence.

1.5 It could not be discounted that the appellant touched the fan cover after it had been removed by police (T83).

1.6 There was no other indicia or items connected with drug trafficking - apart from scales (which were connected with Paton) - such as cash, weapons, clip-seal bags, or lists with criminal contacts in the possession of the appellant.

1.7 There were irregularities in relation to all of the three main items of circumstantial evidence against the appellant:

1.7.1 The scales were too small to be used in the packaging of large amounts of drugs;

1.7.2 The cover of the exhaust fan had not been properly returned and was protruding (thereby inviting inspection); and

1.7.3 The Herald Sun newspaper from which pages had been taken to wrap the drugs was supposedly found at the appellant's house despite the fact that it was two weeks old - it had not been discarded.

1.8 The fingerprints of the appellant were not found on any other items associated with the drugs, including the plastic bag in which they were contained. the tape which secured them or the newspaper in which they were wrapped. The appellant's fingerprints were found on the only item seized by police which the police, and in particular Paton, had a clear opportunity to get the appellant to handle.

97 The facts set out in particulars 1.1, 1.2, (the second) 1.4 and 1.6 are common ground. Those asserted in particular 1.3 are correct subject to the comments I have already made in respect of particular 2.4 of ground 2. In this regard there was no clear evidence that Eddie had the opportunity to plant the drugs in the bathroom. On the evidence, the jury was entitled to assume that he did not have such an opportunity.

98 As to (the first) particular 1.4, I have difficulty accepting the proposition that the lapse of eight days between the two searches was necessarily 'irregular'. The second search took place after Mr Tema and Detective Paton had both returned to Melbourne. The defence counsel did not seek to make anything of this point at trial (ts 228), and if there was anything unusual about the delay in the second search, this was more than offset by the fact that it facilitated Mr Tema's presence while it occurred.

99 Particular 1.5 refers to the possibility that Mr Tema touched the fan cover after it was removed by the police. This possibility was fully canvassed with the relevant prosecution witnesses (ts 38, 82 - 84, 100, 109 - 111, 117, 122 - 123). It was open to the jury to conclude that there was no such possibility. In this regard the exhibits officer Detective Clark was sure that he had maintained the integrity of the exhibits and that 'no one else' had touched them. It was Detective Mickle's role to 'look after' Mr Tema and to ensure 'his security and the security of the evidence'. Accordingly, Mr Tema was not permitted to move around the room (ts 122 - 123).

100 As to particular 1.7, the 'irregularities' referred to do not impress me as significant or remarkable. Although the prosecution did not suggest that the electronic scales had a direct connection with the drugs found in the bathroom, they were capable of weighing the smaller of the two quantities of methylamphetamines. Speculation as to the reason why the exhaust fan cover protruded could lead nowhere. Ordinary human experience suggests that there is nothing unusual in a person having a stack of recently issued newspapers in his home.

101 The facts set out in the first sentence of particular 1.8 are correct. However, the implication in the second sentence was never put to Paton or the other relevant witnesses (which one would expect if defence counsel had instructions to that effect). There was evidence before the jury which it was entitled to accept and which foreclosed any such possibility.

102 The question posed by ground 1 of the appeal is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that Mr Tema was guilty. The answer to that question is not to be determined by simply examining the transcript of the evidence and the exhibits. It is also necessary to have regard to the considerations that the jury had the primary responsibility of determining guilt or innocence, and that it had the benefit of seeing and hearing the witnesses (M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493; Jones v The Queen (1997) 191 CLR 439, 451 - 452).

103 In the end, the evidence as a whole provided a strong circumstantial case that Mr Tema had possessed the methylamphetamines found at the motel. The critical question for the jury was whether the evidence also left open a reasonable possibility that he had been falsely implicated in the offence as a result of incriminating items being planted in the bathroom and at his home. The jury was aware of all of the circumstances capable of supporting that alternative inference, and it also had the benefit of hearing and seeing the witnesses.

104 It was clearly open on the evidence for the jury to be satisfied beyond reasonable doubt of Mr Tema's guilt. It follows that ground 1 must fail.

105 This court must allow the appeal if in its opinion the error of law under ground 7 justifies the setting aside of the conviction or alternatively resulted in a miscarriage of justice (Criminal Appeals Act 2004 (WA) s 30(3)). If the court is of that opinion, it may nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has occurred (pursuant to the proviso in s 30(4)).

106 The leading authority as to the principles governing the exercise of the proviso is Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 where the High Court held:

The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred' [35].

...

Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt [39].

...

The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself [41]. (the authorities cited have been omitted)

107 The High Court in Weiss [42] also held that no absolute rules or singular tests are to be applied by an appellate court when examining the record other than the three fundamental propositions referred to above. This is because, any attempt to formulate other rules or tests would distract attention from the statutory test and the very wide diversity of circumstances in which the proviso must be considered. Nevertheless, an appellate court should have regard to the following matters:

First, the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials ... and that the standard of proof is beyond reasonable doubt [43]. (authorities cited have been omitted)

No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty [44].

108 Even if the appellate court is persuaded that the evidence properly admitted at trial proves the accused's guilt beyond reasonable doubt this does not foreclose the possibility that there are other circumstances which justify allowing the appeal and ordering a new trial. Such circumstances include 'a significant denial of procedural fairness', or 'such a serious breach of the presuppositions of the trial as to deny the application of the ... proviso' (Weiss [45] - [46]). There is some doubt whether there may be other particular criteria which should be applied when determining the existence of such circumstances (Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373; Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [33]). These and other authorities were reviewed by Buss JA in MNO v The State of Western Australia [2009] WASCA 59 [66] - [75], and I respectfully agree with his Honour's conclusion that:

[Q]uestions of degree are involved in determining whether, in the circumstances of a particular case, an appellate court considers that the nature of the error or miscarriage at trial precludes the court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the prosecution case or the appellate court's opinion as to the accused's guilt [75].

109 The first task facing this court under s 30(4) is to determine whether the evidence properly admitted at trial proved beyond reasonable doubt that Mr Tema was guilty of the offence on which the jury returned its verdict of guilty. In my view, and essentially for the same reasons I have expressed in respect of ground 1 of the appeal, the evidence properly admitted did prove his guilt beyond reasonable doubt.

110 Even so, and notwithstanding the strength of the prosecution case, it is also necessary to determine whether the wrongful admission of the airline tickets into evidence was a circumstance of such a nature as to preclude any satisfaction that there was no substantial miscarriage of justice. Matters of degree are involved in this determination including the extent to which the admission of the tickets resulted in procedural unfairness.

111 In this regard the airline tickets were a very minor part of the prosecution case, and it is not surprising that there was no objection to them being admitted. The tickets at most proved that a fairly insignificant assertion by Mr Tema during the interview was a lie. That assertion was overshadowed by many other assertions which were directly relevant to the question of guilt, and which I consider to have been inherently implausible (eg, his reasons for coming to Perth). There was nothing in the contents of the tickets themselves or in the surrounding circumstances which in any other way prejudiced the defence.

112 For these reasons I consider that the admission of the airline tickets into evidence was a relatively minor aberration in the trial process which does not preclude the conclusion that no substantial miscarriage of justice has occurred. I am satisfied that there was no substantial miscarriage of justice and accordingly have come to the conclusion that the appeal against conviction should be dismissed.

113 Mr Tema appeals against his sentence on the following grounds:

Ground 1

The sentence of 7 years and 6 months' with a non-parole period of 5 years and 6 six months' imprisonment is manifestly excessive.

Particulars

His Honour erred in failing to give insufficient [sic] weight to the:

the absence of relevant prior convictions;
appellant's age;
appellant's prospects of rehabilitation;
the fact that specific deterrence was unnecessary; and
the relative low purity of the drugs.

Ground 2

His Honour erred in failing to give sufficient weight to the delay between the offence and the sentence.

Particulars

There was nearly a 13 year gap between the offence and the sentence.

The prosecution was not ready to proceed to trial for at least three years after the appellant was charged.

Ground 3

His Honour erred by giving excessive weight to general deterrence.

114 Mr Tema's personal circumstances were that he was born in Macedonia, migrated to Australia as a young adult, and worked as a bus driver or truck driver. The offence was committed when he was 43 years of age, and he was 56 years old at the time of sentence. He was married with four adult children and five grandchildren. He had a minor past criminal record involving a gaming offence and a firearms offence, without any previous drug related conviction. Furthermore, he was not convicted of any offence while on bail or at large after 1996.

115 When passing sentencing the trial judge noted that although personal deterrence did not 'loom large', general deterrence was an important factor because of the damage to the community and the enormous amount of crime caused by the distribution of methylamphetamines. Accordingly, general deterrence called for a sentence 'which reflects the degree of criminality in dealing with this quantity of methylamphetamine' (ts 19). Although the purity of the methylamphetamines was not significantly high, and was of 'street value or marginally above street value', the quantity of the drugs was substantial. In that regard:

It's true that that factor does not outweigh other relevant factors, but it is an important issue in sentencing you and determining the level of participation in the drug trafficking industry. In your case, there was nearly a half a kilogram of methylamphetamine; and that is, in any definition, a substantial quantity, capable of resulting in widespread sale and distribution into our community.

You were to play, on the evidence at trial, an integral role in the distribution of the methylamphetamine (ts 18).

116 With regard to the delay until trial his Honour noted that the most significant portion of this was the result of Mr Tema absconding in 2000. Two and a half years of the earlier delay was associated with dilatory conduct by police officers carrying out the fingerprint examination. Although his Honour was not persuaded that this early period of delay was 'of any great material effect', it was taken into account in the overall sentence (ts 18).

117 Mr Tema does not assert that there was anything said (or not said) in the course of sentencing which was indicative of error. Rather, he contends that the length of the term of imprisonment shows that the trial judge gave insufficient weight or excessive weight to the various factors particularised in the grounds of appeal. It follows that the appeal essentially turns on ground 1, and on whether or not the term of 7 1/2 years imprisonment was manifestly excessive.

118 Nevertheless in relation to ground 2, I consider that the trial judge's sentencing remarks appropriately addressed the issue of delay. It was significant that nine of the 13 years delay between arrest and sentence was entirely attributable to Mr Tema's failure to appear at his trial in 2000. Given that he chose to breach bail and abscond, I consider that there was no basis to discount his sentence simply because he did not commit any offence during the intervening period. It was a period of delay caused by his obstruction of the course of justice (Scook v The Queen [2008] WASCA 114 [60]).

119 With regard to the earlier period of delay, I do not understand the trial judge to have attributed two and a half years of this solely to the dilatory conduct of police officers. The late disclosure of the fingerprint examination caused the trial set down for 21 June 1999 to be adjourned until 13 March 2000 which was a period of approximately nine months. Further, the trial judge did specifically take that aspect of delay into account notwithstanding his opinion that it was not of 'any great material effect' (which in my view was a correct observation).

120 As to ground 3, the trial judge correctly stated that general deterrence is an important factor in the sentence for any offence involving possession of a substantial quantity of methylamphetamines (Stapleton v The Queen [2004] WASCA 130 [43]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [40]). In this regard the major considerations are to put a stop to the drug trade, to discourage would be offenders, and to protect the community from the criminality driven by a craving for drugs (Tulloh [42]; Marker v The Queen [2002] WASCA 282 [80]).

121 With regard to ground 1, further significant considerations were that Mr Tema had not had any drug addiction, and that his motive in committing the offence was monetary gain. It is normally futile to argue that personal circumstances and antecedents are significantly mitigatory where an offender consciously and deliberately participates in the methylamphetamine trade (Stapleton [43]).

122 Although the purity of the methylamphetamines was approximately 14% they comprised a very substantial quantity of nearly 450 g which was destined for widespread sale and distribution within the community. As noted by the trial judge this quantity also indicated the level of Mr Tema's participation in the drug trafficking industry.

123 Any offender who engages in the illicit drug trade for monetary gain and plays an important role in the distribution process has to expect a heavy sentence in which general deterrence is the predominate consideration (Aconi v The Queen [2001] WASCA 211 [18]). In this regard, the particular weight and purity of the drugs involved does not determine the gravity of the offence (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [70], [73]). When one has regard to the maximum penalty and to the range of sentences commonly imposed for offences of the type committed by Mr Tema I do not consider that the sentence of 7 1/2 years' imprisonment fell outside that range. Although it was probably towards the upper end of the range it cannot be said to have been manifestly excessive. For these reasons the appeal against sentence should be dismissed.

124 In relation to the conviction appeal, CACR 7 of 2010, there were seven grounds of appeal. Leave was granted earlier in relation to ground 1. Ground 1 should be dismissed. The application for leave to appeal on the other six grounds was referred to the hearing of the appeal. Grounds 2 to 6 had no reasonable prospect of success and leave should be refused in relation to those grounds. In relation to ground 7, leave should be granted, the ground upheld but the appeal should be dismissed because there was no substantial miscarriage of justice.

125 In relation to the appeal against sentence, CACR 8 of 2010, there were three grounds of appeal. The application for leave to appeal was referred to the hearing of the appeal. None of the grounds had any reasonable prospect of success and leave should therefore be refused on all three grounds with the consequence that the appeal is dismissed.

Aconi v The Queen

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Judgment (192 paragraphs)

TEMA -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 41 (14 March 2011)

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Legislation Cited (3)

Cases Cited (18)