Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Attempt to manufacture methylamphetamine - Comments by trial judge - Whether materially prejudiced the defence - Whether miscarriage of justice caused - Whether directions on circumstantial evidence were correct - Whether presence of DNA an indispensable link

B v The Queen [1992] HCA 68; (1992) 175 CLR 599

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

Broadhurst v The Queen [1964] AC 441

Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

1 BUSS P: This appeal should be dismissed. I agree with Hall J's reasons in relation to ground 1 and with Mazza JA's reasons and Hall J's reasons in relation to ground 2.

2 MAZZA JA: I agree with Hall J that this appeal should be dismissed.

3 In relation to ground 1, I respectfully agree with Hall J's reasons. I have nothing more to add.

4 In relation to ground 2, I will express my own reasons for concluding that the ground has not been made out. I do so mindful that Hall J has set out the relevant background, including the evidence that was adduced by the parties and his Honour's directions to the jury. I will only traverse this material and add to it to the extent that it is necessary to explain what follows.

5 It was not disputed by the appellant at trial that there had been an attempt to manufacture methylamphetamine in the shed at the Armadale house.[1] The real issue for the jury was whether the State had proved, beyond reasonable doubt, that the appellant was 'involved' in the attempt. In the context of this case, for the appellant to be 'involved' in the attempt required the State to satisfy the jury beyond reasonable doubt that the appellant assembled, alternatively the appellant aided or assisted another or others to assemble, at least some of the equipment for the purpose of attempting to manufacture methylamphetamine.[2] In other words, the State was required to prove beyond reasonable doubt that the appellant was a principal offender, or an aider: see s 7(a) and s 7(c) of the Criminal Code (WA).

6 The State's case as to the appellant's involvement in the alleged offence was circumstantial and was based on the undisputed facts set out in [84] of Hall J's reasons.

7 The appellant participated in a video-recorded interview with police on 28 September 2015. He also testified at trial. His defence was, in essence, that he was not in any way involved in the attempted manufacture of methylamphetamine at the Armadale house. While, of course, the appellant had no onus of proof, he was unable to explain the presence of his DNA on the six pieces of tape retrieved from the two items of equipment which had been used in the attempted manufacture of methylamphetamine. The defence case was that the appellant's DNA got

on the pieces of tape by secondary transfer via Mr Paul Woods, or by contamination at the crime scene.

8 As to the State's circumstantial case, his Honour gave the jury a direction using the metaphor of 'strands in a rope' consistently with what was said by Dawson J in Shepherd v The Queen.[3] The relevant direction was in these terms:[4]

What if you completely reject his evidence? No, he's lying, he made all this up, like the State say, to try and explain away his DNA. Does that mean the State are flagged through now? No. The State only win if a finding of guilt is the only reasonable hypothesis left standing based on the evidence you do find reliable. That's how it works.

Now, what do the State actually have to prove beyond reasonable doubt? The State don't have to prove much beyond reasonable doubt at all actually. All they have to do, given that there's an admission that someone was attempting to manufacture methylamphetamine, all the State have to prove is that [the appellant] is involved.

That's the only thing that has to be proven beyond reasonable doubt. Everything else; how his DNA got to be where it is, how many times he used methylamphetamine in the relevant period, whether Paul Woods exists or not; none of that has to be proven beyond reasonable doubt. There's only one issue in this case that has to be proven beyond reasonable doubt; was he involved?

Because a circumstantial case is one based on the combined effect of a number of circumstances which prove the ultimate proposition beyond reasonable doubt. It's always the ultimate question that has to be proven beyond reasonable doubt. None of the circumstantial components need to be proven beyond reasonable doubt.

If you look at a rope - imagine a circumstantial case is a rope with numerous strands, and you imagine beyond reasonable doubt is the breaking strength of the whole rope, the strands don't have to have that degree of strength, it's the combined force of the strands that give the rope that strength of beyond reasonable doubt. (emphasis added)

9 The emphasised part of the direction is now said by the appellant to have given rise to a miscarriage of justice. The appellant contends that his Honour wrongly instructed the jury that 'how [the appellant's] DNA got to be where it is' did not have to be proved by the State beyond reasonable doubt.

10 The appellant contends that his Honour should have instructed the jury that an indispensable link in the reasoning towards guilt was that it had to be satisfied beyond reasonable doubt that the appellant's DNA was transferred by him onto the six pieces of tape in the course of attempting to manufacture methylamphetamine.[5]

11 I do not accept that the impugned direction was erroneous.

12 If the appellant transferred his DNA onto the six pieces of tape in the course of attempting to manufacture methylamphetamine, he was 'involved' in the commission of the offence, either as a principal or as an aider. Proof of this amounted to proof of what was, in effect, the ultimate issue in the case.

13 The appellant's contention reflects an erroneously narrow assessment of what, in all the circumstances of the case, the State had to prove beyond reasonable doubt in order to establish guilt. As I have said, it was necessary for the State to satisfy the jury beyond reasonable doubt that the appellant assembled, alternatively the appellant aided or assisted another or others to assemble, at least some of the equipment for the purpose of attempting to manufacture methylamphetamine.

14 The State's circumstantial case was correctly described by the trial judge as a 'strands in a rope' case. The question of whether the appellant was 'involved' in the commission of the offence required a consideration of all of the facts and circumstances, to which I have referred, as a whole.

15 This is not to deny the importance of the DNA evidence. From the appellant's perspective it was a potentially very damaging aspect of the State's case, particularly as he did not dispute that his DNA was found on six separate pieces of tape and on two separate pieces of equipment. The appellant's case about how his DNA came to be on the tape was plainly put to the jury for its consideration.

16 It is apparent from the jury's verdict that they rejected the appellant's exculpatory evidence and his exculpatory out of court statements. When all of the evidence relied on by the State, including the DNA evidence and the undisputed facts set out in [84] of Hall J's reasons, are evaluated in their entirety, it is apparent that the State had a very powerful circumstantial case against the appellant. Proof beyond reasonable doubt that the appellant's DNA was deposited by him onto the six pieces of tape and the two pieces of equipment in the course of attempting to manufacture methylamphetamine was unnecessary. Similarly, proof beyond reasonable doubt that the appellant's DNA was not deposited onto the six pieces of tape and the two pieces of equipment by secondary transfer or contamination was not necessary. Neither of those propositions was an indispensable link in reasoning towards guilt.

17 In the appellant's written and oral submissions, reference was made to the High Court's decision in Fitzgerald v The Queen.[6] Counsel submitted that ground 2 raised a similar issue to that raised by the appellant in that case.

18 In Fitzgerald, the appellant was convicted after trial of murder and 'aggravated causing harm with intent to cause serious harm'. The prosecution case was the appellant, a co-offender and others forced their way into a house and while inside, attacked the two victims with weapons. The victims suffered serious injuries, from which one of them later died. The prosecution did not allege that the appellant (or his co-offender) was a principal offender, rather, it was said they were aiders. The real issue for the jury was whether the evidence was sufficient to establish that he was one of a group who had entered the house. The only evidence capable of proving this was DNA said to have come from the appellant, which was discovered on a digeridoo found at the crime scene. A question was raised on the evidence of whether the appellant's DNA had been placed on the digeridoo by secondary transfer.

19 There was no dispute between the parties that it was an essential link in the prosecution's circumstantial case that the appellant's DNA was transferred by him to the digeridoo during the attack, and that this circumstance needed to be proved by the prosecution beyond reasonable doubt.

20 The High Court found, having regard to the evidence adduced at the trial, that the evidence was insufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack.

21 Fitzgerald was decided on its particular facts. The present case is different in nature. Here, the State's case as to the appellant's presence at the Armadale house did not rely exclusively on the DNA evidence. Other evidence established his presence at the Armadale house, his propensity to manufacture methylamphetamine and his connection with the attempted manufacture of methylamphetamine at the Armadale house. Further, although he had no onus of proof, the appellant's case as to secondary

transfer or contamination in respect of all six pieces of tape and both pieces of equipment was largely, if not completely, speculative, and involved an improbable degree of coincidence. Finally, unlike the appellant in Fitzgerald, the appellant did not rely on a ground that the verdict was unreasonable or could not be supported on the evidence. I do not regard Fitzgerald and the present case as being truly comparable.

22 For these reasons, the appellant has not suffered any miscarriage of justice by reason of his Honour's directions.

23 HALL J: This is an appeal against conviction.

24 The appellant was convicted after trial that, on an unknown date between 6 July 2014 and 3 July 2015, at Armadale, he attempted to manufacture a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA). On 24 February 2017 he was sentenced to 2 years' imprisonment with an order that he be eligible for parole.

25 On 18 May 2017, Mazza JA granted leave to appeal on the grounds contained in the appellant's case. On 22 May 2017, Buss P granted an application for an urgent appeal order.

26 There are two grounds of appeal. The first ground is that a miscarriage of justice was occasioned by comments made by the trial judge in summing up. The second ground is that a miscarriage of justice was occasioned because the trial judge directed the jury that how the appellant's DNA was deposited on items associated with the attempted manufacture of methylamphetamine did not form an indispensable link in the prosecution case and did not have to be proved by the State beyond reasonable doubt.

27 In my view, for the reasons that follow, neither of the grounds of appeal can succeed. The appeal should be dismissed.

28 At about 2.00 am on Friday, 3 July 2015 police conducted a search at a house in Armadale. The house was rented by a man named Daniel Everett. Everett lived there with two other people, Joseph Degan Sentis and Tegan Hyde. The appellant did not live at that address and was not present when police attended to conduct the search (ts 40 - 41).

29 During the search police found a tin shed at the back of the house. Inside that shed, and on a grassed area around it, police located a number

of items. These included a stainless steel pressurised cylinder, multiple lengths of rubber hose which were attached with tape to plastic bottles that were filled with tissue paper, the components of a number of dismantled lithium batteries, an empty caustic soda container and various other bottles, buckets and lengths of tubing (ts 41).

30 Police called for the assistance of chemists from ChemCentre. The chemists who attended confirmed that the equipment and chemicals found at the premises could be used to manufacture methylamphetamine using a method known as the 'Birch reduction' or 'Nazi' method. One of the chemists said that the equipment had in fact been used in an attempt to manufacture methylamphetamine. There are three stages to the Birch reduction method: extraction, reaction and purification. The chemist gave evidence at the trial that remnants of the manufacture of ammonia in parts of the equipment indicated that the reaction phase had been undertaken (ts 171). He said that the Birch reduction method was the most common method used for the illicit manufacture of methylamphetamine (ts 172).

31 Some of the equipment and associated items were submitted for DNA testing. In particular, a quantity of black electrical tape had been applied across the top of the ammonia gas generator. This tape was removed and tested for DNA. Two pieces, described as tape A and tape B in the report of the forensic biologist, were swabbed on the non-adhesive surfaces. These swabs did not produce any detectable DNA (ts 258, 260). The adhesive surfaces at the ends of the pieces of tape were then tested. Ends were chosen that appeared to have been stretched or pulled rather than cut. These tape ends were excised for the purpose of testing. On tape A, a mixed DNA profile consistent with having come from three individuals was recovered. One of the contributors identified within this profile matched the appellant. On statistical analysis it was 100 billion times more likely that this mixed profile was that of the appellant and two unknown individuals than three unknown individuals (ts 259). The excised ends of tape B also produced a mixed profile. In this case the profile was consistent with having come from two individuals. The appellant was identified as being one of the contributors. On statistical analysis it was 100 billion times more likely that this sample was that of the appellant and one unknown individual than that of two unknown individuals (ts 261).

32 A quantity of red electrical tape was recovered that had been used to connect tubing to plastic bottles containing paper towels. This was a drying apparatus in the manufacturing set-up. The red tape was tightly wrapped around the tubing. Some of this tape was removed for the purpose of testing. As with the black electrical tape, the non-adhesive surfaces were swabbed and did not produce any useful results. Two end pieces of the red tape were excised and produced a single source DNA profile that matched that of the appellant. The statistical analysis was that it was 100 billion times more likely that the appellant was the donor of this sample than an unknown person (ts 268).

33 A quantity of beige tape was also found on the tubing. The non-adhesive surface was swabbed and produced no useful results. Two ends of the beige tape were excised and produced a mixed DNA profile consistent with having come from two contributors. The conclusion was that it was 100 billion times more likely that the sample was that of the appellant and an unknown individual than that of two unknown individuals (ts 269).

34 A few days after the search of the Armadale house police found that the front doorbell had a camera function that could take photographs when the bell was pressed. The contents of the camera were downloaded and a number of photographs of the appellant were found.

35 After police received the results of the forensic testing the appellant was arrested on 28 September 2015 and interviewed. He denied any involvement in the manufacture of methylamphetamine at the Armadale house. However, he did admit that he had manufactured methylamphetamine in the past using the Birch reduction method. He said that he had done this for about three years (ts 322). He said that he had manufactured methylamphetamine for his personal use. He had learnt the method of manufacture from the internet and from a friend. He said that he had last used methylamphetamine two weeks prior to the interview and that his use was now infrequent. He accepted that he may have known Everett and that he had a friend who had stayed with a person called Everett. He said that his friend was named Paul Woods and he had dropped Woods off near an alleyway close to Everett's house. He said that he had never been inside the house, only out the front. He said that he had only been there twice (ts 300). He could not explain why his DNA was on the tape. He said that he had bought a car from Woods and that there had been some tape in the car. He also said that he borrowed tape from Woods.

36 The prosecution also relied on propensity evidence. This evidence was that on three other occasions the appellant had manufactured methylamphetamine, or attempted to do so, using the Birch reduction method. These three occasions were on 3 March 2011, 11 April 2011 and 24 October 2013. On each of these occasions the appellant had been found in possession of equipment and chemicals consistent with the manufacture of methylamphetamine. He was charged and pleaded guilty to offences in respect of each of these instances (ts 44 - 45).

37 Defence counsel stated in opening that it was not disputed that there was an attempt to manufacture methylamphetamine in the shed at the Armadale house. The issue was whether the appellant was involved in that manufacture or had assisted or aided another person. He denied any involvement.

38 Formal admissions regarding the three prior convictions were made pursuant to s 32 of the Evidence Act 1906 (WA) (ts 48 - 51). However, the appellant maintained that he was not involved in the current attempt.

39 It was accepted that the appellant had been to Everett's house and that his DNA was found as alleged. However, defence counsel said that the appellant was not the only person who attended the property in the relevant period, and that there was an innocent explanation for the DNA (ts 379).

40 The appellant gave evidence in his defence. He said that he had started using methylamphetamine at the age of 21 and had formerly been a heavy user. He said that the last time he had used methylamphetamine was more than 12 months ago. He had a friend who lived three streets away from the Armadale house (ts 295 - 296).

41 The appellant said that he had met Everett through Woods. He said that he had been to the Armadale house on two occasions between July 2014 and September 2015. He said that he went to the house because Woods telephoned him and told him that he was selling a car. He knew Woods lived in that area because he had dropped Woods there previously (ts 297 - 298).

42 When the appellant arrived at the house on the first occasion he pressed the doorbell and knocked at the door. He spoke to a man who answered the door. He said that the man told him that Woods was in the shower and invited him in to wait. He went into the lounge room and sat down. He said he waited about 15 to 20 minutes. When Woods came out of the shower they both went outside to look over the car. He said that this was at the front of the house and at no time did he go to the back. He said that he never went to the shed. After looking over the car he agreed to buy it (ts 298 - 301).

43 Three days later Woods contacted the appellant and said that he had the paperwork for the car. He then went back to the Armadale house to do a few minor repairs on the car because it was not roadworthy. He said that there was a broken tail light and wires hanging down over the foot pedals. He took a tool bag with him that contained, amongst other things, several rolls of tape. He used this tape to fix the wires. He said he tore tape off the roll and stuck it to the dash of the car. He said he ripped the tape off the roll using his teeth and then broke it into pieces with his hands. He said that as he was doing this Woods was present and was cleaning the car with a vacuum cleaner. Woods asked for some tape out of the appellant's tool bag. He said Woods took a roll of tape and went inside the house. Woods then came back with the registration papers and the appellant paid for the car and left (ts 301 - 305).

44 The appellant said that he used red and black tape when working on cars. He had a roll of grey duct tape and about six other rolls of insulation tape in his tool bag. He said that he later sold the car to the father of a friend who was travelling to Karratha. He 'just gave the papers straight to him' (ts 306). That on-sale occurred later the same day.

45 The appellant was shown the downloaded photographs from the doorbell camera. He identified a person who he said was Woods. He also identified himself in a photograph. He said that the police had never asked him to identify Woods from the photographs, nor had they asked for any information about the car (ts 308 - 310).

46 The appellant said that he did not manufacture or assist in the manufacture of methylamphetamine at the Armadale house. He said that he did not discuss this subject with Woods and that he did not go to the back shed with Woods. He said that he had purchased items from hardware stores since July 2014, but not for the purpose of manufacturing methylamphetamine. He also said that he did have a bank account for which he could obtain statements and that he would have provided bank statements to the police if he had been asked (ts 310).

47 In cross-examination the appellant said that in 2010 his drug habit was such that he was using a gram a day at a cost of $500 a day. He was able to afford this habit by manufacturing. He was not working at the time. He could not estimate how many times he had manufactured methylamphetamine but accepted that it was more than three, though not more than 10. He said that he had only used methylamphetamine three times since he was released from gaol in July 2014. The appellant admitted that he had 'pretty good knowledge' of the Birch reduction method and that he knew exactly what chemicals and equipment were needed (ts 332).

48 In regard to Woods the appellant said in cross-examination that he did not know when he first met him or how he had met him. He said that they had used drugs together on occasion but that he had not told Woods how to manufacture methylamphetamine. He said he had no interest in teaching anybody and the problem with doing so was that he could get into trouble. He could not recall when Woods had called him about the car, other than that it was after he was released from prison in July 2014. When asked why he did not tell police in his interview about the circumstances in which he said Woods had borrowed tape, the appellant said he did not remember these things when he was interviewed. When asked why he did not tell police about working on the car and touching the tape he said it must have slipped his mind (ts 363). He rejected a suggestion that he had made up this story to try and explain the DNA evidence. He could not explain why he had told the police that he could not remember what happened to the car, an answer that he described as 'bizarre' (ts 363, 366).

49 The learned trial judge gave the jury the standard direction that they were the sole judges of the facts. He told them that findings of fact must be based on the evidence. He then said:

So anything I say about the evidence or the facts in this case or any lines of reasoning that might be open to you are only comments and are not binding on you in any way and you mustn't think that I have a view about the case, what the decision should be.

I am more than happy to leave it to you. Some of my views might seem a little strong in this case. I'm less than happy with the police investigation, I'll tell you that right now, but you need to put my personal views like that to one side (ts 377).

50 His Honour then told the jury that they must decide the case on the evidence that had been received in court. He told them that they should not guess or speculate about matters that were not in evidence. He said that if the evidence for a proposition did not exist then the proposition was not proven. Whether the evidence established a proposition was a matter for the jury to decide.

You should not find that DNA contamination occurred in this case or it's a reasonable hypothesis that it occurred simply because it is theoretically possible.

It is theoretically possible that life exists somewhere else in the universe. It is theoretically possible that it rains in the Amazon. What you need is evidence for either proposition and you give it weight and analyse it.

If you think the evidence gives rise to a possibility of contamination then think it through. Let me give you an example. Put it this way. I want to develop this a little bit further just on this issue of DNA.

I'm just going to read some notes I made to myself this morning. Evidentiary analysis, in other words fact-finding, requires a combination of common sense and intellectual discipline, in other words a rational approach and adherence to the rules.

Now, as regards to DNA evidence the State says that on forensic examination six pieces of tape were found with the accused's DNA on it so there's six separate items, not one, so when you're talking about the DNA evidence you're not going to be looking at it as a job lot, are you?

You're going to look at each one separately. If six people all phoned in one morning at work sick, sniffling, are you going to say in your everyday life, oh, they've all got the same thing or are you going to say, well, they might all have the same thing? ...

The State contend that the accused Mr Williams' DNA was found on the sticky side of three different types of tape, on two different items of equipment in a total of six places, each of which six places corresponded with the end of a different piece of tape.

The State contends that they got there, so the DNA got on those six items, whilst Mr Williams was placing pieces of tape onto the items of equipment. That's the State contention or ripping them off to give to someone else to put on the items, it matters not.

The defence contends that there are potential innocent explanations or hypotheses. The first hypothesis, someone else did the taping, namely Paul Woods or someone that Paul Woods was working with so shall we call this the Paul Woods hypothesis, remembering that it's not necessarily Paul Woods that did it. ...

If you don't accept the accused's evidence on this or you reject it beyond reasonable doubt then you can forget the Paul Woods hypothesis. If you're working with the Paul Woods hypothesis then the last Mr Williams saw of the tape was when he was inside his car taping up some wiring.

On the Paul Woods hypothesis, the defence ask you to consider that Mr Williams' DNA could have got on the end of a piece of tape because it was left over from when he had previously used it. You can understand how it works.

You've got your tape. You stick your teeth into it or put your hands on it, whichever way you do it. You rip it and you leave your DNA on each end. One end goes off onto some electrical wiring up in Karratha or somewhere. The other bit stays on the tape and ends up on an ammonia gas lamp in Armadale.

Now, it is for you to assess that argument, but you have to go about it in a rational way and think it through. In that regard you would need to bear in mind that his DNA could only get on the end of the roll directly via his own hand or mouth once. In other words, the end of the roll that was left on the roll.

It would be hard to see how his DNA would get a few inches further down the tape on the sticky side further down because that would still be on the roll, wouldn't it? It would only be the end where his DNA would be. There's a barrier several centimetres further down because the roll - the tape is still on the roll several centimetres further down.

There's no evidence that DNA can pass through sticky adhesive on the underside of the tape while that tape is on a roll. It might, but you'd have to consider whether there's any evidence to support it before you entertain that hypothesis. So that's one thing for you to think about, isn't it? Okay, three rolls. That could explain three instances where his DNA is on the sticky side, but it was found on the sticky side of six pieces (ts 377 - 380).

52 His Honour then referred to the possibility that the appellant's DNA had been on the spindle on which the tape was wound or on the outside of the roll of tape given to Paul Woods and that it had been transferred to other parts of the tape as it was being handled by Woods or another person for use on the equipment. In this way the appellant's DNA could have been transferred to parts of the tape that were not exposed at the time he said he had the rolls (ts 380). His Honour then said:

Could this explain why Mr Williams' DNA is on each and every piece? Not all six. You look at each piece separately, remembering that the State's case is circumstantial.

They ask you to consider the combined weight of everything, including his propensity, the fact that he knew people in the house, the fact that he was a methylamphetamine user at the time (ts 381).

53 His Honour then turned to another defence hypothesis; that the appellant's DNA was transferred to the pieces of tape by being handled by investigators, either at the scene or in the laboratory. He said:

These are matters for you to consider, but again you must do it rationally using your commonsense. So just exploring this possibility that secondary transfer occurred by investigators, what it means is an investigator is handling one piece of tape which had Mr Williams' DNA on it, and then handled another piece of tape and got his DNA on that one. He transferred it from one piece of tape to the other, and this happened on all six pieces of tape. That's that scenario.

Remembering that at various times each piece of tape was glued down, so it would be difficult - this is only a comment of mine - it would be difficult for someone to transfer DNA from the sticky underside of a piece of tape that is stuck on something onto another exhibit until he had removed it, and then removed the other one as well because the other one would be in a secure state, wouldn't it, if it's glued to a surface? So you have to be rational.

You also have to remember on this scenario - and this is the point that Ms Winter was making - that on the secondary transfer hypothesis - in other words, the investigators spread all this DNA around - Mr Williams' DNA has to have got on one or more of the pieces of tape in the first place.

So the secondary transfer hypothesis depends for its existence to some extent on the Paul Woods hypothesis, doesn't it? It wouldn't matter if the police were totally incompetent and spread his DNA all over the place if it originally got on one of these items in incriminating circumstances (381 - 382).

54 His Honour gave the standard direction that it was for the jury to decide which evidence they accepted or rejected. He said that it was possible to accept some of what a witness said and reject other parts. He said that this was also applicable to the evidence of the appellant. He then said:

Personally I have been wondering how Mr Williams knew where Paul Woods lived. He said he dropped him in an alley near there. Well, I don't know what that means. If you drop someone in an alley near there, how does that tell you where they live? Is that important? I don't know, but I've been wondering about it.

But, anyway, these are just comments for you to consider and you can dismiss them if you like. It's just something that no one seems to have picked up on that I thought was interesting.

It's also interesting that he has been - he's declined to name his criminal associates on two occasions but was happy to shop Paul Woods. Now, is that important? On the one view of the matter it could be because Paul Woods has got him involved in something he wasn't involved in and he doesn't care about shopping Paul Woods. Or it might be that Paul Woods is a pseudonym.

You can throw any name at the police or it may be that Paul Woods is a real name and he was dealing with Paul Woods and they were talking about a car and, as the State suggests, Mr Williams has later grafted on a few extra details when he understands where the evidence against him has come from.

These are matters for you but you can only use these sorts of things if there is evidence about them, they came up in evidence. So someone was questioned about these things. You don't speculate or guess but if you think they're important you can use them, if they're not important don't use them ...

So just take that last example about why Paul Woods' name came into it, it might either be a false name intended to throw the police off the scent or it might be entirely true [that] Paul Woods had nothing to do with the tape or it might be that Paul Woods did have a lot to do with the tape and this man is cross and will shop Paul Woods because he's dropped him in it. So you see the balance, I'm offering you three possibilities arising simply from my observation that I found it interesting that he would name one of his associates and not others (ts 382 - 383).

55 His Honour expressed his concern that the police had not adequately investigated the possible involvement of other people (ts 386). But he told the jury that the question for them was whether the case against the appellant had been proven beyond reasonable doubt.

56 His Honour told the jury that given there was an admission that someone was attempting to manufacture methylamphetamine, the issue for them was whether the State had proved beyond reasonable doubt that the appellant was 'involved' (ts 390). He then said:

That's the only thing that has to be proven beyond reasonable doubt. Everything else; how his DNA got to be where it is, how many times he used methylamphetamine in the relevant period, whether Paul Woods exists or not; none of that has to be proven beyond reasonable doubt. There's only one issue in this case that has to be proven beyond reasonable doubt; was he involved?

Because a circumstantial case is one based on the combined effect of a number of circumstances which prove the ultimate proposition beyond reasonable doubt. It's always the ultimate question that has to be proven beyond reasonable doubt. None of the circumstantial components need to be proven beyond reasonable doubt.

If you look at a rope - imagine a circumstantial case is a rope with numerous strands, and you imagine beyond reasonable doubt is the breaking strength of the whole rope, the strands don't have to have that degree of strength, it's the combined force of the strands that give the rope that strength of beyond reasonable doubt (ts 390).

57 His Honour then went on to explain the elements of the charge. He noted that the State case was that the appellant attempted to manufacture methylamphetamine himself or that he did so together with other people or as an accomplice. His Honour commented that the evidence clearly implicated more than one person, but that it did not matter if others were also involved. The issue was whether the appellant was one of the parties responsible for the manufacture either as a principal or an accomplice (ts 392).

58 After the jury retired the prosecutor expressed a concern that the trial judge had stated views and opinions about the evidence and had given examples which invited the jury to speculate. She said that she appreciated that his Honour had also told the jury that they were at liberty to ignore his comments, but in her view there was a risk that the jury could be distracted from the real issue. Defence counsel declined to make any comment on this submission. His Honour said that he was satisfied that his directions and comments had focused the jury on the real issues (ts 397).

59 The grounds of appeal as amended at the appeal hearing are as follows:

1. The learned trial judge made comments about the evidence materially prejudicing the defence case resulting in a miscarriage of justice.
2. The direction of the learned trial judge directing the jury that how the appellant's DNA got to be where it was did not have to be established beyond reasonable doubt resulted in a miscarriage of justice.

60 The comments relied upon in respect of ground 1 were as follows:

1. 'It's also interesting that he has been - he's declined to name his criminal associates on two occasions but was happy to shop Paul Woods' (ts 383).
2. 'I've been wondering how Mr Williams knew where Paul Woods lived. He said he dropped him in an alley near there. Well, I don't know what that means. If you drop someone in an alley near there, how does that tell you where they live?' (ts 382 - 383).
3. 'On the one view of the matter it could be because Paul Woods has got him involved in something he wasn't involved in and he doesn't care about shopping Paul Woods. Or it might be that Paul Woods is a pseudonym' (ts 383).
4. 'You can throw any name at the police or it may be that Paul Woods is a real name and he was dealing with Paul Woods and they were talking about a car and, as the State suggests, Mr Williams has later grafted on a few extra details when he understands where the evidence against him has come from' (ts 383).
5. 'I'm offering you three possibilities arising simply from my observation that I found it interesting that he would name one of his associates and not others' (ts 383).
6. A comment regarding the police having not executed a search warrant at the appellant's house (ts 387).
7. A comment that neither the police nor the appellant had tendered the appellant's bank records (ts 387).
8. The comments regarding the possibility of DNA contamination, about whether DNA could be on the adhesive side of tape that was further along a roll and about the possibility of DNA transference by investigators (ts 377 - 381).

61 The appellant's complaint in regards to the first comment is that the use of the phrase 'criminal associates' and the use of the word 'shop' was unfairly prejudicial because it undermined the presumption of innocence and suggested that the appellant was in a criminal association with the occupants of the house. At the hearing of the appeal, counsel for the appellant accepted that he had misconstrued the reference to criminal associates and that when seen in context it was not a reference to the occupants of the house but to the appellant declining to name the person who had originally taught him the skills necessary to manufacture methylamphetamine and declining to name the person who had previously sold him drugs (ts 321, 345).

62 The complaint regarding comments (2) to (7) is that they carried the risk of causing the jury to speculate about matters that were not in evidence.

63 The complaint regarding comment (8) is that it created a risk that the jury would consider that they were being directed to determine the facts in a particular way. The possibility of transference is said not to have been adequately addressed notwithstanding that it was raised in cross-examination of the forensic biologist. This complaint was added at the hearing of the appeal and leave was granted to file further written submissions in respect of this matter.

64 Section 112 of the Criminal Procedure Act 2004 (WA) provides that a trial judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice.

65 A trial judge's summing up should include instructions about the elements of the offence, the burden and standard of proof and the respective functions of the judge and jury: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41]. A trial judge should also identify the issues in the case, relate the law to those issues and put fairly before the jury the case which the accused makes.

66 In B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 605 - 606, Brennan J said:

A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury (Broadhurst v The Queen [1964] AC 441, at p 464) .... I agree with the observations of the Full Court of the Supreme Court of South Australia in R v Hulse ((1971) 1 SASR 327, at p 335):

[T]o use the words of the Privy Council in Broadhurst's Case (Broadhurst v The Queen [1964] AC 441, at p 464), there is a danger of the jury being overawed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views.

67 In Broadhurst v The Queen [1964] AC 441, the Privy Council said:

The opinions of the presiding judge on issues of fact can often be of great assistance to the jury. But it is very important that the jury should be told they are not bound by them nor relieved thereby of the responsibility for forming their own view. Nevertheless, a jury is likely to pay great attention to them: and even in a case where a proper warning is given, an appellate court may still intervene if it considers them far stronger than the facts warrant (464).

68 When addressing a jury a trial judge should use language that jury members are likely to understand. The use of simple language and examples that relate to everyday life may assist in this regard. However, it is usually best to avoid idiomatic or slang expressions because they are often imprecise and apt to be misunderstood. There is also a danger that use of slang terms may fail to convey the seriousness and importance of the directions that are given.

69 The term 'to shop' a person is usually taken as meaning to inform on another to the police or to get a person into trouble (Shorter Oxford English Dictionary). It is a term that has more currency in the United Kingdom than in this country. It is not suggested by the appellant that it is a term that necessarily has pejorative connotations. The respondent submits that in this regard it can be contrasted with terms such as 'dog', 'rat', 'snitch' and 'grass' (and, I might add, 'dob').

70 The context in which the term was used by the trial judge was to contrast between the appellant's willingness to name Paul Woods while declining to name other people, who were his admitted past criminal associates. The comment that the appellant had qualms about naming other people but no similar concern about naming Paul Woods was fairly open on the evidence. This was not a comment which, when understood in proper context, was apt to overawe the jury or undermine the presumption of innocence. This applies to comments (1) to (5), all of which related to the same issue and which were clearly described as comments which the jury was at liberty to accept or reject.

71 Comment (6) regarding the police not having searched the appellant's home was made in the context of a broader comment as to the possible inadequacy and partiality of the police investigation which, his Honour suggested, had unduly focused on the appellant. In context this was a comment which favoured rather than prejudiced the appellant.

72 Comment (7) in regard to the absence of bank records was made in the context of directions to the jury not to speculate. In his evidence-in-chief, the appellant was asked whether he had a bank account and whether it was possible to get statements from that bank account. However, no such statements were produced. The object of the defence was plainly to suggest that the police investigation was incomplete because they had not undertaken any examination of the appellant's financial records. The jury could not, however, speculate as to what the bank statements would or would not have revealed. A direction not to speculate in this regard was entirely appropriate.

73 As regards comment (8) relating to the DNA evidence, the point that his Honour was making at this part of his charge was to draw a distinction between inferences reasonably open on the evidence as opposed to those that were merely a theoretical possibility. There is no suggestion by the appellant that his Honour misstated the evidence. What his Honour was seeking to do in this passage was to consider the extent to which the explanation proffered by the appellant fitted with the known evidence.

74 The evidence of the forensic biologist was that the DNA of the appellant had been found on the excised ends of six pieces of tape of three different types. In his evidence, the appellant said that Paul Woods had borrowed a roll of tape (ts 353). Assuming that any such roll contained an end that the appellant had torn off with his teeth or hands whilst fixing the car, that might explain his DNA on a single excised piece of tape. It would not explain how the DNA could get onto tape of three different types or further on the roll of the same type of tape. These were questions that were fairly raised by the evidence. His Honour framed them as comments and left them for the jury to consider. These were not comments that were apt to overawe the jury.

75 The appellant submits that references to the appellant's DNA being found on 'the sticky side' of the tape were inaccurate. The forensic biologist had given evidence that the non-adhesive side of each piece of tape was first swabbed to remove any DNA. The excised ends were then tested for DNA. These ends included both the adhesive and non-adhesive sides of the tape. It was possible that some DNA remained on the non-adhesive side of the ends (ts 258). Accordingly, it could not be said for certain that a positive result from the excised ends was necessarily from the adhesive side. The appellant suggests that by not referring to this evidence, this part of the directions was unfairly detrimental to the defence case at trial.

76 Accepting what the appellant says in regard to the evidence of the forensic biologist, the comment by the trial judge was not misleading. The point his Honour was making was that on the appellant's evidence his DNA might have been innocently deposited on the exposed outer surface of the roll of tape and the currently exposed adhesive end. It would not (other than by transference) explain how his DNA was deposited onto the surface of tape further along the roll. This would be equally true of both surfaces of the tape. This was relevant in considering whether the explanation provided by the appellant adequately explained the finding of DNA matching his on numerous excised ends of tape. Thus the references to the 'sticky side' of the tape did not negate the substance of the point made. In any event, given the swabbing of the non-adhesive surface, it was more likely that the DNA found on the ends was from the 'sticky side'.

77 The appellant complains that the evidence supporting secondary (or more accurately, tertiary) transfer was not specifically referred to by his Honour. This is a complaint that does not properly arise from the ground of appeal; however I will deal with it. The theoretical possibility of transfer of DNA was accepted by the forensic biologist. The defence had also raised in cross-examination that items had been handled at the scene without changing gloves, raising the possibility of cross-contamination (ts 173 - 178). The four pieces of tape from which ends were cut were handled and stored together and the two pieces of tape from which the remaining ends were cut were handled together.

78 The evidence of contamination did not rise above the theoretical. As a theory it faced the obvious difficulty that the appellant's DNA was found on the excised ends of six pieces of tape that appeared to have been subject to human interaction. The theoretical possibility that a third person had touched an item containing the appellant's DNA, had taken up that DNA onto their own hands and then transferred it onto the excised ends of the six pieces of tape is hardly one that would have benefited from any more detailed analysis. The trial judge was not obliged to refer to this defence theory in any more detail than he did. Indeed, it is hard to see how any additional comment could have improved the credibility of that theory. Nor was his Honour obliged to summarise the evidence in this regard. This was a relatively short trial and his Honour in referring to the possibility of transference was clearly adverting to that evidence. There is no suggestion that his Honour misrepresented the evidence and there was no complaint in this regard at the trial.

79 In my view, the comments complained of could not have overawed the jury or resulted in a miscarriage of justice. There was a degree of folksiness about some parts of the summing up that might have been better avoided. However, this is not a case where the comments were likely to have deflected the jury from their task as the primary fact finders. In my view, this ground cannot succeed.

80 Circumstantial evidence is evidence from which a jury is asked to infer a fact or facts: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579. Circumstantial evidence must not be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46]. Where the prosecution relies wholly or substantially on circumstantial evidence, a jury can only convict an accused where the inference of guilt is the only rational inference that the circumstances will enable them to draw: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104.

81 Not all facts are required to be proved to the same standard by the prosecution. The case law makes a distinction between facts which are indispensable in reasoning towards an inference of guilt and those that are not. The former are often referred to as 'links in a chain' and the latter as 'strands in a cable'. The trial judge used this analogy (rope instead of cable) in his directions. Facts which are not indispensable do not have to be proven by the State beyond reasonable doubt: Shepherd (579).

82 The appellant places some reliance on Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [28]. In that case the appellant's DNA was matched to DNA on a didgeridoo at the scene of a home invasion where a murder and a serious assault were committed. It was an essential link in the prosecution's circumstantial case that the appellant's DNA was transferred by him to the didgeridoo during the attack on the victims. The High Court held that this circumstance was required to be proven beyond reasonable doubt.

83 The relevant direction given by the trial judge is set out at [56] above.

84 It is important to assess what was in dispute at this trial having regard to the undisputed facts. The following facts were not disputed:

1. the shed at the Armadale property contained equipment of a type used to manufacture methylamphetamine by the Birch reduction method;
2. an attempt to manufacture methylamphetamine had been made using the Birch reduction method with that equipment;
3. the appellant knew at least one of the occupants of the Armadale property;
4. the appellant had been to the property on at least two occasions;
5. the appellant was a methylamphetamine user and had been so since at least 2010;
6. on the second occasion on which he went to the Armadale property, the appellant brought with him a tool bag which contained, relevantly, several rolls of electrical tape and a roll of duct tape;
7. the appellant used red and black electrical tape in his work;
8. the appellant knew how to manufacture methylamphetamine by the Birch reduction method;
9. the appellant had previously manufactured methylamphetamine by the Birch reduction method and had an admitted propensity to engage in that activity;
10. the appellant's DNA was on three different types of adhesive tape that had been found on the drug manufacturing apparatus;
11. the tape had been used to connect and hold together components of the equipment.

85 The appellant submits that but for the appellant's DNA being matched to DNA on the tape there would not have been a case against the appellant in that the other evidence would have been insufficient to establish his guilt. That submission cannot be accepted. The issue was not whether the appellant's DNA was found as alleged, but how it had got there. The appellant's DNA was not found on a single piece of tape but on six pieces of tape of three different types. The DNA was found on the excised ends of those pieces of tape, which appeared to have been broken by human force. To suggest that secondary transference or contamination could adequately explain the appellant's DNA on the tape overlooks that six pieces of tape were involved and that a separate act would have been required to break each piece of tape to make it usable. A direction that the State had to satisfy the jury beyond reasonable doubt that the appellant's DNA was not deposited on the tape by secondary transference or contamination would not have been correct. It would have led the jury to think that it was necessary for the State to prove that proposition beyond reasonable doubt in respect of all six pieces of tape.

86 The essential issue for the jury was whether the appellant had assembled, alternatively the appellant had aided or assisted another or others to assemble, at least some of the equipment for the purpose of attempting to manufacture methylamphetamine. What was important was not merely that the appellant's DNA was on the six pieces of tape, but that those pieces of tape had been applied to the various pieces of equipment for the evident purpose of constructing a mechanism for manufacturing methylamphetamine.

87 It is plain from the jury's verdict that they rejected the appellant's exculpatory evidence and his exculpatory out of court statements.

88 If the jury was satisfied on the basis of the evidence which they accepted, evaluated in its entirety and not considered on a piecemeal basis, that the State had proved beyond reasonable doubt that the appellant had assembled, alternatively aided or assisted another or others to assemble, at least some of the equipment for the purpose of attempting to manufacture methylamphetamine, then the jury was entitled and bound to convict. The evidence relied on by the State, evaluated in its entirety and not considered on a piecemeal basis, was sufficient to establish beyond reasonable doubt that the appellant either assembled or aided or assisted another or others to assemble at least some of the equipment for the purpose in question. Although the presence of the appellant's DNA on the six pieces of tape of three different types was an important aspect of the State's case, the presence of his DNA on those pieces of tape was not the only evidence against the appellant and was not an indispensable link in a chain of evidence that was essential to the proof of his guilt. In particular, the State was not obliged to prove beyond reasonable doubt that the appellant's DNA on the six pieces of tape of three different types was deposited by the appellant in the course of attempting to manufacture methylamphetamine and was not deposited by secondary transfer or contamination.

89 By contrast, in Fitzgerald, the recovery of the appellant's DNA from the didgeridoo did not raise any inference about the time when or circumstances in which his DNA was deposited on the instrument. A critical factor in the prosecution's circumstantial case was that the appellant's DNA had been transferred by him to the didgeridoo during the attack on the man who died and the other man who sustained serious brain injuries. The High Court concluded that, on the facts of Fitzgerald, it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. The jury, acting reasonably, should have entertained a doubt as to the appellant's guilt.

90 In the present case, the direction given by the trial judge was not the subject of any complaint by experienced counsel who appeared for the appellant at the trial. The direction was not erroneous. Further, for the reasons given, the direction did not cause any miscarriage of justice in the circumstances of this case.

91 Neither of the grounds of appeal have been established. The appeal should be dismissed.

[3] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579. Dawson J referred to the metaphor of 'strands in a cable' used in Wigmore on Evidence.

[5] Appellant's written submissions, par 45.

[6] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779.