Court of Appeal (WA)|2014-02-27|Before: Buss JA

BOMFORD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 43 (27 February 2014)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BOMFORD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 43

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Manufacture of a prohibited drug - Aiding and abetting - Whether the trial judge misdirected the jury in relation to aiding and abetting - Turns on own facts

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92

Bomford v The State of Western Australia [2013] WASCA 153

Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20

Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473

Reeves v The Queen [2013] HCA 57

Scafetta v The State of Western Australia [2010] WASCA 209

1 BUSS JA: I agree with Mazza JA, for the reasons he gives, that the appellant's ground of appeal against conviction fails and that the appeal should be dismissed.

2 I also agree with Mazza JA that, even if the appellant had made out the ground of appeal, the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied. I will state my own reasons in relation to the application of s 30(4).

3 The background facts and circumstances are set out in Mazza JA's reasons and need not be repeated.

4 Section 30(3) of the Criminal Appeals Act provides that this court must allow an appeal against conviction by an offender if, in its opinion:

(a) 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;

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

5 However, by s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that 'no substantial miscarriage of justice has occurred'.

6 In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged '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', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:

As this Court's decision in AK v Western Australia [2008] HCA 8; ((2008) 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].

See also Reeves v The Queen [2013] HCA 57 [50] - [51] (French CJ, Crennan, Bell & Keane JJ).

7 I am satisfied, on my examination of the trial record, that the State proved beyond reasonable doubt that the appellant was guilty of the charge alleged in the indictment, namely that on or about 9 February 2011, at Greenwood, he manufactured a prohibited drug, being methylamphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA).

8 More specifically, I am persuaded, to the criminal standard of proof, that:

(a) the appellant actually manufactured methylamphetamine as a principal;

(b) alternatively, the appellant assisted another person or persons actually to manufacture methylamphetamine by, at least, purchasing medication containing pseudoephedrine and providing the medication to the principal offender or offenders in circumstances where: the appellant had actual knowledge of the facts amounting to the offence to be committed by the principal offender or offenders; the appellant purchased and provided the medication with the intention of assisting in the actual manufacture of methylamphetamine; and the appellant's intentional assistance actually assisted the principal offender or offenders in the commission of the offence.

9 My satisfaction, beyond reasonable doubt, that the appellant was guilty of the offence is based on the combined force of the following:

(a) In February 2011 and September 2011, the appellant was ordinarily resident at the Greenwood premises.

(b) On 9 February 2011, police seized chemicals, equipment and other items from the appellant's bedroom and the shed at the Greenwood premises.

(d) Methylamphetamine had in fact been manufactured relatively recently using the chemicals and equipment seized from the shed.

(e) Fingerprint and DNA evidence obtained by the police from the Greenwood premises on 9 February 2011 established a connection between the appellant and both the acetone bottle and the green-coloured respirator found in the shed.

(f) At all material times the appellant was a user of methylamphetamine.

(g) Between 1 October 2010 and 9 February 2011, a person using the appellant's motor vehicle driver's licence for identification purchased substantial quantities of medication containing pseudoephedrine from various pharmacies. The evidence established that during the relevant period the person using the appellant's driver's licence had attempted to purchase cold and flu tablets containing pseudoephedrine on 26 occasions. The attempt was successful on between 17 and 19 occasions.

(h) The propensity evidence relied on by the State, which included: evidence that on 27 September 2011 police searched the appellant's bedroom and found chemicals and other items commonly used to manufacture methylamphetamine and filter papers which contained detectable methylamphetamine and pseudoephedrine on their surfaces; and evidence that between 10 February 2011 and 27 September 2011 a person using the appellant's driver's licence for identification attempted to purchase quantities of medication containing pseudoephedrine from various pharmacies on 11 occasions and the attempt was successful on nine occasions.

(i) Pseudoephedrine is a precursor used in the manufacture of methylamphetamine.

(j) The only reasonable inference, in all the circumstances, is that the person who used the appellant's driver's licence in connection with the purchase of the medication containing pseudoephedrine, during both of the periods in question, was the appellant.

(k) The appellant did not give or adduce any evidence at his trial. He relied on denials he made in a video-recorded interview with the police on 9 February 2011. These denials included a denial of any involvement in the manufacture of methylamphetamine. The jury, by their verdict, necessarily rejected this denial.

(l) There was no evidence that the appellant required the medication containing pseudoephedrine for a legitimate purpose.

(m) The credibility and reliability of the State's witnesses was not materially undermined by defence counsel in cross-examination at the trial.

(n) The appellant's parents, Ronald Bomford and Rhonda Bomford, were State witnesses at the trial. Each of them denied any involvement in the manufacture of methylamphetamine. Defence counsel did not challenge their evidence on this point.

(o) Defence counsel's suggestion at the trial to the effect that some other person than the appellant may have used the relevant chemicals and equipment to manufacture methylamphetamine, without the appellant's knowledge, was mere conjecture. The suggestion was not supported by probative evidence.

(p) Similarly, defence counsel's suggestion at the trial to the effect that the items found by the police in the appellant's bedroom could have been used for legitimate purposes, and were not necessarily associated with the manufacture of methylamphetamine, should be rejected. The suggestion does not bear scrutiny in the context of the circumstances I have just described.

(q) Further, the suggestion on behalf of the appellant that there may be an innocent explanation for the connection between the appellant and both the acetone bottle and the green-coloured respirator found in the shed, is not a reasonable explanation when the relevant connection is viewed in the context of all of the relevant circumstances.

10 On my evaluation of the evidence as a whole, the only inference reasonably open is one of guilt against the appellant. There is no reasonable inference open, on the evidence as a whole, consistent with the appellant's innocence.

11 I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has in fact occurred. First, as I have mentioned, I am satisfied beyond reasonable doubt, on my examination of the trial record, as to the appellant's guilt on the charge in the indictment. Secondly, I am satisfied beyond reasonable doubt that nothing at or in the conduct of the trial (including the trial judge's directions to the jury) occasioned an unfair trial or otherwise precludes this court from deciding that no substantial miscarriage of justice has actually occurred.

12 MAZZA JA: This is an appeal against conviction. The appeal was filed 12 days out of time. An extension of time has been granted.

13 The appellant was charged on indictment in the District Court with the offence of manufacturing a prohibited drug contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA). The charge as amended read:

On or about 9 February 2011 at Greenwood or elsewhere [the appellant] manufactured a prohibited drug, namely methylamphetamine.

14 On 27 September 2012, after a three-day trial before a judge and jury, the appellant was convicted as charged. Later, he was sentenced to 2 years and 9 months' immediate imprisonment with eligibility for parole. Leave to appeal against this sentence has been refused: Bomford v The State of Western Australia [2013] WASCA 153.

15 The ground of appeal relied upon by the appellant alleges that the learned trial judge erred in his summing up to the jury about aiding, pursuant to s 7(b) and s 7(c) of the Criminal Code. Specifically, it is said that his Honour omitted to instruct the jury that to be guilty by aiding, it must be satisfied that the appellant's assistance in the offence was done with an intention to aid the principal offender. On his own motion and after the jury had been deliberating for more than two hours, His Honour recalled the jury and gave a direction that the appellant now concedes satisfactorily dealt with the alleged omission. Fourteen minutes later, the jury delivered its verdict of guilty. The appellant now alleges that he has suffered a miscarriage of justice because the jury could not have, in that time, properly taken into account and absorbed this direction.

16 For the reasons that follow, the ground of appeal as expressed has not been made out and no miscarriage of justice has been demonstrated. Accordingly, the appeal must be dismissed. The State submitted that, if the ground of appeal was made out, the proviso pursuant to s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied. Had it been necessary to do so, I would have applied the proviso because no substantial miscarriage of justice has occurred.

17 On 9 February 2011, police officers executed a search warrant at premises situated at 7 Rosedene Way, Greenwood (the Greenwood premises). Those premises were owned by the appellant's parents, but the appellant was, at the time, resident there. At the rear was a free-standing shed. Inside the shed, police found and seized various chemicals, equipment and other items which had been used to manufacture methylamphetamine. Police also seized lithium batteries from the appellant's bedroom. Further investigations revealed that between 1 October 2010 and 3 February 2011, the appellant had purchased from pharmacies a substantial quantity of medications containing pseudoephedrine, a precursor used in the manufacture of methylamphetamine.

18 The State's case against the appellant was entirely circumstantial. I will set out in more detail that case and the evidence that was led in support of it, but it is sufficient for now to observe that some of the features of the circumstantial case against the appellant comprised:

(a) the chemicals, equipment and other items seized from the shed and the appellant's bedroom;

(b) unchallenged expert evidence to the effect that the seized materials are commonly used to manufacture methylamphetamine; and that methylamphetamine had been manufactured using the chemicals and equipment;

(c) fingerprint and DNA evidence linking the appellant to an acetone bottle improvised for use as a hydrogen chloride gas generator and a green coloured respirator found in the shed;

(d) evidence that the appellant was a methylamphetamine user; and

(e) propensity evidence adduced pursuant to s 31A of the Evidence Act 1906 (WA), to the effect that:

(i) after 9 February 2011, the appellant had purchased further quantities of medications containing pseudoephedrine; and

(ii) during a search of the appellant's bedroom on 27 September 2011, chemicals and products commonly used in the manufacture of methylamphetamine were discovered.

19 The appellant elected not to give or adduce any evidence at his trial. He was, however, interviewed by police on 9 February 2011. An edited DVD of this interview was played to the jury and tendered in evidence by the State. The appellant denied any involvement in the manufacture of methylamphetamine, but admitted he was a user of the drug.

20 The State's case as opened and closed was that the appellant was the actual manufacturer of the methylamphetamine; alternatively, he aided another in the manufacture: Criminal Code (WA) s 7(b) or s 7(c). The State alleged that the appellant had either manufactured the drug in the shed itself or that he had used the materials in the shed to manufacture the drug elsewhere. The State's case on aiding was that the appellant had assisted in the manufacture of the drug by the purchase of the pseudoephedrine.

21 The appellant did not dispute that methylamphetamine had been manufactured prior to 9 February 2011 using the equipment in the shed. However, his case was that he played no part in it, whether as principal or aider.

The evidence adduced at trial Evidence of Ronald Gary Bomford

22 Mr Ronald Bomford is the appellant's father. He testified that he was the owner of the Greenwood premises. He said that prior to February 2011 he had been living on a permanent basis in Port Hedland for approximately 8 years. He said that on occasions both he and his wife stayed at the Greenwood premises. He was not at the house on 9 February 2011.

23 Ronald Bomford described how the premises were on a corner and that the backyard could be accessed from a side street via gates which were neither locked nor padlocked. He testified that he had three sons, and that two of them, the appellant and Ryan Bomford, were free to come and go to the house as they pleased. He said that there was a shed in the backyard which contained a large amount of equipment and chemicals. He explained that the chemicals included insecticides, cleaners and fertilisers. He also said that he had used face masks of the type found in the shed by the police. Mr Bomford was shown various photographs of items found by the police. His attention was drawn particularly to a container of acetone. He said that he used acetone to bond PVC piping.

24 Rhonda Bomford is the mother of the appellant. She testified that, while she usually lived with her husband in Port Hedland, she had been living at the Greenwood premises for approximately 1 month prior to 9 February 2011. Her evidence was that during this period she lived there and so did the appellant. She denied any involvement in the manufacturing of illicit drugs. In effect, she denied noticing any suspicious activity in the shed.

25 Ms Crisp is a forensic scientist employed by the ChemCentre in its illicit drug section. She testified that since 2005, the bulk of her work involved attendances at alleged clandestine drug laboratories and the analysis of the items which were present. No challenge was made to her expertise.

26 Ms Crisp said that she was present on 9 February 2011 when the Greenwood premises were searched by police. She noted the presence of a number of items, including chemicals, solvents, acids, batteries and equipment which are commonly used to manufacture methylamphetamine. She noted the presence of damp filter papers and paper towels.

27 She said that the most commonly used method of manufacturing methylamphetamine in Western Australia, known as the 'nazi method', involved the use of liquid ammonia, lithium metal and pseudoephedrine. She explained that pseudoephedrine is an ingredient commonly found in cold and flu tablets that can be purchased over the counter from pharmacies. She explained that the 'nazi method' involved three stages. She said that the first stage involved isolating pseudoephedrine from cold and flu tablets, using solvents such as toluene or xylene. The next stage, she said, which she called the reaction phase, uses liquid ammonia and lithium, which can be obtained from AA-sized batteries. She explained how ammonia gas may be produced, using an ammonium sulphate fertiliser. She explained how in this process, acetone or liquid LPG can be used as a cooling agent. Ms Crisp said that in the final phase of manufacture, solvents such as toluene or xylene and substances such as sulphuric acid and table salt are used to form a methylamphetamine powder. She said sometimes it is necessary to use filter paper in this process.

28 A DVD of the search undertaken by the police on 9 February 2011 was played during Ms Crisp's evidence. She confirmed the presence in the shed of many of the items used in the manufacture of methylamphetamine by the 'nazi method'. She also noted the equipment in the shed, including a number of plastic bottles, tubing, funnels and other items commonly used in the manufacture of methylamphetamine.

29 Ms Crisp analysed a number of the items seized during the search. She found methylamphetamine and pseudoephedrine on and in a number of items found in the shed, including improvised plastic funnels, a coffee filter paper, a plastic bucket and in a quantity of water.

30 Ms Crisp expressed the opinion that the presence of the methylamphetamine and pseudoephedrine indicated that pseudoephedrine had been extracted from pharmaceutical preparations for use in the manufacture of methylamphetamine. Ms Crisp said that the items found at the Greenwood premises were consistent with 'nearly every [methylamphetamine] lab I go to' (ts 119).

31 Sergeant Umbras was one of the officers at the search of the Greenwood premises and later that day he went to premises situated at 33 Yandella Promenade, Tapping, which were occupied by the appellant's girlfriend and where the appellant was present. An edited DVD of the search at the Yandella Promenade premises was played and admitted in evidence which, in essence, comprised the interview I mentioned earlier, when the appellant denied any involvement in the manufacture of methylamphetamine. He told the police that he frequented the shed 'once a day or I might not go in there for a couple of weeks'. He also said that he 'pretty much touched every single thing in that shed' (interview DVD ts 9). He said that he was 'not sure' whether anybody else had been involved in the manufacture of methylamphetamine at the premises (interview DVD ts 16). The appellant told the police that he was the person who had been 'most recently' in the shed but he had not been there since 'last Wednesday' [2 February 2011].

Evidence of Senior Constable Nicholas Webster and Sergeant Gary Searle

32 Senior Constable Webster was involved in the search of the Greenwood premises as a forensic investigation officer. He lifted a fingerprint from an acetone container and took a swab from a green respirator found in the shed.

33 The fingerprint was later analysed by an accredited fingerprint expert, Sergeant Gary Searle. Sergeant Searle testified that the fingerprint matched the left ring finger of the appellant (ts 164). Sergeant Searle was unable to say how long the fingerprint had been on the acetone container.

34 Mr Hedley is an expert forensic DNA scientist. His expertise was unchallenged. He testified that he was provided with a green respirator, a white dust mask and the swab which had been taken by Senior Constable Webster. There was no dispute as to the continuity of these items.

35 With respect to the green respirator, Mr Hedley found a weak mixture of DNA from at least two people on a strap from which he was unable to extract a DNA profile. However, on the inside surface of the respirator he recovered a partial DNA profile which matched the appellant's reference sample. He testified that the chance of this partial DNA profile coming from someone other than or unrelated to the appellant was less than one in 1.2 million.

36 In respect of the swab taken by Senior Constable Webster, Mr Hedley testified that he recovered a partial DNA profile which matched the appellant. He said that the probability of that profile coming from someone other than and unrelated to the appellant was less than one in 896 million.

37 In respect of the white dust mask, Mr Hedley found no 'useful amount of DNA'.

38 Mr Hedley testified that the statistical probability figures changed 'quite dramatically' in the event that parents or siblings were considered. In relation to the partial profile found inside the green respirator, Mr Hedley testified that the probability of finding this DNA profile, if it had come from the appellant's father rather than the appellant, was less than one in 1,698. The probability of it coming from a sibling of the appellant was less than one in 220. With respect to the partial profile found on the swab, the probability calculation with respect to a parent was less than one in 41,000 and, in respect of a sibling, was less than one in 1,930 (ts 176).

39 Mr Hedley testified that if the respirator mask had been worn by the appellant, his brothers and his father, he would have expected to see (but did not see) a mixture of DNA. He said that it was 'incredibly unlikely for these men to all have the same [DNA] profile' (ts 180).

40 Mr Hedley accepted a proposition put to him in cross-examination that, even if the DNA on the respirator mask belonged to the appellant, there was no way of knowing how long it had been there (ts 183).

41 Ms Collins-Brown is a chemist at the ChemCentre. She was involved in the search of the Greenwood premises on 27 September 2011. She testified that three empty plastic tablet containers labelled 'cold and flu', an ingredient of which was pseudoephedrine, were discovered. She also said that items commonly used in clandestine drug laboratories were also discovered, including lithium batteries, the remnants of lithium battery packaging, coffee filters, tape and tubing, a bottle of dark brown liquid thought to be sulphuric acid and a glass pyrex dish with white residue. In addition to these items, a common cutting agent for methylamphetamine, MSM, was found.

42 Later, she analysed some of the items that were seized. She testified that traces of methylamphetamine and pseudoephedrine were detected on one of the filter papers that were seized, and that methylamphetamine was detected on the surface of three other filter papers.

Evidence of Detective Senior Constable Robert Cox

43 Detective Cox testified that he was one of the officers involved in the search of the Greenwood premises on 27 September 2011. He said that, in his opinion, there was insufficient evidence to charge the appellant with any offence relating to the items found in that search (ts 195).

44 Mr Ferro is an employee of a software company that provides services to pharmacies across Australia. He testified that in Western Australia it is mandatory for pharmacies to record sales of pseudoephedrine-based medication and that this was done via a computer program called Project Stop.

45 Mr Ferro explained that whenever a customer purchases a pseudoephedrine-based medication in a pharmacy, the pharmacy is required to ask the purchaser to produce a form of photographic identification, such as a driver's licence. Where a driver's licence is proffered, the driver's licence identification number is recorded. Project Stop records whether a supply is made or denied. It also records what was referred to as 'a safety sale', that is, where the pharmacy supplies a customer with the medication, but in circumstances where the pharmacist felt 'uncomfortable' about the transaction.

46 Project Stop records with respect to pseudoephedrine medications obtained using the appellant's driver's licence number were tendered in evidence: exhibit 17.1. They revealed that between 1 October 2010 and 9 February 2011, the appellant's driver's licence number was used on 26 occasions at various pharmacies in the Perth metropolitan area. Of these, medications containing pseudoephedrine were supplied on between 17 and 19 occasions. On two occasions, no recording was made, while on five occasions the pharmacy refused to supply the medication.

47 Between 10 February 2011 and 27 September 2011, Project Stop recorded the appellant's driver's licence as being used on 11 occasions, of which nine were successful and two were denied: exhibit 17.2.

48 As I have said, the State's case was circumstantial. The main circumstances relied upon were:

Between 1 October 2010 and 9 February 2011, the appellant purchased medications containing pseudoephredine from various pharmacies.
Pseudoephedrine is a precursor used in the manufacture of methylamphetamine.
The material found in the shed and the appellant's bedroom at the Greenwood premises were items and products commonly used in the process of manufacturing methylamphetamine.
Paper towels and coffee filters found in the shed were damp, suggesting recent use.
Pseudoephedrine and methylamphetamine were detected on a number of items found in the shed.
The appellant's fingerprint was found on an acetone container in the shed. That container had been adapted so that it could be used as a hydrogen chloride gas generator.
DNA consistent with the appellant's DNA was detected on the inside surface of and the swab taken from the green respirator found in the shed.
Between 10 February 2011 and 27 September 2011, the appellant purchased or attempted to purchase medications containing pseudoephredine.
On 27 September 2011, items, chemicals and products used in the process of manufacturing methylamphetamine were found in the appellant's bedroom.
Methylamphetamine and pseudoephredine were found on the surface of filter papers found in the appellant's bedroom on 27 September 2011.
The appellant was a recreational user of methylamphetamine.
The appellant was living at the Greenwood premises in February and September 2011.

49 The appellant relied upon the denials that he made when he was interviewed by police on 9 February 2011 and 27 September 2011. Further, his case was that, in any event, guilt was not the only reasonable inference that could be drawn from the facts relied upon by the State. As put by the appellant's trial counsel:

The appellant told police that he had not been in the shed after 1 [sic: 2] February 2011, an assertion which was not challenged by the State at trial. Given that the paper towels and coffee filters found by the police during the search on 9 February 2011 were wet, and given the summer heat, if any manufacturing had occurred there, it could not have been by him.
The appellant told the police that he had handled many of the items in the shed over the years and so it was not surprising that his fingerprint would be discovered on the bottle of acetone, a product which, it was said, had an innocent household use.
The DNA found on the inside surface of the green respirator may have been left by the appellant's father or his siblings.
The jury could not be satisfied that the appellant had purchased or had attempted to purchase pseudoephredine. It was submitted that the evidence adduced by the State was to the effect that someone bearing the appellant's driver's licence attended at various pharmacies. It was submitted that this did not necessarily mean that the appellant was the purchaser. Moreover, even if the appellant was the purchaser, the medications could have been purchased for legitimate medicinal use.
As to the items and products found in the appellant's bedroom on 27 September 2011, it was submitted that they were not necessarily associated with the manufacture of that drug. For example, the lithium batteries found by the police were untouched and could have been used for legitimate purposes.

50 It was not in issue at trial that methylamphetamine had been manufactured some time prior to 9 February 2011 using the equipment found in the shed. Further, there was no issue that the manufacture had occurred either in the shed or elsewhere (ts 243). The real issue for the jury to decide was whether the State had proved beyond reasonable doubt that the appellant was the offender, either as principal or aider.

51 In his summing up, the trial judge directed the jury on aiding as follows:

The law provides that the following persons are deemed to have taken part in the commission of an offence and to be guilty of an offence. Firstly, every person who actually does the act or acts which constitute the offence. Secondly, every person who does any act for the purpose of enabling, or aiding, another person to commit the offence. Thirdly, every person who aids another person in committing the offence. Now, in this case primarily the State's case is that Mr Bomford manufactured methylamphetamine by procuring medications containing pseudoephedrine and using the items and products, or some of them found in the shed on 9 February 2011. Alternatively, the State says that if you are not satisfied that he did the acts himself then he aided another person, or persons, to commit the offence. That is to manufacture the methylamphetamine. To be guilty of an offence as a person who aids another to commit the offence the law is that the person must have actual knowledge of the facts amounting to the offence for which aid is being lent. It is not enough that there was a mere suspicion that the facts existed, and that makes sense. If someone else commits acts constituting an offence in order to aid that person you would have to be satisfied beyond reasonable doubt that that person who lent aid, if you so found, had actual knowledge of the facts amounting to the offence which was being committed by the other person (ts 241 - 242). (emphasis added) (the direction)

52 No exception was taken to the direction by the appellant's trial counsel.

53 At 10.44 am on 27 September 2012, the jury retired to consider its verdict.

54 The transcript records that, at 12.27 pm, the learned trial judge advised counsel that he had received a note from the jury which contained two questions. Only the first question is relevant to this appeal. It was in these terms:

Please clarify whether manufactured includes aiding another person in the manufacture (ts 258).

55 The learned trial judge and both trial counsel understood the question to be a request for clarification in respect to his Honour's directions concerning aiding, pursuant to s 7(b) and s 7(c) of the Criminal Code.

56 At 12.30 pm, his Honour answered both the jury's questions. With respect to the question concerning aiding, his Honour said:

Thank you ladies and gentlemen for your questions, the answer to which are these. The first question is: Please clarify whether manufactured includes aiding another person in the manufacture. The answer to that is that yes, it does in accordance with the directions which I provided you as to aiding which I will repeat. To be guilty of an offence as a person who aids another person to commit an offence, the law is that the person must have actual knowledge of the facts amounting to the offence for which aid is being lent. It is not enough that there was a mere suspicion that the facts existed. So if a person aided another person in the manufacture of the methylamphetamine, the aider will have committed the offence (ts 259). (emphasis added) (the redirection)

58 At approximately 1.15 pm, the court reconvened on the motion of the learned trial judge. In the absence of the jury, his Honour had a discussion with counsel about his direction on aiding. It is clear from that discussion that it was the understanding of counsel and his Honour that the prosecution's case on aiding was based upon the alleged purchase by the appellant of medications containing pseudoephredine from pharmacies, in the knowledge that the principal offender would extract pseudoephredine for the purpose of manufacturing methylamphetamine (ts 262). During the course of the discussion, the buzzer in the jury room was activated. The buzzer is used to attract the attention of the sheriff's officer or the court to the jury. During deliberations, it is the usual means by which the jury indicates that it has a question or concern or is ready to deliver a verdict.

59 At 1.27 pm, the jury returned to the courtroom. His Honour then said:

Just take a seat if you would, Mr Foreman. Ladies and gentlemen, I know you've progressed but what I'm going to do is that there's something I want to talk to you about. And I'm going to ask you after I've spoken to you to retire to the jury room to consider what I'm about to tell you in the course of your deliberations. All right? So I don't want you to talk to me at the moment. It relates to the question of aiding. I know you asked a question about it but there's something else I'll tell you about it as a matter of caution. In the circumstances of this case, "aiding" means to lend assistance in the commission by another of an offence. In this case, for example, he could do so, Mr Bomford could do so by lending assistance during the manufacture of methylamphetamine and/or, alternatively for example, he could aid by purchasing medication containing pseudoephedrine and providing that medication to another person in the knowledge that that person would use that medication to extract pseudoephedrine for the purpose of manufacturing methylamphetamine. Now, it's not exactly a response to the question you asked or referable to it, but it's a matter that, as a means of caution, I considered it appropriate to let you know. So what I would like you to do is to adjourn again to the jury room to continue deliberations, having regard to the matters I've just mentioned to you. Thank you. Thank you, Mr Sheriff's Officer (ts 263). (emphasis added) (the final direction)

60 At 1.29 pm, the jury again retired. Defence counsel took no exception to the final direction. At 1.43 pm, the jury delivered its verdict of guilty.

61 The ground of appeal upon which the appellant relied and for which leave to appeal has been given is in these terms:

The learned trial judge erred in law by failing to direct the jury that to be guilty by aiding the appellant must have done an act which lent assistance in the commission by another of an offence of manufacturing with an intention to assist or encourage the principal offender.

62 Section 7 of the Criminal Code relevantly provides:

Principal offenders

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(a) Every person who actually does the act or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) Every person who aids another person in committing the offence;

(d) ...

63 In order for an offender to be liable, pursuant to s 7(b) or (c), for the offence of manufacturing methylamphetamine, the prosecution must prove beyond reasonable doubt that:

(a) a person or persons (the principal) has committed the offence;

(b) the aider had actual knowledge of the facts amounting to the offence committed by the principal;

(c) the aider did or omitted to do something with the intention of aiding or assisting in the acts which make up the offence; and

(d) what the aider did or omitted to do actually aided or assisted the commission of the offence.

See Scafetta v The State of Western Australia [2010] WASCA 209 (McLure P, with whom Buss JA and Mazza J agreed) and Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473.

64 The ground of appeal complains that his Honour failed to direct the jury in respect of (c) above. It is said that his Honour failed to instruct the jury that the State was required to prove beyond reasonable doubt that any act alleged to amount to aiding must have been done with the intention of aiding or assisting the principal in the doing of the acts which constitute the offence of manufacturing methylamphetamine.

65 In the course of oral submissions, the appellant's counsel conceded that the final direction, in effect, cured the alleged omission (appeal ts 2 and 3). This concession was correctly made. It is arguable that, having regard to the facts of the case, the direction and redirection were sufficient, even in the absence of the final direction. While there is a logical distinction between knowledge of the facts amounting to the offence and an intention to aid another in the acts which make up the offence, at a factual level there will sometimes be no practical difference between the two.

66 An inference of intention will frequently be drawn from the same facts that led the fact finder to infer knowledge. In my opinion, this is one such case. If the jury was satisfied beyond reasonable doubt that the appellant purchased and dealt with the pseudoephedrine medications knowing that they were to be used in the manufacture of methylamphetamine, it is difficult to conceive how a jury could fail to find, to the same standard, that the appellant purchased and dealt with the medications with the intention to aid the principal in the manufacture of that drug. It is relevant to observe no argument to the contrary was suggested on behalf of the appellant at trial. In any event, as the appellant's counsel said, the final direction made it clear to the jury that the appellant could not be convicted as an aider unless he had purchased the medication and provided it to the principal in the knowledge that the principal would extract from it pseudoephedrine for the purpose of manufacturing methylamphetamine. While his Honour does not use the word 'intention' in the final direction, it is clear that his Honour's use of the phrase 'for the purpose of manufacturing methylamphetamine' equates, on the facts of the present case, to the same thing.

67 Having conceded that the final direction was not erroneous and cured any deficiency in the earlier directions, the appellant's counsel sought to make a different point. It was argued on behalf of the appellant that the final (and correct) direction on aiding did not occur until after the jury had activated the buzzer. It was submitted that the only reasonable inference to be drawn from the activation of the buzzer was that the jury had reached a verdict of guilty. It was further submitted that, although the jury was instructed by his Honour to continue deliberating after the final direction, the jury did so for only 14 minutes, between 1.29 pm and 1.43 pm, part of which included the time it took for the court to reconvene for the purpose of taking the verdict. The appellant submitted that this was insufficient time to properly consider the final direction and that the jury may well have given its verdict upon the earlier and, it was said, erroneous directions on the issue. It was argued, in effect, that there was a perceptible risk that the jury did not take into account the final direction. Accordingly, it was said the appellant had suffered a miscarriage of justice.

69 The appellant's argument that when the jury activated the buzzer it had already reached a verdict is no more than speculation. There is no basis in fact for that assumption. A jury may activate the buzzer for any number of reasons, including that it wishes to ask a question or make a request or to indicate that it is having some difficulty or to deal with some practical issue. The jury were told by the trial judge not to say anything about their deliberations. There is nothing to indicate that the jury had reached a verdict or what that verdict might have been.

70 Even if the jury had reached a verdict of guilty and even if the direction and redirection were defective in the way alleged by the appellant, the learned trial judge unambiguously instructed the jury that it was obliged to consider the final direction which the appellant concedes corrected any earlier defect. He commenced this direction by telling the jury to consider what he was about to say 'in the course of your deliberations'. After he had given the direction, he told the jury 'to continue deliberations having regard to the matters I have just mentioned to you'.

71 An assumption which underpins trial by jury is that, until the contrary is demonstrated, jurors understand and conform to the directions of a trial judge: Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22 (Barwick CJ).

72 The final direction was not complicated, apt to confuse or difficult to comprehend, and the appellant did not submit otherwise. It dealt with the appellant's mental state at the time he was said to have aided any principal. It is a topic the learned trial judge had referred to in both the direction and redirection. The jury had been deliberating prior to the final direction for more than two hours. A reasonable jury properly discharging its functions could have understood and conformed with his Honour's directions in the time it took after the final direction had been given. I am not persuaded that the time taken to reach a verdict after the final direction gave rise to any perceptible risk of a miscarriage of justice.

73 The ground of appeal has not been made out, nor has there been any other miscarriage of justice.

74 In case I am wrong in my conclusions with respect to the appeal against conviction, I will deal with the respondent's argument that, even if the appellant's contentions are made out, this court should nevertheless dismiss the appeal because no substantial miscarriage of justice has occurred. In this regard, the respondent submitted that the circumstantial case against the appellant was compelling and that this court should reach the conclusion that the only reasonable inference to be drawn was that the appellant was either the principal offender or that he aided another in the manufacture of methylamphetamine.

75 The appellant submitted that the proviso should not be applied. It was submitted that this court could not be satisfied of the appellant's guilt beyond reasonable doubt. The appellant's counsel accepted that if this court came to a contrary view, she would be 'hard pressed' to submit that there was any other reason not to invoke the proviso (appeal ts 31). She did not submit that the time taken by the jury to reach its verdict after the final direction was an obstacle to the operation of the proviso.

76 The relevant statutory provisions are s 30(3) and (4) of the Criminal Appeals Act 2004 (WA) which read:

(3) The Court of Appeal must allow the appeal if in its opinion -

(a) 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; or

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

(c) there was a miscarriage of justice.

(4) Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

77 The leading case in respect of the application of the proviso is Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

78 The following statements of principle emerge from Weiss:

Any consideration of the proviso is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some theoretical future jury) would or might do. The task is to decide whether a miscarriage of justice has occurred [35].
In performing this task, three things must not be obscured:

(a) 'the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred';

(b) the task is an objective one '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'; and

The manner in which the task is to be undertaken is the same as when an appellate court is called upon to decide 'whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence'. In other words:

[T]he 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 [41].

79 In Weiss, the High Court noted that there may be cases where it would be proper to allow an appeal and order a new trial, even though the appellate court is satisfied beyond reasonable doubt of the appellant's guilt; for example, cases 'where there has been a significant denial of procedural fairness at trial' [45] or where the 'errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of [the proviso]' [46].

80 I have undertaken my own assessment of the record of the trial. This court is not at any material disadvantage in its assessment of the evidence when compared to the jury. The appellant did not give evidence, although the jury had before it (as does this court) the DVD recording of the appellant's interview with the police in which he denied any involvement in the alleged offence. The jury, by its verdict, must necessarily have rejected the appellant's exculpatory statements. The verdict and the implication from it are matters to which this court is entitled to have regard.

81 I set out earlier in these reasons a detailed summary of the evidence. The circumstantial case the State put to the jury was truly compelling. The materials discovered and seized by the police on 9 February 2011, having regard to the unchallenged expert evidence of Ms Crisp, showed that pseudoephedrine had been extracted and methylamphetamine manufactured using the chemicals and equipment found in the shed. The shed, of course, was on premises occupied by the appellant. The other occupier of the premises was the appellant's mother, whose unchallenged evidence was that she had nothing to do with any illicit activity. Suggestions that the appellant's brother or father or some other person might have used the equipment to manufacture methylamphetamine without the appellant's knowledge were fanciful and without any factual foundation. The presence of the appellant's fingerprint on the acetone bottle which had been adapted to be used as a hydrogen chloride gas generator, and a DNA profile which matched his on the green respirator, reinforced the appellant's connection with the materials found in the shed. The argument that the DNA on the respirator may have been left by the appellant's brother and father was answered by Mr Hedley's evidence that he did not see a mixture of DNA on the respirator.

82 The prosecution's circumstantial case was further strengthened by the appellant's admitted use of methylamphetamine and the discovery of materials associated with the manufacture of methylamphetamine in his room at the Greenwood premises in September 2011.

83 To my mind, a significant fact in the proof of the appellant's guilt is the purchase of pseudoephedrine medications from various pharmacies, both before and after his arrest on 9 February 2011. The frequency of those purchases, along with the quantities of medications that were acquired, speak loudly and convincingly of the appellant's involvement in the manufacture of methylamphetamine. The appellant's argument that his driver's licence might have been used unknowingly by another is no more than a bare assertion. There was no evidence that the appellant suffered from conditions which required frequent purchases of pseudoephedrine medications.

84 It may be accepted that many of the items found in the shed were common enough household items, including acetone, toluene and xylene. However, when all of the seized items are considered in the light of Ms Crisp's evidence and the evidence as a whole, the appellant's arguments that the items were purely used for innocent purposes must be rejected.

85 The argument that the police found wet coffee filters and paper towels on 9 February 2011 which could not have been used by the appellant because he had not been in the shed since 2 February 2011 is answered by the fact that the manufacture could have taken place elsewhere.

86 This court must be satisfied beyond reasonable doubt, upon all of the circumstances established by the evidence, that there is no other explanation compatible with those circumstances other than the appellant's guilt. As the High Court pointed out in R v Hillier [2007] HCA 13; (2007) 228 CLR 618, there will often be, when considering a circumstantial case, evidence which, if 'looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused' [48]. However, what is crucial in the consideration of a circumstantial case is not to look at the evidence in a piecemeal way, but to look at the evidence as a whole: [47] - [49] (Gummow, Hayne & Crennan JJ).

87 Having regard to the evidence as a whole, I am satisfied beyond reasonable doubt based on my own examination of the trial record that there is no other reasonable conclusion than that the appellant was the principal offender, and, if not the principal offender, then at the very least he aided the principal offender to manufacture methylamphetamine by purchasing and dealing with the pseudoephedrine medications with the knowledge and intention that methylamphetamine should be manufactured from, relevantly, the medications.

88 Were it necessary to so decide, I consider that, even if the appellant's ground of appeal had been made out, I would have dismissed the appeal because no substantial miscarriage of justice has occurred.

89 HALL J: I agree with Mazza JA that the ground of appeal has not been made out. In any event, for the reasons given by Buss JA, I agree that no substantial miscarriage of justice has been established. The appeal should, therefore, be dismissed.

Baiada Poultry Pty Ltd v The Queen

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (159 paragraphs)

BOMFORD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 43 (27 February 2014)

Parties

Legislation Cited (2)

Cases Cited (6)