Brown v R

Overview of Crown case

1. Police began an investigation into the suspected supply of the drug known as ecstasy by a person who I will refer to by the pseudonym "Charlie" in the Byron Bay and Ballina areas. Charlie lived in the area and had known the applicant for about eight years.
2. Charlie supplied undercover police operatives with ecstasy on ten occasions between 13 April and 17 August 2012. The Crown alleged that Charlie received his supplies from the applicant. These alleged supplies from the applicant to Charlie formed the basis of the offence alleged in count 1.
3. Count 2 alleged that money found by the police in the applicant's car at the time of his arrest on 17 August 2012 was the proceeds of other drug dealings.
4. Counts 3, 4 and 5 involved the applicant's possession, deemed to be for the purpose of supply by s 29 of the Drugs Misuse and Trafficking Act, based upon the finding of the three nominated prohibited drugs in the applicant's bedroom in his home at Midgen Flat Road, Newrybar on 17 August 2012.
5. The police investigation of Charlie involved the use of three undercover operatives, known as Felicity, Hayley and Claire (not their real names). The police obtained warrants to lawfully intercept the mobile phones used by Charlie and subsequently the applicant.
6. The applicant did not have any direct contact with any of the undercover officers. The money that was used by them to purchase the drugs from Charlie was recorded and photocopied. None of the recorded bank notes were located by police in the possession of the applicant. In fact there was no forensic evidence to connect the applicant to any of the drugs supplied by Charlie to the officers.
7. The principal witness in the Crown case was Charlie. He had earlier pleaded guilty and had been sentenced for an offence of supplying a large commercial quantity of ecstasy (1039.49 grams) and a further offence of supplying ecstasy (17.7 grams). He received a sentence of 6 years with a non-parole period of 3 years. He received a discount on the sentence that otherwise would have been imposed of 25 per cent for his early pleas of guilty and 20 per cent for his assistance to authorities.
8. The Crown relied upon circumstantial evidence to support Charlie's evidence that the applicant was his supplier in relation to the last four transactions with the undercover officers. It also relied upon drugs and other paraphernalia that were found when the applicant was arrested on 17 August 2012 to establish that the applicant had a tendency to engage in the business of selling prohibited drugs. Arguably unnecessarily, the trial judge directed the jury that they needed to be satisfied of both the foundational evidence and the alleged tendency beyond reasonable doubt.

Count 1

1. Charlie gave evidence that the drugs he supplied to the undercover officers were obtained on credit from the applicant. He said that the price per capsule was determined in his negotiations with the applicant and, at least in part, based upon what the purchaser was prepared to pay. Charlie's profit was the differential between the two.

Supply of 2 capsules of ecstasy on 13 April 2012

1. The undercover officers Felicity and Hayley first met Charlie at a hotel in Ballina where Charlie was working. Felicity engaged Charlie in conversation which ultimately led to him supplying her 2 capsules of ecstasy at a price of $25 each. Later that night she asked Charlie about obtaining more capsules the next day and he agreed. He gave her his mobile telephone number and asked her to call after 10am the next day.

Supply of 6 capsules of ecstasy on 14 April 2012

1. When they spoke the next day, Charlie told Felicity to meet him at a general store in Ballina. Felicity and Hayley met him there and they walked together to his home. Felicity purchased 6 capsules of ecstasy and paid Charlie $150.

Supply of 10 capsules of ecstasy on 27 April 2012

1. On 27 April Felicity and Hayley attended a meeting that had been previously arranged by telephone. Felicity purchased 10 tables of ecstasy and paid Charlie $250.

Supply of 50 capsules of ecstasy on 28 April 2012

1. At another meeting arranged by telephone Felicity purchased 50 capsules from Charlie and paid him $1100.

Supply of 100 capsules of ecstasy on 30 May 2012

1. Felicity made an arrangement with Charlie to purchase 100 capsules. She attended a meeting with him on 30 May 2012 where she purchased them for a price of $2200.

Supply of 200 capsules of ecstasy on 21 June 2012

1. On this occasion Felicity met with Charlie and purchased 200 capsules of ecstasy for $4400.

Supply of 400 capsules of ecstasy on 29 June 2012

1. On this occasion Felicity met with Charlie at a café in Ballina and introduced him to another officer known as Claire. Charlie was asked if he could supply 500 but he said he only had 400. There was a dispute about the accuracy of the transcript of the recorded conversation between the officers and Charlie. (All such conversations were recorded.) On any view, however, Charlie spoke of needing to obtain the further 100 capsules from a source. A short time after that conversation, Charlie sent a text to the applicant enquiring, "U home?" The applicant replied by text indicating that he was in Coolangatta but would contact Charlie later with a view to meeting up.
2. About 20 minutes later Charlie walked with the officers from the café to his car where he supplied them with 400 capsules and was paid $6200.

Supply of 600 capsules of ecstasy on 25 July 2012

1. On 15 July 2012 Claire sent Charlie a text asking if they could "catch up". Charlie sent a text to the applicant asking when he would be back. (The applicant was in Thredbo.) The applicant replied to the effect that he would be back on the 24th. Charlie then informed Claire that he (Charlie) was away and would be back on the 24th. He said in his evidence that he did not want her contacting him if he could not supply her.
2. Claire contacted Charlie on the 23rd with a text suggesting a meeting for lunch the following day. That evening the applicant sent a text to Charlie saying that he would be back on Wednesday (25th). The following day Charlie sent a text to the applicant asking if he would be back on the morning of the Wednesday. The applicant replied in the affirmative. Charlie gave evidence that he wanted to know when the applicant was returning so, "he could get restocked". The applicant then sent a text to Claire to the effect that he would see her at lunchtime the following day.
3. On the morning of 25 July Charlie sent a text to the applicant asking if he was home. The applicant replied a short time later with a text: "I can come your way bro:) couple hours:)"
4. About an hour and a half later Charlie sent a text asking the applicant if he was "far off". The applicant replied almost immediately to the effect that he was in Lennox Head and could be there in half an hour, "or can meet you here if your in a rush". Charlie replied: "Cool ill pop up now". Subsequent texts were to the effect that they would meet at the bakery in Lennox Head.
5. Police performing surveillance work saw the applicant meet with Charlie at the Lennox Head bakery just before midday. They were seen to enter the applicant's car and drive to a nearby location and park. Charlie got out and went to his own car, retrieved a backpack and returned to the applicant's car. A short time later Charlie got out and they each drove away. Charlie gave evidence that he met the applicant in order to "restock" or "get ecstasy".
6. At 12.14pm, Charlie sent Claire a text and she replied immediately to the effect that they would meet for lunch soon afterwards. The meeting took place at a café in Ballina. The ensuing conversation included asking Charlie whether he would obtain 2000 capsules. The recorded conversation indicated that Charlie had misunderstood how many capsules were sought. When he understood that 2000 were being sought he said, "He is going to pop around in 15 - 20 minutes to mine". (Emphasis added)
7. At 1.46pm, Charlie sent a text to the applicant asking if he was in Ballina. The applicant replied a short time later, "Yep. You home". A minute later Charlie and the two undercover officers got up from the table. Charlie then sent a text to the applicant: "In 5 mins". Charlie and the officers then returned to their cars. The officers drove up next to Charlie's car. He got into their car with his backpack. He then supplied 600 capsules. Claire then obtained a bag from the boot of her car and returned and gave $8400 to Charlie. She asked him whether he wanted to count it and he replied, "I am going to give it to old matey now pretty much". She asked whether, "he will have it". He replied, "I've told him I will be home in 2 mins". At 2.06pm, Charlie left the undercover officer's car and returned to his own and drove away.
8. The applicant sent a text to Charlie at 2.16pm saying "5 mins". Charlie replied immediately, "Cool". At 2.22pm the applicant was seen to park outside Charlie's home. Charlie was next seen at 2.29pm driving away and he met up with the two undercover officers at 2.32pm. The recorded conversation included the following: "Charlie: I spoke to him then, he has basically has to go and get it, but realistically over splendour, it's not worth his while. He said look, throw another $2.00 on it and you can get it before splendour or otherwise wait until after splendour. Well that's pretty much his way, his making 50 cents. It's not worth his while when he can be making $8.00 on them or $9.00 Claire: Well if he sells to us then he doesn't have to worry about them. Charlie: That's right they will be sold before splendour. Claire: So how much you think? Charlie: Well, oh, and it's going to be tomorrow. Claire: Ok what time? Charlie: Umm, basically I will just message him now, so. Felicity: I was going to use the calculator. Claire: Didn't say you could get them for $13.50? Charlie: Well $15.50 then. Claire: We got the last ones at $15.50. Charlie: Its just splendour. He likes sell them at $20.00 and at the moment they are going like hot cakes. Claire: What are people getting them at, batch of 100's or 1000's? Charlie: 100's whatever. Claire: What time tomorrow can you get them? Charlie: I wouldn't know. He is organising it. Claire: Alright. Charlie: I am sorry darling; I tried my best and like at the moment its like trying to ask for a special a Christmas. Like usually, I totally respect that and I think it's beautiful. I really respect that. But his like, your kidding mate, I am not going to make 50 cents when I can make $9.00. It's not practicable for his business. And the fact is that if he sells out all of his stocks and gets $1000 when he can make $20,000.00, like it's not practicable for him. Can I message you tomorrow?"
9. Charlie was seen to get out of the undercover officer's car at 2.41pm, returned to his own vehicle and drive away. At 2.46pm he sent a text to the applicant: "Can u popova 2moz with those splender tickets. Morning sometime, working in the arvo." The applicant replied almost immediately: "I'll get back to ya".
10. The reference to "Splendour" was a reference to the annual Splendour in the Grass music festival held at Byron Bay.

Supply of 1400 capsules of ecstasy on 26 July 2012

1. On the morning of 26 July 2012, Charlie sent a text to the applicant asking how he went "getting those tickets". The applicant replied: "Good:) can it meet you this arvo?"
2. Claire rang Charlie in between those two texts. He told her that he was "just waiting to find out about those tickets … I'm pretty sure as soon as um, he finds out whether he can get them or not, he'll ah, pass on the info and we can go grab them". Claire pressed him as to timing, indicating that she was thinking about whether she needed to change her flight. He replied, "give us five and I'll call you back in five minutes and I'll let you know". Charlie rang her back almost immediately and said, "I just tried him then and couldn't get through". He indicated that he would let her know as soon as he knew.
3. In response to the applicant's text asking Charlie if they could meet that afternoon there were further texts exchanged between the applicant and Charlie in relation to meeting up.
4. At 11.27am Claire sent a text informing Charlie that she had changed her flight until later that afternoon and that she was hopeful for "the tickets". He replied by telling her that the "wheels seem 2 be in motion". (Charlie gave evidence that references to tickets were code for ecstasy tablets.)
5. At 11.59 the applicant sent a text to Charlie: "Meet at suffo:) say 12.45"
6. Charlie then rang undercover officer Claire and tentatively arranged to meet her later, saying, "as soon as I've definitely got the tickets for splendour or whatever for us".
7. Charlie was seen to drive to his home in Ballina and then at 12.16pm to drive away. At 12.36pm he arrived at Suffolk Park. He bought something to eat at the bakery and appeared to wait there. At 12.57pm a male riding a motor cycle entered the Suffolk Park Hotel car park and stopped next to Charlie's car. The rider passed a black canvas bag to Charlie through the car's window and then pointed north. The motor cyclist and Charlie drove out of the car park. The motor cycle travelled away at high speed and police lost visual contact. Charlie drove home.
8. There was an issue in the trial as to whether the motor cyclist was the applicant. It was Charlie's evidence that he was. The registered owner of the motor cycle was a friend of the applicant and lived at Suffolk Park. The owner was overseas at the time but had left the applicant with a key to his house. Although the applicant had ridden the bike on other occasions the owner had not given him permission to ride it during the period he was away. The key that the applicant had to the house was linked to the garage.
9. Supporting Charlie's evidence that the rider of the motor cycle was the applicant was the fact that Charlie sent a text to the applicant at 12.44pm after he had been seen to arrive at Suffolk Park which simply read, "Here". The applicant replied three minutes later, "sorry 10 mins". Charlie replied immediately, "cool". In an exchange of text messages later that afternoon between the applicant and Charlie in which they again arranged to meet at Suffolk Park, the applicant referred to "where you parked before". Further, in telephone conversation with a female at 4.08pm that day the applicant said, "I was, I was around today. I took the bike for a good ride". In my view it was well open to the jury to accept Charlie's evidence that the motorcyclist was the applicant.
10. Charlie gave evidence that he thought the meeting near the bakery at Suffolk Park on this occasion when he said the applicant arrived on the motor cycle was for the purpose of him giving the applicant some money. There appears to have been an element of doubt in his mind however. When he was asked what happened he replied, "well, if it's the time we were talking about that I can remember … I got the money out of the bag and took it over to him and gave it to him and he's put it in the front part of the carrier of his motor bike". He also said that the Suffolk Park bakery had been used to meet with the applicant "maybe three times". It is possible that he was confused with another meeting, perhaps one that occurred later on the same day (see below at [42]).
11. At 1.23pm Charlie sent a text to undercover officer Claire asking, "U far off?" She replied to the effect that she would be there in 30 minutes at the most and she would "go to our spot". At 1.58pm, Charlie drove to the car park near the Ballina Art Gallery and met with undercover officers Felicity and Claire. He entered their car with a backpack. They paid him $24,600 and he supplied 1400 capsules. He left them and drove away at 2.16pm.
12. Later that afternoon, the applicant and Charlie met at Suffolk Park after arranging to do so via phone contact. The meeting was observed by police. Charlie's evidence was that he delivered to the applicant the money he had received from the undercover officers and there was a discussion about further supplies.

Supply of 1400 ecstasy capsules on Friday 17 August 2012

1. On Sunday 12 August 2012 the applicant sent a text to Charlie asking how he had been. Charlie replied asking the applicant how his holiday was. The applicant replied the following morning (Monday 13th): "Great man. Pop up to the farm if u want. Show u some photos" Charlie gave evidence that the applicant had been away on a holiday, in "Samoa or something like that".
2. At 9.27 that morning Charlie sent a text to undercover officer Claire: "U back from your holiday? Keen 4 a coffee?" Charlie explained in his evidence that he was telling Claire that they could meet up again because the applicant was home and he could access some more capsules.
3. At 10.12am the applicant rang Charlie who said he was at work and would finish around 2.00 or 3.00pm and suggested that he should "come and catch up and pick up some photos and shit". A short time later, undercover officer Claire replied to Charlie's earlier text. She said she would be up on Friday (17th) and proposed catching up with him "for a coffee and cake … will confirm numbers tomoz for you".
4. At 3.12pm Charlie sent a text to the applicant: "Catching up with my friend on friday. I'll pop up and see your holiday snaps afta that. Is that ok?"
5. The following day (Tuesday 14th) at 10.51am undercover officer Claire sent Charlie a text: ":-) :-) (same as last big one) midday ??? Coffee?" In a supplementary text she indicated "Friday". Texts sent later that day involved agreement to meet at 10.30. Charlie said that he had had a conversation with undercover officer Claire in which he had told her just to text a smiley face if she wanted 1000 capsules or two smiley faces if she wanted 2000.
6. Charlie sent a message at 9.12am Thursday 16 August to the applicant asking if he was home. The applicant replied that he was going surfing but would be free later. Charlie asked him to send a message when he had returned and he would then "pop up". At 1.31pm over two text messages the applicant informed Charlie that he was home if Charlie wanted to come up. Charlie replied that he would. At 1.45pm he sent a text to the applicant indicating he was "leaving now". At 2.10pm Charlie's car was seen by police entering the driveway of the applicant's home at Midgen Flat Road Newrybar. It was seen to leave at 2.44pm.
7. Charlie said that at the meeting at the applicant's home on 16 August there was some conversation at the house and then they moved to some tennis courts away from the house. He said that the applicant said he could only get 1400 again but might be able to do the other 600 later on.
8. Charlie's evidence concerning his claim of having acquired 1400 capsules from the applicant on this occasion was at times unclear and in some respects inconsistent. Nevertheless he maintained that he did obtain 1400 capsules at a meeting with the applicant near some tennis courts at a place called Broken Head hall.
9. At 8.16am on Friday 17 August, undercover officer Claire sent a text asking Charlie if he was still able to meet at 10.30. At 8.35am the applicant sent a text to Charlie saying that he would not be able to catch up with him until the following afternoon. At 9.25am, Charlie replied to Claire, "Yep".
10. Undercover officers Claire and Felicity met Charlie at a café in Ballina at about 10.40am. At 11.11am they left the café and walked to their respective cars. Charlie was seen opening the front nearside passenger door of his car and then seen to walk to the officer's car and get in. In a recorded conversation he told officers that he had 1400 capsules and that that was all he could get. He explained, "like I tried to organise another 6 for you but, he said not till this afternoon".
11. Charlie was challenged in cross-examination about his assertion to the officers that "he" said "not till this afternoon" when the earlier text message he had received from the applicant had referred to the following afternoon. He denied that he told the officers that because he had another supplier other than the applicant. He explained that he would have kept trying with the applicant and "hopefully he would get back to me".
12. At 11.15am, undercover officer Claire got out of the car and went to the rear where she removed a bag containing $31,000 of pre-recorded currency. Police moved in and arrested Charlie at this point.

Counts 2 to 5

1. At 11.22am police arrested the applicant at the Suffolk Park shopping centre. His car was searched. Two envelopes containing cash were found as well as the applicant's wallet. The total amount of money located was $4909.25 (the subject of the proceeds of crime offence in count 2). Written on one of the envelopes was "4,000" and "took 198 caps".
2. A search warrant was executed at the applicant's home at Midgen Flat Road Newrybar later on the day of his arrest. The various items found during the course of the search were the foundation for the Crown's contention that the applicant had a tendency to engage in the business of selling prohibited drugs. It is only necessary to review the evidence briefly.
3. A document with handwriting was located in the dining room. It was an agreed fact that it bore the fingerprints of the applicant. The document comprised a list of names with numbers against them. It was the Crown's case that this was a debtor's or creditor's list. (It was referred to as "a tick list".) Charlie's (real) first name appeared on the list with the number "4300" next to it.
4. Cocaine was located in three plastic bags in the main bedroom of the home which appeared to be occupied by the applicant (Count 4). Tablets containing ecstasy in six lots were found elsewhere in that bedroom (Count 3). In a box found under the bed there were a number of small plastic bags containing a variety of pills, a larger plastic bag containing a quantity of empty gelatine capsules and a large number of empty resealable bags. In one plastic bag in the same box a quantity of the structural analogue of methcathinone were also found (Count 5). A set of digital scales was located in a kitchen cupboard.

An event at Grafton Correctional Centre

1. After their arrest the applicant and Charlie were taken to Grafton Correctional Centre. Charlie gave evidence that after about five days they managed to get a cell together. One evening after they had been locked in they laid out their charge and facts sheets and discussed the cases against them. Various notes were written onto the documents; they were made by Charlie aside from the applicant writing the word "February".
2. Charlie gave evidence that the applicant raised the idea of saying that a person named "Richie" had supplied Charlie with the drugs. Richie was a person who had recently died. Charlie said that he did not know Richie well; he had only met him in passing.
3. Another part of the proposed story was that Charlie would say that he had been keeping the money to give to Richie when he had returned from being away in Los Angeles. But the applicant's suggestion was for Charlie to say that his house got broken into during the Splendour in the Grass weekend and the money was stolen.
4. Records from Grafton Correctional Centre showed that the applicant and Charlie did not share a cell at all. When confronted with this information Charlie remained insistent that they did share a cell for one night. There was evidence from a correctional officer that they would have had about five hours per day out of their cells where they could have freely associated.

Unreasonable verdict principles

1. The principles concerning the determination of a ground of appeal that a verdict of guilty is unreasonable, or cannot be supported, having regard to the evidence, are well known. In short, the question is whether, upon independently assessing the evidence, this Court is of the view that it was open to the jury (in the sense explained by the High Court) to conclude beyond reasonable doubt that the applicant was guilty: M v The Queen [1994] HCA 63; 181 CLR 487 at 493; Jones v The Queen [1997] HCA 56; 191 CLR 439; MFA v The Queen [2002] HCA 53; 213 CLR 606; Libke v The Queen [2007] HCA 30; 230 CLR 559 and SKA v The Queen [2011] HCA 13; 243 CLR 400.
2. The jury in the present case had the undoubted advantage of seeing and hearing the principal Crown witness give evidence over an extended period of time. His evidence was given over seven sitting days. The significance of this is incorporated in the summary of principles to be applied in the determination of a ground of appeal against conviction asserting that a verdict is unreasonable or unsupportable that McCallum J provided in Glover v R; Stuart v R [2015] NSWCCA 285: "[98] It is well-established that, in determining such a ground, this Court must make an 'independent assessment of the evidence'. The existence of that function has long been recognised: Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 516.1 per Barwick CJ; Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521 at 534 per Gibbs CJ and Mason J; Morris v The Queen [1987] HCA 50; 163 CLR 454 at 463, 473, 478. It is clear that it is a function which must be discharged carefully, with a view to assessing the 'probative value' of the evidence (Morris at 463 per Mason CJ) both as to its sufficiency and its quality (at 473 per Deane, Toohey and Gaudron JJ). [99] It is important to bear in mind the purpose for which that function is performed, which is to determine whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused: Chamberlain at 534.3; Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] per Hayne J (citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492 to 493). One of the issues considered in the joint judgment in M was whether, in stating the test in such terms, it was necessary to qualify the statement of Barwick CJ in Ratten that the same task could equally be expressed by reference to a doubt entertained by the appellate court itself. The majority in M did not think the difference mattered. It was in that context that the majority said, famously (at 494), 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.' [100] That quote and the remarks that follow it are frequently cited in this Court as a seminal statement of principle governing appeals of this kind. There is no vice in doing so, provided the passage is read in context. The assertion as to what will be the position 'in most cases' was not itself a statement of principle. It was the explanation for the view stated in the previous sentence that it is 'possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested'. The 'qualification' was explained in the preceding paragraph: 'To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.' [101] If there is no difference between Barwick CJ in Ratten and Chamberlain, I prefer the formulation approved in Chamberlain, that is, whether the jury, acting reasonably, must have entertained a reasonable doubt or, as it was put by Hayne J in Libke at [113] (emphasis in original): 'the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.' [102] My reason for preferring that formulation is that it is more accurate, since it acknowledges the function of the jury as the body entrusted with the primary responsibility of determining guilt or innocence (a point reiterated in an earlier passage in M at 493.8). In an appeal, the Crown does not have to discharge an onus of proof beyond reasonable doubt for a second time; this Court is entrusted with the function of undertaking an independent assessment of the evidence for a different purpose. Submissions invoking the frequently quoted-passage from M sometimes appear to suggest otherwise."

Submissions for the applicant

1. Written submissions prepared by senior counsel for the applicant (not Mr Hughes SC who appeared at the hearing) reminded the Court of the uncontroversial point that Charlie was a witness who was criminally concerned in the events giving rise to the charges against the applicant. As such, the trial judge was requested to, and did, give a warning that his evidence may be unreliable: s 165 of the Evidence Act 1995 (NSW).
2. The written submissions made a number of points about the evidence that was said to contradict the evidence of Charlie. They also pointed to a number of ways in which there was an asserted absence of supporting evidence.
3. Charlie's evidence about a conversation with the applicant when they were locked-in together in a cell at Grafton Correction Centre was contradicted by the prison records which showed that they had never shared a cell together. This was confirmed by the oral evidence of a correctional officer.
4. Another point of contradiction was that Charlie claimed in a statement made on 31 August 2012 to have received drugs from the applicant at Broken Head hall on 17 August 2012. Based upon surveillance of the applicant and Charlie, Detective Sergeant Ewing agreed in cross-examination that this was incorrect.
5. In relation to there being an absence of supporting evidence, the written submissions referred to the fact that the applicant was not present at any of the transactions between Charlie and the undercover officers. He was in communication with a number of people, not just the applicant, in between such transactions.
6. The submissions also referred to the lack of positive identification that the motorcyclist who met the applicant at Suffolk Park on 26 July 2012 was the applicant. I have considered this (above at [37]-[39]). There was ample proof for the jury to conclude that this person was the applicant.
7. The drugs found at the applicant's home on 17 August 2012 did not bear the applicant's fingerprints and they were not tested for DNA. (There was evidence of the fingerprints of others found on the drug bags but this had the potential to raise something prejudicial and so counsel for the applicant deliberately chose to avoid having it placed before the jury.)
8. A further point made in the written submissions was that none of the recorded money used by the undercover officers to pay Charlie for the drugs they received was found in the applicant's possession. That of course must be considered in light of the fact that the last time the officers handed over money was some three weeks before the applicant's arrest and the search of his car and house.
9. The written submissions referred to the evidence of the applicant apparently having multiple wallets: one found nearby in the shopping centre where he was arrested; another in his car and another in the bedroom of his home. It seems to be implied that there might be doubt as to whether the wallet found in the bedroom was in fact his but the point was not further developed in either written or oral submissions.
10. Other points made in the written submissions were that aside from the $4909 the subject of the charge in count 2 there was no evidence of the applicant being found in possession of the proceeds of crime. Another point concerned the inconclusiveness of some surveillance evidence.

Consideration

1. The evidence of Charlie ranged over 10 transactions with the undercover officers in a period of 4 months. He was also involved in supplying drugs to other people. In these circumstances, it is not surprising that his recall of the detail of individual transactions with the person he said was his supplier and the people who were his buyers would be incomplete or on some occasions wrong.
2. The critical aspect of Charlie's evidence was his assertion that the applicant was his supplier. There was a strong case that he was correct in this respect.
3. Aside from Charlie's evidence, the combined effect of the telephone contact between him and the applicant coinciding with Charlie's negotiations and meetings with the undercover officers in relation to the final four transactions (see above at [19]-[54]) more than cogently supported the inference that the applicant was Charlie's supplier. Charlie's evidence simply confirmed what was otherwise open to the jury to accept.
4. There was no evidence independent of Charlie in relation to the first six transactions. But if it was open to the jury to accept the correctness of his evidence in relation to the latter four because it was so strongly supported, it was equally open for them to accept as credible his evidence in relation to the earlier six.
5. The two points of contradiction raised in the submissions (see above at [67]-[68]) were available to be considered by the jury. In relation to the Grafton gaol matter, the trial judge reminded the jury of submission of counsel who was then appearing for the applicant. His Honour also said that "there was certainly opportunity for the two of them to have sat together in a cell"; "it may be that [Charlie] was wrong about them having shared a cell overnight, but that his evidence is otherwise truthful"; "or it may be, as [trial counsel] submitted to you, that he was lying".
6. Charlie's error in relation to meeting the applicant on 17 August was a similarly valid point for the jury to consider. But there was uncontroverted evidence by police conducting surveillance that he did go to the applicant's home the previous day.
7. In the light of the strong support for Charlie's evidence on critical matters, these points, either alone or in combination with everything else, are not ones that must have caused the jury to have a reasonable doubt.
8. I consider the various absence of evidence points raised in the submissions in the same way. A potentially strong point in favour of the applicant was that his fingerprints were not found on any of the bags of drugs located by police on 17 August 2012. But against it is that the drugs were found in his own bedroom and there was also the "tick list" on which his fingerprints were found.

Conclusion

1. I have considered all that has been put in both written and oral submissions on behalf of the applicant. The point that cannot be avoided is that there was a considerable body of independent, uncontroverted and objective evidence that supported the veracity of Charlie's evidence that the applicant was his drug supplier.
2. The applicant has failed to establish that it was not open to the jury to return verdicts of guilty on each of the five counts in the indictment.

Orders

1. I propose the following orders: 1. Leave to appeal against conviction granted. 2. Appeal dismissed.
2. GARLING J: I have read, and taken account of, the whole of the evidence placed before the Court on this application. Having done so, and having considered the submissions of both the applicant and the Crown, I am of the view that it was open to the jury to have been satisfied beyond reasonable doubt that the applicant was guilty of each of the offences on the Indictment.
3. In particular, the jury had the considerable advantage of seeing and hearing the principal Crown witness over many days. Whilst criticisms of the evidence of this witness can properly be made which would have lead me to having a doubt about the credibility of the witness, any such doubt was one capable of resolution by the jury because of its advantageous position.
4. I agree with the analysis of R A Hulme J of the effect of the evidence at the trial.
5. I agree with the orders which R A Hulme J proposes.
6. WILSON J: I also agree with the analysis and conclusions of R A Hulme J. I agree with the orders his Honour proposes.

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