File No : FR 8028 of 2005, FR 8029 of 2005

Adjournment applications - Whether denial resulted in unfair trial - Unrepresented accused labouring under disability - "Possession" for purposes of offence of possession of prohibited drug with intent to sell or supply

Criminal Appeals Act 2004 (WA), s 14(2)

Criminal Procedure Act 2004 (WA), s 41(4), s 42(5)

Misuse of Drugs Act 1981 (WA), s 5(1)(d)(i), s 6(1)(a), s 34(2)(b)

Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738

Cumming v The Queen (1995) 86 A Crim R 156

Davies v The State of Western Australia [2006] WASCA 151

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Jones v The State of Western Australia [2006] WASCA 192

McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575

R v Osborne [2002] VSCA 156

R v Pinkstone [2001] WASC 254

1 This is an appeal against conviction for an offence under the Misuse of Drugs Act 1981 (WA) of possession of a prohibited drug with intent to sell or supply it.

2 The grounds of appeal go to the Magistrate's refusal to vacate the date for trial or to grant an adjournment of it, and to one of his findings in relation to possession of the drug by the appellant.

3 I first set out the basic factual background to this matter, including the proceedings on the prosecution of the appellant. I then set out the grounds of appeal and the principal legislative provisions applicable to the charge against the conviction on which she appeals. I then consider each of those grounds. The final section of these reasons is my conclusions and orders.

4 The factual background I now set out is common ground between the parties.

5 The appellant lives at a house in Hamilton Hill ("the house"). She is the owner of the house. At the material times a number of others resided with her in the house.

6 On 8 September 2005 police officers in the execution of a search warrant at the house located a number of quantities of cannabis or cannabis plant. Some of those quantities were found inside the house. One quantity was located in a bag in a freezer inside the house, in what has been described as a "Coles" or grocery bag. The quantity was over 300 grams. The appellant was in the house at the time of the discovery. Parts of what occurred at the time were the subject of a video record of the search ("the search video"). The appellant made a number of statements about the quantities of cannabis shown to her as having been found in the search from both inside and outside the house, statements that are shown in the search video.

7 During the search a number of other items were found, including what were described as drug related implements, and a handwritten note bearing the words, as testified to by the prosecution's only witness at the trial (13 July 2006, examination-in-chief of Adrian Voletta [sic Vuleta], TS 5):

"Don't ask for credit as the answer will be no, no matter who you are if you want a handout ring the fucking Salvos. This is not a bank or a charity business. By order RP - or JS with RP."

8 By a prosecution notice dated 8 September 2005 issued by the respondent police officer the appellant was charged with two offences. One was that, contrary to Misuse of Drugs Act 1981 (WA), s 6(1)(a), she was "[in] possession of prohibited drugs with intent to sell or supply (cannabis)".

9 She was also charged with the offence of possessing a smoking utensil contrary to the Act, s 5(1)(d)(i).

10 On 23 September 2005 the appellant appeared unrepresented in the Fremantle Magistrates Court and was remanded to re-appear on 7 October 2005 for mention. She was released on bail.

11 On 7 October 2005 the appellant appeared unrepresented in that Court, and was remanded to re-appear on 21 October 2005 for mention. Her bail was renewed.

12 On 21 October 2005 the appellant appeared unrepresented in that Court. A summary hearing was listed for 20 February 2006. The appellant's bail was further renewed.

13 On 20 February 2006 the appellant appeared unrepresented in the same Court. The hearing was adjourned to 23 February 2006. The appellant's bail was further renewed.

14 On 23 February 2006 the appellant appeared unrepresented and the hearing was further adjourned to 13 July 2006. There is no indication from the transcript as to whether or not the appellant's bail was renewed. However, it appears there was a renewal of her bail.

15 On 11 February 2006 the appellant appeared represented by an officer of the Mental Health Law Centre. A request was made for adjournment of the hearing on 13 July 2006. The Magistrate denied this request and gave reasons for this denial. This Magistrate had presided at all of the previous appearances of the appellant, except for the second mention of the charges, on 7 October 2005.

16 On 13 July 2006 the trial was held. The presiding Magistrate was the same judicial officer who had presided at all of the appellant's previous appearances, with the exception of that on 7 October 2005.

17 At the conclusion of the trial on 13 July 2006 the learned Magistrate delivered his reasons for convicting the appellant on the two charges. Sentencing took place at a subsequent hearing, on 14 August 2006. This sentencing was both on that charge and on the charge of possession of a smoking utensil. I do not have the transcript of that hearing. The sentence for both offences was a community based order with a duration of 12 months from 23 August 2006 and a programme requirement. No appeal is taken in respect of the conviction on the possession of a smoking utensil.

18 His Honour Justice McKechnie gave leave to appeal against the conviction on the charge of possession with intent to sell or supply on the following grounds:

"1. The Magistrate did not properly decide a procedural matter by refusing a request from legal representation for an adjournment. This decision prevented me from having any representation at trial which, in turn, prevented me from presenting all relevant evidence adequately.

2. The Magistrate delivered a guilty verdict based on his consideration that I was in sole dominion and control of said freezer where drugs are alleged to have been found, a fact which, upon review, will be found to be unproven."

19 The appellant conducted her appeal in person. On the two hearing days of the appeal, I permitted her to take advice from a friend who had apparently also assisted her at the appellant's trial. I will return to the circumstances under which the latter assistance was provided.

20 The Act, s 6(1)(a), as at the date of the alleged offence, was as follows:

(a) with intent to sell or supply it to another, has in his possession;

...

a prohibited drug commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority."

21 This provision needs to be read with the further provision, s 11, which as at the date of the alleged offence read as follows:

(a) section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug;"

22 The word "possession" in this provision was inclusively defined in s 3(1) as it stood as at the date of the alleged offence as follows:

"In this Act, unless the contrary intention appears -

...

to possess includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb to possess have correlative meanings;"

23 The quantity specified in Schedule V, item 25 "Cannabis", as at the date of the alleged offence was 100 grams.

24 I will return to certain authorities, including some very recent authorities, on possession for the purposes of these provisions.

25 This ground relates to the outcome of the one hearing in these proceedings in which the appellant was represented, that of 11 July 2006. Her representative was as I previously indicated, from the Mental Health Law Centre ("the Centre"). That representative put to the learned Magistrate that the hearing should be further adjoined on four bases.

26 One basis was that she had not received copies of the record of interview or witness statements, although "in fairness I'm not aware that she actually requested disclosure".

27 This basis involved what I take was a reference to the disclosure obligation on the prosecution by virtue of Criminal Procedure Act 2004 (WA), s 42(5), which reads:

"(5) As soon as practicable after a charge is adjourned under section 41(4), the prosecutor must serve the accused with the following -

(a) any confessional material of the accused that is relevant to the charge and that the accused has not already received from the prosecutor;

(b) any evidentiary material that is relevant to the charge;

(c) any other document that is prescribed."

28 The provision referred to in s 42(5), s 41(4), deals with an adjournment to a disclosure/committal hearing that allows the prosecution a reasonable time within which to comply with s 42 following a plea other than a plea of guilty or a failure to plead.

29 The obligation to serve material is qualified by s 42(2)(a), as follows:

"A requirement under this section to serve evidentiary material includes a requirement -

(a) if it is not practicable to copy a document or exhibit referred to in paragraph (c), (d) or (e) of the definition of evidentiary material in subsection (1) - to serve a notice that describes it and states where and when it can be inspected;"

30 It is not in contest that the prosecution had failed to comply with the obligation in s 42. I would identify such non-compliance to be at least in respect of the search video, for which (no copy having been provided) no service of a notice as described in s 42(2)(a) had occurred by the time of the 11 July 2006 hearing, so far as was apparent to me. This was significant evidence at the trial, as indicated by the attention it received in the learned Magistrate's reasons, as I will indicate.

31 I note that there is no obligation on an accused to call for compliance with s 42, although, of course, that would be wise. A self-represented person, it seems to me, could not necessarily reasonably have been expected so to act. However, the appellant had previously indicated, at the hearing on 23 February 2006, she had been in contact with the "Mental Health Legal Service" (which it appears to have been accepted before me was a reference to the Centre), and further indicated (23 February 2006, TS 2):

"They said they would help me with the case if it can be remanded for 21 days at the least and they would make themselves available for any date after that, if your Honour approves."

32 It was on that basis that the learned Magistrate at that hearing had granted the second adjournment of the trial, to 13 July 2006.

33 Thus, it is not evident that the appellant had not had an opportunity to have legal advice as to the disclosure she should ensure she had before the trial. In the event, she received disclosure, although it was not until the trial itself that she received the last of it, in the form of a viewing of the search video as well as replayings of certain portions, as I will indicate.

34 The second basis on which the legal representative for the appellant put his request for an adjournment was that one of the witnesses the appellant hoped to call was in drug rehabilitation and not available for a trial on 13 July 2006. This witness was not named, nor was there any indication as to what evidence it was hoped that witness would give. In addition, at the trial on 13 July 2006, when she was asked whether or not she wished to call any further witnesses, the appellant indicated (TS 76) she did not. The only other witnesses whom I was told the appellant gave any indication of an interest in calling were the police officers who conducted the search of the house other than the police officer so involved she did call.

35 Indeed, at the hearing on 20 February 2006, when an adjournment of the trial, to 23 February 2006, had been granted, there was the following exchange concerning witnesses the appellant would be calling (TS 4):

"HIS HONOUR: If I list it for Thursday, we've got a gap in the list, are your witnesses available?

MS SMITH: Yeah.

PROSECUTOR: Then, I'm not sure.

MS SMITH: Oh[.]

FEMALE SPEAKER: I'm the only witness for her.

MS SMITH: No there's - - yeah."

36 I take from this exchange that the appellant at that point might have had another witness or other witnesses. Moreover, this was a point where she may not have had the opportunity to obtain advice from the Centre. However, I also take from this exchange that she had not clearly identified the need for further witnesses, and her conduct at trial was consistent with a conclusion she might have arrived at then that the further witness her legal representative had referred to at the hearing on 11 July 2006 was not one the need for whom she would press on the learned Magistrate.

37 The third basis on which the legal representative for the appellant put his request for an adjournment was that he had come to the matter "on very late notice". At the point of the hearing on 11 July 2006, the appellant was in a position where she was "now ... able to have representation from the Mental Health Law Centre". However, in the absence of an adjournment, the legal representative would not be in a position to assist her or the court.

38 It would appear that the appellant had previously applied for legal aid, which had been refused prior to the hearing on 23 February 2006. At that hearing she had asked for a second adjournment of the trial hearing. At that hearing she had indicated she had, through the correspondence concerning her application for legal aid, become aware she might qualify for assistance from the Centre. She said she had "since contacted them and they said they would help me with the case if it can be remanded for 21 days at the least". In the event, the learned Magistrate had set a trial date for 13 July 2006, adding "Ms Smith, you understand there will be no further adjournments of this matter" (11 July 2006, TS 2).

39 At the hearing before me the appellant, without objection from counsel for the respondent, produced correspondence which she said confirmed what she had said to the learned Magistrate, and further indicated the difficulties she had had arranging for a properly qualified experienced lawyer from the Centre to represent her. I have no reason to doubt that the correspondence so establishes, and the contrary was not put to me by counsel for the respondent. I further note from this correspondence the letter dated 23 June 2006, from the restricted year practitioner assigned to her case, informing her that as from 1 July 2006 "due to circumstances beyond his control" the senior practitioner assigned to supervise the restricted year practitioner would be unable to supervise that person's work for a six month period. The letter also indicated the difficulty being experienced in finding a replacement supervisor.

40 However, I also note that, at the hearing on 20 February 2006, there was an exchange between the appellant and the learned Magistrate in which she indicated that she was ready for a hearing to be held three days later, while also indicating that her "medical condition" was a concern in relation to her capacity to present her case, in the context of which concern she found it "strange" she had not been "approved for legal aid" (20 February 2006, TS 3, TS 4). There then ensued the following exchange with the learned Magistrate (TS 4):

"HIS HONOUR: - - the fact is if you haven't got a lawyer, you've got to be prepared to represent yourself.

MS SMITH: Well, I am prepared to represent myself.

HIS HONOUR: Yeah. So, I mean all I can say is that you keep trying to get a lawyer by all means, but if I - -

MS SMITH: No, I'll represent myself."

41 I would draw from this that the appellant was, if necessary, prepared to proceed to trial without legal representation, although she would do so with some difficulty. In the event, she did represent herself at trial, although the learned Magistrate did allow her to have some assistance, as I will explain.

42 The fourth basis on which the legal representative for the appellant put his request for an adjournment was that these were "reasonably serious charges" for which a "sentence of imprisonment may well be on the cards". This in my view was a reminder to the learned Magistrate, who had been involved in all of the previous hearings except this one, as I have indicated, of the threat to a fair trial for such an offence if the appellant were unrepresented. I did not understand it be in contest before me that the charge of possession with intent to sell or supply was one for an offence as described by her legal representative, albeit it was one to be tried summarily, and therefore was one attracting the lower maximum penalties provided for in the Misuse of Drugs Act, s 34(2)(b).

43 It was put to me for the respondent that the application was not shown to fall within the category of cases to which Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 applies. I took this to be a submission that the basis being put by the legal representative for the appellant was not shown to be an application that sought to engage the principle of that case. In particular, there was no attempt evident to show the appellant met the conditions for the application of that principle, to be extracted from the judgments of the majority of the members of the court, which I take for my purposes from Brown, Criminal Law in Western Australia, at [7860.15] to be as follows:

"A trial judge faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation should, in the absence of exceptional circumstances, adjourn, postpone or delay the trial until legal representation is available."

44 I agree there is no indication that an application was being made in terms of this principle. Certainly there was no attempt to establish that the appellant was indigent within the meaning of the principle: R v Pinkstone [2001] WASC 254, Roberts-Smith J, at [39]. Nor is it clear to me that the offence, to be tried summarily in this case, was sufficiently serious to satisfy that requirement for the application of the principle.

45 However, I consider the learned Magistrate was being reminded that the appellant had a particular need for assistance from a qualified lawyer arising out of the "fairly serious" nature of the offence, and that the appellant had qualified for such assistance from the Mental Health Law Centre, which appeared to be the only offer of such assistance she had been able to obtain.

46 Further, the learned Magistrate had been told in previous hearings of the mental health difficulties under which the appellant was labouring. He was also told by the appellant's legal representative at the hearing on 11 July 2006 that she was an outpatient of the Alma Street Centre which had diagnosed "a post traumatic stress disorder". The legal representative added she had been receiving treatment "since the year 2000" and "she" (apparently the appellant, although this is not altogether clear from the transcript, TS 3) had told her representative "many of the delays that she's experienced that have been disclosed so far have been related to a disorganisation on account of her illness".

47 In the event, the learned Magistrate refused the application for an adjournment, giving reasons for so doing. Those reasons were expressed in terms of references to three sets of considerations.

48 The learned Magistrate referred to "questions of court management", in a court "with a very large volume of business" (11 July 2006, TS 4).

49 He also referred to the time that had been allowed for the trial of two hours, the period of time since the offence, the fact that a date for an adjourned trial would not be until November 2006 and the fact the hearing date had been adjourned once (which I took to be a reference to the vacating and re-listing on 23 February 2006) and vacated once (which I took to be a reference to the vacating and re-listing on 20 February 2006) previously.

50 In relation to the third set of considerations, the learned Magistrate noted that he had been told there "may be some health issues which affect the accused's ability to attend the trial". However, he added that "the problem is not necessarily going to abate and the question then arises when will the matter - when will she be ready to go trial" (TS 4).

51 However, in not adjourning the trial, the learned Magistrate also ordered that disclosure of the record of interview and "some witness statements" be made by 3 pm on 11 July 2006. He added that "if for some reason" disclosure was not given he would "of course reconsider an application to adjourn on the day of the hearing" (TS 5).

52 In the ensuing exchange with the appellant the learned Magistrate told her she "should attend the Fremantle Police Station today by 3 pm to get disclosure" (TS 6). His exchange with the prosecutor immediately following that remark indicated the learned Magistrate envisaged the disclosure would be in the form of material "handed over at the station" (TS 6).

53 From an affidavit of the prosecuting sergeant, William Anthony James Thompson, sworn 29 November 2006 for the purposes of the hearing of the appeal before me, it would appear that, at the hearing of 11 July 2006, the appellant was provided with a photocopy of the prosecution brief "[d]uring a break in court proceedings". I note that a copy of the Thompson affidavit had been provided to the appellant the morning of the second day of the hearing before me.

54 In his affidavit, Thompson further deposed, however, that he had been unable to provide the appellant with a copy of the search video, as "a spare was not available". He also deposed that he gave the appellant "the opportunity to view the [search video] with me at that time".

55 Before me the appellant said by way of response that she had been told the search video was not available for viewing at that time, but only on the next day. No objection was taken to this evidence from the Bar table, nor to her further statement she had told him she could not view the video in the Fremantle Police Station because of her apprehensions as to the effect on her mental condition of so doing.

56 In the event, at the trial on 13 July 2006, after the sole prosecution witness, the respondent, had been sworn, and there had been initial questions in the respondent's examination-in-chief, the appellant, at the point of the luncheon adjournment, informed the learned Magistrate that "we had never been allowed to see the video before" (13 July 2006, TS 6). There followed this exchange between the learned Magistrate and the appellant (13 July 2006, TS 7):

"HIS HONOUR: Well, you have been allowed to I would have thought.

MS SMITH: No. We had to go to the police station.

HIS HONOUR: You have to go to the station to see it, yes.

MS SMITH: Yeah. Yeah.

HIS HONOUR: But you'll be given a chance to see it and how long does it go for, 30 minutes? --- Thirty-six minutes.

HIS HONOUR: 36 minutes, all right. Okay, thank you. We'll adjourn to lunch. No discussion of this matter with any other witnesses? --- Sure."

57 It thus appears that the learned Magistrate was aware the appellant had not previously viewed the search video, and that her opportunity to see it had been one exercisable at the police station in the company of the prosecutor. It is not evident to me that such an opportunity is the disclosure envisaged by Criminal Procedure Act, s 42(5), as qualified by s 42(2)(a) in a case like this one. It seems to me that an opportunity for inspection of the sort described by s 42(2)(a) was required to be one which better responded to the condition and circumstances of the appellant, which condition and circumstances it seems to me had been known to the prosecutor by this time. There was no indication before me that there was any attempt to provide such an opportunity to the appellant prior to the trial, and in particular there is not indication any such was brought to the attention of the learned Magistrate.

58 I note that the appellant did not formally request an adjournment at the trial itself, as allowed for by Criminal Procedure Act, s 63. However, it seems to me that the learned Magistrate had effectively ruled that no adjournment for the purpose of allowing the appellant to view the search video would be allowed. While this matter is not as clearly the subject of the appellant's first ground of appeal as one might wish, it seems to me the learned Magistrate's position was of a sort contemplated by, if not altogether, in my view, to be expected as a result of, the decision he made on 11 July 2006. In any event, argument before me was on the basis that there was no error disclosed by the learned Magistrate proceeding in this respect as he did at the trial.

59 In the event, following the adjournment of the trial for lunch, the search video was played, and, as I will indicate, portions of it replayed. Just before the first playing of the search video, the appellant asked if she could have a friend, who identified herself as a "law student at the International Chamber of Commerce in Perth" (13 July 2006, TS 8), sit with the appellant and provide her with advice. The learned Magistrate, after he had been told by the appellant that she suffered from "[p]ost traumatic stress syndrome" arising out of her dealings with the "Fremantle Police", agreed to the request, on the basis that the person could offer the appellant advice, but the appellant would "have to conduct your own case as your own advocate" (TS 8).

60 In considering the exercise by the learned Magistrate of his discretion whether or not on 11 July 2006 to grant an adjournment of the trial to take place on 13 July 2006, I consider that the approach he should have followed is not that from Dietrich (supra). That is because, as I have indicated, no basis had been sought to be laid for the application of that approach before the learned Magistrate.

61 However, I consider that the appellant was in the position where without an adjournment she would not have assistance from a qualified legal representative for her trial, and this had been explained to the learned Magistrate. In those circumstances, it seems to me that the considerations to which the learned Magistrate was required to address himself are those referred to in Pinkstone (supra), Roberts-Smith J, at [39], of "whether the circumstances are such that the trial of the accused whilst unrepresented, would be unfair".

62 In considering that question, it seems to me that in this case the learned Magistrate should properly have considered the following sets of factors.

63 One such set of factors was the complexity or otherwise of the case the appellant faced: see Pinkstone (supra), Roberts-Smith J, at [39]. This was a matter of particular importance in this case, where the required prosecution disclosure had not been provided to the appellant and those at the Centre who had, until 1 July 2006, as I have indicated, been in a position to provide her with assistance from a fully qualified legal representative. Furthermore it was not clear the appellant would be in a position to secure advice from a qualified legal representative with respect to any such disclosure as the learned Magistrate was in a position to secure for the appellant prior to the trial.

64 The second set of factors was the interests of the administration of justice, including the other interests of the accused, but also including the delay in the trial already allowed to the appellant to secure assistance from a qualified legal representative, and the further delay in prospect for that purpose: see R v Osborne [2002] VSCA 156, per Chernov JA, Philips CJ and Vincent JA agreeing, at [26], referring to McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575, per Barwick CJ, Aickin and Wilson JJ agreeing, at 579.

65 It is not apparent to me that the learned Magistrate failed to exercise his discretion having regard to these principles. However, as I will explain, I have concluded that, as a result of the refusal of the adjournment, the resultant trial was unfair.

66 With regard to the complexity of the case the appellant faced, I note that the length of time allowed for the trial was two hours, a matter to which the learned Magistrate referred in his reasons for refusal of the adjournment.

67 In the event, at the trial the prosecution called one witness and put in exhibits comprising certificates of analysis of the cannabis found at the house, certain implements used in connection with cannabis, certain bags, the note I have previously referred to, and the search video. The defendant gave evidence herself, and called three further witnesses, being one of the police officers involved in the search at the house, as well as two others, a Robert Primma and an Allana Smith, both of whom had been residing with the appellant at the house at the material time. There is no indication to me that either of the latter witnesses was the witness referred to in the submissions in support of the application for adjournment. However, as I have previously indicated, there was no statement by the appellant at the trial that she wished the opportunity to call any such further witness.

68 The prosecution case as to the charge of possession with intent to sell or supply appears to have been a relatively simple one. So far as it is apparent to me, that case rested on the note, on the implements used in connection with cannabis found in the search on the search video, on the quantities of cannabis found, and on the admissions of the appellant as to those implements, and as to those quantities.

69 The defence case, so far as it is apparent to me, was that the note had nothing to do with the appellant, that the implements were used in relation to cannabis for her personal use, not cannabis for sale or supply, and that, of the several quantities of cannabis found in that search, the quantity of cannabis found which exceeded the statutory threshold represented a quantity from a plant grown on premises adjoining the house that had fallen into her yard. Her daughter had not put that quantity in a rubbish bin for disposal as her mother had instructed her to do but thrown it out into adjoining premises. There it was found in a bag by another person in the house whom she had instructed to put in a rubbish bin outside the house, which he had done, in time for a verge side pick up before the search. The presence of the quantity concerned in a bag in a freezer outside but apparently in a yard of the house was nothing to do with her. Further, the condition of the plant in the bag would indicate it was not intended for sale or supply.

70 For the respondent it was put to me there is no clear indication from the transcript of the trial to which my attention was drawn that the appellant had been unable to conduct her case effectively. She cross-examined prosecution witnesses, examined the witnesses she called, and herself gave evidence. She provided a brief summary of the defence case, citing principles of law. While the appellant may have been labouring under the disadvantage of the mental health condition to which she referred, and in relation to which the learned Magistrate allowed her the assistance of her friend at the trial, and while she may have been at a disadvantage because she did not have a legal representative appearing for her, there was no indication the trial was unfair as a consequence of those disadvantages. The indications are rather that, notwithstanding those disadvantages, she was able, with the assistance from the person the learned Magistrate allowed her to consult at the trial, guidance from the learned Magistrate himself, and any prior assistance she had received, to conduct her defence effectively.

71 In my view, the material to which my attention was directed by the respondent does indicate that the appellant was able to conduct her case effectively.

72 However, I return below to the matter of whether there was other material from the trial, to which I will shortly return in connection with the matter of pre-trial disclosure, which goes to qualify that appearance of the appellant's ability to conduct her case effectively.

73 With regard to the interests of the administration of justice, I note the allowance already made to the appellant to enable her to secure the assistance she sought from the Centre. Any further delays would it seems to me be properly a matter of concern to the learned Magistrate, in view of the risks that prosecution witnesses might not be available.

74 The appellant appeared to put to me that it was not clear, in light of those delays, that any further delay would be prejudicial to the administration of justice. In particular, the learned Magistrate had not referred to any reason why a later date would be prejudicial in that way. However, it seems to me that, in view of the delays to that point, His Honour properly weighed against the application the difficulties for the arrangement of a suitable proximate date to accommodate both prosecution and defence. The earliest such date referred to in the transcript of the hearing of 11 July 2006 was in November, in respect of which the prosecutor indicated (TS 3): "[a]ll the four police witnesses will be available bar - -".

75 His Honour at that point asked about the "documents in disclosure" needed for the accused. However, I take from this exchange that the learned Magistrate had in view the matter of the continuing availability of prosecution witnesses.

76 In relation to the administration of justice, I have particularly noted the matter of the search video. I have previously noted that the first time the appellant had viewed the video was when it was played, and as I will indicate portions of it replayed, at the trial. I have also previously noted my view that the provision made for her to view the video earlier was not discharge of the obligation of disclosure on the prosecution in relation to this material.

77 The appellant directed a significant portion of her cross-examination of the prosecution's witness, and of the police officer she called, to matters to do with the search of the house and with the failure of the search video to capture all of it.

78 For his part, the learned Magistrate in his reasons for decision made particular reference to what the video showed of the discovery of the cannabis and of her admissions with respect to that cannabis. I particularly note the following passage in his Honour's reasons (13 July 2006, decision, TS 90), a passage which as I will indicate when I consider ground 2 played an important role in relation to his conclusion that the appellant was guilty of the charge of possession with intent to sell or supply:

"The accused admitted that one of the smaller bags of cannabis, and this is on the video, which was found inside the house was part of the larger amount found outside the house. And her manner of admitting that and the fact that she was clearly associating with the larger part of the cannabis demonstrated to me beyond any doubt at all, certainly any reasonable doubt that she was well aware of the larger amount of cannabis having been on the premises. Indeed she was saying that the smaller amount was taken from it and she - - and she admitted indeed even went as far as to admit handling the larger amount by saying that she'd thrown it out.

And the evidence persuades me to the criminal standard that she was aware of the larger amount of cannabis. That she had handled the larger amount because she said she'd thrown it out and that she had - - she must have known that the smaller amount of cannabis was from that larger amount. And I am satisfied to the criminal standard that she knew that the cannabis was on her premises."

79 I have considered whether or not the effectiveness of the appellant's questioning in relation to the search video, and the presentation of the defence case otherwise, were adversely affected by the delay in the appellant viewing the video.

80 At the hearing before me on 24 November 2006 the search video was played in full and portions of it replayed. In particular I noted one of the portions of the search video that was replayed during the cross-examination of the appellant (13 July 2006, TS 36, 37) and that appears to have been the portion with which his Honour was concerned in the quoted passage. The relevant part of the cross-examination concerned the distinction the prosecutor was seeking to draw between the freezer inside the house and the freezer outside the house in both of which cannabis was found. This led to the following exchange involving the learned Magistrate, the prosecutor and the appellant (TS 32 - TS 33):

"HIS HONOUR: The question is though, I think the question is did you say the cannabis found in the inside freezer was yours on the tape? --- No.

PROSECUTOR: Okay. At about 10.58 [on the search video] the question was asked in regards to that. It was clear it was in regard to the cannabis inside the house and you said, 'It was mine from [a transcriber's question mark appears at 'from'] the bush - -

HIS HONOUR: All right? --- No.

Well, do you want to listen to the tape again?

PROSECUTOR: Yes, I do? --- Yes."

81 After some further questioning, the relevant portion of the search video was replayed, and shortly afterwards there was the following exchange in the appellant's cross-examination (TS 36 - TS 37, TS 37 - TS 38):

"Now, you agree that you made those admissions? --- Yeah, I made the admissions but, you know, I didn't throw the cannabis out in the rubbish bin, right. I said it's mine because it's been found on my property and that's what the officer told me I had to do.

Well, the question was put to you what you did with it and it clearly says that you - - ? --- You threw it out.

PROSECUTOR: That you said it was yours and you put it in the freezer? --- We threw it out.

Okay? --- We threw it out.

So - - ? --- The cannabis was thrown in the bin.

Okay? --- How it got back in the freezer was the joke of it.

It must have been? --- The cannabis was thrown out.

...

Now, essentially the answers given paint the picture that you located some cannabis and that you separated them into two bags. One bag you threw out in the bin the other bag you put in the freezer and your intention with the second lot of cannabis was to throw it away and you can't for any reason say how it got into the freezer outside. But from your answers on the video it's clear that you said the first lot of cannabis was put in the freezer by yourself? --- No. No, I didn't put any cannabis in the freezer. I said, 'That cannabis must belong with the other cannabis that was outside.'"

82 Subsequently, a further portion of the search video was replayed (TS 37), although it is not apparent to me that that portion had a direct bearing on the present point.

83 It is clear to me, from the passages of the cross-examination and from the portion of the search video I first referred to, that there was indeed an admission by the appellant in the latter that one of the smaller quantities of cannabis found inside the house must have been from the larger quantity of cannabis shown to her on the search video as having been found in the freezer outside but in the grounds of the house.

84 It is also clear from her cross-examination, although not from the search video, that the appellant's evidence as to the admissions on the latter that the quantities of cannabis found inside the house must have been hers was in terms that those admissions were made on the basis of her acquiescence in propositions put to her by the police at the time that the cannabis must have belonged to her because the cannabis was found on her property.

85 With respect to the other cannabis, shown to her as having been found in the freezer outside the house, her only admission, apart from the admission as to the smaller quantity found inside the house being from the same source as that cannabis, appears to be that she was familiar with a quantity of cannabis plant on the grounds of the house which she had previously instructed be thrown out.

86 It seems to me that in the initial questioning in the passages from her cross-examination prior to the replaying of the search video the appellant may have been confused between her admissions in the search video as to what in the video was shown to her as the cannabis found inside the house and her admissions in the search video as to what in the video was shown to her as the cannabis found outside the house. As will become apparent below, the learned Magistrate relied upon the contradiction between her answers to that initial questioning and the responses shown in the search video for his findings as to the appellant's credibility.

87 It appears to me that this body of evidence and that reliance indicate the difficulty under which the appellant was labouring, with the mental problems of which she had reminded the learned Magistrate, at a trial prior to which she had not had the benefit of a prior viewing of the search video with such assistance as she could command, and without the pressure of having to view the search video on police premises. I note that the search video had been played in full (TS 10), at the beginning of the trial, as part of the evidence-in-chief of Vuleta, before the replaying of the portions I have referred to during later testimony. However, I do not consider that such playings, in a trial setting, without the legal assistance the appellant had previously resorted to from the Centre, and with the appellant's mental condition as she had indicated it to the learned Magistrate at the beginning of the trial, were a substitute for a suitable playing before the trial.

88 As I previously noted, at the beginning of the trial the learned Magistrate had been made aware of the difficulty under which the appellant was labouring as I have described it. This was a difficulty I consider he had not envisaged she would suffer at trial when, on his refusal of the application to adjourn, he had called for the search video among other materials to be "handed over" to the appellant.

89 I consider that that difficulty, when considered with her lack of legal representation at the trial, made that trial unfair to the appellant, notwithstanding the other features of that trial to which I previously referred.

90 I was referred by the respondent to Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738, Comm Div, Rogers CJ Comm D, at 742, where his Honour said this, in relation to an application for leave to withdraw an admission twice made by the applicant:

"As the courts strive to ensure that all litigants receive a hearing within a reasonable period of time it has been increasingly necessary to refuse applications for adjournments and applications to depart from existing orders for the disposition of disputes even in circumstances where as a result some serious difficulty will be encountered by a party in the presentation of its case. It is considerations of this kind which have informed judgments of the Court of Appeal in this State and the Full Court of the Supreme Court of Victoria in upholding the decisions of trial judges refusing applications for adjournment to parties who were not ready to proceed on the appointed day. The courts recognised in those cases that parties may be disadvantaged by the fact that they were not as well prepared as they ought to have been. The courts accepted that as a result the judgment might be based on incomplete material. Nonetheless the exigencies of the situation required that the applications for vacation of fixed hearing dates be refused."

91 However, it seems to me that there is a substantial difference between, on the one hand, a serious difficulty for an unrepresented accused with a mental health problem like that of the appellant, arising from a failure of disclosure by the prosecution of the sort I have described, and, on the other, a serious difficulty for an accused without such a problem, and otherwise arising.

92 I would accordingly uphold this ground of appeal.

Ground 2: the finding as to sole dominion and control of the outside freezer

93 This ground appears to relate to the way in which the learned Magistrate arrived at his finding that the appellant was in possession of the larger quantity of cannabis for the purposes of the Misuse of Drugs Act. He arrived at that finding in the following way, beginning with a passage from his reasons I have previously quoted, in relation to what he described as the appellant's admission that one of the smaller quantities of cannabis found inside the house was part of the larger quantity found outside the house (13 July 2006, decision, TS 90, emphasis supplied):

"And the evidence persuades me to the criminal standard that she was aware of the larger amount of cannabis. That she had handled the larger amount because she said she'd thrown it out and that she had - she must have known that the smaller amount of cannabis was from that larger amount. And I am satisfied to the criminal standard that she knew that the cannabis was on her premises. They were her premises she had complete dominion over those premises. The fridge in which the cannabis was found was not locked. It may have been outside of the house but it was still on the premises and I'm satisfied that she was in possession of all of the cannabis found in the search - items found in the search at the material time.

The fact that she may not have been in actual --- they may not have been actually in her hands or on her person of course does not matter. Indeed the vast majority of possess situations are such the premises - that the items said to be in the possession of the accused are not actually being held or contained in the hands of or the clothing of or are next to the person or the people alleged to have committed the offence and there was no requirement for there to be possession that that be the case.

I am satisfied that within the meaning of the Misuse of Drugs Act all of these items including the larger amount found outside were in Mrs Smith's possession."

94 There was no contest before me that the proper approach in relation to the matter of possession under Misuse of Drugs Act, s 6(1)(a), is that in Cumming v The Queen (1995) 86 A Crim R 156, CCA WA, per Owen J, Pidgeon and Rowland JJ agreeing, at 162:

"There are two elements within the concept of possession as it applies in this area. First, the accused must know of the existence of the drug. Secondly, the accused must have control over the substance."

95 I note that there is a recent extensive discussion of these elements in Davies v The State of Western Australia [2006] WASCA 151, per Pullin JA, Martin CJ and Wheeler JA agreeing, where at [53] his Honour casts some doubt on an aspect of the continuing authority of Cumming, an aspect which in my view is not raised in this case.

96 There is also authority, referred to and discussed in Jones v The State of Western Australia [2006] WASCA 192, per Wheeler JA, McLure and Pullin JJA agreeing, at [19] - [20], that an inference may be drawn from a person's control of premises that that person had knowledge of and dominion over items located there. Her Honour in those paragraphs said this:

"The appellant relies upon the cases of Filippetti (1978) 13 A Crim R 335 and Lai v R [1990] WAR 151, referred to in ground 1.2(e). Both of those were cases in which an illicit drug was found in a place to which potentially a number of persons may have had access. In each case, the appellant was one of the persons who could have had access to the drug. In each case, there were indications that particularly linked the appellant with the drug, but those indications were either subjective (in Filippetti the appellant was described as becoming 'very agitated', while in Lai the appellant was said to have 'gone a bit paler and to have become fidgety' as the police approached closer to where the drugs were located), or equivocal (eg, in Fileppetti the appellant said, 'I would like to find out who the bastard was that put me in.'). In each of those cases, the convictions were quashed.

The reasoning in each of those cases was broadly as follows. It may be inferred, as a general rule, that a person who is in control of premises has knowledge of and dominion over items located there. However, that is not an inference that can be drawn in every case. Where the item is concealed, and there is no evidence to suggest by whom it is concealed, and where a number of persons are capable of having concealed the item, there is no reason to draw the inference that any particular person concealed the item. This is not because there is some proposition of law that it is necessary, in cases where items are concealed, to negative knowledge and control by all others. It is because in cases such as the two I have described there is a reasonable hypothesis consistent with innocence, that hypothesis being that the items were placed where they were by some other person without the knowledge or consent of the appellant, and that the appellant remained unaware of them. Whether there is such an hypothesis, so as to prevent an inference adverse to a particular appellant from being drawn, is simply a question of fact."

97 The appellant drew to my attention a body of evidence with the view it seems to showing that there was evidence others had access to the outside freezer inconsistent with the appellant having the dominion or control over it the learned Magistrate found.

• the evidence of Vuleta that the freezer outside the house was about 8 metres from the nearest door to the house (re-examination, TS 20) and that with the number of people staying in the house at the material time it was possible that one of them could have put "the drugs in the [outside] freezer" (cross-examination, TS 20),

• the appellant's evidence that there were others in the house at that time who used cannabis (cross-examination, TS 34), and the evidence of Primma that at about the material time while the appellant was ill others then in the house were dealing in drugs from the house, for which purpose Primma had prepared the note I have previously referred to (examination-in-chief, TS 62), as well as the appellant's evidence she had not written the note and was not aware it was in the house during a period in which she was ill (TS 29 - TS 30),

• the evidence of Primma that he had found a bag of cannabis next door to the house, a bag he had brought to the appellant which he had put in a rubbish bin outside the house on her instruction and which was the bag of cannabis pulled from the outside freezer by the police in his presence, in a portion of the search not shown on the search video (examination-in-chief, TS 61), and

• the evidence of Primma that there was other material in the freezer at the time, including dog food (examination-in-chief, TS 61), and that others had access to what I gathered was the area of the yard of the house in which the outside freezer was located, as well as of Allana Smith that at the material time she had been feeding the dogs at the house while her mother, the appellant, was ill (cross-examination, TS 56).

99 The learned Magistrate made no express reference in his reasons for decision to any of this evidence, except, as I will indicate, the matter of the appellant's illness. However, I consider that he had addressed his mind to the matter of dominion and control over the house including the outside freezer in which the larger quantity of cannabis was found, as is indicated by the following passage from his reasons (TS 86 - TS 87):

"Now, the court is satisfied beyond reasonable doubt of these things, that the accused lived in the house and indeed was the owner of the house. She was the householder. She had never vacated the house for any significant length of time in the days immediately prior to the search. The court is satisfied that she was aware of who came to the house and who didn't come to the house because she was in the house for most of the time.

The court finds her evidence about her incapacity, her inability to get up to be exaggerated because there is evidence from one of her witnesses that she was well enough to get up and actually go out on a social outing some four days before. The search of the premises satisfies the court that the items that were said to have been found in the search were certainly found there. And the court is of course satisfied that the substances referred to in the charge were cannabis and the certificates of analysis establish that."

100 It seems to me that his Honour had properly considered the matter of whether or not the appellant had control or dominion over the house. It was not necessary for him to find, and I do not consider that he did find, that the appellant had sole control or dominion over the house: see on the possibility of joint possession the authorities referred to in Jones (supra), per Wheeler JA, at [20] and [21].

101 Of course, dominion or control is not sufficient of itself to make out possession, except so far as the inferential case for knowledge is established by such dominion or control, as I have indicated.

102 Just such an inferential case appears to have been made out here, in the view of the learned Magistrate. It seems to me, from the reasons of the learned Magistrate I first quoted under the present ground, that he was relying upon the appellant's control or dominion over the house to found an inference of knowledge that the cannabis was on the premises at the time of the search. There does not seem to be any question in this case of the case having been fought by the prosecution on the basis of the appellant's possession at an earlier point in time of the cannabis later found in the outside freezer.

103 In such a case, as I have indicated, the learned Magistrate had to consider whether there was a reasonable inference, consistent with innocence, which was also open on the facts. Here, of course, the appellant had provided evidence that she had asked others to remove the cannabis to a rubbish bin whose contents were to be emptied before the time of the search. This evidence would, it seems to me, go both to the matter of whether or not she was aware of the cannabis at that time, and to the matter whether or not she had an intention to sell or supply that cannabis.

104 The learned Magistrate refers to this evidence, as I have indicated, but without indicating whether or not he believed it. However, it seems to me from the way in which the case was fought by the prosecution, and from his Honour's reasons, that he did not credit the evidence in either way. I so conclude from his Honour's finding as to the intention to sell or supply as follows (reasons, TS 90 - TS 91), which appears immediately after his conclusion quoted above that "within the meaning of the Misuse of Drugs Act" all of the cannabis was "in Mrs Smith's possession":

"I'm also satisfied because of the overwhelming nature of the evidence that - - of the items that were found with the other - - with the cannabis in the premises that the cannabis was possessed with the intention of selling it or supplying it to other people.

I am satisfied of those matters from the nature of the note. It could only really reasonably be understood as referring to - - and as if there's no other commercial purpose on the premises. I don't accept Mr Primma's explanation of the note. It may not have been written by Mrs Smith but it was posted in her premises. I do not accept that she was not aware of it's position and it could only have been referring, in my view, in view of the surrounding circumstances it could only have applied to potential purchasers of elicit [sic] drugs from her. There's no evidence that she was selling anything else.

The other items that were found in the house to which she admitted ownership are also all consistent with dealing with drugs, particularly scales and the presence of the small bags and the quantity of the cannabis found. And in my view all of those strands of evidence when regarded together create a clear evidence that the intention with which the cannabis was possessed was to sell it to anybody who may have sought it and I'm satisfied therefore not only that the possession of the cannabis was the accused's but also that it was possessed with that intention and I find both charges proven."

105 It seems to me that his Honour's conclusion in this respect rested in large part if not entirely on his finding as to the credibility of the appellant's evidence. That finding was rested in large part on his observations as to the inconsistencies in the appellant's evidence, including inconsistencies between her initial testimony as to ownership of the cannabis and her admissions in the search video. The relevant part of his reasons appears to be the following (TS 88):

"In cross-examination the accused initially denied her admissions on the video that she owned the cannabis and the bongs and yet when shown the video she admitted that she had made those admissions. And so there was a very glaring inconsistency there. Initially she denied knowledge of the mullamatic machine yet she agreed that when she was asked about it on the video about it's [sic] use and that it was used for chopping up cannabis in order to smoke.

These matters, these observations indicate very strongly that the accused is prepared to deny vital matters even under oath in court which would clearly demonstrate it to be true. For example, the fact of admissions - - the fact that she was prepared to deny that she'd made the admissions in the video when in fact it was clearly visible from the video - - from viewing the video that she had made the admissions and when she saw them in cross-examination and was asked about that she agreed that she had made those admissions. It either suggests a preparedness to lie or an extremely poor recollection of the events."

106 I previously referred to the inconsistencies as to the matter of ownership of the cannabis under the first ground.

107 I conclude then that, while I would not uphold the present ground, the matters I have just addressed go to the unfairness to the appellant in the denial to her of a suitable opportunity to view the search video prior to the trial, the result of the way in which the learned Magistrate dealt with the application for an adjournment the subject of the previous ground.

Whether the proviso in Criminal Appeals Act s 14(2) applies here

108 I have indicated that I would uphold the first ground of appeal, but not the second. I would uphold the first ground of appeal on the basis that the trial of the appellant was unfair for the reasons I have indicated.

109 For the respondent it was put to me that Criminal Appeals Act 2004 (WA), s 14(2), applied in this case. It seems I was urged so to conclude from the opportunity the appellant had had to seek the assistance from the Centre prior to the trial, the assistance available to the appellant from her friend at the trial, and the indications from the trial, to which I previously referred, that the appellant effectively conducted her case.

110 However, it follows from the basis on which I upheld ground 1 that I am of the view that the unfairness related to matters with respect to which she had had no opportunity to have that prior assistance. It is not clear to me that the assistance she received at trial was sufficient to overcome the difficulty created for her by the lack of that prior opportunity to view the search video. That insufficiency is indicated, it seems to me, by the inconsistency in her evidence as to the ownership of the cannabis on which the learned Magistrate in significant part rested his conclusions as to the credibility of the appellant's testimony as to her knowledge of matters going to the sale or supply of cannabis in the house. That inconsistency was a matter, it seems to me, that an opportunity to consider and prepare submissions on the search video would have better enabled her to address at the trial.

111 It follows I am not satisfied that a substantial miscarriage of justice was not done in this case.

112 It follows that I would allow the appeal. I will hear from the parties as to the appropriate orders to make as a consequence. I should indicate my preliminary view that the appropriate order appears to me to be to quash the conviction on the charge of possession with intent to sell or supply and remit the matter for a retrial before a different Magistrate.