Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appellant convicted after trial of four drug offences including count 3 being a count of possession of methylamphetamine with intent to sell or supply it to another - Whether the verdict of guilty on count 3 should be set aside because, having regard to the evidence, it was unreasonable or could not be supported - Whether there was a miscarriage of justice because an alleged understanding between the police and a State witness that she would not be charged in relation to count 3 was not disclosed to the appellant or his lawyer prior to trial

Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31

Mack v The State of Western Australia [2014] WASCA 207

Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96

Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176

1 JUDGMENT OF THE COURT: This is an appeal against conviction.

2 The appellant was charged on indictment with four counts.

3 Count 1 alleged that on 23 August 2013, at Como, the appellant had in his possession a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).

4 Count 2 alleged that on 23 August 2013, at Como, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.

5 Count 3 alleged that on 23 August 2013, at Yokine, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.

6 Count 4 alleged that on 23 August 2013, at Yokine, the appellant had in his possession a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.

The convictions after trial and the sentences

7 On 16 August 2016, after a trial in the District Court before Levy DCJ and a jury, the appellant was convicted on counts 1, 2 and 3. He was acquitted on count 4 but convicted of the alternative offence of possession of a prohibited drug, namely MDMA, contrary to s 6(2) of the MD Act.

8 His Honour imposed a sentence of 18 months' immediate imprisonment for count 1; 18 months' immediate imprisonment for count 2; 3 years 6 months' immediate imprisonment for count 3; and a fine of $1,500 for the alternative offence to count 4. The terms of imprisonment were ordered to be served concurrently. The total effective sentence was therefore 3 years 6 months' immediate imprisonment. A parole eligibility order was made.

9 We would refuse leave to appeal and dismiss the appeal. Our reasons are as follows.

10 On 23 August 2013, the appellant was driving a car in Como. Police stopped and searched his car. They found:

(e) $3,000 cash (in the driver's side door pocket) and $440 cash (in the appellant's wallet);

11 The appellant was arrested and interviewed by police. In the interview the appellant admitted possessing the drugs found in his car. He also admitted occasionally giving some drugs to his friends. He denied selling drugs.

12 On 23 August 2013, after he was arrested, the appellant was taken by police to his residence in Yokine. Police searched the house. Anita Robeson and Amy Armstrong were present.

(a) a black luggage bag on a shelf inside a walk-in wardrobe;

(b) 20.95 g of methylamphetamine of which 19.9 g was in a black metal box located in the black luggage bag (count 3);

(c) 3.55 g of MDMA of which 3.2 g was in a sunglasses case in the walk-in wardrobe (count 4);

(a) in the metal box, an envelope containing MDMA, MDA, methylamphetamine and dimethoxyphenethylamine; and

(b) in the black luggage bag, a Synergy invoice dated 15 July 2013 in the appellant's name.

15 The indictment pleaded that the appellant possessed the drugs, the subject of counts 1, 2, 3 and 4, with intent to sell or supply them. The trial judge clarified the nature of the State's case with the prosecutor who confirmed that the State alleged that the appellant jointly possessed the drugs (ts 534).

16 At the commencement of the trial, the appellant made formal admissions as follows:

(a) As to the Como offences, he had in his possession 4.96 g of MDMA and 4.64 g of methylamphetamine.

(b) As to the Yokine offences, he had in his possession 0.74 g of methylamphetamine (comprising the drugs found in three clipseal bags in a case in the bedside table of his bedroom) and 3.2 g of MDMA (being the drugs found in the sunglasses case in his walk-in wardrobe).

17 The State called as witnesses Acting Inspector Thomas Doyle, Detective Sergeant Michael Fogell, Detective First Class Constable Craig Johnson, Sergeant Natalie Jackson and Ms Robeson.

18 The appellant's case at trial appears to have been, in essence, as follows:

(a) As to counts 1 and 2, the appellant acknowledged possession of the drugs but denied an intent to sell or supply them.

(b) As to count 3, the appellant denied any knowledge of the existence of the methylamphetamine in the metal box.

(c) As to count 4, the appellant acknowledged possession of the drugs found in the sunglasses case, but denied an intent to sell or supply them, and denied any knowledge of the existence of any other drugs.

19 Also, in relation to count 3, the appellant's case was that Ms Robeson was a drug dealer and she possessed, exclusively, the methylamphetamine in the metal box.

20 Defence counsel called the appellant as a witness.

21 The appellant appeals solely in relation to his conviction on count 3. He relies on two grounds of appeal.

22 Ground 1 alleges that the verdict of guilty on which the conviction for count 3 is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

23 Ground 2 alleges that there was a miscarriage of justice in relation to count 3 because:

(a) there was an understanding between the police and a State witness, Anita Robeson, that she would not be charged in relation to the drugs the subject of count 3 if she gave evidence against the appellant;

(b) the alleged understanding was not disclosed to the appellant or his lawyer prior to trial and, consequently, defence counsel did not cross-examine any of the police witnesses about Ms Robeson's motivation to give evidence or cross-examine her adequately about the alleged understanding;

(c) the drugs the subject of count 3 were found by police in a metal box belonging to Ms Robeson which she had hidden in the appellant's room so that the contents of the box would not be stolen; and

(d) the failure to disclose the understanding caused defence counsel to cross-examine Ms Robeson on the basis that she had 'set up' the appellant and that she had previously 'taken the blame' for an offence committed by a boyfriend, leaving the jury with the impression that Ms Robeson was lying about the appellant's involvement with the drugs in the metal box, when she had said that the metal box belonged to her and that she had hidden it in the appellant's room so that its contents would not be stolen.

24 Counsel for the appellant informed the court at the hearing of the appeal that ground 2 was 'put as an alternative to ground 1' (appeal ts 10).

25 On 24 March 2017, Mazza JA referred the application for leave to appeal to the hearing of the appeal.

Ground 1: the elements of the offence charged in count 3

26 Where an accused is charged, as a principal offender, with possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, the State must prove beyond reasonable doubt, apart from identity and knowledge, that:

(a) the accused had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;

(b) at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) of the MD Act;

(c) the substance or thing was, in fact, a 'prohibited drug' as defined in s 3(1) read with s 4 of the MD Act; and

(d) (unless the presumption in s 11(a) of the MD Act applies), the accused intended to sell or supply to another at least some of the substance or thing.

27 The element of 'possession' is informed by the extended definition of 'to possess' in s 3(1) of the MD Act.

28 It is well established that a prohibited drug may be possessed, within s 6(1)(a) of the MD Act, solely by one person or jointly by two or more persons. See Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31 [8], [10] (Steytler P), [38] (Roberts-Smith JA), [47] (McLure JA).

29 A number of propositions are set out in Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [180] - [198] (Buss JA; Mazza JA agreeing) in relation to proof by the State of the knowledge of an accused person where the accused is charged, as a principal offender, with possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act. It is unnecessary to repeat them.

Ground 1: the evidence relied on by the State at trial to prove count 3

30 At the trial the State's case in relation to count 3 was based in part on circumstantial evidence and in part on direct evidence.

31 The circumstantial evidence relied on by the State included:

(a) The drugs in question were found in the appellant's bedroom in the Yokine house.

(c) The metal box was in a black luggage bag which the appellant admitted belonged to him.

(d) The black luggage bag also contained a Synergy invoice dated 15 July 2013 in the appellant's name.

(e) In addition to running an 'escort agency', the appellant was a low level drug dealer as revealed by the State's evidence in relation to counts 1 and 2.

(f) The content of numerous text messages between the appellant and Ms Robeson.

32 The circumstantial evidence was given primarily by Acting Inspector Doyle.

33 As we have mentioned, on 23 August 2013 police searched the appellant's car in Como and his residence in Yokine. On 16 August 2013, there were six text messages between the appellant and Ms Robeson which referred to 'a ball' of methylamphetamine having been diluted. On 21 August 2013, there were two text messages between them which referred to the appellant having some methylamphetamine at the Yokine house for Ms Robeson to consume when she returned to the house.

34 The direct evidence relied on by the State comprised Ms Robeson's evidence.

35 At the beginning of her evidence-in-chief, Ms Robeson indicated to the trial judge that she was concerned about answering some of the prosecutor's questions because she might incriminate herself.

36 The following exchange occurred between his Honour and Ms Robeson, in the presence of the jury, in relation to her answers and s 11 of the Evidence Act 1906 (WA):

Now, Ms Robeson, the position is this, that under the law of Western Australia, I can compel you to answer the questions and if you answer the questions satisfactorily, I can grant you, at the end, a certificate under section 11 of the Evidence Act. That certificate would mean that any of the answers that you give in this courtroom that you believe might incriminate yourself in a criminal offence, cannot be used against you at a later stage. Do you understand that?---Yes.

So in other words, any answers you're giving to questions put to you in these proceedings that might criminate you in a criminal offence would be protected in the sense that anything you say could not be later used against you. Do you understand that?---Yes.

That does not mean that you cannot be charged. It simply means that anything you say in this courtroom can't be used against you. Do you understand that?---Yes.

Okay. I'm of the view that it is in the interests of justice that you be compelled to answer these questions. I'm not going to make a ruling on each question. My ruling now is going to bind you for all subsequent questions that might incriminate you. Do you understand that?---Yes.

So it will, effectively, be a blanket ruling to apply to all answers that might criminate you in any criminal offence (ts 487).

37 Ms Robeson gave evidence-in-chief to the effect that she owned the metal box and sometimes stored it in the appellant's bedroom at the Yokine house during the period of about two months up to and including the date of the police search on 23 August 2013 (ts 489 - 490).

(a) Ms Robeson had been a heavy user of methylamphetamine. She had also sold methylamphetamine. Ms Robeson had supplied the appellant with methylamphetamine for his personal use. She had been a much heavier user of methylamphetamine than the appellant. Ms Robeson and the appellant had been involved in prostitution (ts 488).

(b) Ms Robeson bought large quantities of methylamphetamine. She sold the drug to regular customers (ts 490).

(c) Ms Robeson had resided part time at the Yokine house. Sometimes she stored methylamphetamine in her own bedroom at the Yokine house and at other times she stored the drug in the appellant's bedroom (ts 489 - 490).

(d) Ms Robeson kept the methylamphetamine in the metal box (ts 490).

(e) When she put the metal box in the appellant's bedroom, Ms Robeson placed the box on the top left-hand side of his walk-in wardrobe. She did this to hide the box from other people who resided at the Yokine house, but not from the appellant. Ms Robeson had 'a pretty good trust with [the appellant] at that time ... that he would look after whatever was needed to look after' (ts 491).

(f) Ms Robeson had an arrangement with the appellant that he would have access to the metal box for the purpose of supplying her customers with methylamphetamine. Pursuant to that arrangement, she did not lock the metal box so that he could easily access the methylamphetamine in her absence (ts 491). Ms Robeson elaborated:

I would always individually weigh what I thought would be needed [when I was away from the Yokine house] because ... the people that I saw were quite regular and what they liked to buy was consistent. So if I was away, then I would be able to just send a message [to] or just ring [the appellant] and tell him where it was ... and what was needed (ts 491).

(g) Ms Robeson 'supposed' that her arrangement with the appellant worked satisfactorily and that he complied with her instructions (ts 491).

(h) The appellant was not involved in selling Ms Robeson's drugs apart from following her instructions (ts 492).

(i) If Ms Robeson's customers collected drugs from the Yokine house while she was away, the cash they paid was placed in the metal box (ts 491).

(j) The 'escort agency' business run by the appellant was deteriorating as at the date of the police search on 23 August 2013 (ts 493).

(k) The writing in the notebook containing names and figures (that is, the 'tick list') was made by Ms Robeson and, possibly, also by the appellant. Ms Robeson's name was in the 'tick list' to monitor her personal use. Her name was in the 'tick list' together with the figure $2,000. Nothing was owing. The 'tick list' was kept in the appellant's bedroom (ts 494 - 496).

(l) Ms Robeson wrote a note to the appellant which included a request for the appellant to 'let it go' in relation to a debt of $50 or $300. The note also gave instructions that '[i]n top drawer in wardrobe is the amount exact, 4,000 from Ness' and 'Ness took 100 lollies at $25?'. The reference to 'lollies' was to ecstasy tablets (ts 501 - 503).

(m) The appellant was Ms Robeson's 'accountant'. He managed the prices for the drugs (ts 503).

(n) Of the 265 text messages between the appellant and Ms Robeson that were tendered, some referred to 'basketballs', 'weights', 'bags' and 'gear'. Those messages were about the delivery of drugs (ts 508 - 554).

(o) On 16 August 2016, Ms Robeson sent a text message to the appellant which included the following:

Stop asking me who I sell to ... It's a need to know basis, one thing you would know if you were anybody that knew anything about the industry. See, we're all just little guys all working for some big fat cunt called Mr Big ... [W]hen it comes to crunch time, baby, you'd better be ready. And I mean anything (ts 550 - 551).

(p) If the appellant needed methylamphetamine he would obtain it from Ms Robeson. If Ms Robeson was not in the Yokine house the appellant would get any methylamphetamine he needed from 'the little case that [Ms Robeson] usually left next to the bed or in the coffee table or possibly even [the metal box]' (ts 556 - 557).

39 Ms Robeson gave evidence in the course of cross-examination as follows:

(a) Ms Robeson denied that she 'lied for a living' because she was a prostitute (ts 568).

(b) Ms Robeson said that her children, aged 5 and 8, lived with other members of her family (ts 559 - 560).

(c) Ms Robeson said she had never been in a personal relationship with the appellant (ts 575).

(d) Ms Robeson denied having said that the appellant's 'escort agency' business had deteriorated to '[make] it sound bad' for the appellant (ts 586).

(e) Ms Robeson denied having 'set up' the appellant by planting drugs in his bedroom because of 'domestic violence' between them (ts 629).

(f) Ms Robeson denied having made 'a deal' with police to give evidence against the appellant (ts 611).

(g) Ms Robeson denied having told police about the metal box and that it was kept in the appellant's bedroom to 'take the heat off' herself (ts 611).

(h) Ms Robeson denied having deliberately kept the drugs in the metal box in the appellant's bedroom, in case of a police raid, to 'take the blame away' from herself (ts 611).

(i) The appellant assisted Ms Robeson on occasions by injecting her, at her request, with methylamphetamine because she was too ill to inject herself (ts 641).

(j) Ms Robeson agreed that the police had 'indicated' to her that if she 'gave a statement to the police against [the appellant]' she would not be charged with selling and supplying the drugs the subject of count 3 (ts 647). It was for that reason she gave evidence against the appellant (ts 647).

40 Ms Robeson gave evidence in re-examination that:

(a) Ms Robeson had not done 'a deal' with the police. That is, the police had not 'offered [her] anything in exchange for evidence' (ts 647).

(b) The police did not indicate to Ms Robeson, when she was giving her witness statement, that she would not be charged in relation to the drugs found in the appellant's bedroom. She had made that inquiry of the police because she was in prison. Ms Robeson was 'happy to give a statement but [she] was wanting to know if [she] was going to look towards more time or not'. A deal was not done in relation to Ms Robeson giving information in a statement to the police. She gave the information in the statement to the police '[j]ust to tell the truth' (ts 647 - 648).

41 Ms Robeson admitted in cross-examination and re-examination that she had an extensive criminal record, including convictions for drug dealing (ts 564, 605 - 608, 610, 648 - 652).

Ground 1: the appellant's evidence at trial

(a) The appellant had never seen the 'tick list' before and none of the handwriting in it was his (ts 685).

(b) The appellant did not know anything about the metal box found by police in the walk-in wardrobe of his bedroom at the Yokine house or the contents of the metal box (ts 685 - 686).

43 Counsel for the appellant submitted that although some of the circumstantial evidence found by police in the car at Como, in the house at Yokine and in the text messages established that the appellant had dealt in prohibited drugs or had assisted Ms Robeson to deal in prohibited drugs, nothing in the evidence supported the State's allegation in count 3 that the appellant knew of the existence of the drugs found by police in the metal box when they searched the Yokine house.

44 Further, counsel for the appellant submitted that although the jury's satisfaction beyond reasonable doubt of the appellant's guilt on counts 1 and 2 could be used by the jury when considering count 3, the allegations in counts 1 and 2 were distinguishable from the allegations in count 3 in that Ms Robeson admitted that she owned the metal box, she kept her prohibited drugs in the metal box, she had hidden the metal box in the appellant's room so that its contents would not be stolen by other occupants of the Yokine house, and that she (not the appellant) had the power to direct what happened to the contents of the metal box.

45 It was argued that, in those circumstances, the jury could not have been satisfied beyond reasonable doubt that the appellant knew that the drugs the subject of count 3 were in the metal box on 23 August 2013 or that the appellant had an intention on that date to exercise control of or dominion over the drugs.

46 In Mack v The State of Western Australia [2014] WASCA 207 [141] - [147], Buss JA summarised (Martin CJ & Mazza JA agreeing) the principles to be applied by an appellate court in determining whether a verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. It is unnecessary to repeat the relevant principles.

47 We are of the opinion, after examining the trial record and weighing the evidence (in particular, the circumstantial evidence relied on by the State and the evidence of Ms Robeson and the appellant), that it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on count 3.

48 The circumstantial evidence relied on by the State, evaluated in its entirety and not on a piecemeal basis, constituted a powerful case against the appellant in relation to count 3, apart from the direct evidence of Ms Robeson.

49 The jury had the very significant advantage of seeing and hearing the witnesses (in particular, Ms Robeson and the appellant) give their evidence.

50 It was reasonably open to the jury to accept those parts of Ms Robeson's evidence which implicated the appellant in the joint possession of the methylamphetamine the subject of count 3. She was subjected to a lengthy and detailed cross-examination. Although some of her answers were flippant, it is not apparent that Ms Robeson's evidence was in all material respects incredible or unreliable or that the only course reasonably open to the jury was not to accept, alternatively to reject, her evidence in all material respects.

51 Ms Robeson's evidence was not to be scrutinised in isolation, but in the context of any other evidence accepted by the jury as cogent (in particular, the circumstantial evidence).

52 After examining the trial record and weighing the evidence (in particular, the circumstantial evidence and the evidence of Ms Robeson and the appellant), we consider that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant had joint possession of the methylamphetamine in question.

53 We note, in particular, that the metal box was found by police in the appellant's bedroom inside the black luggage bag which belonged to him; the black luggage bag also contained the Synergy invoice dated 15 July 2013 in the appellant's name; the evidence the subject of counts 1 and 2 and the text messages between the appellant and Ms Robeson strongly indicated that the appellant had an ongoing involvement in drug dealing; the appellant had $3,440 cash when the police searched his car and wallet in Como on 23 August 2013; and Ms Robeson gave evidence adverse to the appellant as to his knowledge of and degree of control of and dominion over the drugs deposited from time to time in the metal box.

54 The jury, by their verdicts, rejected the evidence of the appellant at least as to whether the evidence exculpated, or tended to exculpate, him or created a doubt, or tended to create a doubt, about his guilt on count 3. The jury, having rejected that evidence, was persuaded by and acted on other evidence relevant to the charge alleged in count 3 and concluded it was satisfied beyond reasonable doubt that the State had proved the offence.

55 A jury, acting reasonably, was not precluded by the state of the evidence at trial (in particular, the evidence of Ms Robeson and the appellant) from convicting the appellant. A jury, acting reasonably, was entitled to reject the evidence of the appellant at least on the issue of whether the evidence exculpated, or tended to exculpate, him or created a doubt, or tended to create a doubt, about his guilt on count 3.

56 The jury was entitled to find beyond reasonable doubt that the appellant knew that the methylamphetamine the subject of count 3 was stored in the metal box located in his bedroom and that the appellant had physical control of or dominion over the drugs (jointly with Ms Robeson) and an intention to exercise physical control of or dominion over the drugs (jointly with Ms Robeson).

57 In particular, the jury was entitled to be satisfied beyond reasonable doubt that:

(a) the appellant had authority from Ms Robeson to access the drugs deposited from time to time in the metal box for the purpose of supplying her customers with drugs in accordance with her instructions, and the appellant had in fact accessed drugs in the box for that purpose; and

(b) the appellant had authority from Ms Robeson to take some of the drugs deposited from time to time in the metal box for his personal use, and the appellant had in fact taken some drugs from the box for that purpose.

58 In short, the jury was entitled to find beyond reasonable doubt that the appellant and Ms Robeson had joint possession of the drugs in question.

59 The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on count 3. The verdict of guilty is not unreasonable. It was supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury has had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on count 3 or as to the correctness of his conviction on that count.

Ground 2: the essence of the appellant's complaint

61 The appellant alleges, in effect, in ground 2 that there was a miscarriage of justice at the trial because defence counsel was unaware that Ms Robeson had entered into an understanding with the police that if she gave evidence against the appellant as a State witness she would not be charged (jointly with the appellant) with possession of the methylamphetamine the subject of count 3 with intent to sell or supply it to another. The appellant also alleges, in effect, in ground 2 that there was a miscarriage of justice at the trial because the non-disclosure affected, to the appellant's material detriment, the manner in which defence counsel cross-examined the relevant police witnesses and Ms Robeson.

62 Ground 2 is premised upon the assertion that there was in fact an understanding between the police and Ms Robeson that she would not be charged in relation to the methylamphetamine found in the metal box.

Ground 2: the evidence at the trial and the trial judge's directions

63 The following exchange occurred between defence counsel and Detective First Class Constable Johnson (one of the investigating police officers) in cross-examination:

Did you do a deal with Ms Robeson?---Not at all. What would you be referring to as a deal?

Did you arrange for Ms Robeson to sign a statement against [the appellant]?---Like I said before, I didn't sign the statement with Ms Robeson. I think I've mentioned that.

Do you agree with me that Ms Robeson, to your knowledge, was charged with possession of methylamphetamine?---I'm aware of that, yes.

You're aware that that matter was dealt with in the Magistrates Court?---That's correct.

She got a fine?---That's correct.

You're aware of that?---I'm aware of that, yes. I'm aware of that result.

Now, do you have any recollection of indicating to Ms Robeson that if she gave evidence against [the appellant] in court before the jury that the police would go easy on her?---That's incorrect (ts 452).

64 Defence counsel asked Ms Robeson in cross-examination 'did you do a deal with the police?' (ts 611). Ms Robeson answered 'absolutely not' (ts 611).

65 Later, in cross-examination, the following exchange occurred between defence counsel and Ms Robeson:

And I take it that eventually you decided that you would sign a statement for the police on 29 June 2015?---I wouldn't say it was for the police, sir.

And who was it for?---Just to be honest, to be quite honest.

So when the police first came to see you you were not compliant with them, were you?---No.

Was it indicated to you that if you gave a statement to the police against [the appellant] that you would not be charged with selling and supplying these drugs that [the appellant's] charged with?---Yes.

And that is why you give evidence against [the appellant], isn't it?---Yes, that's right.

The police came back about three or four times and you did not answer all of their questions that they put to you, correct?---Yes (ts 647).

66 The prosecutor re-examined Ms Robeson about that exchange:

Ms Robeson ... you indicated earlier ... in response to a question [that] there was no deal done with the police?---Yes, that's right.

So ... when you say there was no deal done with the police ... what do you understand is being asked of you in terms of a deal?---If I had been offered anything in exchange for evidence.

All right. And were you offered anything in exchange?---No.

And you were asked a question about did police indicate to you that you would not be charged with matters relating to what was found in [the appellant's] bedroom. Was that told to you by police at the time?---No, not right away. I actually asked that question personally myself because I was already in gaol and ... I was happy to give a statement but I was wanting to know if I was going to look towards more time or not.

And was there ... a deal done in relation to you giving information in a statement to police?---No.

And so in giving the information, the statement to police, why did you do that?---Just to tell the truth (ts 647 - 648).

67 After Ms Robeson's evidence was completed, but before the State had closed its case, the trial judge raised an issue with the prosecutor and defence counsel. His Honour expressed the view that Detective First Class Constable Johnson had 'obfuscated and deliberately avoided telling the true situation' and that the police had provided Ms Robeson with an inducement (namely a promise that she would not be charged) to give evidence against the appellant as a State witness (ts 658 - 660). The following exchange occurred between his Honour and defence counsel:

LEVY DCJ: Mr Hanbury, do you want to say anything?

HANBURY, MR: No, your Honour, I don't, except that I will make observations about the evidence. It's a situation, sir, where there has been no disclosure about any section 11 certificate or any discussion about it or anything of that nature, not that I'm aware of, anyway.

LEVY DCJ: Well, more importantly it was the promise to her that she wouldn't be charged.

HANBURY, MR: Yes, I agree with everything your Honour has said. But I think, sir, in terms of what's to be done the option, I think, is not favourable to [the appellant]. And if we're talking about, for example, adjourning the trial he doesn't get his day in court.

LEVY DCJ: I'm not thinking along those lines. Whether I take this matter up further after the trial is another matter. But in terms of this trial what I'm minded to tell the jury is that when they're considering the evidence of Ms Robeson that she was, in fact, provided with an inducement to give evidence.

HANBURY, MR: Yes.

LEVY DCJ: The inducement was that she would not be charged (ts 661).

68 Defence counsel did not at any stage apply to the trial judge for an order that the jury be discharged or that any of the police witnesses be recalled for further cross-examination.

69 His Honour directed the jury in his summing up about the credibility and reliability of Ms Robeson and her evidence. Those directions included an accomplice warning and were, relevantly, as follows:

Now, staying with the evidence of [Ms Robeson], in this case I direct you as a matter of law that you need to carefully scrutinise the evidence of [Ms Robeson] because she admitted that she was involved in, at the very least, count 3 on the indictment. Count 3 was the methylamphetamine found in the bedroom at Yokine. So because of that Ms Robeson is known, what we call in law, as an accomplice.

You will remember her evidence that she said that the contents of the [metal box] were hers although she said that [the appellant] assisted her from time to time in a number of ways in her drug dealing, which I'll come to in due course. She said, however, the tin was hers. She was in possession of it. She was in possession of it with an intent to sell or supply to others. So because of that you must carefully scrutinise her evidence and the reason is that she may have a certain degree of self-interest in giving the evidence that she did.

In this case we know that she made a statement to the police before the trial. We've heard that the police attended upon her at Bandyup Prison on a number of occasions where she told police officers things and signed a statement. Ms Robeson has told you in evidence that she was told by the police that, firstly, she would not get charged and therefore she would not face any further gaol time. And secondly, that police officers had, after she had asked, told her about what you've now heard about the section 11 of the Evidence Act.

Now, you've heard about that section when Ms Robeson first started giving her evidence. She said that she did not want to answer questions that might incriminate her in a criminal offence. I subsequently compelled her to answer those questions but informed her that if she answered satisfactorily I would give her a certificate pursuant to section 11 of the Evidence Act. I subsequently formed the view that she had answered the questions satisfactorily.

...

Now, I should point out to you that the fact that I found that she had answered the questions satisfactorily does not equate to me finding that she told the truth. That is not my function. Whether she did so is not a matter for me. It's entirely a matter for you. I was simply required to decide whether she had answered the questions satisfactorily. It's not a finding either way as to whether she told the truth or did not tell the truth.

Consequently, Ms Robeson, having been told that she would not be charged by the police, firstly; secondly, having applied for a section 11 certificate, which was granted, Ms Robeson was aware that she could say the things she did without the fear of consequences of being charged. Her evidence is therefore given in special circumstances. Her evidence falls into a different category to a normal witness and should be assessed in light of that fact.

However, the fact that there is a degree of self-interest is not a reason of itself for you to reject the evidence of Ms Robeson but it is reason for you to carefully scrutinise her evidence and to compare it closely with what is known about the circumstances of the offence and what other facts can be accepted by you as truthful and reliable. You should consider whether there is any other evidence which confirms the evidence of Ms Robeson. This is because you might not want to accept the evidence of Ms Robeson without seeing other independent evidence which confirms her evidence.

In this case there may be confirmatory evidence, being the text messages themselves. Remember, however, much of the interpretation of the text messages relies upon Ms Robeson's evidence itself, so to a degree it is somewhat circular. It is a matter for you to consider whether you accept her evidence, whether it be with or without any confirmatory evidence, but you do need to carefully scrutinise her evidence before you can accept it (ts 793 - 795).

70 The trial judge also gave the jury these directions about the credibility of the police officers (in particular, about the credibility of Detective First Class Constable Johnson consequent upon his denial of the alleged 'deal' between the police and Ms Robeson):

Now, finally, before I leave this issue of the witnesses ... there may be an issue about the credibility of the police officers. It arises in this way. In this particular case the police officers told you, I think it was particularly Detective Johnson, that no deals had been done with Ms Robeson. When pressed on that, Detective Johnson responded to a question from Mr Hanbury and said, 'What do you mean by deals?'

We now know that, if you accept the evidence of Ms Robeson, that what happened was that the police went out and saw her, that they took a statement from her, that they told her that she would not be charged, she made the statement, that she was informed about section 11 of the Evidence Act, so it may be that you conclude that in fact there was something offered to Ms Robeson in return for her coming to court.

As I say, it's entirely a matter for you as to what you make of those facts but it may be that an issue of credibility arises in the context of this case in light of the evidence of Ms Robeson and the evidence of Acting Inspector Doyle and particularly Detective Johnson about whether or not there were any deals made for her to give evidence (ts 795 - 796).

Ground 2: the State's applications for leave to adduce additional evidence in the appeal

71 The State made two applications in the appeal for leave to adduce additional evidence. The first application filed 11 May 2017 sought leave to adduce into evidence in the appeal an affidavit of Acting Inspector Doyle sworn 27 April 2017. The second application filed 28 June 2017 sought leave to adduce into evidence in the appeal the affidavit of Craig Johnson sworn 28 June 2017.

72 The principles relating to the discretionary power conferred on this court by s 40(1)(e) of the Criminal Appeals Act 2004 (WA) to admit 'any other evidence', for the purposes of dealing with an appeal, are set out in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [88] - [105] (Buss P; Newnes JA agreeing). It is unnecessary to repeat them.

73 In his affidavit, Acting Inspector Doyle said that on 25 June 2015 the prosecutor requested him to seek a witness statement from Ms Robeson. On that day he telephoned Bandyup Prison and confirmed that Ms Robeson was a prisoner. Ms Robeson agreed to meet with him. On 26 and 29 June 2015, Acting Inspector Doyle met with Ms Robeson at Bandyup Prison and took a witness statement from her. After taking the witness statement he gave the statement and related documents and exhibits to the prosecutor. Acting Inspector Doyle had no further involvement in the matter until 8 August 2016 when he was called as a witness at the appellant's trial. In his affidavit, Acting Inspector Doyle also deposed:

At no stage did I offer Ms Robeson any 'deal' that she would be immune from prosecution in exchange for her statement or giving evidence against the appellant. Nor did I make any offer of a 'Letter of Comfort' if she was ultimately prosecuted. To the best of my knowledge, there was no such deal or Letter of Comfort offered or arranged with Ms Robeson by any other police officer involved in the matter.

I cannot now recall the exact words used in my contact or conversation with Ms Robeson, but I do recall advising her of her rights as per Section 28 of the Criminal Investigation Act as I do with all witnesses.

I also recall explaining to her that if she was called to give evidence that her answers could not be used as evidence to prosecute her if she was compelled as a witness to answer questions [15]- [17].

74 In his affidavit, Mr Johnson explained that in March 2017 he retired from the Western Australia Police Service. Mr Johnson also deposed:

In cross-examination I was asked by the appellant's defence counsel whether I did a 'deal' with Ms Robeson. I answered truthfully 'Not at all' and then asked the appellant's defence counsel to clarify the question. I was surprised by the question he had asked and did not have any idea what he was referring to.

Soon after that question the appellant's defence counsel asked me whether I had any recollection of indicating to Ms Robeson that if she gave evidence against the appellant in court before the jury that the police would 'go easy on her'. I answered honestly 'That's incorrect' as I never gave any indication or promise to Ms Robeson that police would 'go easy' on her or words to that effect.

I did not at any stage offer Ms Robeson a 'deal' that she would be immune from prosecution in exchange for her statement or giving evidence against the appellant. I did not offer [her] a 'Letter of Comfort' if she was ultimately sentenced for further offences herself. I never made any deal with her or promised her anything in exchange for her giving evidence in court against the appellant.

To the best of my knowledge, there was no such promise, inducement, deal or Letter of Comfort offered to or arranged with Ms Robeson by any other police officer involved in the matter [17] - [20].

75 Counsel for the appellant did not oppose the State's applications for leave to adduce additional evidence. At the hearing of the appeal, the court granted the applications and received the additional evidence in the appeal (appeal ts 9).

76 Counsel for the appellant did not require that Acting Inspector Doyle or Mr Johnson attend for cross-examination (appeal ts 9).

77 In her written submissions, counsel for the appellant asserted:

(a) There was in fact an 'understanding' between 'the police' and Ms Robeson that she would not be charged in relation to the drugs the subject of count 3 in exchange for her agreeing to give evidence as a State witness against the appellant.

(b) The existence of the 'understanding' was not disclosed to defence counsel.

(c) As a result, defence counsel did not cross-examine the relevant police witnesses about 'Ms Robeson's motivation to give evidence'.

(d) Also, as a result of the non-disclosure, defence counsel did not cross-examine Ms Robeson adequately about the 'understanding'.

(e) Further, as a result of the non-disclosure, defence counsel cross-examined Ms Robeson on a basis that left the jury with the impression that 'she was lying about the appellant's involvement [with] the drugs in the [metal box], when she had said that the [metal box belonged to her] and that she kept it hidden in the appellant's room so [that its contents] would not get stolen'.

78 The appellant's written submissions were filed before the State filed its applications for leave to adduce additional evidence.

79 In her oral submissions, counsel for the appellant confined ground 2 and deviated from her written submissions. Counsel said:

(a) the appellant accepted, on the basis of Acting Inspector Doyle's affidavit sworn 27 April 2017, that 'there was some discussion in the prison with Ms Robeson about immunity in [the] sense of a s 11 certificate' (appeal ts 16 - 17);

(b) while the trial judge 'appears to have suspected more, having seen [Detective First Class Constable] Johnson on the stand, [Detective First Class Constable] Johnson has said in his affidavit [sworn 28 June 2017] that he certainly [did not] have anything to do with offering a deal [to Ms Robeson] - whatever that [may] mean' (appeal ts 17); and

(c) accordingly, the appellant now accepted that any relevant discussions between the police and Ms Robeson were confined to whether a s 11 certificate might be available to her (appeal ts 17).

80 Counsel disclaimed any suggestion that defence counsel's conduct of the appellant's case or his cross-examination of Ms Robeson was incompetent. Counsel also disclaimed any suggestion that the prosecutor had acted improperly.

81 Counsel for the appellant submitted that if defence counsel had known about Acting Inspector Doyle's conversation with Ms Robeson at Bandyup Prison in relation to a s 11 certificate 'that may have made a difference to the questions that [defence counsel] asked' (appeal ts 18). In particular, counsel claimed that there was a miscarriage of justice at the trial because defence counsel did not have the opportunity to cross-examine Ms Robeson on whether there was a discussion between her and Acting Inspector Doyle about a s 11 certificate (appeal ts 20).

82 Counsel conceded that Acting Inspector Doyle's conversation with Ms Robeson in relation to a s 11 certificate was not 'disclosable' to the appellant under the Criminal Procedure Act 2004 (WA) (appeal ts 22).

83 However, counsel argued that the conversation was 'disclosable' to the appellant at common law and that the provisions of the Criminal Procedure Act in relation to disclosure do not comprise an exhaustive code; that is, the common law relating to disclosure co-exists with the statutory provisions relating to disclosure.

84 We will assume solely for the purposes of this appeal (without deciding) that Acting Inspector Doyle's conversation with Ms Robeson in relation to a s 11 certificate was 'disclosable' to the appellant at common law. We will also assume solely for the purposes of this appeal (without deciding) that the provisions of the Criminal Procedure Act 2004 in relation to disclosure do not comprise an exhaustive code; that is, the common law relating to disclosure co-exists with the statutory provisions relating to disclosure.

85 In our opinion, a miscarriage of justice did not occur at the trial in relation to count 3 as alleged by the appellant. We are of that opinion for the following reasons.

(a) the trial record and the evidence of Acting Inspector Doyle and Mr Johnson that was received in the appeal;

(b) counsel for the appellant's decision not to require that Acting Inspector Doyle or Mr Johnson attend for cross-examination at the hearing of the appeal; and

(c) the oral submissions advanced by counsel for the appellant (in particular, the manner in which counsel confined ground 2 and deviated from her written submissions),

that there was an agreement, arrangement or understanding between the police and Ms Robeson that if she gave evidence against the appellant as a State witness she would not be charged (jointly with the appellant) with the offence pleaded in count 3.

87 Secondly, in any event, the only relevant matter ultimately relied on by the appellant in the context of ground 2 (as confined at the hearing of the appeal) was the fact and the consequences of the State's non-disclosure of Acting Inspector Doyle's conversation with Ms Robeson at Bandyup Prison in relation to a s 11 certificate.

88 Thirdly, the power to grant a witness a certificate under s 11 of the Evidence Act is conferred on the court and not on a police officer.

89 Fourthly, as we have mentioned, the trial judge raised with Ms Robeson, at the beginning of her evidence-in-chief and in the presence of the jury, whether and in what circumstances his Honour would grant Ms Robeson a certificate under s 11 of the Evidence Act.

90 Fifthly, the relevant substance of Ms Robeson's evidence, for present purposes, was that she owned the methylamphetamine the subject of count 3 but the appellant had authority from Ms Robeson to access and did in fact access the drugs deposited from time to time in the metal box for the purpose of supplying her customers with drugs, and the appellant had authority from Ms Robeson to take and did in fact take some of the drugs deposited from time to time in the metal box for his personal use.

91 Sixthly, defence counsel's strategy at the trial was to launch a sustained attack on Ms Robeson's credibility and reliability (notably, her character). The apparent object of the attack was to persuade the jury that it should reject those parts of Ms Robeson's evidence that implicated the appellant in the commission of count 3.

92 Seventhly, despite the views expressed by his Honour to the prosecutor and defence counsel concerning the credibility of the police officers in relation to their dealings with Ms Robeson (which views were formed without the benefit of the additional evidence this court admitted in the appeal), defence counsel did not apply to his Honour for an order that the jury be discharged or that any of the police witnesses be recalled for further cross-examination.

93 The appropriate objective inference is that defence counsel made a forensic decision not to make any such application to his Honour because defence counsel was satisfied with the manner in which the evidence had unfolded and the state of the appellant's case on the basis of the evidence that had been adduced. Defence counsel did not want to risk disadvantageous consequences for the appellant and his case by having the jury discharged or any of the police witnesses recalled.

94 Eighthly, the trial judge's views concerning the credibility of the police officers in relation to their dealings with Ms Robeson informed the content and strength of the directions he gave to the jury (which directions were favourable to the appellant) in relation to the jury's assessment of the credibility of Detective First Class Constable Johnson and the credibility and reliability of Ms Robeson.

95 Ninthly, we are satisfied that if defence counsel had known about Acting Inspector Doyle's conversation with Ms Robeson at Bandyup Prison in relation to a s 11 certificate, there is no reasonable possibility that the knowledge would have changed, in any material respect, his cross-examination or forensic strategy.

96 We are also satisfied that there is no reasonable possibility that the State's non-disclosure of the conversation resulted in the jury being left with an erroneous or distorted impression in relation to those parts of Ms Robeson's evidence which implicated the appellant in the commission of count 3 or in relation to her evidence generally.

97 We have reached those conclusions having regard to the content of the conversation as deposed to by Acting Inspector Doyle; the fact that the power to grant a witness a s 11 certificate is conferred on the court and not on a police officer; the unlikelihood, on an objective appraisal, that the content of the relevant conversation would have materially influenced any of the evidence given by any of the State's witnesses; the fact that there was, in any event, abundant information available to and used by defence counsel in attacking Ms Robeson's credibility and reliability (notably, her character); and defence counsel's forensic decision not to apply to the trial judge for an order that the jury be discharged or that any of the police witnesses be recalled for further cross-examination, despite the views expressed by his Honour to the prosecutor and defence counsel concerning the credibility of the police officers in relation to their dealings with Ms Robeson.

99 Neither ground 1 nor ground 2 had a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.