GALIPO -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 188 (25 November 2019)

1. None of the appellant's complaints has any merit. The case against the appellant at trial was compelling. The appellant's claim that the verdict was unreasonable is founded on a fundamental misconception - that the jury was required to accept the evidence of the witness called by the defence. To state the obvious, the jury was not so required. Indeed, as explained below, in this case not only was it open to the jury to reject the evidence of the defence witness, in our view it is difficult to see room for any reasonable jury to have accepted that evidence.
2. The appellant has fallen well short of establishing any police misconduct, much less misconduct that even arguably gives rise to a miscarriage of justice.
3. The appellant's complaints concerning the judge's summing up are founded upon a basic misreading of, or failure to put in context, what his Honour said.
4. At the hearing of the appeal we refused leave to appeal on each ground and dismissed the appeal. These are our reasons.

1. The parties' respective cases at trial may be simply stated.
2. On 20 April 2016, police executed a search warrant at the appellant's house. In the study or spare room of the house they found 830 g of cannabis contained in three vacuum‑sealed bags. The State case was that the appellant was in possession of that cannabis, either on his own or jointly with one or more others.
3. The defence case was that the appellant was not in possession of the cannabis. Rather, the cannabis belonged to a friend of the appellant, Mr Troy Nichols, who gave evidence that he brought the cannabis to the appellant's house the day before the police search. The defence case was that the appellant did not know that the cannabis was there.
4. As the appellant contends that the evidence did not sustain a verdict of guilty, it is necessary to outline the evidence at trial.

1. In broad summary, the State led evidence from the police officers involved in the search and the State tendered as exhibits a video‑recording of parts of the search, photographs taken during and after the search, and the audio recording of a telephone call between the appellant and Mr Nichols made on 24 April 2018, a little over two years after the police search of the property.
2. When the search on 20 April 2016 was conducted, the only occupant of the house was the appellant.[1] In the course of the search, the appellant admitted that he was the only person who lived there and that no one else had keys to the house.[2]
3. In the course of the search, police located three vacuum‑sealed bags of cannabis with a total weight of 830 g. The vacuum‑sealed bags were contained inside a red shopping bag that was, in turn, inside a black duffle bag.[3] The black duffle bag was found on top of other items next to a filing cabinet in the spare room.[4] A cryovac vacuum‑sealing machine was also located in the same room, inside a black backpack. The backpack was said to have been adjacent to the duffle bag.[5]
4. During the search, the appellant said the bags of cannabis were not his and he did not know they were there. He said a friend and his girlfriend had been in the house the day before, but would not tell the police their names. He also said that the cryovac machine was not his and probably arrived in the house at the same time as the bags of cannabis.[6]
5. As the appellant emphasises, no DNA or fingerprints implicating him were located on these items.[7]
6. In the course of the search, police located or observed a number of other items, including the following:

(1) Two sets of digital scales with a maximum capacity of 100 g, located in the family room kitchen area.[8] The appellant said he had the digital scales for cooking, using them to weigh products like flour, yeast and gelatine.[9]

(2) In the appellant's bedroom under a drawer, there was a small clipseal bag which contained a number of smaller clipseal bags.[10] The appellant said during the search that the bags were old ones and he did not know they were there.[11]

(3) A large empty vacuum‑sealed bag was found under the kitchen table.[12] Detective Senior Constable Gibbs said that he opened the bag and smelt a strong odour of cannabis.[13] During the search, when the appellant was asked what he used the bag for, the appellant said he was storing clothes and that he had a few of them.[14]

(4) The police found small quantities of cannabis in the bedroom and on the kitchen table and a small quantity of methylamphetamine on the appellant's bedside table. They also found and seized two smoking implements, as well as a spoon with crystal residue. The appellant said during the search that they were for his personal use.[15]

(5) A large machete was found near the front door, and two axes and a bayonet were found in the appellant's bedroom. The appellant said the machete was for wood chopping and the weapons in his bedroom were ornamental and he liked collecting them.[16]

(6) Police found two mobile telephones in the bedroom, which the appellant said were his.[17] The contents of some of the messages on the telephones were tendered at trial.

(7) Items of jewellery were found on the kitchen table or in the kitchen area.[18] The appellant said that they would be his daughter's. He was unable to explain an inscription on one of the items, including a date and the name 'Andrew'.[19]

1. Senior Constable Lynn gave evidence that the front door was heavily secured from the inside.[20] The house had an operating four‑camera closed‑circuit television system. The cameras focused on the front of the house and live footage from the cameras was displayed on the large‑screen television in the living room. One of the cameras was hidden inside an ornament in the front garden.[21]
2. Detective Sergeant Henry gave evidence as to the search, having been the operator of the video‑camera during the search. He also gave evidence, based upon his 15 years of experience, as to a number of matters concerning common practices among those who deal in cannabis and methylamphetamine. He said that a quantity of 830 g of cannabis would be worth something in the order of $9,000 ‑ $10,000.[22] Things that would commonly be found at a house of a person dealing in cannabis would include clipseal bags, digital scales, closed‑circuit television cameras, multiple mobile phones and readily accessible weapons.[23] Neither Detective Sergeant Henry's expertise to give, nor the substance of, this evidence was challenged.
3. The State also led evidence of a telephone call between the appellant and Mr Nichols that was recorded on the prison system. During the telephone call, they talked about the appellant's then recent appearance in relation to the charge. The appellant said that his lawyer had ceased to act for him and that he had applied for legal aid. Then Mr Nichols said that the new lawyer could lodge a particular form, continuing the exchange in the following manner:[24]

NICHOLS --- ... 'cause when they originally charged you ---

GALIPO --- Yeah.

NICHOLS --- It was for six hundred grams.

GALIPO ---Yeah, that's right. Yeah, exactly. Yep.

NICHOLS --- Yeah, and then youse - and then when you appeared in court, they're trying to say that it's 968.

GALIPO --- Yeah, that's right. That's right.

...

NICHOLS --- To say - because that fucking - you know, that's three hundred grams difference from what they're saying now.

GALIPO --- Yeah, fucking up, it is. Fuck yeah. Yeah, and they - and they bag it all up too to make it look like I deal, mate. You know what I mean?

NICHOLS --- Yeah.

GALIPO --- Because there was only, like, three little air-tight bags, mate, so - and then when they got [indistinct] a month later they fucking repackaged it and put it in, like, thirty-odd fucking containers and bags, mate, you know?

NICHOLS --- Okay, but it wasn't. It was [indistinct] in one bag, bro.

GALIPO --- Yeah, I know. No, it was three little bags, hey?

NICHOLS --- Well, fuck, brother. I think we need to have a visit before fucking, um, we, um, so we know we're on the same page, you know?

GALIPO --- Yeah. ... (emphasis added)

For the remainder of the telephone call, so far as material, Mr Nichols and the appellant continued to discuss the packaging of the cannabis and the apparent change in the charged amount.

1. The appellant did not himself give evidence, but called Mr Nichols to give evidence. Mr Nichols gave evidence to the following effect:

(1) He was a sentenced prisoner who had known the appellant for about 15 years. He said that he and the appellant were 'reasonably good friends'.[25] At around the time of the police search, Mr Nichols was going to the appellant's house 'a few times a week' and staying over fairly regularly.[26]

(2) He might have seen the appellant smoke cannabis when they were younger, but by April 2016 the appellant had straightened his life out, was not on the drugs and was not dealing drugs.[27]

(3) On 19 April 2016, he went over to the appellant's house at night-time after 'arguing with [his] girlfriend'.[28] The appellant let him in.[29] He slept over that night in a room set up for the appellant's kids. He and the appellant were the only people at the house.[30]

(4) He brought some 'luggage, clothes and bags'. One bag was a black sports bag, which contained marijuana, 'vacuum-sealing bags and a machine'. It was his marijuana but he could not remember how much there was because it was two and half years ago.[31] He also brought over 'another bag with clothes in it'.[32] He did not tell the appellant that he was carrying cannabis.[33]

(5) When asked in cross‑examination why he was carrying a large bag of cannabis to the appellant's house, he said: 'I didn't want to leave it at the house where I was arguing with my girlfriend' because 'we had only recently just been raided ourselves so I didn't really want to leave it there after arguing with her'. He denied that he took the vacuum-seal machine over to the appellant's house to package drugs. He said the reason he took the machine there was '[c]os we just kept everything together in the one bag'.[34]

(6) On 20 April 2016, the morning of the police search, he left the appellant's house around 6:00 am and left the black sports bag in the study.[35] He was 'going to come back later and get' the bag but wanted to go 'home first to see what the situation was and then come back and grab it'.[36] When questioned by the judge, after re‑examination was complete, he said that he had both bags in the bedroom when he slept, but when he left, he put one in the study.[37] He said he was going to come back for it that day.[38] He said he put the bag in the study 'just in case his kids come to stay'.[39]

(7) He became aware that the appellant had been arrested that same morning, because he 'lived up the road' and had 'seen all the police there'.[40] He later said he lived five minutes away and saw the police at the appellant's house when he drove past the house after getting fuel.[41]

(8) Later that day, after the police search, he made further contact with the appellant to 'apologise for [his] mistake'.[42]

(9) He said he had spoken to the appellant once or twice since going to prison in May 2016. When asked what about, he said: 'Just, "How you going?"'[43] He denied having ever discussed the contents of the bag with the appellant.[44]

1. After Mr Nichols gave the evidence outlined above, the prosecutor asked him to read a transcript of the telephone call outlined at [19] above. From that point, his evidence proceeded[45]s follows:45

PHILLIPS, MR: So you said you hadn't discussed it with him since you've been in prison. Is that still your evidence?---No, not from that conversation. No.

Sorry, I didn't quite make that out?---No.

Well, what's your evidence then?---Yeah, we had discussed it.

So you were lying a few moments ago?---Well, I remember - - -

BIRMINGHAM DCJ: No, just - it's not a question?---Yes.

PHILLIPS, MR: You were lying a few moments ago?---Yes.

Why were you lying?---Why? Well, about the conversation I had on the phone?

Yes. Yes?---I don't know why I lied about the conversation on the phone, but the rest is true. I know I left it there.

Well, I'll suggest a few things to you?---Yep.

You've still got that transcript there, don't you?---Yep.

If you go to page 2 of that transcript, you see the last thing attributed to you:

Well, fuck, brother. I think we need to have a visit before fucking - um, we - um, so we know we're on the same page, you know?

Do you recall saying that?---Yes.

Did you have a visit to - - -?---No.

- - - get on the same page about your evidence?---No.

Did you discuss it any further with him after this call?---No.

Are you lying now?---Not as far as I know, yes.

Sorry, I didn't catch that?---We never had a visit.

Did you have any discussion with him after this day?---We had probably about three phone calls in total.

Did anyone else come to discuss it with you on Mr - - -?---No.

You said earlier, you didn't know the weight?---Yep.

Well, would you agree that you seem to have a pretty good idea of the weight in this phone call?---Well, that's all over the place, from what I've read.

Well, those are your words. I can play this back to you if - if you'd like to satisfy yourself that it's accurate?---Well, I don't know what he was actually charged with, but what I said was 2 pound.

So in April 2018, you thought the weight was 2 pound?---Yeah.

And that was the extent of your knowledge?---Yes.

Well, so when you say - and I'm reading here from page 2, the fourth thing you say on that page:

Yeah, and then youse - and then when you appeared in court, they're trying to say that it's 968.

?---Yep.

Where did you get that information from?---From [the appellant] that day after he had been charged for 600 grams.

Well, how about the 968?---Well, I was assuming that's what it was.

Seems a very specific assumption to be making?---Well, that's 2 pound. (emphasis added)

1. It is convenient to deal with the appellant's complaints as to the evidence before coming to the judge's summing up.

The appellant's first complaint: was the verdict unreasonable?

1. The principles governing a ground of appeal that the verdict is unreasonable and cannot be supported by the evidence are well known. They were recently summarised in Wells v The State of Western Australia[46] and need not be repeated. The question for the appeal court is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. That directs attention to whether the jury must, as distinct from might, have entertained a reasonable doubt as to guilt.
2. The evidence led by the State gave rise to a powerful circumstantial case against the appellant. Cannabis worth between $9,000 and $10,000 was found in his house, where no one else lived and to which no one else had access. During the search, the police located a number of items that are commonly found at the house of a person dealing in cannabis, including clipseal bags, digital scales, closed‑circuit television cameras, multiple mobile phones and readily accessible weapons.[47] Those facts amply sustained an inference that the appellant was in possession of the cannabis; there was no other reasonable inference.
3. For the reasons that follow, the appellant's complaint that the verdict was unreasonable and unsupported by the evidence is fundamentally misconceived and should not have been advanced. The appellant's submissions were founded on an unstated premise - that the jury were obliged to accept the evidence of Mr Nichols. Regrettably, even when this was pointed out in the course of argument, counsel for the appellant did not appear to recognise that this was so.[48]
4. The flavour of the appellant's submissions in support of this complaint can be seen from the following extracts from the grounds of appeal and the appellant's written and oral submissions. The grounds of appeal include the following:[49]

This case is one of exclusive possession by Mr Nichols. He owns the cannabis. He has the sole right to do as he chooses with it.

The Appellant has no right to sell, dispose or otherwise [exercise] any control over the cannabis. The only one who can do that is Mr Nichols.

The Appellant has no knowledge of the black bag with cannabis taken into the Appellant's house by Mr Nichols.

...

The Appellant has proved beyond a reasonable doubt that the cannabis was not his but belonged to Mr Nichols.

1. His written submissions included the following:[50]

The evidence of Mr Troy Nichols made it clear that he owned the drugs, he took them to the appellant's house, Mr Troy Nichols never discussed the contents of the bag he left there; Mr Nichols apologised to the Appellant for leaving the drugs at his house after he got raided and after he got out on bail

...

There was no joint possession of drugs. Mr Nichols was the sole owner of the drugs.

The Appellant was not entitled to open the black bag and there was no evidence that he opened the black bag ...

...

The Prosecution case scenario does not fit the facts. The simple facts of the matter are:

1. The Appellant did not know that Mr Nichols had cannabis in his overnight bag;
2. The Appellant was unaware of the existence of the drugs in the bag;
3. There was no DNA or fingerprint evidence linking the Appellant to the cannabis;
4. There was no evidence of joint possession;
5. There was evidence of sole and exclusive possession of cannabis by Mr Nichols;
6. Attempts by the Prosecution to suggest co‑ownership is simply not what occurred here. Mr Nichols was a sole trading drug dealer who owned and possessed the 830 g of cannabis.
7. Counsel for the appellant opened his oral submissions on the appeal by asserting as follows:[51]

There was no evidence to prove that [the appellant] had possession of this 830 g of cannabis in a black bag belonging to Mr Nichol[s]. Mr Nichol[s] was the sole owner and sole possessor of the cannabis in the black bag ... he alone had the right to access that bag.

1. As is readily apparent, all of these submissions assume the acceptance of Mr Nichols' evidence and the appellant's denials of knowledge of the drugs in the course of the police search. Although invited to do so, the appellant's counsel was unable to offer any reason why the jury were obliged to accept Mr Nichols' evidence.[52]
2. It was well open to the jury to reject Mr Nichols' evidence. Indeed, we doubt that any other conclusion was open to a jury acting reasonably. The reasons for this are legion. They include the following.
3. First, the natural inference from the taped telephone call between the appellant and Mr Nichols is that the appellant knew distinctly more about the drugs than Mr Nichols, and that they proposed to meet in order to discuss the evidence to be given by Mr Nichols.
4. Secondly, when asked whether he had discussed the contents of the bag with the appellant, Mr Nichols lied, as he admitted once the contents of the taped telephone call were put to him.[53] Further, he said he did not know why he had lied.[54] It was well open to the jury to find that this unexplained lie in Mr Nichols' evidence substantially undermined his credibility generally.
5. Thirdly, Mr Nichols gave evidence that he never saw the appellant use drugs, saying that the appellant was off the drugs and had straightened his life out. Mr Nichols' evidence was that he saw the appellant a few times a week and stayed at the appellant's house fairly regularly. By contrast, the appellant told the police he was a drug user. The jury were entitled to conclude that Mr Nichols was deliberately tailoring his evidence to paint a favourable picture of the appellant.
6. Fourthly, Mr Nichols' evidence was inconsistent, in a significant respect, with the account given by the appellant to police during the search. The appellant told police that a male and his girlfriend had left the bag in the room the day before. By contrast, Mr Nichols said unequivocally that he came alone, having been fighting with his girlfriend prior to coming.
7. Finally, the jury were entitled to consider that aspects of Mr Nichols' evidence made little sense and strained credulity. His stated reason for bringing cannabis worth between $9,000 and $10,000 to the appellant's house, and then leaving it at the house, was less than convincing. Further, on his evidence, he brought the bag containing the cannabis into the spare bedroom where he slept. However, when he left, he took his clothes but did not take the bag containing the cannabis. On his evidence, before he left the house he moved the bag from the room in which he had slept to the study. He said that he put the bag in the study just in case the appellant's children came to stay.[55] The jury were entitled to find that explanation to be implausible, in circumstances where Mr Nichols had said he was going to return that same day to collect the cannabis.[56]
8. Of course, in order to convict the appellant, the jury did not need to be satisfied that Mr Nichols had nothing to do with the drugs. The issue for them was whether the appellant was in possession of the drugs, whether alone or jointly with others. Thus, a conclusion that Mr Nichols was also in possession of the drugs would not have created any impediment to a conclusion of guilt.
9. For these reasons, the appellant's assertion that the verdict was unreasonable is misconceived and entirely without merit.

The appellant's second complaint: alleged police misconduct concerning the empty vacuum‑sealed bag

1. The appellant's second complaint is an allegation of police misconduct in relation to the large empty vacuum-sealed bag seized by police from under the kitchen table.[57] The appellant asserts that the defence case was that this bag was brought into the kitchen, placed under the table and then, on camera, smelt by Detective Senior Constable Gibbs. He asserts that the placing of the bag under the kitchen table was clearly an attempt to implicate the appellant.[58] He points out that the search video between 9.19 am and 9.27 am did not show any sign of the bag under the table and that it subsequently appeared there.[59]
2. The evidence in relation to the empty vacuum‑sealed bag may be summarised as follows:

(a) the bag was not clearly visible under the kitchen table between 9:19 am and 9:27 am, when the police were questioning the appellant about the items found on the kitchen table; and

(b) the bag was clearly visible under the kitchen table when the police took the appellant from his bedroom to the living area at approximately 10:07 am.[60]

(2) The transcript of the search video reveals that the following discussion took place in relation to the bag:[61]

S/CON LYNN: ... What we're going to [do] is we're just going to go out towards the kitchen area where we were before. Um --

MR GALIPO: Yeah.

S/CON LYNN: After we've located that large amount of cannabis, one of the officers has thought back to an item that he located under the kitchen table.

MR GALIPO: Yep.

S/CON LYNN: So we're just going to cover off on that.

...

[S/CON LYNN]: Alright. Do you want to stand here with me?

MR GALIPO: Yeah.

[S/CON LYNN]: So just the, the item that I'm referring to is that vacuum seal bag ---

MR GALIPO: Yeah.

[S/CON LYNN]: With the, the blue seal on it and the blue valve.

MR GALIPO: Yep.

[S/CON LYNN]: So the officers who originally located it have not thought anything of it because there's nothing in it.

MR GALIPO: Yep.

S/CON LYNN: What do [you] use that item for?

MR GALIPO: Well, I was storing clothes. I've got a few of them.

S/CON LYNN: That other cannabis material that we located out of the bedroom, was that previously in that?

MR GALIPO: I couldn't say, no.

S/CON LYNN: Have you had other cannabis packaged in that prior?

MR GALIPO: Not me, no.

S/CON LYNN: Okay. No worries. We'll just seize that item, Gibbsy.

DET GIBBS: Okay.

MR GALIPO: Yeah, that was just under the table?

S/CON LYNN: Yeah. Literally just where, where you saw it.

MR GALIPO: Okay.

S/CON LYNN: It was a little bit further back towards the wall.

MR GALIPO: Yeah, alright. (emphasis added)

(3) Detective Senior Constable Gibbs said he found the bag under 'a table ... in the living area'.[62] When asked in cross-examination to describe its exact location, he said: 'I remember there being a front living area, sort of living room, and towards the back of that, there was a table, I think, on the left-hand side. And I think it was under there'.[63] He said that when he opened up the bag and smelt inside of it '[i]t had a very strong odour of cannabis'.[64]

(4) Detective Sergeant Henry gave evidence that he thought Detective Gibbs found the bag under the kitchen table.[65]

(5) Senior Constable Lynn gave evidence that he thought Detective Page located the bag and Detective Gibbs smelt it and then seized it.[66] He said that when the bag was drawn to his attention it was positioned underneath the kitchen table.[67] When asked how it got there, Senior Constable Lynn said, 'I can only assume that Officer Page has taken it from where he found it and placed it there. That way it could be seized'.[68]

(6) Senior Constable Lynn gave evidence that any change in the position of the bag might be explained by the fact that items which were previously thought irrelevant might become relevant after another discovery, so a large vacuum-sealed bag that smelt of drugs became 'applicable' when police found the significant quantity of cannabis in the spare room.[69] In more general terms, he said that any change in the position of an item might be explained by the fact that the police, as they search, move things around because 'things are within things and concealed by others'.[70]

1. The appellant's grounds of appeal and submissions did not make clear in what way his assertions concerning the empty bag affected the jury's verdict or gave rise to a miscarriage of justice. At the appeal hearing, the appellant appeared to submit that these were matters that fed into the court's analysis of whether the verdict was unreasonable.[71] In any event, the appellant has fallen well short of satisfying us that there was any police misconduct in relation to the bag, much less conduct that even arguably gave rise to a miscarriage of justice.
2. Although counsel for the appellant at trial did not squarely put to any police officer that the bag had been planted, counsel made submissions to this effect in his address to the jury.[72] The judge reminded the jury of this in the course of his outline of the defence case.[73] Thus, the issue was squarely before the jury for them to make such findings of fact as they considered appropriate and to attribute such significance to those findings as they determined. It was open to the jury to consider that the precise location of this item was not critical; insofar as this item was probative, what mattered was that it was found somewhere in the appellant's house. The empty bag was, in any event, not of central significance to the State case.
3. Finally, the appellant was asked about the bag in the course of the search video. Far from saying that it was not his, the appellant explained that he had been storing clothes in it and that he '[had] a few of them'.
4. For these reasons, there is no merit in the appellant's second complaint.

The appellant's third complaint: the judge's summing up

1. As the appellant complains about a number of aspects of the judge's summing up, it is necessary to outline the judge's charge to the jury in some detail. The appellant's numerous criticisms will be identified and addressed in the process of outlining the judge's charge. In what follows, the portions said by the appellant to reveal error have been italicised.
2. The fundamental task of a trial judge is to ensure a fair trial of the accused.[74] That requires the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case.[75] It also requires the judge to ensure that the respective cases for the prosecution and the accused are accurately and fairly put to the jury.[76] While not obliged to do so, the judge may also make any observations about the evidence that the judge thinks necessary in the interests of justice.[77] If the trial judge's comments on the facts are apt to create a danger or a substantial risk that the jury might actually be persuaded of the accused's guilt by comments in favour of the prosecution case made with the authority of the judge, there will be a miscarriage of justice.[78] The appellant submitted that the judge's comments on the facts created such a danger in this case. That is not so. As explained below, in the passages about which the appellant complains, the judge was outlining the State case or explaining the relevant law, not advocating adoption of the State case or conveying his views as to disputed issues of fact.
3. The judge gave standard directions as to the jury's role as fact‑finder, the onus and standard of proof, questions of credibility and reliability, the drawing of inferences and the right of the appellant to remain silent.[79] Nothing in those directions is challenged by the appellant.
4. The judge instructed the jury that the State had to prove beyond reasonable doubt the elements of the charge on the indictment.[80] His Honour identified three such elements. The first element his Honour identified was the element of identity:[81]

First, the question of identity. It is alleged that Bradley[sic] Paul Galipo, that is, the accused, had in his possession the drug. The State must prove that it is he who did the things they say constituted the offence.

In this case, there's no question that the person seen in the search and present at the house and who the police say was in possession of the drug is Mr Galipo, so you'll have no difficulty in finding that element. (emphasis added)

1. The appellant complains that by this direction the judge engaged in advocacy, gave his opinion on the issue of possession and effectively withdrew that issue from the jury's consideration.[82] These complaints are wholly without merit. The judge was directing the jury as to the element of identity; he was not making any comment as to the element of possession. That is readily apparent from his Honour's next two sentences, set out at [49] below, identifying possession as the critical issue. Nothing in this passage indicated the judge's opinion on the question of possession.
2. The second element the judge identified was possession of a prohibited drug. His Honour said:[83]

The second element is that Mr Galipo had a prohibited drug in his possession. This is the critical issue in this trial. The State's case is that the accused had in his possession with intent to sell or supply 830.2 g of cannabis which was located during the search by the police of the accused's house in a room adjacent to his bedroom. I think it was called a study or something of that nature.

The State must prove beyond reasonable doubt that the accused had possession of a prohibited drug. As a matter of law, cannabis is a prohibited drug.

Possession is a different concept to ownership. Possession means to not only have control or custody or have dominion over or to have the order or disposition of with the intent to possess that drug. Possession means to exercise control over a substance knowing or suspecting the substance that he controlled was a prohibited drug with the intention to possess that drug.

1. The judge explained that there were three requirements for possession: 'it must be knowingly held, there must be custody or control, and there must be intention there'.[84] His Honour dealt with these concepts sequentially.
2. In relation to the first requirement for possession - knowledge - the judge directed the jury in the following terms:[85]

[T]he accused must have knowledge that the thing possessed was a prohibited drug of some kind. The accused does not have to know what type of or quantity of drug he actually possessed, but he must actually have knowledge that what he possessed was a prohibited drug of some kind.

In this case, the accused has denied any knowledge whatsoever of the cannabis. It's not sufficient for the State to prove that he suspected it was a prohibited drug. He must acknowledge in the sense, as I've explained it, that it was a prohibited drug.

Knowledge means that he was aware that he was in possession of a prohibited drug or believed in the likelihood in the sense that there was a significant or real chance that the item in question was a prohibited drug.

So when the bag is in the room, that he has the knowledge that it contains a drug. It doesn't have to be cannabis, it could be any prohibited drug, but it has to be knowledge that it contains a prohibited substance, namely, a prohibited drug.

Whether or not knowledge existed is a matter to be inferred from the combination of all of the circumstances. Whether the inference should be drawn is a matter for you as members of the jury, but the inference can only be drawn if it's the only rational inference available.

You need to obviously take into account what the accused said about his knowledge to the police. I'll come back to the question about the material you might consider when drawing inferences shortly. (emphasis added)

1. The appellant complains that the italicised sentences are instances of the judge failing to leave fact-finding to the jury.[86] The italicised sentences cannot sensibly be understood in this manner. The first sentence is an instance of the judge explaining to the jury, in the context of the evidence in the case, what they would need to be satisfied of in order to find that the requirement of knowledge was established. In the second impugned sentence, the judge correctly told the jury that, in considering whether an inference of knowledge could be drawn against the appellant, what the appellant said is a relevant matter. In neither sentence did the judge even arguably engage in a process of fact‑finding.
2. In relation to the second requirement for possession - custody or control - the judge said:[87]

The second aspect of possession, however, is that possession requires actual physical custody or what is referred to as control, that is to say, de facto custody, in the sense that the accused can be said to exercise control or dominion over the article in question to the exclusion of other people.

You can possess something by physically holding it. However, you can also possess something without physically holding it. Having physical custody, control or dominion over something doesn't mean to say that you have to have the thing with you.

You might drive to work, park your car in a car bay, and go to work with the keys in your pocket. You're still in possession of it even though you're keeping it somewhere else.

You might have a circumstance where your wife has a key to the car and knows where the car is parked, perhaps in the garage. In that case, you would each have joint possession of the property. That is to say, you have a control over where it is, you've got an access to it and a means of controlling that. So does your wife.

Possession doesn't mean sole possession. You can be in possession of something and the concept of possession doesn't require the object to be in your hand, but it does require you to have actual physical custody or the ability to exercise control over it. It can be under your control, either solely or jointly with others.

What the State says is that the cannabis in the room was under the control of the accused, and with the evidence of Mr Nichols, that it could be also under the control of Mr Nichols.

Possession is wide enough to include any case where a person is alleged to be in possession, has hidden the thing or been a party to the hiding of the thing effective for the purpose of taking it into his or her physical custody when he or she wishes and where others are unlikely to find it, except by accident.

What's involved before a person can be found in possession of a hidden thing is it must be found that he had hidden or he was in some way a party to its hiding and that he'd hidden it or been a party to its hiding so he could take physical custody if he wished to do so.

What would be required in this case, of course, would be some knowledge on the part of the accused, Mr Galipo, that the bag, whether it belongs to Mr Nichols or the accused, is in the house and that it contains illicit drugs.

If you keep drugs in a place where you hope no one will find them with the intention of exercising control over them, you are in possession of those drugs. More than one person can have possession at the same time of the same package. You don't need to own an object to possess it.

You can possess something temporarily for a limited purpose, that is to say, to store something or to allow someone to leave something at your house to collect later so that in the meantime, you're effectively looking after it.

You'll recall in this case that Mr Nichols has said he didn't have a key. It was Mr Galipo who let him in and out all the time. This could happen, for example, if a person keeps drugs at another person's house with that person's permission.

Each person would have physical custody, control, of the drugs. Each would know they had the drug and each would have had the required intention as they would each be in possession of the drug.

Well, you can be in possession of drugs even though they're in a place to which others have access. In this case, if you were to use the basis upon which the State allege it against Mr Galipo, it could be alleged against Mr Nichols that he is also in possession of the drugs.

Even though he doesn't live there, he's left and gone for the day or whatever, he's still notionally in possession of the drugs in the context where, as if you've left your car in the car park and got the keys in your pocket, a way of actually having access back to them. Come and knock on the door and ask.

They can be in your possession if you have the ability to access them and it's unlikely, as a matter of fact, that any third party would interfere with the drug because, for example, it's unlikely they'd be found or the finder would be unlikely to interfere with the drugs, perhaps because of their relationship with the accused.

These are matters of fact for you to consider in determining if the State has proved beyond reasonable doubt that the accused had dominion and control over the drugs. In the effect [sic] that drugs were found, for example, in your freezer or your wood pile or indeed your spare room, it doesn't necessarily constitute possession.

There's no law that if drugs are found in a wood pile or your freezer or on your property, you're in possession of it. The State doesn't contend that. Nevertheless, the location where the drugs are found is a matter to be taken into account by you in determining whether or not you can infer possession of the accused. It's one of the circumstances to be considered. (emphasis added)

1. The appellant makes a number of complaints in relation to this passage. He submits that:

(1) in directing the jury that each person 'would know they had the drug and each would have had the required intention', the judge speculated as to the appellant's and Mr Nichols' knowledge and intention in relation to the cannabis, which were matters for the jury;[88]

(2) the judge engaged in advocacy and speculation in directing the jury that '[p]ossession is wide enough to include any case where a person ... has hidden the thing' when there was no evidence that the appellant or Mr Nichols hid the bag of cannabis;[89]

(3) the judge's directions on joint possession were inconsistent with the case as opened and with the evidence;[90]

(4) the judge engaged in advocacy and sought to bolster the prosecution case;[91] and

(5) the judge's comment that '[i]t was Mr Galipo who let him in and out all the time' was not supported by the evidence.[92]

1. None of these complaints has merit. In the passages the subject of (1) and (2), the judge was explaining to the jury the concept of possession by reference to certain hypothetical scenarios. In doing so, his Honour was not indicating the findings of fact that the jury should make. In relation to (3), the State opened its case on the basis that the appellant was in either sole or joint possession of the cannabis,[93] which is consistent with the judge's directions. Further, as outlined at [24] above, there was ample evidence to sustain that case. As to (4), in the entire passage set out at [51], the judge did no more than direct the jury as to the State case in relation to possession; there was no commentary on the facts. Much less was there any element of advocacy in anything the judge said. Outlining the State case is an essential element of a judge's summing up - see [45] above. The passage impugned in (5) was consistent with the evidence. The appellant said that he was the only person with a key; Mr Nichols' evidence did not suggest that he could access the appellant's property in [94]e appellant's absence.94 In any event, this isolated and insignificant remark falls far short of giving rise to a miscarriage of justice.
2. In relation to the third requirement for possession - intention to exercise control - the judge said:[95]

The third requirement in respect of possession is that the State must prove that the accused had the intention to exercise control or dominion over the drug. The intention must be a present intention. That's an intention at the time of the incident. That's an intention at the time when the search warrant is executed.

That is when the State says that the accused was found in possession of the drug, and therefore, it must be at the time that the accused intended to exercise control or dominion over that drug.

Knowledge of the drug without intention to exercise control is not enough to constitute possession. A person may know that drugs are in a container but they must have the intention to exercise control over it and in fact to possess it.

The capacity to exercise control is not sufficient. The State must prove that he actually intended to exercise control or dominion over the drugs. That is to say, to hold it there to the exclusion of others, other than the true owner, if he was storing it.

The control and intention to exercise control must be exercised at the same time. A future intention to control a prohibited drug isn't sufficient. Knowledge that you had a drug and an intention to exercise control must be exercised at the same time that it can be - at any time that the accused has actual physical custody and control over the item.

If, on the evidence, you're satisfied beyond reasonable doubt that the accused had knowledge that the substance was a prohibited drug and that he had actual physical custody, or what is referred to as control or de facto custody in the sense that I have explained it, that would permit you to conclude that the prosecution has proved that the accused had the intention to control the drug.

What the State says is that the only reasonable inference is that the accused was in possession of the drug. It's a matter that has to be considered, but it's an evidentiary matter as to whether you're satisfied that he has possession of the drug or not.

The mere fact that it's found in his spare room isn't enough. You must be satisfied that he had effectively the intention to possess it as well.

The State's case is that the accused had possession of the cannabis. What the State says is that the only reasonable inference is that the accused was in possession of the drug. It's the State's submission that you should reject the accused's evidence in the video where he said he didn't know about it, and as to his knowledge of the cannabis.

As I have explained to you, the State must prove that the accused knew he had the drugs, had control and intention to exercise that over them. His intention is a state of mind. These are all matters that affect the accused's state of mind.

Because it's a state of mind it can never be proved directly as a fact and can only be inferred from other facts which are proved.

Intent and intention are familiar words. In a legal context they carry their ordinary meaning. In ascertaining an accused's intention you should draw an inference from the facts which you find established by the evidence concerning his state of mind.

You are entitled to look at the whole of the evidence and draw inferences that you find established by the evidence from facts you found established or a combination of facts you find established on the evidence. Intention may be concluded from the circumstances and the conduct of the accused, both on the day and on earlier occasions.

Let me give you an example. You see a person going to the football dressed in the team's colours. You would infer that their intention is to cheer for that team at the game. You would have regard to their conduct prior to the event, how they have dressed themselves as they are attending.

If, as the ball is bounced, you were required to say, 'What's that person's intention?', you might reasonably infer from all the circumstances that they're going to cheer for their team and not the opposition.

The question for you, however, is what is his intention in respect of the drugs the subject of the charge at the time the police execute the warrant and he's found in possession of the drugs[?]

A state of mind can never be proved directly as a fact. It's only proved by inferences. You determine the state of mind of the accused, having regard to all of the circumstances of what he said and what he did. You need to draw an inference in this respect.

You will appreciate, of course, that the accused denied any knowledge of the cannabis to the police. I have already directed you as to how you draw inferences in a criminal trial, and the position is that you only draw inferences from facts you first find established in the first place, and you can only draw an inference adverse to the accused if it's the only reasonable inference open on the facts. (emphasis added)

1. The appellant complains that the judge misdirected the jury by saying that the appellant's intention could be inferred from his conduct on previous occasions, when the question was whether he was in possession of the cannabis on the day of the police search.[96] There was no error in the judge's direction; to the contrary, it was plainly correct. While the intention to possess must exist at the time of the alleged offence, the circumstances that may be taken into account in determining whether that intention existed at the relevant time include the accused's conduct and statements before, at, and after that time.[97]
2. The judge then turned to direct the jury in relation to the third element of the charge - that the appellant had an intention to sell or supply the prohibited drug. His Honour said that the law deems the appellant to have had an intention to sell or supply 830 g of cannabis unless the appellant proves on the balance of probabilities that he did not have such an intention. He said that the defence did not contest the presumption's application to this case.[98] The judge continued:[99]

Obviously the standard of proof is much less than reasonable doubt; it's on the balance of probabilities. But I would suggest that in this case, you wouldn't be much troubled by that.

We've heard the evidence of the State, of the police was that the quantity of the drug in his possession was almost eight times the presumptive amount, the value of the drugs was something in the order of nearly $10,000.

There was the presence of other paraphernalia there, such as scales, multiple phones, CCTV, text messages, the presence of weapons, and where the drugs are located, and the cryovac storage machine, all of those matters you might take into account when determining whether or not the accused was simply a user of cannabis and regularly smoked it, and if you found he was in possession of the drugs, that he didn't intend to sell it.

I suggest as to this third element, you won't be much troubled by it, but that's a matter you will need to be satisfied beyond reasonable doubt of, but I suspect that you won't have any difficulty when you apply the presumption, and the absence of other evidence from the accused.

The presence of other paraphernalia such as smoking implements all show that he was a user, but the standard of proof being on the balance of probabilities - that is, it's more probable than not that he intended to use the whole of the drug is a matter for you to consider, and as I've said, my observations as to the facts must be subordinate to yours. []

But I would remind you that when you're looking at the accused's intention, you draw inferences from the whole of the facts. And you would need to be satisfied on the balance of probabilities that he intended to consume the $10,000 worth of drugs on his own before you could be satisfied on the balance of probabilities or that it's more probable than not that he did to find that the State had not established the third element beyond a reasonable doubt on the basis of the presumption. (emphasis added)

1. The appellant complains that the judge erred in law by:

(1) effectively withdrawing the element of intent to sell or supply from the jury's consideration;[100]

(2) directing the jury that the defence did not contest that the presumption applied to the appellant;[101] and

(3) commenting on the absence of other evidence from the appellant.[102]

1. In relation to (1), there is a presumption that a person in possession of not less than 100 g of cannabis intends to sell or supply that cannabis.[103] Given that the quantity of cannabis found in the appellant's spare room was more than 800 g, the presumption was clearly applicable. In the circumstances, including the significant quantity of cannabis, the presence of other items consistent with drug dealing and the absence of evidence from the appellant rebutting the presumption, it was well open to, and appropriate for, the judge to suggest to the jury that they would not be much troubled by this element. In doing so, the judge did not withdraw the issue from the jury - his Honour merely performed his function of directing the jury as to the real issues in the case.[104]
2. The complaint in (2) is to the effect that because the appellant contested the element of possession he therefore contested the application of the presumption, and the judge erred in directing the jury otherwise. This complaint fails to appreciate, as his Honour explained to the jury, that the element of intent to sell or supply would only be assessed if the jury were satisfied beyond reasonable doubt that the appellant was in possession of the cannabis. Further, defence counsel had accepted earlier in the trial that the presumption would apply to the appellant.[105]
3. In relation to (3), the presumption of intent to sell or supply could only be overcome if the appellant satisfied the jury on the balance of probabilities that he did not have an intent to sell or supply the drug. That is, the onus was on the appellant to satisfy the jury that he did not have the relevant intent. Given that the appellant did not adduce any evidence to rebut the presumption, the judge was plainly correct to suggest that the absence of other evidence from the appellant indicated that the jury would not have much trouble in finding the third element.
4. The judge then said that he would make 'some observations in relation to the evidence in respect of the case'.[106] Beginning by reference to the State case, his Honour said:[107]

The State says if you look at the whole of the evidence objectively and dispassionately, the only real issue is whether or not the accused is in possession.

That it's wholly implausible that Mr Nichols would leave that quantity of drug in the house as he's described. The State says you can reject the evidence of Mr Nichols and not accept it.

That when you look at all of the other indicia of drug dealing, as evidenced by Detective Sergeant Henry, you could infer that the accused is a person who's involved in drugs.

The State have led evidence and point to the presence of the weapons and where they're located. You saw for yourself in the video, the CCTV. On the screen, it was happening as it was being videoed, the little cameras hidden out in the garden covering off the front of the house as to where people might approach the house.

You saw the jewellery. They located the pearl jewellery and others, and indeed, there's some text messages as to whether you could swap jewellery for drugs.

Naturally, before you drew an inference in relation to that, you'd have to be satisfied that it's the only reasonable inference. But you look at the whole of the evidence and the inferences you might draw.

That they find a vacuum seal machine. The jewellery. You look at the text messages that are sent by the accused to others in relation to where terms are used as to the sale of drugs or as the officers indicated, reference to sale of drugs. People owing debts.

The State says that you may conclude that Mr Nichols brought the drug into the house, but that's not the issue. The issue is whether the accused is in possession of the drug. That is to say, knowingly has some control or dominion over the drugs when Mr Nichols isn't there. (emphasis added)

1. The appellant complains that in this passage the judge engaged in advocacy and told the jury what facts to find.[108] This complaint suffers from the same vice as many of those already dealt with. It is founded on a basic misunderstanding of the purpose and effect of what the judge said. The judge in this passage was summarising the State case, as he was required to do. Nothing in his Honour's remarks conveyed an opinion on the proper resolution of any fact in issue, much less told the jury what facts they had to find.
2. The appellant also says that the issue of Mr Nichols bringing drugs to the house was 'right at the front and centre' of the case, so the judge's direction that 'that's not the issue' was in error.[109] This misunderstands the judge's point. The judge was summarising the State's position that the relevant issue was whether the appellant was in possession of the cannabis, rather than whether Mr Nichols had brought the drugs to the appellant's house. His Honour was not purporting to say that Mr Nichols bringing the drug into the house was not in issue.
3. In relation to the defence case, his Honour said:[110]

[Defence counsel], on behalf of the accused, identifies possession as the issue, and says that you've had the benefit of Mr Nichols's evidence. You could have regard to what Mr Nichols says and that Mr Nichols's evidence should leave you with a doubt at the very least.

Clearly, the evidence that was led by Mr Nichols is led to show that the drugs belonged to him alone, that he had left them there on the morning when he had gone that morning to get fuel without telling the accused, who he said was asleep.

That he drove to get fuel and return, and the police were there, so he drove on. I think the raid was something in the order of about 8.30 in the morning on the video.

It's important to remember of course that in proving the guilt of the accused, the burden remains on the State. The accused doesn't have to prove anything. The State must prove beyond reasonable doubt that the accused was in possession of the drug and the State cannot do that if there's a reasonable possibility that the drugs were the property of Mr Nichols and the accused was not aware that they were in his house.

If the State failed to satisfy you beyond reasonable doubt that the evidence of Mr Nichols should be rejected, then you would acquit the accused. If the State satisfies you beyond reasonable doubt that the evidence of Mr Nichols should be rejected, however, it doesn't follow automatically that you would convict the accused.

In other words, you don't assume that because you might not accept Mr Nichols's evidence that he's guilty. Even if you were not to believe Mr Nichols's evidence, you couldn't find an issue against the accused if his evidence has given rise to a reasonable doubt on that issue.

...

The defence says Mr Nichols accepted responsibility for the drug, said it was his. That he had left the drugs there. He'd brought them in - I think he said he'd brought them in the day before, placed that bag in that room, but then slept in the other room, and then left in the morning with - or sorry, no, I've got that wrong.

He stayed in the back bedroom and as he left in the morning, placed the bag in that room before departing without Mr Galipo's knowledge.

[Defence counsel] also submitted to you as part of the defence case that you should carefully have regard to the video of the search at around 13.10 on the basis that the blue plastic bag or the vacuum bag wasn't visible, and yet it was subsequently found by the police.

It is, in essence, a suggestion by the defence that effectively, the police were adding evidence on to incriminate the accused. [Defence counsel] will correct me if I'm wrong, but that's the essence of it.

The blue plastic bag is effectively added there as to - by the police, having found the drugs initially in the other room, to effectively involve the accused, Mr Galipo, because that's a bag that's out in the kitchen area which is where Mr Galipo says to the police he was at a time when Mr Nichols - and I think his evidence was Mr Nichols and his partner were in that room.

These are matters for you. You might be assisted by reviewing the video of the search. Mr Marshall submitted that the State doesn't get to first base, that the accused has called Mr Nichols, Mr Nichols comes and says that he was there that night, he'd put it in his house, and that the accused was not knowingly in possession. And whilst being upfront about his own use of cannabis, had said, in essence, he knew nothing of that.

These are matters for you and you'll decide that on the basis of the evidence.

1. No complaint is made as to the judge's summary of the defence case. In particular, there is no suggestion that his Honour omitted any significant aspect of the defence case. The appellant's assertion of a lack of balance is founded on the misconception that in his outline of the State case, the judge was advocating its acceptance.
2. The judge emphasised that the question for the jury remained: 'has the State, on the basis of the evidence you accept, proven the case beyond reasonable doubt?'[111]
3. The judge then outlined various parts of the evidence and made some observations in relation to them.[112] In the course of making these observations on the evidence, the judge emphasised that these were matters for the jury.[113]
4. In concluding, the judge summarised the position for the jury as follows:[114]

The important thing is that you assess the evidence objectively and dispassionately. You've heard in this case that Mr Nichol[s] is a drug dealer. He's dealt with drugs, uses drugs, and says it upfront. You've also heard that the accused is a drug user.

Your task is to assess this case using logic and reason, and not bias, sympathy, or prejudice. The evidence that the accused has used drugs and the evidence that Mr Nichol[s] is in fact a sentenced prisoner for drug dealing are matters that might impact upon credit in your assessment, but you should not have regard to the fact that he's been convicted of other offences when determining his evidence in this case. Nor could it objectively and logically and free from any bias, prejudice, or sympathy. Put those feelings to one side.

Assess the evidence of Mr Nichol[s] as a witness. If anything Mr Nichol[s] says has caused you to have a reasonable doubt as to whether or not the accused had possession of the drug - that is to say, custody and control, knowledge of the drug, and the intention to possess it, if there's any doubt about that, you will acquit the accused.

You need to be satisfied beyond reasonable doubt that he was in possession of this drug. That's the central issue in this case.

And as I've said, if you don't accept what Mr Nichols says, put it to one side. On the basis of all the rest of the evidence, can you be satisfied and are you satisfied that the accused, Brady Galipo, was in possession of that drug in the manner in which I've described, with the knowledge, custody and control, and the intention to control[?]

If you are satisfied that he was in possession in that way, you could also be satisfied on the evidence, by reason of the quantity of drug, that he had it with the intention to sell or supply it to another. And it doesn't matter whether he intends to sell or supply it to another person by just handing it back to them or doing it for money. The charge is one of sell or supply. You can be doing that by just handing the drug back.

1. Defence counsel did not object to any aspect of the judge's direction.[115]
2. For these reasons, all of the appellant's complaints as to the judge's summing up lack any plausible basis. The appellant's third complaint is entirely without substance.

1. For the above reasons, we refused leave to appeal on each ground and dismissed the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate/Orderly to the Honourable Justice Beech

[15] ts 100; BAB 68, 70, 71 - 72, 80 - 82, 88.

[46] Wells v The State of Western Australia [2017] WASCA 27 [13].

[47] See [16] - [18] above.

[48] Appeal ts 10 - 11, 13 - 14, 15 - 18.

[53] ts 172, see [21] above.

[57] See [16](3) above.

[66] ts 104, 113 - 115. Detective Page did not give evidence.

[74] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41].

[76] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561; McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307 [35]; The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527 [5], [6], [147] ‑ [151].

[77] Criminal Procedure Act 2004 (WA), s 112; RPS [42].

[97] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 590; J D Heydon, Cross on Evidence (11th Aust ed, 2017) [1120] ‑ [1170].

[103] Misuse of Drugs Act 1981 (WA), s 11(a) read with sch V, item 25.

[104] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466; Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 [31]; Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62[55].

[111] ts 203. See also ts 202, 204, 209.