(b) that the Appellant was a knowing participant in a joint criminal enterprise with Stojkov to supply heroin.
76 It has been observed that a jury brings to its consideration of a circumstantial case the common experience of members of the community comprising men and women of different backgrounds, of different ages and with different experiences in life, who apply to the case their collective knowledge of human affairs and their common sense: R v Kaldor (2004) 150 A Crim R 271 per Dunford J at 272-273 [2] and Howie J at 293-294 [86]; R v Chahine [2006] NSWCCA 179 at [88].
77 Where it is contended that a verdict of a jury is unreasonable or cannot be supported having regard to the evidence for the purpose of s.6(1) Criminal Appeal Act 1912, the question which this Court must ask itself is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the Appellant in this case was guilty: M v Queen (1994) 181 CLR 487 at 493; MFA v The Queen [2002] 213 CLR 606 at 614-615 [25], 623 [55]-[57]. This Court's function under s.6(1) is to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of accused persons in criminal trials: MFA v The Queen at 624 [59]. The jury had the benefit of seeing and hearing the witnesses, including the Appellant: M v The Queen at 493.
78 There was a strong body of circumstantial evidence supporting the conclusion that Stojkov supplied the heroin to Ilievski. There was regular contact between Stojkov and Ilievski on the days leading up to 8 May 2000 and on that day. Stojkov had travelled to Bass Hill, as had Ilievski, with a meeting to take place between them at that location. Ilievski took possession of a black shopping bag containing the heroin wrapped in plastic which bore Stojkov's fingerprints.
79 In my view, any question arising from the variation in times recorded and the absence of direct evidence of observation of Stojkov handing the bag to Ilievski, does not greatly assist the Appellant's case. The Crown did not assert that there was a complete and unbroken observation of all events which, in any case, took place in the dark of an early evening in winter. Nor does the somewhat cryptic isolated reference to "Chinese" assist the Appellant's case. The evidence, including the telephone and other electronic surveillance evidence, did not point to the involvement of any other party in a manner which served to undermine the powerful and damaging inference that it was Stojkov who handed the heroin to Ilievski.
80 The evidence of the Appellant's fingerprints being found on the plastic used to wrap the heroin was powerful circumstantial evidence adverse to the Appellant. It connected him directly to the heroin. That he transported Stojkov to the Bass Hill area and remained there, that he was with him in the McDonalds car park when Stojkov positioned himself in the walkway connecting the McDonalds car park to the Rydges Hotel car park, and, when confronted with arrest, that he attempted to flee the scene, were all damaging to the Appellant.
81 It has been observed that circumstantial evidence may often be more reliable than direct evidence, which can be subject to the fallibility of human observation and memory: R v Cable (1947) 47 SR 183 at 184 per Jordan CJ; R v Chahine at [95]. Fingerprint evidence is powerful and cogent evidence of identification of an offender in a manner which links him to the crime: R v Chahine at [96].
82 This was not a case where the Crown case was dependent on an isolated fingerprint of the Appellant being located on the heroin package. The fingerprint evidence was to be considered with other evidence which saw the Appellant and Stojkov travelling together to Bass Hill, and remaining in the area for a period of time, leading up to the supply by Stojkov to Ilievski of a substantial quantity of heroin. The Appellant's reaction to Stojkov's arrest pointed to a guilty mind on his part.
83 In considering a circumstantial case, all the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. A circumstantial case ought not be considered piecemeal at trial or on appeal: The Queen v Hillier [2007] 228 CLR 618 at 637-638 [46]-[48].
84 The Appellant's submissions invited a type of piecemeal assessment of the circumstantial case. It is necessary to assess the evidence by reference to all the circumstances established.
85 Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the Appellant's guilt. It has not been demonstrated that the verdict of the jury is unreasonable or cannot be supported by the evidence. I would reject the first ground of appeal.
Ground 2 - The Indispensable Intermediate Fact Ground
Appellant's Submissions
86 Mr Dalton SC submitted that it was foundational to the Crown case against the Appellant that the heroin had been brought to the Bass Hill area in the vehicle occupied by the Appellant and Stojkov.
87 It was submitted that the jury was not properly directed by the trial judge in relation to this aspect of the Crown case being an indispensable intermediate fact, which required proof beyond reasonable doubt, before the jury could convict: Shepherd v The Queen (1990) 170 CLR 573 at 589. It was submitted that the direction given in this respect was not in explicit enough terms as to leave the jury in no doubt that this was a critical finding of fact that needed to be made before the jury could convict.
88 It was submitted that failure on the part of the trial judge to construct a direction on this point, in explicit enough terms, was so fundamental in the circumstances of the case that it caused the trial to miscarry.