Criminal law and procedure - Bail pending appeal - Appeal against conviction - Possessing methylamphetamine with intent to sell or supply - Drug located on neighbour's property - Defence that possession by applicant not proved beyond reasonable doubt - Principles applicable to bail pending appeal - Likely prospects of success on appeal

Bail Act 1982 (WA) Sch 1 Pt C cl 4

Bolton v The State of Western Australia [2005] WASCA 232

Fermanis v The State of Western Australia [2005] WASCA 212

Forkin v The State of Western Australia [2006] WASCA 10

Lai v The Queen [1990] WAR 151

R v Filippetti (1978) 13 A Crim R 335

R v Tieleman [2004] WASCA 285; (2004) 149 A Crim R 303

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Stalker v The Queen [2002] WASCA 364

1 ROBERTS-SMITH JA: This is an application for bail pending appeal against conviction.

2 On 12 October 2005, the applicant was convicted following trial in the District Court at Perth before Wisbey DCJ and a jury. He was convicted of an offence that on 13 July 2004 he was in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

3 On 14 October 2005 his Honour sentenced the applicant to imprisonment for 32 months in respect of that offence. He also activated two suspended sentences to which the applicant was subject, imposing 8 months' imprisonment on the first and 5 months' imprisonment on the second, to be served cumulatively on each other and on the 32 month sentence, giving an aggregate term of 45 months' imprisonment, which he ordered was to commence on 12 October 2005. An order was made that the applicant be eligible for parole.

4 The applicant filed an appeal notice on 26 October 2005. There were three grounds of appeal. The appellant's case was filed on 6 December 2005. On 22 February 2006, Steytler P granted leave to appeal on two grounds, these being:

"1. The verdict of the jury was unsafe in that no reasonable jury could have found the requisite elements proved beyond a reasonable doubt in circumstances where the prosecution were unable to exclude any reasonable hypothesis consistent with innocence.

Particulars

a. The Applicant was the co-occupant of a residential house, at 130 Kenwick Road, Kenwick, with his defacto partner, Carmen Prior.

b. The illicit substance, the subject of the Indictment being 16.9 grams of methylamphetamine ('the methylamphetamine') was found on the neighbours [sic] property; at 128 Kenwick Road, Kenwick ('the neighbours property'). The methylamphetamine was found in a location accessible from the Applicant's property.

c. The Respondent lead [sic] no evidence to negative possession by the co-occupier of the Applicant's residence, Carmen Prior. The Respondent was required in such a case to negative possession by co-occupiers.

d. The methylamphetamine was accessible from the neighbours property although with some difficulty.

e. The Respondent only lead [sic] evidence from one of the residents of the neighbours property where the methylamphetamine was found to the effect that he (Oscar Agudero) had no knowledge of the illicit substances. The Respondent lead [sic] no other evidence from the other residents of the neighbours property to negative possession on their behalf. The prosecution are required in such a case to negative possession by co-occupiers: Filippetti v R (1984) 13 A Crim R 335 & Lai v R (1989) 42 A Crim R 460.

2. The learned trial judge erred in law in refusing to direct the jury that the Respondent was under an obligation to negative possession by the co-occupiers of the Applicant's residence and of the neighbours property where the illicit substance was found.

Particulars

a. The learned trial judge directed the jury as to the meaning of 'possession' and went on to direct the jury that the accused must have knowledge of the item in question and know that the substance was a prohibited item.

b. At no stage did the learned trial judge direct the jury that the State was under an obligation to negative possession by the co-occupier or the other neighbours that were not called at the trial."

5 The respondent's answer was filed on 10 April 2006. On the same day, the applicant filed his application for bail, albeit dated 20 March 2006, and an affidavit in support. The application states that the applicant applies for bail pending determination of the appeal "... on the ground that the appeal will most likely succeed".

6 The only matters deposed to by the applicant in his affidavit are the details of his conviction and sentence, and the following:

"6. I am informed and I verily believe that the appeal will not be heard until between May - June 2006.

7. If I were granted bail he [sic] would live with my wife, Ms Carmen Prior at 20 Caribbean Street Maddington WA.

8. I can obtain a surety who would be his [sic] wife Ms Carmen Prior. I am prepared to abide any bail conditions this honourable court imposes."

7 The applicant did not file an outline of submissions and list of authorities as required by Practice Direction No 5 of 1997. In response to an inquiry from my Associate the day before the hearing, Mr Noble faxed a letter in which he wrote that the basis on which the applicant seeks bail is simply that the appeal will most likely succeed and that there is no other exceptional circumstance the applicant relies upon other than that his case on appeal is strong. He wrote that the position is, in his submission, similar to that in Fermanis v The State of Western Australia [2005] WASCA 212.

8 The respondent filed a very brief outline of submissions the morning of the hearing (11 May 2006). The respondent made only two points: first, that it has not been demonstrated by the applicant that his appeal against conviction is most likely to succeed, and secondly there is nothing in his personal or familial circumstances which would elevate them to an exceptional reason in the context of cl 4 of Pt C of Sch 1 of the Bail Act, citing R v Tieleman [2004] WASCA 285; (2004) 149 A Crim R 303 at 312 - 313 per Steytler J (as his Honour then was).

9 The principles to be applied on an application for bail pending appeal are well established. Clause 4 of Pt C of Sch 1 to the Bail Act stipulates that in deciding whether or not to grant bail to an offender awaiting the disposal of appeal proceedings, a Judge shall consider whether there are exceptional reasons why the offender should not be kept in custody, and even if there are, then shall grant bail only if satisfied it may properly be granted, having regard to the provisions of cl 1 and cl 3 of the Part. Those latter clauses are the provisions which set out the general considerations relevant to any application for bail.

10 It is also well established now, that where such an application is based partly or wholly upon the prospect of success of the appeal, what must be demonstrated is that there is a high prospect of success - that is, one higher than the threshold for the granting of leave to appeal (see Forkin v The State of Western Australia [2006] WASCA 10, particularly at [6] to [11] inclusive and Bolton v The State of Western Australia [2005] WASCA 232.

11 As I have indicated, the applicant relies solely on the likely prospect of the success of his appeal against conviction as being the exceptional reason why bail should be granted pending the hearing of the appeal. In his submissions, however, Mr Noble did also advert to the prospect that by the time of the hearing, the applicant would have served approximately 11 months of his sentence.

12 I have mentioned that where the ground for an application for bail pending appeal is the likely prospect of the appeal succeeding, the standard of satisfaction which has to be achieved is appreciably higher than that applicable to the granting of leave.

13 Section 27(1) of the Criminal Appeals Act 2004 stipulates that leave to appeal is required for each ground of appeal, whether against conviction or sentence. Unlike the position as it previously was under s 688(1)(a) of the Criminal Code, a convicted offender no longer has a right of appeal even on a ground which involves a question of law alone.

14 The test which must be met for leave to appeal is contained in s 27(2) of the Criminal Appeals Act, which provides that the Court must not give leave to appeal on a ground unless satisfied it has a reasonable prospect of succeeding. The application of that test was explained by the Court of Appeal in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [55] - [60].

15 I made some observations about the distinction between the two tests in Fermanis v The State of Western Australia (supra), an authority on which Mr Noble relies. In that case, at [14] - [17], I said that on a bail application, something more than an arguable case must be shown; what must be shown without detailed argument, is that the appeal is most likely to succeed (Stalker v The Queen [2002] WASCA 364 at [19] - [40]). I then referred to R v Tieleman (supra), where Murray J (with whom Templeman J agreed) said that in the context of the prospects of the appeal succeeding being exceptional reasons, bail would be granted ordinarily only if the applicant could demonstrate there were strong grounds for concluding the appeal would be allowed and that the sentence, or at least the custodial part of it, was likely to have been substantially served before determination of the appeal. Even if those things could be shown, it may be necessary to demonstrate additional circumstances in a particular case before the court would exercise its discretion to grant bail on the basis it was satisfied that the exceptional reasons justifying that course existed. That was a reference to the statutory requirement that once exceptional reasons are shown, bail can still not be granted unless it would be proper to do so having regard to the considerations which ordinarily apply. At page 13 his Honour expressed the test as being that unless the prospects of success on appeal are affirmatively established to be so high that it could be said there was a high degree of likelihood that the Court of Appeal would quash the conviction, that factor will not constitute exceptional reasons for the purposes of cl 4.

16 As I explained at [15] of Fermanis, there is no particular distinction between expressions such as "most likely to succeed' and "strong grounds for concluding the appeal would be allowed", in this context. Neither purports to set some specific threshold of potential success. Each case must be determined on the basis of its own facts. In context, each expression is predicated upon the notion that the prospect of success must be sufficiently likely as to give rise to a real concern that the applicant would suffer an injustice by having been kept in custody on an unsound conviction or sentence.

17 To summarise, the statutory test for a grant of leave to appeal is a much lower threshold than that required to meet the "exceptional reason" requirement in cl 4 of Pt C to Sch 1 of the Bail Act. That is consistent with the legislative scheme, because otherwise a grant of leave to appeal would, in effect, virtually inevitably constitute an exceptional reason why the applicant should not be kept in custody pending appeal, which was patently not the legislative intent. There would be nothing "exceptional" about that reason for releasing an applicant on bail pending appeal (see the observations of Murray J in Tieleman at [30] and Steytler J at [48]).

18 So the question here is whether the applicant has demonstrated there is such a likely prospect of his appeal succeeding in the sense just explained, such as, either alone or in combination with any delay before the hearing of the appeal, as to constitute an exceptional reason why he should not be kept in custody pending the hearing of his appeal.

19 I note the applicant would be eligible for parole after he had served half of the 45 months, namely 221/2 months. Mr Noble informed me from the Bar table that his advice from the Court of Appeal office is that the appeal is not likely to be heard until approximately August this year. The applicant would, by then, have served approximately 11 months of his term. That would represent approximately half of the custodial portion of his sentence.

20 Determination of this application requires an assessment of the merits of the appeal to assess whether it has that high prospect of success necessary (either alone or in combination with the likely delay) to constitute exceptional reasons why the applicant should not be kept in custody pending appeal. It must also be recognised that in determining this application, it is not for me here to decide the appeal, but to make an assessment on the material and arguments presented to me (or, as Mr Noble said, to make a "cursory" evaluation) of the likely prospects of success.

22 The applicant's case turns critically on the decisions of the New South Wales Court of Appeal in R v Filippetti (1978) 13 A Crim R 335 and that of the Court of Criminal Appeal of this State in Lai v The Queen [1990] WAR 151.

23 In Filippetti, the appellant had been convicted of supplying Indian hemp. The police had a warrant to search the appellant's small suburban home. He lived there with his mother. The furniture appeared to have been there for some years and there was no particular evidence as to ownership of it. At the date of the search, in addition to the appellant and his mother, the appellant's fiancé, younger brother, and another couple also lived there. All six of them had common access to, and made free use of the lounge room.

24 In the appellant's bedroom, the police found a plastic bag containing four buddha sticks. He was arrested. When they continued searching, the appellant became violent and there was something of an altercation in the bedroom. After a short time the search continued and another small envelope containing Indian hemp was found. The appellant admitted that it was his and that he used it now and again. The search moved to the lounge room. The appellant was agitated and attempting to distract the police. The appellant's mother was sitting on a chair in the lounge room, apparently sorting some washing. She was asked to move and one of the officers lifted the cushion and found concealed in the spring compartment of the chair, a plastic bag containing a large quantity of buddha sticks, later weighed at over 800 grams of Indian hemp. The appellant asserted that he knew nothing about them. Later he said that he would like to find out, "who the bastard was that put me in". All of this was the substance of the Crown evidence in respect of the charge upon which he was convicted.

25 Street CJ (with whom Slattery and Maxwell JJ agreed) said that crucial to the Crown case was the issue of possession of the buddha sticks by the appellant. On this point his Honour said (338 - 339):

"The difficulty confronting the Crown in this case comes from the large number of persons occupying this comparatively small house and all using the lounge room where the buddha sticks were found. The only Indian hemp found in the appellant's bedroom was the small quantity that has been mentioned and this was not relied upon by the Crown as involving any criminal offence on the part of the appellant. The finding of the buddha sticks in the chair in this lounge room where all six occupants of the house apparently had equally free access, and so far as the evidence goes in fact made equally free use, would not readily establish that there was exclusive physical control of these buddha sticks in any one of the occupants unless there were some other evidence to accompany the finding of the buddha sticks.

Ultimately the matter appears to come down to the question of whether the Crown had satisfactorily produced material that the jury could regard as negating possession on the part of the other occupants of the house, particularly the mother, of these buddha sticks. It will be recalled that so far as physical contact with the chair is concerned, the mother was in fact sitting in the chair and had to be asked to move before the buddha sticks were found. The appellant's protests as to who put him in are equivocal, and, although they undoubtedly do nothing to help his case, they do not, whether standing along or taken in conjunction with the other evidence, amount to a sufficient basis to permit the jury to find beyond reasonable doubt that he had impliedly admitted that the buddha sticks were in his exclusive physical control.

For those reasons I am of the view that the submission made to his Honour at the conclusion of the Crown case was well founded. It was a difficult case to present from the Crown's point of view by reason of this large number of persons occupying this lounge room. The inescapable fact is that there was not enough evidence to enable the jury to rule out the possibility that these buddha sticks in fact were in possession of one of the other occupants, perhaps the mother, nor was there enough evidence to enable the jury to conclude beyond reasonable doubt that the buddha sticks in the chair were in the exclusive physical control of the appellant."

26 In Lai the appellant had been convicted of possessing heroin with intent to sell or supply. He owned and managed a restaurant at Fremantle. The heroin was found in the ceiling of the restaurant. The only issue at trial was whether or not the appellant was in possession of it.

27 The restaurant was normally run by the appellant's wife and sister. There were seven other employees.

28 Police officers obtained a warrant to search the restaurant. They took the appellant there. He asked to go to the toilet (having already done so at his home). One of the police officers followed him to the toilet area. The appellant did not then use the toilet but returned to the kitchen. The toilet was available both to staff and to members of the public dining at the restaurant. At the time, the restaurant was being renovated and there were various tradesmen working there during the day. The builders were given a key and worked there at night after the restaurant closed. Up to ten building staff worked there once the restaurant closed and the restaurant staff went home.

29 Asked whether he had been at the restaurant during that day, the appellant initially answered in the negative, but on being reminded that his staff had told police that he had been there in the morning, he recollected that he had been. Asked whether any of his staff had drugs on the premises he said "No" and that he would take responsibility for any drugs that were found.

30 Towards the completion of the search, one officer went into the ceiling area. The appellant then became agitated, started to sweat and began to look at the ceiling all the time. He was described as having gone a bit paler and to have become fidgety. The heroin was located in the ceiling and access to it was gained through a small hole in the roof, by an officer standing on the toilet bowl. Shown what was in the packet and asked what it was, the appellant replied "Heroin probably", but he said he did not know whose it was or who had placed it in the ceiling. He denied ever having had anything to do with heroin.

31 In a joint judgment, Wallace and Nicholson JJ observed (at 155) that the difficulty faced by the prosecution in establishing the appellant's knowledge the drug was there, was apparent when one had regard not only to the number of restaurant employees, but also to the ten or so building workers who were there at night and the substantial number of patrons using the restaurant, their nationality and culture (of which evidence had been given). Their Honours observed that all staff and building workers could be said to have had free access to the hole in the ceiling, either from a store room ladder or the toilet, as did the patrons. Their Honours concluded:

"Thus the appellant could not be said to have exclusive control over the package: Filippetti ..."

32 Having adverted to the various aspects of the circumstantial evidence upon which the prosecution had relied, their Honours concluded (at 158) that:

"... we are entirely satisfied that each of the aspects of the prosecution's contention, alone admittedly inadequate to sustain guilt, do not, in combination, constitute the tapestry of conviction for which the prosecution contends. Each area of the evidence prayed in aid is clearly equivocal and in some instances such as the demeanour of the appellant in the eyes of the investigating detectives, is very much subjective assessment ..."

and that their Honours did not reach the stage where, in their opinion, it was open to the jury to be satisfied as to the appellant's guilt beyond reasonable doubt.

33 In his separate reasons for upholding the appeal, Pidgeon J, having referred to Filippetti, said on this issue (at 159):

"Here there are a number of other persons that would come in this area namely others that worked in the restaurant and particularly customers who might visit the restaurant or the toilet area. There were also builders working in the area. The Crown must negate possession on the part of these persons."

34 His Honour considered there was sufficient evidence to go to the jury, but a careful direction was needed on the drawing of inferences. However, there was one area in the trial Judge's direction where Pidgeon J considered the jury could have been led into the position of drawing wrong inferences. That concerned the failure of the trial Judge to make clear to the jury that no inference could be drawn by reason of the failure of the accused to answer questions put to him by the police.

35 The evidence in the present case was that police searched the applicant's premises on 13 July 2004. In the kitchen they found a small clip seal bag containing a quantity of cannabis leaf material, in a bowl on the kitchen bench. Also in the bowl were three separate bundles of empty small clip seal bags. The applicant had $170 cash in his shorts' pocket. The police found a set of white electronic scales in a drawer in the kitchen. The scales were approximately 10 to 12 cm long and were small enough to fit in the pockets of a pair of jeans. An open packet of Glucodin powder was found in the pantry area, together with an open packet of easy-lock resealable clip seal bags, described as "sandwich type" bags. On a shelf in the laundry area, they found a plastic smoking implement. In the wardrobe of the main bedroom, the officers found a jacket belonging to Ms Prior. In one pocket there was $2500 cash and $5600 cash all made up of $50 notes in a different pocket of that jacket.

36 Other relevant items found included a small clip seal bag containing cannabis. That was found in a jeans pocket in the wardrobe area of the main bedroom. Various ladies' rings were found - these did not belong to Ms Prior.

37 A plastic shopping bag containing a large clip seal bag which in turn contained cannabis leaf and head material was found hanging between the side fence of the applicant's property and a rear garden shed of the neighbouring property at 128. On a garden table in the area, there was a long piece of wire which appeared to be a hook for a hanging basket, but which had one end straightened.

38 Between the fence and the neighbour's rear shed, police found a clip seal bag. That could be seen on the ground. It had to be retrieved by smashing a hole at the bottom of the fence and pulling it through. The clip seal bag which contained the cannabis, appeared to be identical to the bags found earlier in the pantry.

39 Further along the fence towards the applicant's house, there was on the neighbour's property, an outdoor enclosed patio area. The fence was a normal suburban type of corrugated fence approximately 1.6 to 1.8 metres high. On the applicant's side of the fence there was a garden shed about 2 metres or so high. On the neighbour's side of the fence the pergola area was an enclosed structure made out of corrugated iron. The gap between the fence and the corrugated iron of the pergola was about 10 cm or less.

40 Approximately 8 feet off the ground there was a horizontal beam to which the corrugated iron was fixed. Slightly to one side of the applicant's shed and above the roof of it, the police found hidden between the beam and one of the corrugations in the pergola sheeting, a small clip seal bag containing a brown powder paste substance. The police officers stood on a milk crate or chair to reach the package. Detective Sergeant Hutchison's evidence was that the package was definitely not accessible from the neighbour's side of the property. This was the substance which was later shown to be methylamphetamine.

41 Amongst other items found were small clip seal bags which had visible traces of an unknown substance. Traces of methylamphetamine were later detected on the interior surface of one of the bags. The other two bags were not analysed.

42 In cross-examination, asked about access to the package of methylamphetamine from the applicant's premises, Detective Sergeant Hutchison said he recalled seeing the forensic officer actually on top of the shed accessing that area and it was quite easy to jump on top of the applicant's garden shed to do that. He described it as just a normal metal garden shed and quite stable. He agreed that when Detective Tower retrieved the package whilst standing on the chair or box, he was at full stretch, and that the applicant could be a "good foot" shorter than Detective Tower.

43 Oscar Agudero was the applicant's neighbour. He lived at 128 with his wife and two daughters, one of whom was a teenager at high school. Mr Agudero gave evidence to the effect that he knew nothing of the drugs and was unaware of their presence. He accepted that his teenage daughter was home alone on occasions. He said the police told him where the drugs had been found but did not show him, other than near the barbecue area. Asked about saying in his statement to the police that each of the drugs would have been accessible from his side of the property if one used an extended tool or apparatus to reach them, he agreed that was in his statement but said that was what the police had said to him. Asked whether he accepted as true that he would have been able to access those locations from his side of the fence using a tool, he said "possibly, yes".

44 The State did not call anyone else from Mr Agudero's premises, nor did they call Ms Prior.

45 The applicant made no admissions to the police regarding the methylamphetamine and denied any knowledge of it. He did not give evidence at his trial.

46 Other matters relied upon by the prosecution included a lie told by the applicant regarding the origin of $8100 found in Ms Prior's jacket. He had told police that money was given to him by his uncle Derrick Smith. Mr Smith was called at trial and his uncontested evidence was that he had not loaned the applicant any money. Intravenous needles were found in the rubbish bins at the applicant's residence. None of those were forensically tested to establish whether they had been used in connection with illicit drugs (such as methylamphetamine) or legal drugs (such as insulin). There was no evidence directly linking them to the applicant.

47 Although at trial Mr Noble's submission was that the methylamphetamine, the subject of the charge, could have been in the possession of Mr Agudero's teenage daughter or one of her friends, or someone else from that property, or persons attending parties at the applicant's premises, or Ms Prior, on this application he seemed to rely virtually entirely on the possibility that the methylamphetamine may have been in the possession of someone from the applicant's side of the fence. That could have been, he submits, Ms Prior or someone attending the applicant's premises for a party.

48 Both of the applicant's grounds here, and the submissions advanced in support of them, appear to be predicated on a view that Filippetti and Lai laid down a principle of law to the effect that where an accused is charged with exclusive possession of a prohibited drug in circumstances in which the accused is a co-occupier of the premises in which the drug is found, the prosecution is obliged to negative possession of the co-occupiers. Those cases establish no such principle. Each of them turned on the application of the ordinary principles applicable to circumstantial evidence - in particular, that an inference of the accused's guilt cannot be drawn if, on the evidence, an inference consistent with his or her innocence is reasonably open. In other words, in any circumstantial evidence case, the prosecution is obliged to exclude any reasonable possibility consistent with the accused's innocence. So it was in Filippetti that Street CJ concluded there was not enough evidence to rule out as a reasonable possibility, that the buddha sticks were in the possession, or exclusive physical control, of one of the other occupants of the house. Likewise, in Lai, the evidence was simply insufficient to exclude the reasonable possibility that someone other than the appellant had put the heroin in the ceiling and had exclusive physical possession of it. Each of those cases turned upon their own facts and the evidence adduced. So does the present case.

49 I have viewed the video-tape of the police search of the applicant's premises. Notwithstanding Mr Agudero's evidence, it is apparent that the bag of cannabis would have been accessible from his side of the fence only with the greatest difficulty, if at all. On the other hand, it would have been readily accessible from the applicant's side, using the straightened garden hook. It is also apparent that the package of methylamphetamine could far more readily have been placed where it was found, by someone on the applicant's side of the fence, whether by standing on something, climbing onto the roof of the applicant's garden shed, or by using an implement. It would certainly have been open to the jury to conclude that the only reasonable inference was that it was put there by someone from the applicant's side of the fence.

50 There was no suggestion in the evidence that other persons with access to the applicant's property had any association with drugs. That includes Ms Prior.

51 There was evidence (including in particular, the amount of cash found and the lie the applicant told about it) that he was dealing in drugs.

52 The trial Judge referred to the competing arguments put to the jury about the evidence. First, he reminded them that the State had argued that the location of the two different substances were such as to suggest that they were concealed or secreted by the same person and that the methylamphetamine was of considerable value and was unlikely to have been placed there by anyone other than a person who would have ready access to it. He told them the State had pointed to the fact that paraphernalia usually associated with drug use and distribution was found at the premises at 130 Kenwick Road, referring to the scales, the syringes found in the rubbish bin, the snap lock bags (some of which were found in a container which also contained cannabis, the acknowledged property of the applicant), some found in the rubbish bin and some found in Ms Prior's belongings. He reminded them of the money found in Ms Prior's coat in the wardrobe, which money the applicant acknowledged belonged to him. He referred to the Glucodin which, on the evidence, was a substance not uncommonly used for the cutting of illicit substances. He referred to the garden hook and to the smoking implement belonging to the applicant. His Honour reminded the jury that the applicant was not on trial for possession of cannabis and that the only relevance of that was that the State argued that in all the circumstances, the location of the cannabis and the methylamphetamine were such as to strongly suggest they were the property of the same person, and the State said on the evidence that was the applicant.

53 Later, the trial Judge said that on behalf of the applicant it was said they could not reasonably exclude the possibility that the methylamphetamine was the property of any number of persons, including the applicant's de facto partner Ms Prior, in whose coat the large sums of money and some clip seal bags were found. He reminded the jury that the applicant pointed to evidence that there were numerous visitors to his property on occasion, all of whom could have had access to the locations where the drugs were found and that the persons occupying 128 Kenwick Road could have accessed the drug from there. He told the jury it had been put on behalf of the applicant that the State had not been able to prove that possession of the methylamphetamine by the applicant was the only reasonable conclusion open on the evidence. There were no traces of methylamphetamine found on the scales, no needles found in the house and that the needles and snap lock bags on one of which traces of methylamphetamine were found, were in a rubbish bin and could have been put there by anyone.

54 His Honour gave a full direction on the drawing of inferences, and in particular that they could only draw an inference of the guilt of the applicant if they were satisfied there was no other reasonable hypothesis.

55 I am not persuaded that in light of the whole of the evidence at trial, there is such a high prospect that the Court of Appeal would conclude no reasonable jury could have excluded, as a reasonable hypothesis, the possibility that someone other than the applicant was in exclusive possession of the methylamphetamine and found the element of possession in the applicant to have been proved beyond reasonable doubt, as to constitute, either alone or in combination with the likely delay, an exceptional reason why the applicant should not be kept in custody pending his appeal.

56 Nor am I persuaded there is a sufficiently high prospect the Court of Appeal would find the trial Judge erred in law in refusing to direct the jury that the State was obliged to negative possession by the co-occupiers of the applicant's residence and of the neighbour's property. His Honour gave the jury a careful direction on circumstantial evidence and the drawing of inferences. In addition to the directions to which I have referred above, his Honour said (at t/s 124) that before they could draw an inference or come to a conclusion against the applicant, they had to be satisfied it was the only reasonable inference or conclusion that could be drawn consistent with the proven facts.

57 His Honour's directions and observations on the respective cases to which I have referred above, were made in this context.

58 On a full consideration of the appeal, and having heard it fully argued, the Court of Appeal might well conclude those directions were sufficient.

59 To put it more appropriately for present purposes, I am not persuaded there is a sufficiently high prospect of success on that ground either, as to constitute an exceptional reason why the applicant should not be kept in custody pending the hearing of his appeal.