Criminal law - State appeal - Trial by judge with a jury - Charge of possession of a prohibited drug with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) - Trial judge ruled on the respondent's application that the State's case be confined to criminal responsibility under s 7(a) of the Criminal Code (WA) - Trial judge entered a judgment of acquittal on the respondent's submission of no case to answer

Criminal law - Proviso in s 33(2a) of the Criminal Appeals Act 2004 (WA) - Whether no substantial miscarriage of justice occurred as a result of the trial judge's erroneous decision that the respondent did not have a case to answer

Criminal Appeals Act 2004 (WA), s 24(2)(e)(i), s 33(2), s 33(2a)

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11(a)

Judgment of acquittal entered by the trial judge set aside

There be a new trial of the respondent before a different judge

Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186.

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

Humphry v The Queen [2003] WASCA 53; (2003) 138 A Crim R 417.

Mansfield v The Queen [2012] HCA 49; (2012) 247 CLR 86.

R v Hillier [2007] HCA 13; (2007) 228 CLR 618.

R v Mansfield [2011] WASCA 132; (2011) 251 FLR 286.

The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124.

The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155.

The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1.

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

1. BUSS P: The State has appealed against a judgment of acquittal entered after a decision by Parry DCJ that the respondent had no case to answer on a charge of an indictable offence.
2. The right of appeal is conferred by s 24(2)(e)(i) of the Criminal Appeals Act 2004 (WA).
3. The charge in indictment 764 of 2016 alleged that on 18 May 2015, at Canning Vale, the respondent had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
4. The respondent pleaded not guilty.
5. Between 27 February 2017 and 2 March 2017, the respondent was tried in the District Court before his Honour and a jury.
6. On 2 March 2017, after the respondent had closed his case and before the commencement of closing addresses, defence counsel (who was junior counsel for the respondent in the appeal) submitted that the respondent had no case to answer. The submission was successful. His Honour entered a judgment of acquittal.
7. On 23 March 2017, the State filed its appeal notice.
8. On 4 May 2017, at the conclusion of the hearing of the appeal, this court unanimously made orders, relevantly, as follows:

(a) Leave to appeal granted on grounds 1, 2, 3 and 4.

(c) Judgment of acquittal entered by the trial judge set aside.

(d) There be a new trial of the respondent before a different judge on the count in indictment 764 of 2016.

1. We said the court's reasons for making those orders would be published later. These are my reasons.

1. In May 2015, police were monitoring, as part of an ongoing police investigation, incoming and outgoing calls and SMS text messages on a telephone used by Said Ali Hussaini, who lived at Protea Place, Canning Vale.
2. Between 13 May 2015 and 18 May 2015, police intercepted several telephone calls and SMS text messages between Mr Hussaini and the respondent.
3. The State's case was that Mr Hussaini and the respondent were discussing prohibited drugs during those telephone calls and text messages. The respondent was arranging for two other people to purchase drugs from Mr Hussaini.
4. On 18 May 2015, Mr Hussaini and the respondent discussed an imminent visit by the respondent to Mr Hussaini's house. At 4.04 pm the respondent telephoned Mr Hussaini and said he was 'about 10 minutes away'. Police were watching Mr Hussaini's house from a concealed vantage point. At about 4.30 pm police saw the respondent's car, a black Audi Q7, with two Asian male passengers, leave Mr Hussaini's premises. Shortly afterwards police stopped the car. The respondent was driving. A male passenger named Nguyen was sitting in the front passenger seat and another male passenger named Duong was sitting in the rear passenger seat.
5. Police searched the respondent's car. They located a clipseal bag containing about 111 g of methylamphetamine with 77% purity. The value of the drug was about $32,000. The methylamphetamine was underneath the front passenger seat, towards the back seat where Mr Duong had been sitting.
6. A Samsung mobile telephone with the number [976] (the 976 mobile telephone) was located in the driver's door pocket adjacent to where the respondent had been sitting. A white iPhone with the number [133] (the 133 mobile telephone) was found in the inside pocket of the respondent's jacket. Police also found $2,000 cash, in $100 notes, in the front pocket of the respondent's trousers.
7. The search carried out by the police was electronically recorded.
8. Both the 976 mobile telephone number and the 133 mobile telephone number were known to police as a result of their having monitored Mr Hussaini's mobile telephone number [532] (the 532 mobile telephone) pursuant to a telecommunications service warrant.
9. The telephone intercept evidence comprised 11 telephone calls and 32 text messages between Mr Hussaini and the respondent. The following calls and messages were of particular importance to the State's case:

(a) Call (5) CSN 890 (17:11:37, 14 May 2015); 532 number to 976 number: the respondent tells Mr Hussaini: 'I just spoke with them and, um, they probably have only enough for [indistinct] maybe four or five. Ah are you still interested in?'; 'They [indistinct] they only have enough for four or five. Are you still interested?'; 'you know how we were talking about ten, but they only have enough for four or five'. Mr Hussaini asks the respondent 'when do you want it' and they go on to discuss which day will suit both of them. The respondent also asks Mr Hussaini 'you're definitely sure that, um, everything is, like, what is like the gear you gave me eh?'.

(b) 7 text messages on 16 May 2015, including a text from the respondent's 133 number to Mr Hussaini's 532 number, asking 'Pls let me know if u can bro', and after Mr Hussaini replies 'Bro I can but the driver doesn't answer his phone', the respondent later replies ' ... penguin street, dianella. Thx bro wen u ready to cum for dinner with me'.

(c) Call (13) CSN 1031 (16:12:44, 16 May 2015); 532 number to 976 number: the respondent asks Mr Hussaini if he received the address. Mr Hussaini replies that he can't drop it off; he doesn't have the driver.

(d) 14 text messages between 10:44:39 and 11:48:33 on 17 May 2015 from the respondent's 133 number to Mr Hussaini's 532 number saying 'Hi bro'.

(e) Call (40) CSN 1214 (14:14:29, 18 May 2015); 532 number to 976 number: the respondent asks Mr Hussaini 'Hey bro. Tell me the good news' and Mr Hussaini replies 'Yeah. He, it's here' and then 'Yes. The food's ready'. Mr Hussaini tells the respondent 'You can come pick it up, but I'm not going anywhere'. They make arrangements for the respondent to come over later.

(f) Text message at 15:13:17 on 18 May 2015 from the respondent's 133 number to Mr Hussaini's 532 number stating 'C u at 5 bro'.

(g) Text message at 15:48:09 on 18 May 2015 from the respondent's 133 number to Mr Hussaini's 532 number stating 'R u home bro. I'm on my way'.

(h) Call (43) CSN 1235 (16:04:36, 18 May 2015); 133 number to 532 number: the respondent tells Mr Hussaini 'Hey bro, [indistinct] I'm about ten minutes away and um---' ... 'I'm sorry, mate, because I'm, I was scared you're not home, man' ... 'Cause I, um, um, ah, my, my friends is with me, do you know what I mean?'.

1. Detective Senior Constable Matthew Dwyer, one of the investigating police officers, gave evidence in relation to his surveillance on 18 May 2015 of Mr Hussaini's house. He saw the gate to Mr Hussaini's premises open and a black Audi car emerge from the premises and drive away. There were three Asian males in the vehicle.
2. On the evening of 18 May 2015, the respondent participated in an electronically recorded interview with police.
3. During the interview the respondent admitted that he was the owner of the 976 mobile telephone and the 133 mobile telephone. He admitted having collected Mr Nguyen and Mr Duong at about 4.00 pm that day. He told police that Mr Nguyen and Mr Duong had asked him to take them to an address he had not been to previously. He also told police that the $2,000 cash in his pocket had been given to him by his wife for the purpose of making a mortgage payment.
4. Later in the interview the respondent admitted that he had gone to Mr Hussaini's house, but claimed that he had remained in the vehicle outside the gates. He also claimed that he had only met Mr Hussaini one or two weeks before 18 May 2015 and they had only met in coffee shops.
5. The State's case included reliance upon two lies told by the respondent. The prosecutor alleged that the lies constituted implied admissions against interest in that they were told out of a consciousness of guilt; in other words, the respondent told the lies because of a realisation of guilt and a fear of the truth. See Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
6. The first lie was that the respondent told police, during the search of his car and, again, during the interview, that he had waited outside Mr Hussaini's premises while Mr Duong went into the premises on his own. However, the respondent admitted in evidence at the trial that what he had told the police was a lie. He had in fact gone into Mr Hussaini's house, but he maintained that he did not enter a room in the house where Mr Hussaini met with Mr Nguyen and Mr Duong.
7. The second lie was that the respondent told police during the interview that he did not know where Mr Hussaini lived. However, the respondent admitted in evidence at the trial that he had been into Mr Hussaini's house.

The elements of the offence created by s 6(1)(a) of the MD Act

1. Section 6(1)(a) of the MD Act provides, relevantly, that a person who, with intent to sell or supply it to another, has in his or her possession a prohibited drug commits a crime. The elements of the crime comprise possession of a prohibited drug with the requisite intention.
2. By s 3(1), in the MD Act, unless the contrary intention appears:

(a) 'to supply' includes 'to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied'; and

(b) 'to possess' includes 'to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb "to possess" have correlative meanings'.

1. At all material times, methylamphetamine was a prohibited drug.
2. Section 11(a) of the MD Act provides, relevantly, that, for the purposes of s 6(1)(a), 'a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug'.
3. The quantity specified in Schedule V in relation to methylamphetamine is 2 g.
4. Once the fact of possession by an accused of at least 2 g of methylamphetamine is proved beyond reasonable doubt or admitted, the State has no other onus to discharge. The purpose of s 11(a), in such a case, is to impose on the accused the onus of establishing on the balance of probabilities that, on the whole of the evidence, he or she did not intend to sell or supply any of the prohibited drug to another. See Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 [4] (Steytler P).
5. In the present case, the quantity of methylamphetamine the subject of the charge exceeded the quantity specified in Schedule V.

1. Section 7 of the Criminal Code (WA) (the Code) specifies four categories of parties to an offence. A person who is within any of the categories is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it.
2. By s 7(a), every person who actually does the act or makes the omission which constitutes the offence is criminally liable.
3. Section 7(b) operates to make a person criminally liable if he or she does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence.
4. Similarly, s 7(c) makes a person criminally liable if the person aids another person in committing the offence.
5. Further, s 7(d) makes a person criminally liable if he or she counsels or procures any other person to commit the offence.
6. Section 7 of the Code applies to the offence created by s 6(1)(a) of the MD Act. See Humphry v The Queen [2003] WASCA 53; (2003) 138 A Crim R 417 [40] - [53] (Malcolm CJ; Anderson & Miller JJ agreeing).

1. The State relies on four grounds of appeal.
2. The grounds, as amended with leave at the hearing of the appeal, read:
   1. The trial judge erred in deciding in substance that [the respondent] had no case to answer, on the charge of possession of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), on the basis of criminal responsibility pursuant to s 7(b) or (c) of the Criminal Code 1913 (WA).

1.1 The trial judge erred in law in concluding that the State case did not allege a pathway to guilt pursuant to s 7(b) or (c) of the Criminal Code 1913 (WA), namely that [the respondent] aided in the commission of the indicted offence.

1. Having erroneously decided in substance that [the respondent] had no case to answer on the basis of criminal responsibility pursuant to s 7(b) or (c) of the Code, and having thereby erroneously confined the State case to criminal responsibility pursuant to s 7(a) of the Code, the trial judge erred in law by failing to apply the proper test in deciding that the evidence did not establish a case to answer, in respect of the indicted offence, on the basis of criminal responsibility pursuant to s 7(a) of the Code, in that his Honour:

(a) failed to take the evidence at its highest in favour of the prosecution in considering whether the evidence was capable of establishing that the element of possession;

(b) failed to draw all reasonable inferences open on the facts in favour of the prosecution; and

(c) erroneously considered the circumstantial evidence from which inferences were to be drawn in a piecemeal manner.

1. The trial judge erred in deciding that there was no case to answer in respect of the indicted offence in that the only conclusion reasonably open on a proper application of the correct legal test was that the evidence established a case to answer in respect of the indicted offence.
2. The trial judge erred in entering a judgment of acquittal in respect of the indicted offence in that the judgment of acquittal was entered on the basis of his Honour's erroneous decisions referred to in grounds 1, 2 and 3 that [the respondent] had no case to answer on the charge.
3. At the hearing of the appeal, I joined in the order granting the State leave to amend its grounds of appeal because the amended grounds distilled more adequately the essence of the case which counsel for the State sought to advance in the appeal and the respondent was not relevantly prejudiced by the amendments. Senior counsel for the respondent acknowledged, frankly, that he could not point to any prejudice and he did not seek an adjournment or the opportunity to file supplementary written submissions (appeal ts 3 - 6).
4. It is convenient to deal first with ground 3.

Ground 3: the prosecutor's opening address at the trial

1. At the trial the prosecutor explained in her opening address the State's case as to the element of possession:

So the State case is that at the point at which the methylamphetamine was put in his car, either by [the respondent] or by someone else, [the respondent] was solely or jointly in possession of part or whole of the methylamphetamine. And because of the quantity of the methylamphetamine, he or someone else intended to sell or supply part of or whole of the methylamphetamine to others.

Or that [the respondent] aided or facilitated one or both of the two others in the car to possess methylamphetamine. And because of the quantity of the methylamphetamine, one or both of the two in the car intended to sell or supply the drugs in part or in whole to others.

...

So in this case if you were to find that [the respondent] was in sole or joint possession of the methylamphetamine in that car, with intent to sell or supply the methylamphetamine in whole or part to another, then he would be the principal. However, a person who either enables or aids another person or persons to commit an offence, or aids another person or persons in committing an offence, like a facilitator, like [the respondent] in this case, is also deemed by law to have taken part in committing the offence and can be charged with committing the offence, just like the principal offender is (ts 81 - 83). (emphasis added)

1. It is apparent from that passage, in the context of the prosecutor's opening address as a whole, that the State's case, as opened, relied on two alternative pathways to guilt, namely:

(a) the respondent had either sole possession or joint possession (with either or both of Mr Nguyen and Mr Duong) of the methylamphetamine; that is, he was a principal offender under s 7(a) of the Code and the quantity of the drug was sufficient to engage the rebuttable presumption under s 11(a) of the MD Act; or

(b) the respondent did an act or acts for the purpose of enabling or aiding another person or persons to commit the offence within s 7(b) of the Code or aided another person or persons in committing the offence within s 7(c) of the Code in that, by his actions, the respondent intentionally enabled or aided either or both of Mr Nguyen and Mr Duong to possess the methylamphetamine and, further, to the respondent's knowledge the intention of the person or persons in possession was to sell or supply the methylamphetamine to others.

Ground 3: defence counsel's objection to the prosecutor's opening address at the trial

1. Defence counsel submitted to the trial judge, immediately after the prosecutor's opening address at the trial, that the State's case, as opened, did not reflect exactly the State's case as outlined in an email sent by the prosecutor to defence counsel (before the commencement of the trial) on 22 February 2017 (ts 84 - 86).
2. The prosecutor responded:

(a) the State was contending that 'as an aider [the respondent] brokered the deal effectively' (ts 87);

(b) the State's case was that 'at the point at which the drugs were placed into the car, [the respondent] was in possession of those drugs either solely or jointly, or he was aiding or facilitating ... or brokering the deal between [Mr Hussaini] and [Mr Nguyen and Mr Duong]' (ts 87); and

(c) the State had put its case 'on the record' through her opening address (ts 88).

1. Defence counsel sought an order from his Honour that the prosecutor give further particulars of the State's case (ts 91).
2. The prosecutor explained the State's alternative case in relation to enabling or aiding:

The content of the evidence I attached [to the email of 22 February 2017], your Honour, was effectively that [the respondent] contacted [Mr Hussaini] in order to locate some drugs for people who were interested in purchasing those drugs. And that [the respondent] put those people in touch with [Mr Hussaini] for them to purchase those drugs. And [Mr Hussaini] said that he wasn't prepared to bring those drugs to those people, so [the respondent] also aided those people by driving those people to [Mr Hussaini's] place to pick the drugs up ... So [the respondent] aided those people by locating the drugs through [Mr Hussaini] in the first place ... He brought clients to [Mr Hussaini] ... He then told those people that the drugs had arrived, or told - he was told by [Mr Hussaini] the drugs had arrived. People were made aware of the fact the drugs had arrived. He drove those people to [Mr Hussaini's] place to pick the drugs up and he drove them away (ts 92).

1. His Honour indicated that he understood and his Honour then made inquiry of defence counsel:

PARRY DCJ: All right. So I understand that.

Mr Rafferty, is that clear to you? Do you need me to - - -

RAFFERTY, MR: It is now. It will be the subject of certain matters later in the trial.

PARRY DCJ: All right. Well, that may be the case. But is it - but getting back to your concern to know the case you have to meet, is that clear enough to you?

RAFFERTY, MR: It is, sir (ts 93).

Ground 3: the State's election as between two distinct offences for the purposes of its alternative case of enabling or aiding

1. The evidence adduced in the State's case at trial was capable of giving rise to, relevantly, two distinct offences which, on the State's case, the respondent did an act or acts for the purpose of enabling or aiding another person or persons to commit the offence (s 7(b) of the Code) or the respondent aided another person or persons in committing the offence (s 7(c) of the Code), namely:

(a) an offence against s 6(1)(c) of the MD Act allegedly committed by Mr Hussaini, namely Mr Hussaini supplying the methylamphetamine to either or both of Mr Nguyen and Mr Duong; and

(b) an offence against s 6(1)(a) of the MD Act allegedly committed by either or both Mr Nguyen and Mr Duong, namely possessing the methylamphetamine with intent to sell or supply.

1. At the trial the State elected to proceed on the latter basis.

Ground 3: the respondent's evidence-in-chief

1. It is plain from the respondent's evidence-in-chief at the trial that both defence counsel and the respondent understood the State's case to be precisely as expressed by the prosecutor in her opening address and as confirmed by her in the exchange between the trial judge, the prosecutor and defence counsel immediately after her closing address.
2. The relevant passage from the respondent's examination-in-chief reads:

[The respondent], you understand that the prosecution are saying that you were solely ... in possession of those drugs found on 18 May 2015? You understand that's part of the State's case?--- Yes.

What do you say to that, [the respondent]?---That's very wrong.

Do you also understand that the State says that you were jointly in possession with either Mr Nguyen, Mr Duong or both of them? Do you understand that's part of the State's case as well?---Yes.

What do you say to that?---That is totally wrong.

And you also understand that the State's case is that you were aiding either Mr Duong or Mr Nguyen or both of them in relation to their possession of the methylamphetamine found on 18 May 2015? You understand that's part of the State's case?---Yes.

What do you say in relation to that?---That is totally wrong.

[The respondent], did you know anything about the methylamphetamine that was found in the back - or the rear of your vehicle, where Mr Duong's feet would have been, on the - on the afternoon of 18 May 2015?---No.

Did you facilitate the possession of that in any way?---No (ts 282 - 283).

Ground 3: the respondent's cross-examination

1. The respondent was cross-examined at the trial, relevantly, as follows:

[The respondent], I suggest to you that the reason why you lied about not going into [Mr Hussaini's] property was because you knew that it would implicate you in what you had been doing which was arranging the sale of drugs?---No, I'm sorry. I lie about not going in because we just left his house and only like five, seven minutes later on the police stop us so in my head I knew, 'Gosh, we just left this house and they're selling drug in the car' I tried to distance myself from him as much as possible, that's all.

And I suggest to you the reason you were trying to distance yourself from [Mr Hussaini], [the respondent], was because you had been engaged in ... arranging for the supply of drugs from [Mr Hussaini] to your friends. You'd taken them there?---No.

And you knew that it was drugs ... that was going to be supplied to them?---No, if I knew it was drug, no chance of that in the car.

And you knew it was in the car?---I did not know it was in the car ...

And in actual fact you ... weren't only arranging for them to obtain drugs for sale but it was for supply to others, wasn't it?---No, ma'am.

And you knew that, didn't you?---No, ma'am.

You were really assisting them, putting them together with [Mr Hussaini] because you knew he had the goods and that they would be able to get the goods, that is the drugs, from him?---No.

...

You ... arranged with [Mr Hussaini] to get some drugs?---It was for a loan. I don't do drugs.

And you arranged with [Mr Nguyen] and his friend [Mr Duong] to put them in contact with [Mr Hussaini] to get drugs?---It was for a loan as far as I'm aware of.

And ... you knew from the quantity of drugs, [the respondent], that it was a significant amount of drugs?---Please don't assume that I know. I did not know.

In actual fact I think you said to police twice when you saw the packet, 'I won't be going home tonight'?---No.

...

I suggest to you, [the respondent], that the reason why [Nguyen] and Duong were going to withdraw money from the ATM was that was your payment from them for assisting them to get drugs?---No.

That was your percentage?---No.

And the reason you had the Samsung phone was certainly to call maybe your girlfriend overseas but you also used it as a drug phone?---No, because my wife ... had that phone number.

...

And the cash on your person was as a result of drug transactions, [the respondent]?---I'm sorry, that money was given to me by my wife and it's on record and the police could have checked it.

I suggest to you, [the respondent], that you knew the drugs were in the car?---No.

And you had some control over those drugs because you were driving the car?---No.

...

And you knew that Duong had the drugs in the back, didn't you?---Of course not. If I knew I wouldn't let them in the car (ts 328 - 330). (emphasis added)

Ground 3: defence counsel's application for an order that the State's case be confined to criminal responsibility under s 7(a) of the Code

1. After the respondent closed his case and before the commencement of closing addresses, defence counsel made an application for an order that the State's case be confined to criminal responsibility under s 7(a) of the Code; that is, the State's case should not be left to the jury on the alternative basis that the respondent did an act or acts for the purpose of enabling or aiding another person or persons to commit the offence, within s 7(b) of the Code, or aided another person or persons in committing the offence, within s 7(c) of the Code.
2. Defence counsel submitted:

[T]he State has run its case in relation to aiding as a supply case, not a possession case.

Based on the evidence that's been adduced in the trial it should not be left as an aiding and your Honour should simply direct the jury that they could only convict on the basis that [the respondent] was either in sole possession or joint possession (ts 348 - 349).

1. The following exchange occurred between the trial judge and the prosecutor in the context of the prosecutor having explained to his Honour that her use of the word 'supply', in putting to the respondent in cross-examination that he 'had been engaged in ... arranging for the supply of drugs from [Mr Hussaini to Mr Nguyen and Mr Duong]' (ts 328), was 'a slip of the tongue' (ts 350):

PARRY DCJ: ... So the State case is that at the point at which the methylamphetamine was put in the car either by [the respondent] or by someone else, [the respondent] was solely or jointly in possession of part or whole of the methylamphetamine.

And because the quantity of the methylamphetamine [the respondent] or someone else intended to sell or supply part of or whole of the methylamphetamine to others or that [the respondent] aided or facilitated one or both of the two others in the car to possess methylamphetamine.

And because of the quantity of methylamphetamine one or both of the two in the car intended to sell or supply the drug in part or in whole to others.

ANDRETICH, MS: That was the basis that I always put the State case ... As I said, the word, 'Supply' was a slip of the tongue. I've never perceived the case to be anything but that he aided or assisted the two in the car or to be in possession of those drugs once they left the premises and that's the way that I had perceived it.

PARRY DCJ: All right.

ANDRETICH, MS: But if your Honour's minded to rule against the State I would like some time to consider that overnight, your Honour (ts 350 - 351).

1. His Honour adjourned the hearing of defence counsel's application to the following day to enable the prosecutor to give further consideration to the matters raised by defence counsel and his Honour.
2. The next day the prosecutor put the State's submissions in relation to defence counsel's application as follows:

The State opened its case on the fact that it was a possession, in sole possession, jointly, or alternately, [the respondent] was aiding others ...

The State case is, and has always been, that [the respondent] was aiding possession, aiding the others to possess the drugs, not supply ...

In this case the State has chosen the offence of possession with intent to sell or supply. Now, it may very well have been that the State may have chosen to indict on aiding with intent to supply but it didn't ...

[T]he support that [the respondent] gave to the two in the car was setting up the deal with [Mr Hussaini] to start with, ensuring that the gear was the same quality as previous, checking constantly and ringing him to ascertain when the drugs were there, and then driving the two in the car to [Mr Hussaini's] residence and driving away.

And that's why I say the circumstances of the offence will be relevant and it's the factual matrix, your Honour, which allows the jury to assess the role of someone who is alleged to have aided to commit the offence. And they need to do that in order to determine what, if any, part was played by [the respondent].

...

And that's the position the State is taking; that those events that preceded [the respondent] driving the two away in the car are events that the jury can have regard to to determine whether there was some deliberate or positive involvement; in other words, his knowledge, also if not active and in this case physical involvement as well as to whether the offence of aiding is made out.

...

Unless the jury has regard to the whole factual matrix, not part of it in a vacuum, then the jury is not in a position to properly assess [the respondent's] role in aiding the other two in the car, and the jury would be left with a contrived set of facts that they can rely on.

...

And finally, that the jury needs to consider the whole factual matrix in order to assess [the respondent's] role as an aider, not be confined to considering the act of him driving from [Mr Hussaini's] house to when he was apprehended by police. And to limit the jury's reliance on that confined basis would be to force the jury to consider his actions or his role narrowly and in a vacuum ...

[T]here may or may not have been the use of the word 'supply' by me in cross examination. But the State's case [is] and has always been ... that he was an aider to the others to possess the methylamphetamine with intent to sell or supply ...

PARRY DCJ: [If] you're aiding the supply, then you're aiding the supply by [Mr Hussaini] to the other two.

ANDRETICH, MS: Yes.

PARRY DCJ: That's it. Whereas if you're aiding the possession, you're aiding the possession by the other two after supply has been completed.

ANDRETICH, MS: Yes. What the State is saying, your Honour, is that those precursor facts and the content - if the jury accepts what the State says those intercepted calls say ... then they are matters that the jury can take into account in assessing [the respondent's] knowledge and also in assessing [the respondent's] role as an aider (ts 367 - 376). (emphasis added)

1. Defence counsel said in his submissions in reply:

I maintain, sir, that the State case ought not be left to the jury on the basis of aiding and it can properly be left in relation to the question of sole or joint possession because I'm not making a no case submission. It is almost tantamount to it, but we're dealing specifically with criminal responsibility and not whether there's a case to answer. And I concede there's a prima facie case in relation to the first two limbs of the State's case (ts 378). (emphasis added)

1. Defence counsel's concession in that passage related to the State's contention that the respondent was criminally responsible under s 7(a) of the Code because he had either sole possession or joint possession (with either or both of Mr Nguyen and Mr Duong) of the methylamphetamine.

Ground 3: the trial judge's ruling on defence counsel's application for an order that the State's case be confined to criminal responsibility under s 7(a) of the Code

1. The trial judge accepted defence counsel's submissions in support of his application and ruled that the State's case should not be left to the jury on the alternative basis of enabling or aiding pursuant to s 7(b) of the Code or aiding pursuant to s 7(c) of the Code. His Honour said:

I accept the defence submission, that criminal responsibility by aiding should not be left to the jury in the circumstances of this case, for the following reasons ... the way that criminal responsibility by aiding was foreshadowed and particularised to the defence in an exchange of emails prior to the trial, and particularly on 22 February 2017, and also the way in which it was addressed in cross-examination of [the respondent], is premised on the offence charged, being supply, sell or supply or offering to sell or supply, a prohibited drug to another, under section 6(1)(c) of the Misuse of Drugs Act, rather than the offence of possession of a prohibited drug with intent to sell or supply it to another, under section 6(1)(a) of the Misuse of Drugs Act.

...

In this case counsel for the State opened ... to the court the way in which the State would put aiding in the terms that I've referred to from the opening, which was in terms of possession. However, when one looks at the substance of the manner in which it is, and was, said in opening and to the court, that ... the facilitation was provided by [the respondent], it is clear to me that in substance it relates to a different offence, that is the offence of selling or supplying of a prohibited drug.

As I said, the way the case is foreshadowed and put, in terms of the acts said to constitute actually aiding or assisting the commission of the offence, in substance facilitating or brokering the drug deal, that is facilitating or brokering the sale of drugs by Mr [Hussaini] to one or both of the other men in the car, that is a different offence to the offence with which [the respondent] has been charged (ts 382 - 383).

Ground 3: defence counsel's submission that the respondent had no case to answer

1. Immediately after the trial judge ruled that the State's case should be confined to criminal responsibility under s 7(a) of the Code, defence counsel submitted to his Honour that the respondent had no case to answer on the charge.
2. Defence counsel made that submission despite his earlier concession (in the course of arguing his application for an order that the State's case should be confined to criminal responsibility under s 7(a) of the Code) that there was 'a prima facie case in relation to the first two limbs of the State's case' (ts 378); that is, a prima facie case in relation to the State's contention that the respondent was criminally responsible under s 7(a) of the Code because he had either sole possession or joint possession (with either or both of Mr Nguyen and Mr Duong) of the methylamphetamine.
3. Defence counsel did not actually withdraw his earlier concession, but claimed that his Honour's ruling that the State's case should be confined to criminal responsibility under s 7(a) 'has now had a significant impact on this particular decision' (ts 389).
4. According to defence counsel, there was 'no evidence capable of establishing an intention on [the respondent's] part ... [t]o exercise control or dominion' over the methylamphetamine and 'no evidence capable of supporting an inference' that the respondent intended to exercise control or dominion over the drug (ts 392).
5. The prosecutor opposed defence counsel's submission that the respondent had no case to answer.

Ground 3: the trial judge's ruling on defence counsel's submission that the respondent had no case to answer

1. The trial judge was satisfied, for the following reasons, that the respondent had no case to answer on the charge:

The most significant aspect of the evidence ... is telephone and text intercepts of the two phone numbers of [the respondent] ... There were, in total, 43 intercepts, mostly text messages, and including 10 telephone calls between two telephone numbers of [the respondent] and the telephone of [Mr Hussaini] who, on the State's case, supplied the methylamphetamine the subject of the charge.

The second part of the evidence relied on by the State is the location of the drugs in [the respondent's] car. As I say, those drugs were located in the rear of that car near to where the feet of Mr Duong would have been. There is no DNA or fingerprint evidence in relation to the drugs found in the car.

The third aspect of the evidence relied on by the State is a finding of $2,000 in Australian currency in $100 notes in [the respondent's] front pocket.

Fourthly, there are two lies, accepted by the defence to be lies, that [the respondent] told to police ...

I will address the Edwards lies shortly. In my view, a reasonable inference of guilt cannot be drawn by the jury because there is a defect in the evidence preventing the drawing of a reasonable inference of guilt to the criminal standard of proof.

The defect in the evidence is that the telephone and text intercepts, the cash in [the respondent's] pocket, and the location of the drugs at or near where the feet of Mr Duong would have been when they were travelling in the vehicle taken individually and collectively is incapable of satisfying a jury beyond reasonable doubt that [the respondent] possessed the methylamphetamine.

This is because the evidence individually and taken collectively, and drawing all reasonable inferences in favour of the State and against [the respondent] is incapable of satisfying a jury beyond reasonable doubt that [the respondent] had intent to possess the drug.

Even drawing all reasonable inferences ... on the facts on which there is evidence adverse to [the respondent] and in favour of the State, in my view there is a defect in the evidence. Drawing all reasonable inferences, the jury could not be satisfied beyond reasonable doubt on the evidence that [the respondent] had an intent to possess the drug.

...

The lies, in my view, are incapable on their own, and even taken together with the rest of the evidence, of satisfying the jury beyond reasonable doubt in relation to the element of possession, and in particular in relation to the element of intent to possess the prohibited drugs.

There is, in this case, in my view, a defect in the evidence preventing the drawing of a reasonable inference of guilt to the criminal standard (ts 405 - 407).

1. Senior counsel for the respondent conceded at the hearing of the appeal that ground 3 had been made out (appeal ts 37).
2. Senior counsel relied on 'the proviso' in s 33(2a) of the Criminal Appeals Act in relation to ground 3 despite acknowledging, frankly, that 'it would be a very rare case in which the proviso would be applied in a prosecution appeal against a judgment of acquittal following a no case to answer submission' (appeal ts 38).
3. It was argued that no substantial miscarriage of justice has occurred, within s 33(2a), because 'the prosecution essentially contributed to the outcome here' (appeal ts 38). Senior counsel elaborated:

(a) at the trial 'the prosecution case probably was expressly limited to the proposition, in relation to aiding at least, that the aiding occurred after the drugs were placed in the car' (appeal ts 39); and

(b) the prosecutor at the trial perceived the State's case to be that 'the aiding commenced once [the respondent, Mr Nguyen and Mr Duong] had left [Mr Hussaini's] premises and were in the car' (appeal ts 39).

1. Senior counsel asserted that 'the proviso' in s 33(2a) was engaged because 'the lack of clarity' in the State's case at the trial 'has contributed to the outcome of this case ... [t]hat is, a no case to answer submission that was successful' (appeal ts 41). According to senior counsel, s 33(2a) embodies 'some concept of fairness' in relation to the accused (appeal ts 41 - 42).

1. The test to be applied by a trial judge in determining a submission of no case to answer at the close of the prosecution case has been considered and discussed in numerous authorities.
2. The question is not whether, on the evidence as it stands, the accused ought to be convicted, but whether, on the evidence as it stands, he or she could lawfully be convicted.
3. Where a submission of no case to answer is made in a criminal prosecution which depends upon circumstantial evidence, the trial judge should rule on the submission on the basis of such inferences as are reasonably open on the evidence and as are most favourable to the prosecution. The trial judge should not choose between such inferences. He or she is concerned only with whether a reasonable tribunal of fact, properly instructed, could conclude beyond reasonable doubt that the accused is guilty or, to put it another way, could exclude all hypotheses consistent with innocence as not reasonably open on the evidence. See The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124 [19] (Buss JA; Martin CJ & Mazza J agreeing).
4. Where the prosecution case relies on circumstantial evidence, the circumstantial evidence must not be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] (Gummow, Hayne & Crennan JJ).
5. In my opinion, senior counsel for the respondent's concession at the hearing of the appeal that ground 3 had been made out was properly made.
6. I am satisfied, on my examination of the trial record, that as a matter of law:

(a) if the evidence at the trial relied on by the State is taken at its highest and is accepted as being accurate and reliable;

(b) if all inferences as are reasonably open on the evidence and as are most favourable to the State are drawn; and

(c) if the circumstantial evidence relied on by the State is evaluated in its entirety and not considered on a piecemeal basis,

the respondent could lawfully be convicted of the charge in the indictment.

1. The respondent has a case to answer in relation to each of the following pathways to guilt. First, the respondent had either sole possession or joint possession (with either or both of Mr Nguyen and Mr Duong) of the methylamphetamine; that is, he was a principal offender under s 7(a) of the Code. Secondly, and alternatively, the respondent did an act or acts for the purpose of enabling or aiding another person or persons (either or both of Mr Nguyen and Mr Duong) to commit the offence within s 7(b) of the Code or aided another person or persons (either or both of Mr Nguyen and Mr Duong) in committing the offence within s 7(c) of the Code.
2. The act or acts which the State may rely on for the purposes of s 7(b) and s 7(c) include relevant acts of the respondent done before the methylamphetamine was placed in the respondent's car; for example, the respondent's acts in communicating with Mr Hussaini in the telephone calls and the text messages with the object of (on the State's case) facilitating the drug transaction between Mr Hussaini, Mr Nguyen and Mr Duong and, also, the respondent's acts in connection with taking Mr Nguyen and Mr Duong to Mr Hussaini's house and (on the State's case) otherwise facilitating the drug transaction between them.
3. The conclusions I have expressed in relation to the merits of ground 3 are sufficient for present purposes. The decision of this court to allow the appeal and order a new trial makes it inappropriate to undertake an evaluation of the strengths or weaknesses of the State's case as a whole or any aspect of it.
4. By s 33(1) of the Criminal Appeals Act, s 33 applies in the case of an appeal by a prosecutor against any decision referred to in s 24(2) in relation to an indictable charge.
5. Section 33(2) provides that on the appeal this court:

(a) may affirm, vary or set aside the decision and any judgment entered or order made as a result of the decision; and

(b) may enter any judgment, make any order, exercise any power (including a power to amend the charge), and direct any step to be taken, which should have been given, made, exercised or taken in the first instance; and

(c) if it sets aside a decision, may order a trial or a new trial, as the case requires.

1. By s 33(2a), even if a ground of appeal might be decided in favour of the prosecutor, this court may dismiss the appeal 'if it considers that no substantial miscarriage of justice has occurred'.
2. State appeals to this court under s 24(2)(e)(i) of the Criminal Appeals Act are rare. The only prior appeals under that provision have been The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155, Burke and R v Mansfield [2011] WASCA 132; (2011) 251 FLR 286 (on appeal: Mansfield v The Queen [2012] HCA 49; (2012) 247 CLR 86). In each of those cases this court allowed the appeal, set aside the judgment of acquittal and ordered that there be a new trial of the respondent or respondents. In Mansfield, the High Court dismissed the respondents' appeal against this court's decision.
3. In Montani there was no discussion of s 33(2a). Presumably, the respondent did not argue that the appeal should be dismissed because no substantial miscarriage of justice had occurred.
4. In Burke, the court noted:

(a) s 33(2a) was inserted into the Criminal Appeals Act by the Criminal Law and Evidence Amendment Act 2008 (WA); and

(b) it appeared that s 33(2a) was enacted to give effect to recommendation 349 in the final report of the Law Reform Commission of Western Australia's Review of the Criminal and Civil Justice System in Western Australia, Project 92, September 1999 [338].

1. The court was not persuaded in Burke that no substantial miscarriage of justice had occurred as a result of the primary judge's erroneous decision that none of the respondents had a case to answer [339].
2. In Mansfield there was no discussion of s 33(2a). The respondents did not argue that the appeal should be dismissed because no substantial miscarriage of justice had occurred.
3. The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1 was a State appeal, pursuant to s 24(2)(e)(ii) of the Criminal Appeals Act, against a judgment of acquittal entered after a trial before a judge alone. This court (Weinberg, Whealy & Buddin AJJA) referred to s 33(2a) and observed:

(a) on the authority of Burke [341], '[i]t appears clear, at least, that [s 33(2a)] cannot be invoked where the effect of the error at trial was that the State has not had a trial according to law'; and

(b) '[t]o some extent, the meaning of s 33(2a) might be worked out by analogy with the "common form" proviso, applicable in appeals against conviction, which appears in s 30(4) of the Criminal Appeals Act' [590].

1. It is unnecessary, in the present case, to endeavour to state exhaustively the manner in which 'the proviso' in s 33(2a) is to be construed and applied or how its operation is similar to or different from the operation of 'the proviso' in s 30(4) of the Criminal Appeals Act. For example, it is unnecessary, in the present case, to express a view as to the burden and standard of proof under s 33(2a).
2. It is sufficient, for present purposes, to enunciate the following general propositions in relation to s 33(2a). First, this court must determine whether to apply 'the proviso' on the basis of the statutory language and not on the basis of other formulated rules or tests or by reference to secondary sources or materials. Secondly, this court must itself decide whether a substantial miscarriage of justice has occurred. Thirdly, this task is objective in character and, subject to this court's powers under s 40 of the Criminal Appeals Act, is to be undertaken by reference to the trial record. Fourthly, no single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be articulated. Compare the observations of Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [31] - [33], [35], [39] - [46] in the context of s 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(4) of the Criminal Appeals Act).
3. Section 33(2)(c) provides, in effect, that if this court sets aside a decision referred to in s 24(2) this court 'may order a trial or a new trial, as the case requires' (emphasis added). Compare s 30(5) of the Criminal Appeals Act which applies where this court allows an appeal against conviction.
4. Logically, where both s 33(2)(c) and s 33(2a) are relevant in an appeal, s 33(2a) arises for consideration before s 33(2)(c). That is, logically, consideration must be given to whether no substantial miscarriage of justice has occurred, within s 33(2a), before deciding (if necessary) whether to order a trial or a new trial pursuant to s 33(2)(c).
5. Any circumstances that might render it unjust to make a respondent stand trial again would, at least ordinarily, be relevant to the exercise of the court's discretionary power in s 33(2)(c) to order a trial or a new trial rather than in the context of deciding whether no substantial miscarriage of justice has occurred within s 33(2a). However, I will assume (favourably to the respondent in this appeal), but without deciding, that any unfairness suffered by a respondent at his or her trial may, depending on the facts and circumstances of the particular case, be a relevant factor in considering whether no substantial miscarriage of justice has occurred within s 33(2a).
6. In the present case, I would not dismiss the appeal under s 33(2a). I do not consider that no substantial miscarriage of justice has occurred. My reasons are as follows.
7. First, the only basis on which the respondent contends that the appeal should be dismissed under s 33(2a) is because there was a 'lack of clarity' in the State's case at trial, the lack of clarity 'contributed to' the success of the no case to answer submission and, in those circumstances, it would be 'unfair' to set aside the trial judge's decision, allow the appeal and order a new trial. My review of the trial record does not reveal any other basis on which 'the proviso' might arguably be engaged.
8. Secondly, it is true that, on occasions, the State's case could have been put better at the trial. For example, there is a passage in the trial transcript where the prosecutor appears, arguably, to have limited the scope of the State's alternative case under s 7(b) and s 7(c) of the Code by relying on acts of the respondent occurring after the methylamphetamine was placed in the car and, by implication, excluding the acts of the respondent which occurred before that time (ts 87). However, I am satisfied, on a fair reading of the trial transcript as a whole, that the prosecutor did not, in fact, limit the State's alternative case under s 7(b) or s 7(c). See, in particular, the prosecutor's opening address (ts 81 - 83) and her argument on defence counsel's application for an order that the State's case be confined to criminal responsibility under s 7(a) of the Code (ts 367 - 376).
9. Thirdly, defence counsel is a competent and experienced criminal lawyer. He has significant experience as a prosecutor and a defence lawyer. I have no doubt, on my review of the trial record, that defence counsel was acquainted fully with all of the legal and factual issues raised by the charge and the State's brief.
10. Fourthly, both the application for an order that the State's case be confined to criminal responsibility under s 7(a) and the no case to answer submission succeeded at the trial because of defence counsel's forensic tactics and his Honour's errors.
11. A competent and experienced criminal lawyer would not reasonably have anticipated that either the application or the no case to answer submission would succeed.
12. Fifthly, defence counsel's application for an order that the State's case be confined to criminal responsibility under s 7(a) was without merit.
13. It was to the respondent's significant advantage that his Honour ruled, erroneously, that the State's alternative case under s 7(b) and s 7(c) should not be left to the jury.
14. Sixthly, as I have mentioned, during the hearing of his application for an order that the State's case be confined to criminal responsibility under s 7(a), defence counsel conceded that there was a prima facie case in relation to the State's contention that the respondent was criminally responsible under s 7(a) because he had either sole possession or joint possession (with either or both of Mr Nguyen and Mr Duong) of the methylamphetamine.
15. However, as I have mentioned, immediately after his Honour's ruling on defence counsel's application for an order that the State's case be confined to criminal responsibility under s 7(a), defence counsel submitted to his Honour that the respondent had no case to answer on the charge. Defence counsel made that submission despite his earlier concession that there was a prima facie case in relation to the State's contention that the respondent was criminally responsible under s 7(a). Defence counsel did not withdraw his earlier concession, but claimed that his Honour's ruling that the State's case should be confined to criminal responsibility under s 7(a) 'has now had a significant impact on this particular decision' (ts 389). That claim was without merit. His Honour's ruling did not (even arguably) have any impact on the evidence adduced at the trial in relation to the State's contention as to sole possession or joint possession of the methylamphetamine.

1. Seventhly, defence counsel's no case to answer submission was without merit.
2. I have no doubt that, on an objective appraisal of the trial record, defence counsel made a strategic decision to make the no case to answer submission. Defence counsel would, no doubt, have been emboldened by his success in persuading his Honour to rule that the State's alternative case under s 7(b) and s 7(c) should not be left to the jury.
3. Eighthly, in any event, any 'lack of clarity' in the State's case at trial did not materially 'contribute to' the success of the no case to answer submission. Also, nothing said nor done by the prosecutor had a material adverse impact on the fairness of the respondent's trial. See, for example, defence counsel's questions and the respondent's answers in the respondent's evidence-in-chief which properly dealt with the legal and factual issues raised by the charge and the State's brief. It would not be 'unfair' to set aside his Honour's decision, allow the appeal and order a new trial.
4. Finally, in relation to the exercise of this court's discretionary power under s 33(2)(c) to order a new trial, the public interest in the proper administration of justice requires that the respondent stand trial again. It is not unjust to the respondent to make that order.

1. It is unnecessary, in the circumstances, to consider the merits of grounds 1, 2 and 4.
2. MAZZA JA: I agree with Buss P.
3. HALL J: I agree with Buss P.

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