Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appeal against sentence - Possession of 4.981kg methylamphetamine with intent to sell or supply - Verdict unreasonable or not supported by the evidence - Edwards direction - Expert opinion evidence - Inadmissible evidence - Proviso

Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(4)

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)

Leave to appeal granted with respect to grounds 1, 3, 4, 5, 6 and 7

Anderson v The Queen (1992) 60 SASR 90

Cooper v The Queen [2012] HCA 60; (2012) 87 ALJR 32

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1

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

HG v The Queen [1999] HCA 2; (1999) 197 CLR 414

Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439

JRNT v The State of Western Australia [2011] WASCA 183

LBC v The State of Western Australia [2011] WASCA 201

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Marinovich v R (1990) 46 A Crim R 282

Oblak v The State of Western Australia [2007] WASCA 176

Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234

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

R v Nguyen [2010] HCA 38; (2010) 242 CLR 491

R v Renzella [1997] 2 VR 88

R v Soma [2003] HCA 13; (2003) 212 CLR 299

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

United States v Avila 557 F.3d 807 (7th Cir 2009)

United States v de Soto [1989] USCA7 865; 885 F.2d 354 (7th Cir 1989)

United States v Foster [1991] USCA7 668; 939 F.2d 445 (7th Cir 1991)

United States v Hankey [2000] USCA9 91; 203 F.3d 1160 (9th Cir 2000)

United States v Locascio [1993] USCA2 1010; 6 F.3d 924 (2nd Cir 1993)

United States v Winbush 580 F.3d 503 (7th Cir 2009)

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

Zeiler v The State of Western Australia [2010] WASCA 227

Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

1 MARTIN CJ: The appeal against conviction should be allowed, and a retrial ordered, for the reasons given by Justice Mazza, with which I agree. In those circumstances, it is neither necessary nor appropriate to determine the appeal against sentence.

2 BUSS JA: Subject to my observations in relation to ground 1, I agree with Mazza JA, for the reasons he gives, that in relation to the appeal against conviction:

(a) Leave to appeal should be granted on grounds 1 and 3 - 7.

(c) The judgment of conviction and the accompanying sentence should be set aside.

3 I also agree with Mazza JA that, in the circumstances, it is unnecessary to decide the appeal against sentence. That appeal should be dismissed.

4 By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

5 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.

6 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)

See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

7 It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

8 However, this court, in assessing whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].

9 In the present case, Mazza JA has summarised material aspects of the evidence adduced at trial. It is unnecessary to reproduce his Honour's summary.

10 The merits of ground 1 must be determined without regard to the evidence which this court has held should not have been admitted at trial. In particular, the inadmissible opinion evidence given by Detective Shanahan and the inadmissible evidence in relation to the previous consignments must be disregarded. Also, this court must take into account that the appellant's alleged lie as to his place of residence was not an implied admission against interest. Further, there is a real (as distinct from a fanciful) risk that the jury's verdict of guilty may have been affected or influenced by the inadmissible evidence and the trial judge's erroneous direction about the alleged lie in question.

11 I am satisfied, after examining those parts of the trial record to which this court may properly have regard (including listening, through speakers, to the conversations and sounds recorded with the listening device), that it would be open to a tribunal of fact to reject the appellant's defence and be satisfied beyond reasonable doubt as to his guilt. A tribunal of fact, acting reasonably, would not be precluded by the state of the admissible evidence from being satisfied beyond reasonable doubt that the appellant attempted to possess the 4.981 kg of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Misuse of Drugs Act 1981 (WA). The admissible evidence does not require the conclusion that a tribunal of fact must necessarily entertain a doubt about the appellant's guilt. A verdict of guilty based on the evidence to which this court may properly have regard would not be unreasonable. It would be supported by evidence that the tribunal of fact would be entitled to accept.

12 MAZZA JA: The appellant was charged and convicted in the District Court of one count of attempting to possess almost 5 kg of methylamphetamine with intent to sell or supply to another, contrary to s 6(1)(a) and s 33(1) of the Misuse of Drugs Act 1981 (WA). He was sentenced to 16 years' imprisonment with eligibility for parole. He now appeals to this court against both his conviction and sentence.

13 I would allow the appeal against conviction and order a retrial. In these circumstances it is unnecessary to decide the appeal against sentence.

14 My reasons for arriving at these conclusions are as follows.

15 The State's case was that on 12 November 2010, a box was delivered to a freight company in Sydney, with instructions that it be sent

to the company's office in Kewdale, Western Australia. The New South Wales police were alerted and took possession of the box. Inside it, they discovered two tool cases which contained 10 bags of methylamphetamine, weighing in total 4.981 kg and being 84% pure. The police seized the methylamphetamine. The box was then brought to Western Australia by a New South Wales detective, and its contents were replaced with rock salt.

16 At 3.50 pm on 15 November 2010, Matthew Lothian went to the freight company's office in Kewdale to collect the box. His movements were subject to covert police surveillance. He was told by the freight company employee to come back the following day. Mr Lothian left those premises at 3.53 pm: ts 69 - 70.

17 On 16 November 2010, Matthew Lothian left his house at 43A Falstaff Crescent, Spearwood, and drove towards Kewdale. His car ran out of petrol. He took a taxi to the freight company and took delivery of the box. The taxi then drove him to a petrol station. There, Mr Lothian purchased a jerry can of petrol. He was then driven to his car. He removed the box from the taxi and put it in his car. After putting the petrol in his car, he drove home. He returned to his house at about 3.09 pm and was seen by police to carry the box inside at 3.16 pm.

18 The appellant arrived at Mr Lothian's house by bicycle at approximately 3.20 pm.

19 The police had planted a listening device inside the box. The audio recorded by that device was tendered at trial. It is undoubtedly of poor quality. There is a discrepancy in the times recorded on the listening device and the times recorded by the surveillance officers. I have used the times recorded by the surveillance officers.

20 The State's case was that the listening device product revealed that after the appellant's arrival, the box was opened, locks were cut off the tool cases and the bags of salt were removed. The State alleged that while this was happening, Mr Lothian and the appellant were engaged in conversation, although much of it is indistinct. At one point, Mr Lothian's girlfriend, Venetia Tilbrook, is heard to leave the house. A surveillance operative testified that at 3.36 pm Mr Lothian left the house and went to his car, opened and closed the passenger door and went back inside. At 3.38 pm, Ms Tilbrook was seen to leave the premises (ts 70). A short time later, the appellant is heard to ask for a pipe. The State alleged that this was so he could sample what was thought to be methylamphetamine. It was alleged that approximately 4 minutes later, the appellant said to Mr Lothian, 'Don't move. I'll come back.'

21 At about 3.57 pm, the appellant left Mr Lothian's house on a bicycle and rode into a park opposite the property. A surveillance operative saw him appear to make a telephone call (ts 104). The police pursued the appellant, who, it was said, took flight. He was pursued by police in an unmarked vehicle with one of the officers, Detective Sergeant Ferrie, yelling out, 'Police. Stop.' According to police, the appellant fell from his bicycle and ran off, but he was swiftly apprehended (ts 138 - 139). The State relied upon this as evidence of consciousness of guilt.

22 Meanwhile, at 4 pm, police entered Mr Lothian's house. He was the only person at home. The opened box was found in the lounge area. There was a baking dish on the stove in the nearby kitchen area that contained the contents of one of the 10 bags of rock salt. Its packaging was in the kitchen sink. The other nine bags were in the kitchen cupboards. Among the items found on the kitchen bench were two pairs of plastic disposable gloves, several sets of digital scales and a lighter. A substance commonly used to cut methylamphetamine, MSM, was found in a box that was being used as a rubbish bin, as were some empty unused clipseal bags. Various quantities of methylamphetamine totalling 85.3 g were found in the house, including 8.25 g of 64% pure methylamphetamine located in what was described as the tool room. A third pair of gloves was found on a table in the hallway.

23 A DNA profile consistent with the appellant's was found on the inside of one of the gloves on the kitchen bench (ts 240 - 241). DNA consistent with Mr Lothian was found on the inside of the second pair of gloves in the kitchen and on one of the gloves found in the hallway (ts 242).

24 Upon his arrest, the appellant told police that he lived at an address in Terrace Road, East Perth. Although the appellant had been staying at that address, his usual place of residence was at 71 Kintail Road, Applecross. The East Perth premises were searched by police on 17 November 2010, but nothing of relevance was discovered.

25 On 18 November 2010, the police executed a search warrant at the Applecross premises and seized some mobile phones and a Blackberry charger. No Blackberry telephone was found. One of the telephones seized belonged to Peter Tassone, a friend of the appellant. The police located travel documents that showed that the appellant had returned to Perth from Sydney on 13 November 2010, the day after the package was left with the freight company. Mr Lothian, too, had recently travelled to Sydney. Records revealed that he flew to Sydney on 11 November 2010, but it was not known when he returned to Perth. Certainly, he had returned by 15 November 2010.

26 In the course of their investigation, police also seized a phone from Ms Tilbrook, which, it was said, Mr Lothian used from time to time. It had received three calls from the telephone number that was written on the consignment note that accompanied the box from Sydney.

27 Inquiries showed that between 13 August 2010 and 19 October 2010, there had been five consignments from Sydney to Western Australia using the same freight company. The prosecution submitted that these consignments were linked to the consignment containing the methylamphetamine. The five consignments were all linked to each other by the use of the name Adam Jones as the sender. The State alleged that the appellant was in Sydney in close proximity to the consignment of each of these packages, one of which, the fifth, was said to have contained what was thought to be cannabis.

28 The second consignment note had written on it the name 'Jim' and the mobile telephone number 0417***888. It was alleged that this number belonged to a man named Jim Saba. That name and telephone number was saved as a contact in the mobile telephones belonging to the appellant and his wife that were seized from the appellant's Applecross home.

29 On the sixth consignment note (relevant to the box which contained the methylamphetamine) was written, 'James Walker 0403***731. Please ring for p/up'. This number was found in the telephone of Peter Tassone.

30 Venetia Tilbrook testified on behalf of the State. In cross-examination, she confirmed that she witnessed Mr Lothian sell small quantities of approximately 1 or 2 g of methylamphetamine to the appellant (ts 58). In re-examination, she said these transactions took place in the lounge room and, on one occasion, she thought, in the kitchen (ts 63). She said each transaction took between ten minutes and half an hour, depending upon how much chat they were engaged in (ts 61). She believed that the appellant and Mr Lothian were 'mates'.

31 The State adduced evidence from the detective in charge of the investigation, Detective Shanahan. Not only did he give evidence as to the facts, but he also purported to give expert testimony of, amongst other things, how persons in the 'upper echelon' of drug dealing behave. The State used this evidence to support an argument that the appellant behaved in a way consistent with somebody in that upper echelon.

32 The State's case was that the appellant stood above Mr Lothian in the drug hierarchy and that he was involved in the importation of the methylamphetamine from Sydney. It was alleged that the appellant attended at Mr Lothian's house on 16 November 2010 to inspect the methylamphetamine that was supposed to be in the box. The State alleged that the methylamphetamine was intended for an individual or group 'quite high up' in the drug distribution hierarchy. The State alleged that the appellant was that individual or one of the individuals in that group. It was said that the appellant went to Mr Lothian's house so that 'he could inspect the purchase to ensure [that] he had gotten what he paid for and to prepare the drugs for distribution with the help of his courier and warehouser ... Mr Lothian' (ts 37). The State alleged that when the appellant discovered that the substance was not methylamphetamine, by smoking some of it, he left the house to 'sort it out', with the intention of returning.

34 The appellant elected to give evidence in his defence. His case was that although he was a user of methylamphetamine, he was not a drug dealer. He said that he had no complicity whatsoever in the organisation or delivery of the approximately 5 kg of methylamphetamine sent from Sydney which Mr Lothian collected and brought back to his house.

35 The appellant testified that in late 2008, he and his wife purchased a hotel and restaurant in Sydney and that they moved to that city in January 2009, returning to Western Australia in June or July 2010. After they returned to Perth, the appellant travelled to Sydney for business reasons on a frequent basis.

36 The appellant said that he purchased drugs from Mr Lothian and that he also had a business connection with him; Mr Lothian was going to do some work at the bakery business owned by the appellant. The appellant recalled that on an occasion in April 2010, he went to Mr Lothian's house and there met a man named Jim Saba. On this occasion, they had a discussion about a dirt bike that the appellant wished to sell. As a result, Mr Saba sent to the appellant's phone by SMS his email address, and later the appellant sent him pictures of the bike and its details.

37 The appellant said that on the afternoon of 16 November 2010, he went to visit some friends near Mr Lothian's house. The friends were not home, so he went to see Mr Lothian to have a chat and 'maybe to get some drugs off him at the same time' (ts 455). The appellant testified that he had $900 in cash for that purpose. Prior to this, the appellant said he had not seen Mr Lothian since September 2010 (ts 464).

38 The appellant said that Mr Lothian was wearing gloves when he answered the front door. He told Mr Lothian, 'I want to get some drugs', to which Mr Lothian replied, 'Okay, just wait a second' (ts 472). He said that Mr Lothian told him to be quiet and to wait in the tool room. The appellant said that Mr Lothian took some bolt cutters from the tool room and went to the living area or the kitchen. The appellant testified that he stayed waiting in the tool room. He said that he heard Mr Lothian doing some work in the kitchen. He told the court that he had his suspicions about what Mr Lothian was doing, remarking that Mr Lothian appeared 'preoccupied with everything' (ts 456 - 457).

39 The appellant testified that he was getting bored and as a result asked Mr Lothian for a pipe. He said Mr Lothian did not give him a pipe. The appellant said that he then went to the living room. From there he could see two yellow cases and some white powder on the floor. He thought there were 'a lot of drugs, obviously' (ts 470). According to the appellant, he then told Mr Lothian that he was going to go and come back later.

40 The appellant denied having anything to do with the box or its contents. He denied putting any gloves on, but said that when he arrived at the house he was sweating from having ridden his bicycle. He said that as he entered the house, he shook Mr Lothian's gloved hand. The appellant's case was that this explained the presence of DNA consistent with his on the glove: the DNA appeared on the inside of the glove because it would have been turned inside out when Mr Lothian took it off.

41 The appellant said that on leaving Mr Lothian's home, he rode his bicycle into the park opposite the house. He testified that a silver Hyundai vehicle driven by persons he did not know chased him and deliberately hit him in the ankle, knocking him to the ground. He said that at this time he heard someone yelling out, 'Police. Police'. The appellant denied hearing the police calling upon him to stop, until he had been knocked off his bike. In other words, he denied fleeing from the police.

42 The appellant explained that he told the police that he was living at the East Perth address because he was 'a bit embarrassed' and he did not want to get his wife 'involved in this' (ts 454). He explained that he was temporarily living there after having a disagreement with his wife. He denied lying to the police about his address. He said that as well as the Applecross address, the East Perth residence was his 'registered address' (ts 465).

43 In addition to his own testimony, the following points were made on behalf of the appellant:

1. None of the mobile phones seized by the police were in a false name.
2. None of the common indicia of drug dealing, such as telephones in false names, was found at the East Perth or Applecross addresses.
3. There was no evidence of any telephone or SMS communication between Mr Lothian and the appellant, particularly on 15 and 16 November 2010.
4. There was no evidence capable of linking the appellant to any of the consignments. The appellant's link with Jim Saba concerned dirt bikes.
5. The appellant had legitimate business in Sydney, and his frequent flyer records showed that between 2008 and November 2010 he regularly flew to and from Sydney.
6. The audio recording from the listening device planted in the box was of poor quality and was incapable of proving that the appellant had any role in the unpacking of the box and did not prove that he was in the same room as Mr Lothian.
7. The $900 cash the appellant possessed was consistent with the anticipated purchase of a small amount of methylamphetamine.
8. The appellant did not flee from the police out of a consciousness of guilt.

44 There are seven grounds of appeal against conviction. Ground 1 alleges that the verdict is unreasonable or cannot be supported by the evidence: Criminal Appeals Act 2004 (WA) s 30(3). Ground 2 alleges that the learned trial judge erred in law by directing the jury that it could use the lie the appellant told about his address as evidence of a consciousness of guilt when that was not the State's case. Grounds 3, 4 and 5 concern the evidence of Detective Shanahan. It is alleged that Detective Shanahan's opinion evidence concerning persons in the 'upper echelon' of the drug hierarchy was inadmissible (ground 3) and, in any event, it was used in an impermissible way by the State (ground 4). The appellant also alleges that his Honour erred in law by failing to direct the jury in relation to the evidence of Detective Shanahan (ground 5). Grounds 6 and 7 relate to the evidence of the five earlier consignments. The appellant alleges that this evidence was inadmissible (ground 6) and that, in any event, the learned trial judge erred by failing to give a direction to the jury in relation to the evidence (ground 7).

45 Leave to appeal has been granted in respect of ground 2. The question of leave with respect to the other grounds was referred to the hearing of the appeal.

46 It is convenient to deal with the grounds of appeal in this order: ground 2, grounds 3, 4 and 5, grounds 6 and 7, and, finally, ground 1.

Ground 2 - The appellant's lie and consciousness of guilt

The learned trial judge erred in law by directing the jury that they could use the appellant's lie (in telling police that his address was in East Perth) as evidence of consciousness of guilt, when this was not part of the State case, thereby giving rise to a substantial miscarriage of justice.

Particulars

2.1 The alleged lie was incapable of amounting to evidence of consciousness of guilt of attempting to possess with intent to sell or supply 4.981 kg of methylamphetamine.

2.2 The direction amounted to a recasting of the State case in an impermissible way and in a way that was disavowed by the State.

48 The respondent conceded that his Honour erred as alleged by the appellant. This concession is appropriate.

49 It was open to the jury to find that the appellant had lied to police when he said that his residential address was in East Perth and not Applecross. Prior to closing addresses, there was a discussion between counsel and the learned trial judge concerning, among other things, whether the appellant's flight constituted evidence of a consciousness of guilt. There was no discussion about the alleged lie falling into that category. That had never been the State's case. Senior defence counsel (not the appellant's counsel in this court) submitted that there was no evidence capable of giving rise to an inference of consciousness of guilt. His Honour ruled that the evidence of flight had that capacity.

50 In her closing address, the State prosecutor gave some prominence to the alleged lie (closing address ts 4 - 6). However, she did not suggest that the lie was told out of a consciousness of guilt. She submitted that the lie was relevant to the jury's assessment of the appellant's credibility. She put it this way in her closing address:

I'd suggest it was a lie and that, members of the jury, it's a matter for you but it may have caused you some concern in terms of considering whether or not the accused was telling you the truth when he gave evidence (closing address ts 6).

51 In his summing up, the learned trial judge directed the jury that the appellant's flight from the police in the park was capable of being evidence of a consciousness of guilt. In the course of this direction, he instructed the jury that the alleged lie concerning the appellant's residence in East Perth was also evidence of a consciousness of guilt. The directions that his Honour gave were detailed and were in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

52 His Honour misapprehended the State's case. As he understood it, the State relied on both the appellant's flight and the alleged lie as evidence of consciousness of guilt. This is patent from the introductory part of the direction:

Now, at this point I also want to deal - because it's a direction that's a matter of law - with what the State has said in its case are two matters that evidence a consciousness of guilt. The first is what the State says relates to Mr Kalbasi's conduct when he saw the car, the white car with what were in fact Detective Shanahan and the detective sergeant in it. And secondly, what he said about what his address was when he was - and you saw that on the videotape - when he was at Terrace Road. And the State has submitted to you that those two events - and the first, as to the address that Mr Kalbasi was lying and that leads to evidence of a consciousness of guilt. And secondly, that he fled the police because that was evidence of a consciousness of guilt (ts 512). (emphasis added)

53 At the end of the summing up, the matter was raised by the prosecutor who, quite properly, pointed out that she did not rely upon the alleged lie as evidence of a consciousness of guilt.

54 His Honour raised the matter with senior defence counsel. Although the reasoning behind senior defence counsel's submission is not easy to discern, he submitted, in effect, that a redirection would do the appellant more harm than good. He put it this way:

This really is not a case of consciousness of guilt on anything ... and in my respectful submission it would not warrant readdressing the issue because it may put it higher than its context really allows (ts 527).

55 His Honour accepted that what defence counsel had put to him was 'right' and he declined to correct his error.

56 The appellant submitted that while the alleged lie might have been viewed as insignificant, once it had been elevated to a status where it might be an implied admission of guilt, it became a significant piece of evidence capable of being used by the jury to convict the appellant. Accordingly, the misdirection gave rise to a substantial miscarriage of justice.

57 The respondent submitted that the alleged lie was not a critical part of the State's case. It was submitted that, if the jury found that what the appellant said was in fact a lie, it is unlikely that the jury would have concluded that it was told out of a consciousness of guilt.

58 The respondent also submitted that had his Honour been asked to redirect the jury he would have done so, and that senior counsel's decision not to seek a redirection was in pursuit of a forensic advantage. The alleged forensic advantage was that any redirection would have been in terms of Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234, which would have highlighted that the alleged lie could have been used by the jury to assess the credibility of the appellant's evidence. As his Honour had not made this point in his direction, the jury might have understood that if it rejected the lie as evidence of guilt, it could not be used by it at all against the appellant.

59 A direction which conforms with Edwards v The Queen should be given where:

(a) the State alleges that any lies told by an accused were an implied admission of guilt; or

(b) there is a real danger that the jury may apply such a process of reasoning.

60 Where neither of these circumstances apply, an Edwards direction is unnecessary and inappropriate: Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 [34].

61 In the present case, it is common ground that the alleged lie about the address was incapable of giving rise to a consciousness of guilt. The direction his Honour gave should not have been given. It is a misdirection to tell a jury that a lie which can only go to credit may be used as evidence of guilt: R v Renzella [1997] 2 VR 88, 91 - 92 (Winneke P, Charles & Callaway JJA). As Gleeson CJ, Gaudron, Gummow and Callinan JJ pointed out in Zoneff, an effect of such a direction, apposite to this case, is that it raises an issue upon which the parties were not joined: [20]. Further, while the alleged lie might not have been, as the respondent submitted, a critical part of its case, I agree with the appellant's submission that once it was elevated to evidence capable of being an implied admission of guilt, it became a significant piece of evidence against the appellant.

62 It is regrettable that his Honour declined to redirect the jury once the error was brought to his attention by the State prosecutor. In my opinion, a redirection could and should have been given instructing the jury that his Honour had made the error and that the alleged lie went only to the appellant's credit.

63 It is not possible to assume, as the respondent submitted, that had senior defence counsel sought a redirection it would have been given. Certainly, his Honour gave no such indication. Further, I am unable to see how his Honour's erroneous direction could have afforded the appellant a forensic advantage. Senior defence counsel's decision not to request a redirection was not, in my view, taken in pursuit of a forensic advantage but rather for the purpose of minimising the damage caused by his Honour's error. Regardless of the position adopted by counsel, it was his Honour's responsibility, once the issue was raised, to ensure that proper legal directions were given to the jury and any errors of law made by him were corrected. The fact remains that the jury were erroneously directed upon a matter of law. I am unable to conclude that, having applied the Edwards direction, the jury would not have been satisfied that the lie was told out of a consciousness of guilt. There was a real risk that it could have used the alleged lie as a step in the reasoning towards guilt. I would uphold ground 2.

Grounds 3, 4 and 5 - Detective Shanahan's evidence

Ground 3

There has been a miscarriage of justice as a result of the evidence of Detective Shanahan 'Shanahan' (in particular in relation to the drug hierarchy and what persons in the 'upper echelon' would do (T340 - 344));

Ground 4

A miscarriage of justice has occurred as a result of the prosecution relying on the absence of evidence as positive evidence that the Appellant was an 'upper echelon' drug dealer;

Ground 5

The learned trial judge erred in not directing the jury in relation to the evidence of Shanahan;

65 In order to understand these grounds, it is necessary to address in greater detail the evidence of Detective Shanahan. As I have already said, Detective Shanahan was one of the investigating officers in the case. Among other things, he pursued the appellant after he left Mr Lothian's house and apprehended him in the park. Detective Shanahan also participated in the searches of Mr Lothian's house and later, the appellant's residence in Applecross.

66 In addition to his evidence as an investigating officer, Detective Shanahan gave opinion evidence concerning the appearance, packaging and differing weights of methylamphetamine, its purity, how it is cut and its value. As to the last matter, Detective Shanahan estimated the methylamphetamine in this case to be worth between approximately $2.4 million and $7 million, depending on how it was sold. No objection was taken to this opinion evidence and it is accepted that it was admissible.

67 However, Detective Shanahan's opinion evidence went further than this. He purported to give evidence as to the structure of the drug trade, who was in the upper echelons of that trade and how a person in that position would behave. Prior to trial, the appellant's solicitors were served with a deposition by Detective Shanahan which foreshadowed the evidence that would be led from him. The relevant parts of his deposition were pars 30 - 33, which were in these terms:

1. Having access to drugs of such high quality and of such large volume, indicates to me that [the appellant] and Mathew [sic] LOTHIAN are at the very highest level of drug distribution. The reason for this is that as drugs find there [sic] way down to street level, the purities will diminish and the weights will reduce.
2. It is my experience that persons at the upper echelon of drug distribution will employ various measures to remove themselves from the actual possession of the drugs, preferring to employ others to assume the risk.
3. These measures include,
   1. Utilising 'mules' to courier the drugs.
   2. Utilising 'safe houses' to store drugs prior to distribution.
4. Persons at the upper end of drug distribution will however at some point early in the process of distribution, sight or check the drugs to ensure that the drugs comply with what was ordered.

68 Senior defence counsel initially objected to the entirety of this evidence. However, as the argument before the learned trial judge developed it became clear that his objection was only to par 30 of the deposition and only to whether the appellant and Mr Lothian's names should be mentioned. Senior defence counsel said that he would be content if the evidence was led on the basis that whoever the drug belonged to was at the very highest level of drug distribution. The prosecutor agreed to this. Senior defence counsel, when asked about the rest of the paragraph, said, 'I don't mind that' (ts 25 - 26). No objection was taken to Detective Shanahan's expertise.

69 Unsurprisingly the learned trial judge allowed all of the proposed evidence to be adduced, save for the reference to the appellant and Mr Lothian in par 30 which the prosecutor said she would not lead. In doing so, he expressed some doubts as to 'the value of this sort of evidence'. He went on to comment, 'anyway ... it's commonly led in this State and I'll permit it to be led in this case' (ts 26).

70 Against this background, I now turn to the evidence actually given by Detective Shanahan at the trial. Detective Shanahan testified as follows:

(a) From the perspective of the Western Australian police, anybody who brings drugs over the State's border, by that factor alone is classed as being in the upper echelon (ts 341).

(b) Further, anyone involved in the importation of 5 kg of methylamphetamine is classed as an upper echelon dealer (ts 341).

(c) Those involved in upper echelon drug dealing commonly use couriers to bring the drug into Western Australia (ts 341, 342).

(d) Detective Shanahan had never seen a dealer involved in an importation 'actually bringing his own drugs in' (ts 342).

(e) Another common thing done by persons dealing at the upper echelon was to use a safe house for the storage of drugs, although he had been involved in cases where the principals stored their own drugs (ts 342).

(f) Those in the upper echelon of drug dealing commonly use drivers to transport the drugs and other people to store them (ts 343).

(g) That although persons in the upper echelon distance themselves from the drugs, 'there's going to come a time when you're going to have to actually sight [the drugs] ... even if [for] only very fleeting moments'. He went on to say:

You can't expect ... your five kilos this end to end up at the other end without you having any involvement whatsoever. I've never known that to be the case. I'm not saying it hasn't happened but I've never known that to be the case. So there are times when you will have to come into play, and one of those times that we find is that when drugs do come over the border there'll be a short period of time - and when I say short it could be some - I've seen drugs a lot of the time come over - over the border and go straight to the principal's place, so straight off a plane - the courier is straight off the plane and straight ... to the principal player. So it can be as quick as that or it can be a couple of days, but it will be a relatively short period of time. I am aware of exceptions to that term short. It will be a relatively short period of time when the person who actually owns the drug will come into play for the purpose of ensuring the drugs actually have arrived to start with and ensuring that the drugs, I guess, comply with what was ordered and also they'll probably issue further instructions as to - as to how the drugs are to be dealt with (ts 343 - 344).

(h) Detective Shanahan said that in his 5 1/2 years as an officer involved in drug investigations, he had been involved in 'more than 12' importations (ts 342).

71 It is self-evident that Detective Shanahan's evidence went beyond the matters contained in his deposition.

72 In cross-examination, senior defence counsel highlighted the absence of some of the common indicia of drug dealing such as scales, repackaging materials, heat-sealing equipment and mobile telephones in false names. The purpose of this cross-examination was to show that there were features of the evidence that suggested that the appellant was not a drug dealer. This is illustrated by this exchange in cross-examination about the absence of mobile telephones in false names:

RICHTER, MR: ... Tell me this, Mr Shanahan, when you gave your evidence just before the break you said that you had a situation where people used mobiles in false names. Right?---That's correct.

Can you tell me of any telephone that my client used which was in a false name?---No, I can't.

All the telephones that he used were registered either to a company that he had or to his own name or to his wife's own name. Correct?---I'll accept that.

RICHTER, MR: Yes. Makes him ... a bit of an exception to your rule, doesn't it, about drug dealers, doesn't it? Have you ever thought of that?

CHRISTIAN, MS: Your Honour, I do object to this. This is inviting the witness to offer an opinion and, I mean, I'm - - -

CURTHOYS DCJ: Look, it's a reasonable question.

RICHTER, MR: You asked him for the opinion and he gave it and that opinion demonstrates something else, doesn't it?

CURTHOYS DCJ: I - yes, I - - -

RICHTER, MR: Sorry, your Honour. You haven't thought about this?---I think my evidence that I said - - -

Have you thought about this?---I certainly have thought about it.

You've thought about it. Okay. And you've turned your mind as best you could to an examination of whether or not you could link into any phone that he used in a false name---I'm not trying to link your client to anything with the evidence I gave with respect to my opinion evidence (ts 348).

73 Senior defence counsel's cross-examination was consistent with how he had opened the defence case to the jury.

74 The State's case as opened to the jury was that the appellant was in the upper echelon of the drug trade and that Mr Lothian was a courier or warehouser of the drugs in question (ts 37). In her closing address, the State prosecutor repeated these assertions. She said:

Now, something I think was said about the fact that there was no indicial [sic] of drug dealing by the [appellant]. That's not surprising. The State doesn't allege that the [appellant] is a street level drug dealer, the State is suggesting he's someone very high up in the drug dealing chain; someone who distances himself from drugs. As you heard Detective Shanahan said [sic] is that he's going to try to put as much distance between himself and the drugs as possible. Store them at someone else's house; store them at Mr Lothian's house (closing address, ts 9). (emphasis added)

75 It is significant to note from the italicised portion, that the prosecutor submitted to the jury that Detective Shanahan's evidence was that the appellant was attempting to distance himself from drugs. That was not Detective Shanahan's evidence. Further, it was contrary to the basis on which the State sought to lead the evidence: see [68] above.

76 Later in her closing address the prosecutor submitted that Mr Lothian's behaviour was consistent with his being 'the accused's courier and warehouser of drugs' (closing address, ts 11).

77 In his summing up, the learned trial judge, when summarising the State's case, said:

The State also says that there is no apparent means of [contact] and that that again is - based on the evidence of Detective Shanahan - part of a senior drug dealer's modus - of the way they operate. And that very, very few - well, there's only really one telephone link that's established and what the State says is that that is consistent with [the appellant] wanting to distance himself ... [T]here were no indicia of drug dealing to be found at Kintail and the State explains that by saying that because [the appellant] was high up he distanced himself from drug dealing by not having any indicia of drugs, no telephone contacts, no financial records, and that the drugs were stored by him at Mr Lothian's house (ts 515 - 516).

78 The learned trial judge did not give an expert evidence direction. He gave no direction as to what use could be made of Detective Shanahan's opinion evidence concerning upper echelon drug dealers. No direction or redirection was sought by senior defence counsel.

79 Although the ground of appeal is in terms of a miscarriage of justice, in oral submissions the appellant's counsel submitted that, in fact, there was an error of law because his Honour, over objection by senior defence counsel, made the ruling that I referred to in [69] of these reasons, admitting the testimony.

80 It is true that senior defence counsel initially objected to Detective Shanahan giving this evidence, but as I have explained, the only point made was that Detective Shanahan could not give evidence identifying the appellant as someone who was in the upper echelon of drug dealing. The prosecutor conceded this point. Thus, at the end of the day, defence counsel did not maintain his objection. Accordingly, the evidence was, in substance, led without objection. In these circumstances, his Honour made no error of law. The ground is properly drawn as alleging a miscarriage of justice.

81 Where evidence is led without objection, it will be difficult for the appellant to establish a miscarriage of justice. This is because, generally, an appellant is bound by the way defence counsel conducted the trial: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8], [24] - [33], [43] and [102] - [104].

82 The allegation of miscarriage of justice raises two issues. First, was Detective Shanahan's opinion evidence technically admissible? Second, if it was inadmissible, was there a rational forensic reason for senior defence counsel not objecting to its admission? When addressing the second question, this court is concerned with whether senior defence counsel's conduct was objectively capable of explanation on this basis. If the answer to either of the two questions I have posed is 'yes', there will be no miscarriage of justice: Oblak v The State of Western Australia [2007] WASCA 176 [6]; Zeiler v The State of Western Australia [2010] WASCA 227 [81] and LBC v The State of Western Australia [2011] WASCA 201 [11].

83 The real issue to be determined at trial was whether the State had proved beyond reasonable doubt that the appellant had attempted to possess the drugs. This required the State to prove that the appellant had a belief in the likelihood (in the sense of there being a significant or real chance) that at material times the box contained a prohibited drug and that the appellant intended to take physical possession of the substance or intended that it should otherwise be in his control or under his dominion: The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483.

84 The defence case was that the appellant did not attempt to possess the approximately 5 kg of methylamphetamine. His case was that Mr Lothian was a drug dealer who had taken delivery of the drugs and that he (the appellant) had no connection with them at all. It was the defence case that the appellant's presence at Mr Lothian's house was coincidental - he was there primarily to purchase a small quantity of methylamphetamine for $900.

85 An obvious issue for the State to deal with was that there was no evidence of any communication between Mr Lothian and the appellant concerning the arrival into Western Australia of the box and its delivery, nor did police find any of the common indicia of drug dealing at the East Perth or Applecross residences. In particular, there was no evidence of any communication between the two men on 15 and 16 November 2010. The State correctly anticipated that the defence relied on these absences as evidence of innocence. Assuming that it was admissible, Detective Shanahan's opinion evidence with respect to upper echelon drug dealers rebutted this argument, because it provided an explanation as to why there was such an absence. The State, being obliged not to split its case, adduced the evidence as part of its proofs: R v Soma [2003] HCA 13; (2003) 212 CLR 299.

86 It is not uncommon for the prosecution to be permitted to adduce such evidence in these circumstances. For example, the prosecution will ordinarily be permitted to adduce evidence from a suitably qualified expert to explain why DNA or a fingerprint may not be detected on an object said to have been touched by an accused. Another example is expert evidence adduced with respect to an alleged sexual assault that an absence of genital injury does not necessarily mean that there was no sexual assault.

87 The fact that, at this abstract level, Detective Shanahan's opinion evidence was relevant, does not mean that the evidence was legally admissible.

88 An often quoted and well accepted statement concerning the admissibility of expert evidence, was made by Heydon JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705:

In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight (743 - 744).

89 In this appeal, it is common ground that such matters as the characteristics, price, packaging, terminology and the availability of illicit drugs is a matter of specialised knowledge about which opinion evidence from a suitably qualified expert witness may be admitted: Marinovich v R (1990) 46 A Crim R 282, 301; Anderson v The Queen (1992) 60 SASR 90, 103 - 104, 108. There is no dispute that Detective Shanahan was qualified to give such evidence.

90 However, his evidence concerning the upper echelon of the drug trade went beyond the matters I have just mentioned. Most strikingly, was his somewhat paradoxical evidence that upper echelon drug dealers, who usually go to great lengths to avoid contact with the drugs, will want to sight them shortly after their arrival.

91 It does not follow that because Detective Shanahan's opinion evidence about the matters referred to in [89] was admissible, that his evidence about those in the upper echelon was also admissible.

92 For the sake of argument and without deciding, I will accept that the behaviour of upper echelon drug dealers is a field of specialised knowledge. The question is whether Detective Shanahan was qualified to give opinion evidence on this subject. The answer to this question must be that he was not qualified.

93 Detective Shanahan's expertise of the upper echelon of drug dealing was largely based on his practical experience. His evidence as to that experience showed that it was very limited. The number of upper echelon transactions in which he had been involved was 'more than 12'. Exactly how many more than 12, he was not asked, but I infer from his answer that what he meant was that he had been involved in approximately 12 cases, but no less than that number.

94 On any view, the number of upper echelon cases Detective Shanahan had been involved in was small, and would be an insufficient basis on which to give opinion evidence as to the behaviour of those said to be in the upper echelon. Moreover, Detective Shanahan's understanding of who is an upper echelon drug dealer was dubious. His criteria for categorising someone in the upper echelon included anyone who brought methylamphetamine into Western Australia from interstate, regardless of the weight and purity of the drug. On no reasonable basis could it be asserted that an importation from interstate of a small amount of methylamphetamine was an upper echelon transaction. I have not ignored Detective Shanahan's evidence that a transaction involving approximately 5 kg of methylamphetamine would be regarded as involving an upper echelon dealer or dealers. This proposition may be accepted. However, his evidence as to the number of upper echelon transactions he was involved in as an investigator, did not discriminate between those transactions plainly in the upper echelon and those involving lesser quantities, that on no reasonable basis could be said to be at that level.

95 As Detective Shanahan was not qualified to give opinion evidence about those said to be in the upper echelon of the drug trade, his evidence on this subject was inadmissible. In substance, Detective Shanahan, from the witness box, put the inferences and hypotheses on which the State sought to rely: HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 [43] (Gleeson CJ).

96 There remains the question of whether the failure by senior defence counsel to object was for rational forensic reasons. Senior defence counsel's cross-examination of Detective Shanahan was wide-ranging. It was primarily, but by no means exclusively, focused upon perceived inadequacies in the police investigation. Senior defence counsel cross-examined Detective Shanahan about the behaviour of those who were principals in the drug trade. The relevant exchange is as follows:

RICHTER, MR: Thank you, your Honour. Now, you gave some evidence about the sort of hierarchies in - in the drug trade. Yes- - -I did.

And in particular, in terms of the importation of drugs, whether from overseas or from interstate. Correct- - -That's correct.

Would you agree with this, as an investigator, that there are three points of time at which there is particular danger to the importer, as well as to the person who picks up the consignment- - -Three - sorry. Three points of danger?

Three points in time which are of particular danger to anyone seeking to import drugs- - -There are points of danger, yes. I would- - -

Yes- - -I - whether it's three, I'll be interested to - to hear - - -

Yes. I'll - I'll put them. And it's at the points of highest danger that experience has told us that a principal who's involved in the trade stays away. Correct- - -Points of danger, generally, yes, that's correct.

Okay. Now, I'll go through the points of danger with you. The first point of danger is the consignment, when someone carries a load of drugs concealed in something and hands them over to be despatched, because it's a point of danger if, for example, the authorities have been monitoring or following the person. So at the time when it's handed over to be couriered or jetted or whatever, that's a particular point at which an arrest can be made. Correct- - -That's correct.

Yes. The second point of danger is at the pickup at the other end. Correct- - -That's correct.

The third particular point of danger is at the point when the consignment is opened so that whoever opens it cannot later say, 'I didn't know it was drugs'. Right? Because once it's opened and you look at it you lose the notion of saying I didn't know it was drugs. Correct- - -That is a point of danger. Yes.

Yes. And frequently, when someone consigns a shipment of drugs, in order to avoid the possibility that it's been somehow leaked, intercepted, listened to, one will wait until the drugs have been opened, till the parcel has been opened, the drugs have been exposed, and nothing has happened for a while- - -I won't agree with that. No.

Do you know of any cases of principals? Can you tell us of any cases out of your 12 cases of a principal? I mean the consignor or principal who is there at the opening of the drugs- - -I can quote quite a few cases where drugs have come into Western Australia---

Yes---- - - that have been delivered straight to the principal.

Okay. So in those cases, the principal hadn't bothered using anyone else to do the pickup. Is that what you're saying- - -No, that's not what I'm saying.

I see- - -I can - I can talk about numerous cases where couriers have flown over and then have delivered drugs directly to the principal.

I see. I see. We're at cross purposes. That, you can do, and if that's the case, then that would make Mr Lothian the principal. Right- - -I see what you're saying.

Yes. Yes- - -In my evidence, I said a courier or a system of couriers. Not necessarily has to be singular as in only one courier.

Yes. Tell me this: the parcel was due to arrive on the 15th. Correct - - -That is correct.

And did in fact arrive, but Mr Lothian didn't pick it up because he was told it hadn't arrived- - -That is correct.

Were there any communications on the 15th between Mr Lothian and my client or any communications that my client received saying 'it's not today' or any direction communication- - -No.

No. On the 16th, was there any direct communication with my client, by anyone that you can name or think of or phone, that told him that the drugs had been picked up- - -No.

So how on earth would he know to turn up- - -That's a very good question.

Yes. Yes, I think it is. Have you got an answer- - -No, I don't have an answer for that.

Thank you. Because on your case, this Mr Big just turns up; yes- - -That's correct.

Yes. He's got $900 in his pocket, which is enough to buy how much? That's if you're a kind of social user- - -A gram, between 5 to $800 depending on the purity.

Yes. Yes. Okay. So he's got enough to buy a gram or so. Right- - -Correct (ts 389 - 391).

97 It is readily apparent from this exchange that senior defence counsel, regardless of Detective Shanahan's actual expertise, did not dispute that he was an expert and sought to adduce 'expert' evidence that the appellant's behaviour was inconsistent with the behaviour of someone who is a 'Mr Big' in the drug trade. Senior defence counsel suggested that: (1) a 'Mr Big' stays away from what he described as the points of danger, particularly when a drug consignment is opened; (2) there was no evidence of any communication between the appellant and Mr Lothian; and (3) the appellant turned up to Mr Lothian's house with a sum of money consistent with the purchase of a gram of methylamphetamine.

98 Senior defence counsel's decision to attempt to obtain an advantage out of Detective Shanahan's evidence was not without risk and, in hindsight, may be thought to have been unwise. However, that is not the issue to be decided here. The appellant's very senior and vastly experienced counsel did not object to Detective Shanahan's evidence, even when it must have been very obvious that it went beyond what had been foreshadowed in his deposition.

99 Senior defence counsel's failure to object can rationally be explained on the basis that he believed that Detective Shanahan could give expert evidence exculpatory of the appellant. This evidence would have had the considerable forensic advantage of coming from the State's own expert, who was also a senior investigating officer in the case.

100 There cannot be a miscarriage of justice in these circumstances. Although Detective Shanahan's evidence was technically inadmissible, the appellant has suffered no miscarriage of justice because of it.

101 Before leaving this ground, I note that in the course of argument it was submitted on behalf of the respondent that a suitably qualified expert may give opinion evidence about the organisation and behaviour of those involved in the drug trade. Senior counsel for the respondent cited a series of decisions from the United States of America which, he said, supported this proposition, namely:

• United States v Avila 557 F.3d 807 (7th Cir 2009)
• United States v Winbush 580 F.3d 503 (7th Cir 2009)
• United States v Hankey [2000] USCA9 91; 203 F.3d 1160 (9th Cir 2000)
• United States v Locascio [1993] USCA2 1010; 6 F.3d 924 (2nd Cir 1993)
• United States v Foster [1991] USCA7 668; 939 F.2d 445 (7th Cir 1991)
• United States v de Soto [1989] USCA7 865; 885 F.2d 354 (7th Cir 1989)

102 These cases are factually very different to the case in hand. Speaking generally, they deal with individuals involved in 'drug cartels' or the behaviour of those involved in gangs, such as the Crips, and other organised criminal activity, including the Cosa Nostra. In each case, the relevant testimony came from a very experienced specialist officer who had extensive and detailed knowledge of the particular criminal organisation.

103 How courts in Western Australia will deal with evidence of the type adduced in the US cases will depend upon the circumstances of each case and will be decided upon the well-known and accepted principles relating to expert evidence. What is clear in the present case is that it is not analogous to the US cases cited by the respondent. Further, it is just as clear that Detective Shanahan did not have the expertise to give evidence concerning the behaviour of those who are in the upper echelon of drug dealing.

104 Although I would give leave to appeal in respect of ground 3, it must be dismissed.

106 At first blush, it might be thought that the dismissal of ground 3 required the dismissal of ground 4. This is not the case. The miscarriage of justice alleged in ground 4 is different to that alleged in ground 3.

107 Ground 4 focuses on the way in which the State used Detective Shanahan's opinion evidence about upper echelon drug dealers. The appellant submitted that the State used Detective Shanahan's opinion evidence, not to explain the absence of evidence, but as positive evidence that the appellant was in the upper echelon of drug dealing. The appellant submitted that this involved impermissible circular reasoning.

108 The respondent submitted that the prosecution did not rely on absence of evidence in a way that positively sought to prove its case. Rather, the absence of evidence was used only to rebut the defence case.

109 The respondent's submission cannot be accepted. It is clear from the way in which the State opened and closed its case that it submitted to the jury that they could conclude that the appellant was an upper echelon drug dealer by a combination of the absence of evidence of the indicia of drug dealing along with Detective Shanahan's opinion evidence.

110 Such a process of reasoning was, as the appellant submitted, circular and irrational. It begins with the premise that the appellant was an upper echelon drug dealer involved in the possession of 5 kg of drugs. Because of this, the argument continues, there was no evidence relating to the appellant of the common indicia of drug dealing and no evidence of communication between him and Mr Lothian. It proceeds then to the conclusion that the absence of these things establishes that the appellant was an upper echelon drug dealer involved in the possession of 5 kg of drugs. It is a classic bootstraps argument. That is, the conclusion is dependent upon the premise it is supposed to prove.

111 The falsity of this reasoning is demonstrated by the fact that if the appellant's case was true, there would also be none of the evidence of the indicia of drug dealing.

112 The kind of reasoning urged upon the jury by the State was, in my view, seductive in its effect. The absence of evidence was equivocal. It was at least as consistent with the defence case as with the prosecution case. There was a real risk that the reasoning adopted by the State would be taken to be a proper pathway to guilt and not reasoning which might reasonably be seen as pointing to innocence.

113 Having regard to the line of reasoning urged upon the jury by the prosecutor, and the potential for the jury to misuse the evidence in a flawed and circular way, there was a need in the particular circumstances of this case for the learned trial judge to direct the jury not to reason in this way. This is the point raised by ground 5.

114 No direction on the point was given by his Honour. Instead, his Honour repeated the State's argument, and although he drew the jury's attention to the defence case, his Honour, in effect, left open to the jury the impermissible and illogical line of reasoning urged upon it by the State. What was required was a clear and emphatic direction to the jury that it could not adopt that line of reasoning.

115 In respect of grounds 4 and 5, it cannot be ignored that senior defence counsel did not object to the State's line of reasoning and did not seek any direction from the learned trial judge on the point. The absence of objection is not fatal if there has been a miscarriage of justice, although it gives reason to pause before embracing that conclusion: Mahmood v The State of Western Australia [2009] WASCA 220 [65] (Owen JA, with whom McLure P & Miller JA agreed). There is no objective forensic reason why senior defence counsel did not take exception to the State's reasoning or seek a direction from his Honour. In my opinion, grounds 4 and 5 have been made out. There has been a miscarriage of justice.

116 I would grant leave to appeal and uphold grounds 4 and 5.

Grounds 6 and 7 - The previous consignments

Ground 6

A miscarriage of justice has occurred as a result of the evidence of five earlier packages (not the subject of the charge) being led;

Ground 7

The trial judge erred in not directing the jury in relation to the evidence of the packages.

118 Although I have already referred to the five earlier consignments, it is necessary to describe in more detail the evidence concerning these packages.

119 Robert Downing, the State manager for the freight company, General Carrying Pty Ltd, testified that, on an occasion in 2010, a freight carton was picked up by 'a gentleman'. The carton fell to the ground, and Mr Downing noted that a green substance that smelt to him like marijuana fell out of it. As a result, he rang the owner of the company in New South Wales, Mr Shane Cornell. It appears that Mr Cornell spoke to police in New South Wales about this consignment on 28 October 2010 (ts 157).

120 With the consent of the defence, the prosecutor read into evidence the witness statement of Mr Cornell's wife, Maureen Cornell. She stated that as a result of speaking to Mr Downing on 22 October 2010, and then conferring with her husband, the staff of the freight company was told that if anyone came in to send a package with payment by cash, management should be informed. She said that on 12 November 2010, she was approached by a member of staff who alerted her to a consignment. This was the sixth consignment and was the one that contained the methylamphetamine.

121 The consignment which came to Mr Downing's attention was the fifth in a series of six cash consignments sent from New South Wales to Western Australia. The first five consignments were linked to each other. The consignor for these consignments was 'Adam Jones'. The sixth and final consignment had been sent under a different name, 'Brendon Victor', but listed the same address as three of the 'Adam Jones' consignments. On each consignment note was written brief instructions relating to delivery.

122 All six consignment notes were tendered as evidence: Exhibit 9, blue AB 20 - 25. There were handwritten notations on two of them which were said to be of significance. On the second consignment note, part of the instructions read, '0417 *** 888→Jim'. On the sixth consignment note, the instructions read, 'James Walker 0403 *** 731 Please ring for P/up'.

123 The telephone number ending in 888, said to belong to Jim, was listed in the contacts of two mobile phones seized from the appellant's Applecross home as belonging to a man named Jim Saba. I have already set out the appellant's evidence in respect of the extent of his contact with Mr Saba. That evidence was not challenged. The evidence with respect to the telephone number ending in 731 was that the subscriber was Val Bravo of 128 Pitt Street, Sydney. Inquiries revealed that no person by that name was located or associated with that address.

124 When the police searched the appellant's Applecross residence, Peter Tassone was present. His mobile phone was examined. He was found to have received a call from the number ending in 731. Ms Tilbrook testified that Mr Lothian used her telephone 'on occasion'. There was evidence from that telephone of a number of phone calls and a text message from the number ending in 731. There was no evidence of any calls or messages from 731 to telephones belonging to the appellant or his wife.

125 The State led evidence concerning the appellant's travel to Sydney at or about the time of each of the consignments. The relevant chronology was conveniently tabulated by the respondent and is as follows:

126 It was not challenged that the appellant was in Sydney at or around the time of the consignments. However, the appellant's Frequent Flyer activity statement from 1 December 2008 to 31 March 2012 was tendered, without objection: Exhibit 60, blue AB 99 - 103. Focusing upon the period up to 16 November 2010, that document revealed that the appellant flew between Sydney and Perth on a regular basis. As I have said, his evidence, which was not challenged in cross-examination, was that he did so because he had legitimate business interests in Sydney.

127 There was no evidence that the appellant had any involvement in the arrangements for any of the consignments in question, and it was not alleged that he was the actual consignor. There was no evidence as to the contents of the first four consignments. The evidence that the fifth consignment contained cannabis was tenuous, being based as it was on Mr Downing's familiarity with the smell of that substance.

128 The State prosecutor, in her opening address, referred to the consignment that aroused Mr Downing's suspicions (ts 31). She also referred to the first five consignments by date and noted that they were all linked by the use of the name Adam Jones as the sender, and that the appellant was in Sydney in close proximity to each consignment (ts 35). The prosecutor referred to the number ending in 888 written on the second consignment note and how that number was found in the mobile telephone of both the appellant and his wife. The prosecutor also referred to the number ending in 731 and how that was found in the mobile phone belonging to Peter Tassone. The prosecutor referred to the same evidence in her closing address.

129 Although the appellant's trial counsel did not object to the evidence of the first five consignments when it was adduced, he raised the consignments with his Honour after the prosecutor had concluded her closing address, saying that he did not understand how the evidence established a connection between the appellant and the consignments. Senior defence counsel described the prosecution as 'asking the jury to speculate' (ts 490).

130 In response, the learned trial judge said that he thought the value of the evidence was 'limited' and that 'it's ultimately for the jury to place value on it if they choose' (ts 493).

131 The prosecutor did not, either in her opening or closing address, submit that the jury should infer that the first five consignments involved the transportation of illicit drugs. It was not suggested that the jury should adopt any kind of propensity reasoning with respect to those consignments. No application was made by the respondent to adduce the evidence as propensity evidence pursuant to s 31A of the Evidence Act.

132 His Honour's direction to the jury concerning the consignments reflected his view that the evidence of the other consignments was of limited value. His Honour said:

The State also sought to indicate that the consignments were connected. Of course, beyond the consignment that is the subject of these proceedings, we don't know what was in those other boxes. There is some suggestion that some marijuana may have fallen out of one of the first boxes that caused the manager at General Carrying to contact the police, but if it was it was certainly very differently packed to the way these drugs were packed. And essentially we know nothing about what the contents, if there was - assuming you accept that the manager was in a position to give any evidence about whether it was marijuana. We don't know how much it was and we certainly don't know what the contents of those other boxes were, so you might think that the value of those other consignments in this case are very limited or that you can't draw any inference from those. Of course, the State['s] case is that because of the names and because of the telephone numbers and relationship, you can draw inferences that the consignments are connected and it referred to the links between the various phones and the names in the phones (ts 518).

133 The appellant submitted that the evidence of the first five consignments was inadmissible because it was irrelevant. Alternatively, having regard to the evidence that the fifth consignment possibly contained cannabis, and bearing in mind that the first five consignments were linked, the evidence was, in effect, similar fact evidence and subject to s 31A Evidence Act 1906 (WA). The appellant submitted that the evidence did not satisfy the requirements of that section.

134 The respondent submitted that the evidence was not used for propensity reasoning. It was submitted that the evidence was relevant for two reasons. First, the evidence of the consignment said to have contained cannabis was relevant to explain why attention was drawn to the sixth consignment. Second, the evidence of the first five consignments was relevant to show that the appellant's involvement in the sixth consignment was not a coincidence.

135 I accept the submission that the fifth consignment was relevant to explain why attention was drawn to the sixth consignment. However, I do not accept the submission that the first five consignments showed that the appellant's involvement in the sixth consignment was not a coincidence. There was no evidence capable of connecting the appellant to the first five consignments. The appellant's uncontested evidence was that his connection with Jim Saba was an entirely innocent one (dirt bikes) and occurred months earlier. The appellant's presence in Sydney was not restricted to the dates on which the consignments were made and was innocently explained by him. His explanation was not challenged in cross-examination. There was nothing which indicated the appellant had any direct or indirect involvement in the first five consignments.

136 In my opinion, the evidence of the first four consignments was completely irrelevant and therefore inadmissible. The fifth consignment was relevant but only for the limited purpose I have mentioned.

137 I have acknowledged that no objection was made to the evidence of the first five consignments when it was adduced, although, later in the trial, senior defence counsel described the evidence as speculation. It may be inferred that senior counsel at this late point appreciated its inadmissible nature. I am unable to see any objective forensic reason why senior counsel did not object to the evidence earlier.

138 To this extent, leave to appeal should be granted with respect to ground 6 and the ground upheld. I add that, as none of the consignments could properly be said to be similar fact evidence, s 31A of the Evidence Act had no application.

140 His Honour's treatment of the other consignments in his summing up was by way of comment not direction. I accept the respondent's submissions that the comment was strongly favourable to the appellant. However, the evidence was left for the jury to consider and, in effect, to give it such weight as they thought fit.

141 The jury should have been directed at least that as a matter of law the first four consignments were irrelevant and that the fifth consignment was relevant only for the purpose of explaining why attention was drawn to the sixth consignment. This is particularly so given senior defence counsel queried the relevance of the other consignments after the prosecutor's closing address.

142 However, in my opinion, the direction should have gone further.

143 There was, in my view, a real risk that the jury would have impermissibly adopted propensity reasoning with respect to the first five consignments. The State adduced evidence that the fifth consignment contained cannabis; this fact, combined with the evidence that the first five consignments were linked, gave rise to the danger that the jury would reason, impermissibly, that all five consignments contained drugs. This risk was heightened by the undisputed fact that the sixth consignment contained drugs. The State's case was that the appellant was connected to all the consignments. If the jury reasoned that all of the consignments contained drugs, there was a danger that the jury might adopt a process of reasoning that the appellant had previously been involved in drug consignments and therefore, was more likely to be involved in the consignment the subject of the charge. Of course, such a process of reasoning was not established by the evidence and would have been irrational. In order to guard against a real risk of miscarriage of justice, his Honour was obliged, in these circumstances, to direct the jury not to reason in this way. He did not do so.

144 I would grant leave to appeal and uphold ground 7.

145 This court must allow an appeal if, in its opinion, the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: Criminal Appeals Act 2004 (WA) s 30(3)(a). The expression, 'unreasonable or cannot be supported', is, in substance, the same as, 'unsafe and unsatisfactory'.

146 In JRNT v The State of Western Australia [2011] WASCA 183, I set out the relevant legal principles that must be applied when considering whether a jury's verdict of guilty is unreasonable and cannot be supported:

The question which this court must ask itself is whether, upon a consideration of all of the evidence, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. The word 'open' in this context is important. As Hayne J said in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559:

[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (emphasis in original)

This court must undertake its own independent assessment of all of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support a verdict: SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571. Full regard must be given to the considerations that the jury is the body primarily entrusted with the responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses.

The test laid down in M v The Queen must be applied in this way:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495) [59] - [61].

147 The appellant's case with respect to this ground is that it was not open, on a consideration of all of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The appellant submitted, in summary, that:

(a) there was no evidence of who had consigned the box;

(b) there was no evidence of any contact between Mr Lothian and the appellant, particularly on 15 November 2010, when Mr Lothian attended at the freight company expecting to collect the consigned box, only to be asked to return the following day; further, there was no evidence of any contact between them on 16 November 2010 after Mr Lothian had collected the box;

(c) although DNA matching the appellant was found on one of the disposable plastic gloves in the kitchen, there was no evidence that he had worn the glove; it is submitted that the presence of DNA was equally consistent with the appellant touching the outside of the glove when he shook hands with Mr Lothian shortly after he entered Mr Lothian's home on 16 November 2010;

(d) there was no drug-related paraphernalia found at the appellant's premises after his arrest;

(e) there was no evidence connecting the appellant with the other five consignments or that those consignments contained drugs;

(f) there was no physical or forensic evidence linking the appellant to the drugs or the packaging;

(g) the evidence of flight could be innocently explained;

(h) the appellant's sworn evidence was capable of rational belief; and

(i) when the appellant was arrested he had $900 in his possession, which was consistent with his evidence that he intended to make a small purchase of drugs from Mr Lothian.

148 The respondent's case was that, having regard to all of the circumstantial evidence, viewed in its entirety, it was well open to the jury to find the appellant guilty.

149 For the purpose of this analysis, I put to one side the inadmissible opinion evidence of Detective Shanahan and the inadmissible evidence of the other consignments. Further, the appellant's alleged lie as to his residence was not evidence of guilt, although it could weigh adversely in the assessment of the appellant's credit.

150 The unchallenged evidence was that on 15 November 2010, Mr Lothian tried to collect the box which originally contained the approximately 5 kg of methylamphetamine from the freight company in Kewdale. He returned the following day and picked up the box, returning to his house in Spearwood at approximately 3.09 pm. At approximately 3.16 pm, Mr Lothian removed the box from the rear of his vehicle and took it inside. At approximately 3.20 pm the appellant arrived on his pushbike and went inside. When the police entered Mr Lothian's house at approximately 4.00 pm, the box had been opened and the drugs had been unpacked.

151 I have listened to the listening device recording. I have done so through speakers and not headphones. This court was told at the hearing of the appeal that the jury did not use headphones. What can be clearly heard from the recording is that after the appellant's arrival in the house, the box is opened. What can also be heard are sounds consistent with the plastic tool boxes being broken open. There were bolt-cutters found in Mr Lothian's kitchen.

152 Mr Lothian's voice is louder and appears to be closer to the listening device itself. The appellant's voice is not as loud and appears to be further away from the device, although not as far as the tool room from where the appellant said he spoke to Mr Lothian for much of the time. It appears that the two men were in close proximity to each other and that the appellant was aware of what Mr Lothian was doing. Although the sound quality of the recording is poor and it is difficult to make sense of a good deal of the conversation between the two men, it is clear that they were conversing and that the discussion appeared friendly.

153 During the conversation, Mr Lothian told the appellant that 'on the way back, ... I knew I was getting low on fuel [and] 60 metres before the servo ... I ran out of fuel'. This statement, addressed as it obviously was to the appellant, is of some significance. It clearly refers to Mr Lothian collecting the box. Mr Lothian's account of events does not refer to him catching a taxi to pick up the box, and then leaving the box in the boot of the taxi while he went to purchase some petrol to refuel his vehicle. It is reasonable to infer that Mr Lothian was explaining why he had been delayed and that he did not tell the truth about what occurred when he ran out of petrol because he did not want to reveal to the person for whom he was collecting the drugs that such a valuable quantity of them had been left in the taxi while he went to buy petrol.

154 Later, the appellant asked Mr Lothian if he had a 'pipe'. Methylamphetamine is commonly smoked, using an implement such as a pipe. The police found a pipe at Mr Lothian's home and a lighter in the kitchen. It is reasonable to infer that by the time the appellant requested the pipe, the box had been unpacked so that its contents could be sampled. If the appellant was sampling the drugs, this would be evidence to suggest that he had some possessory interest in them. It is shortly after the appellant asked for a pipe that he left Mr Lothian's house; the State's case being that the appellant, realising the substance in the box was not methylamphetamine, left in order to make inquiries as to what had happened.

155 The listening device product reveals that after the appellant asked Mr Lothian if he had a pipe, Mr Lothian replied in the affirmative. After that, there are no sounds of unpacking and no conversation between the two men for approximately 2 minutes and 30 seconds. About 10 minutes after the appellant asked Mr Lothian if he had a pipe, the appellant can be heard to say, 'Don't move. I'll come back.' There is then the sound of a door closing.

156 The appellant's evidence was to the effect that the purpose of his visit to Mr Lothian's house was primarily to purchase a small amount of drugs for his own use. It may be accepted that the $900 found on the appellant is consistent with such a transaction. However, against this and the appellant's evidence must be weighed the following factors:

1. On any analysis, Mr Lothian was in possession of what he believed was a very large quantity of methylamphetamine, a highly illicit substance. Although there was no evidence as to his belief of its value, he must have known that it was worth a great deal of money. It seems most unlikely that he would unpack drugs of that nature in the presence of another unless that person was highly trusted and had some connection to the drugs.
2. The police search of the premises revealed that Mr Lothian, apart from what was believed to be 4.981 kg of methylamphetamine, had more than enough of the drug to sell to the appellant. Indeed, he had 8.25 g of methylamphetamine in the tool room, the very room the appellant said he was sitting in. If, as the appellant claimed, the primary purpose for his visit was to purchase a small amount of methylamphetamine from Mr Lothian, such a transaction could and would have been effected quickly. Mr Lothian had all the things necessary to do so. It is inconceivable that Mr Lothian would want a mere purchaser of a small amount of the drug sitting idly or walking freely for more than half an hour in the same place as 5 kg of methylamphetamine, even accepting that he and the appellant were friends who, during small drug deals, were prone to chat for some time.
3. The listening device product indicates that the two men were in close proximity to each other.
4. According to a surveillance operative, at 3.36 pm Mr Lothian left the premises for a short time. Ms Tilbrook left at 3.38 pm. On my listening of the recording taken from the listening device, sounds consistent with unpacking are heard continuously prior to her departure. Accepting that Mr Lothian left the house briefly, it was well open to infer that the appellant was involved in the unpacking of the 'drugs' at least during his absence.
5. The appellant's request for a pipe is consistent with someone wishing to sample the contents of the box. The appellant's explanation that he was bored and sought a pipe to smoke amphetamine is inconsistent with his evidence that his preferred method of consuming the drug was to snort it (ts 462).
6. The police discovered two pairs of plastic disposable gloves in the kitchen. DNA matching the appellant was found on one of the gloves. The presence of two pairs of gloves is highly suggestive that two persons were involved in the unpacking of the box. The only two persons who could reasonably have been involved in that process were Mr Lothian and the appellant. While the presence of DNA matching the appellant may possibly be explicable in the way described by the appellant, the fact remains that there were two sets of gloves in the kitchen.
7. It is an extraordinary coincidence that shortly after Mr Lothian took possession of a box thought to contain approximately 5 kg of high-grade methylamphetamine, the appellant arrived at Mr Lothian's house. Against this, it must be acknowledged that there was no evidence of any communication between Mr Lothian and the appellant.

However, that does not mean that it was impossible for the men to have communicated. There was evidence that Mr Lothian had a Blackberry mobile telephone with a US number. No evidence was adduced about the use of that telephone. The appellant was seen with a telephone when he entered the park after leaving Mr Lothian's house. That telephone, if it existed, was not retrieved. At the appellant's Applecross residence, a Blackberry telephone charger was found plugged into a socket, but no telephone fitting it was discovered. Both men lived in the Perth metropolitan area. It does not appear that Mr Lothian was under surveillance at all times during 15 and 16 November 2010. The surveillance running sheet tendered at trial (Exhibit 15) shows that Mr Lothian was under surveillance between approximately 3.15 pm to 9.45 pm on 15 November 2010 and the following day between 5.40 am and 4 pm. Vehicles were seen arriving and departing from Mr Lothian's house on 15 November 2010 and on the morning of 16 November 2010 (ts 126 - 127). Mr Lothian was seen to make telephone calls from a public telephone box on 15 November 2010 after his first visit to the freight company (ts 116 and 118). He was also seen to use a mobile telephone at 1.35 pm and 1.37 pm on 16 November 2010. Mr Lothian may well have been calling a taxi.

1. It was open to infer from the appellant's flight a consciousness of guilt.
2. There was an indirect link between the appellant and the sixth consignment. The telephone number ending in 731, while not found in any telephone belonging to the appellant or his wife, was found in the telephone of his friend, Peter Tassone. Mr Tassone had travelled to Sydney with the appellant and another on 26 September 2010 (ts 268). Mr Tassone was present when the police searched the appellant's property in Applecross and picked the appellant up from Hakea Prison when he was released on bail. It should also be remembered that the number ending in 731 was also found in Ms Tilbrook's telephone, a telephone Mr Lothian used.

157 I have taken into account that the police did not find any evidence of the common indicia of drug dealing at either the East Perth premises or the appellant's Applecross residence. The common indicia of drug dealing are often found in circumstances where the offender is actually involved in the process of cutting, packaging and selling the drug. Not everyone of the drug hierarchy carries on these roles. While I do not ignore the absence of this evidence, it does not mean that the appellant could not have been in possession of the drug.

158 I have undertaken my own review of the evidence, including that given by the appellant. The appellant appears from the transcript to have remained steadfast under cross-examination. That said, it is obvious that the jury must have rejected his evidence. The jury had, unlike this court, the advantage of seeing the appellant give evidence. The State's case was circumstantial. I am mindful that circumstantial evidence must be evaluated in its entirety and not on a piecemeal basis and that guilt must be the only reasonable and rational inference that could be drawn from the circumstances: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [48]; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 243; and Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578, 579 - 580.

159 In my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was in possession of the substance he thought was methylamphetamine. Although I would grant leave to appeal in respect of ground 1, it must be dismissed.

160 The State submitted that if grounds 2, 5 and 7 were upheld, the proviso in s 30(4) of the Criminal Appeals Act should be applied. I have found that grounds 2, 4, 5, 6 and 7 should be upheld. Having regard to the State's submission, the proviso should not be applied.

161 However, even if only grounds 2, 5 and 7 had been upheld, I would still not have applied the proviso. Section 30(4) provides that even if a ground of appeal is decided in favour of an appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

162 The respondent bears the onus of establishing that, despite any error or errors, no substantial miscarriage of justice has occurred.

163 The leading case with respect to the application of the proviso remains Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. See, more recently, Cooper v The Queen [2012] HCA 60; (2012) 87 ALJR 32. There are three propositions which are fundamental to the application of the proviso in the form that exists in this State. The first of these is that the appellate court must itself decide whether no substantial miscarriage of justice has actually occurred.

164 Ground 2 concerned evidence which was only relevant to credibility being elevated to evidence of guilt. Ground 5 concerned a failure on the part of the learned trial judge to direct the jury not to adopt an erroneous line of reasoning relevant to guilt. Ground 7 concerned the failure by the learned trial judge to properly direct the jury about the evidence of the previous consignments which was capable of having significant prejudicial effect.

165 After evaluating the matters individually and collectively, I am not satisfied that no miscarriage of justice has actually occurred.

Conclusion and orders The appeal against conviction

166 I would uphold grounds 2, 4, 5, 6 and 7. The conviction must be set aside and a new trial ordered. The formal orders I would make are:

1. Leave to appeal is granted with respect to grounds 1, and 3 to 7.
2. The appeal is allowed.
3. The conviction and sentence are set aside.
4. The appellant is to be retried.

167 In the circumstances, it is unnecessary to decide the appeal against sentence. It is dismissed.