Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and practice - Application for leave to appeal against conviction - Grounds of appeal - Particulars - Deficiencies in formulation - Failure to comply with procedural rules - Powers of single Judge

Criminal Appeals Act 2004 (WA), s 27(1), s 30(3), s 32(4)(b), s 40

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43

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

Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997

Clarkson v Director of Public Prosecutions [1990] VicRp 65; [1990] VR 745

Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517

Leary v The Queen [1975] WAR 133

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

Maric v The Queen (1978) 52 ALJR 631

Meaney v The Queen, unreported; SCt of WA; Library No 2267; 28 February 1978

Noor Mohamed v The King [1949] AC 182

Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45

Polidano v The Queen [2003] WASCA 93

R v Abadom [1983] 1 All ER 364

R v Apostilides [1984] HCA 38; (1984) 154 CLR 563

R v Badjan (1966) 50 Cr App Rep 141

R v Christie [1914] AC 545

R v Ireland [1970] HCA 21; (1970) 126 CLR 321

R v Keane [1994] 1 WLR 746

R v Milat (1996) 87 A Crim R 446

R v Prasad (1979) 23 SASR 161

R v Preston, unreported; NSWCCA; No 60164/96; 9 April 1997

R v Privitera (1966) WAR 12

R v Ryan (1984) 14 A Crim R 97

R v Smith (1998) 71 SASR 543

R v Ward [1993] 1 WLR 619

R v Wood (1982) 76 Cr App Rep 23

Santos v The Queen [1987] HCA 55; (1987) 61 ALJR 668

Smith v The Queen (1992) 7 WAR 527

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

1 ROBERTS-SMITH JA: This is an application for leave to appeal against conviction.

2 The applicant (who I shall describe as the appellant) was tried before Crisford DCJ and a jury at Kalgoorlie on an indictment charging three counts of possessing a prohibited drug with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

3 Count 1 related to possession of MDMA (Ecstasy) in respect of which he was sentenced to 2 years 9 months' imprisonment.

4 Count 2 related to possession of methylamphetamine in respect of which the appellant was sentenced to 3 years 2 months' imprisonment concurrent.

5 Count 3 concerned heroin in respect of which he was sentenced to 2 years 9 months' imprisonment, also concurrent.

6 The appeal notice was filed on 12 May 2005. That set out 18 draft grounds of appeal.

7 The appellant's case was filed on 17 June 2005. There were then 19 grounds of appeal, which themselves covered 12 pages. The appellant's submissions ran to 19 pages.

8 On 22 June 2005 I formed the view that leave to appeal was likely to be refused, at least on grounds 5, 7, 12 and 15 as they then stood. I noted that the proposed grounds were prolix and repetitive and others needed redrafting. I accordingly directed pursuant to r 7(1)(e) of the Supreme Court (Court of Appeal) Rules 2005 (WA) ("the Rules") that counsel for the appellant appear on the next criminal appeals directions list. Ms McKenzie appeared before me on 21 July 2005, at which time I pointed out some of the difficulties with the proposed grounds of appeal and indicated some possible ways in which they might be overcome. In doing that, I highlighted to counsel that it is not the function of this Court nor of a Judge of Appeal to redraft an appellant's grounds of appeal.

9 It is expected that the grounds of appeal will comply with the requirements of the Rules (see eg r 32(4)), will not be prolix nor repetitive and that they will succinctly and accurately state and particularise the points upon which the appellant seeks to rely. Whether or not leave will be granted will be determined on the grounds as framed by the appellant or by the appellant's lawyer, not on some different basis which the Court or Judge thinks might be raised. That is not to say a proposed ground may not be amended or a new ground added by a single Judge in an appropriate case. That may be done by a single Judge pursuant to s 40(1)(k) of the Criminal Appeals Act 2004 (WA) or r 43(2)(d) and (e) of the Rules. Normally it would be done on the application of the appellant. Otherwise it might be done by a single Judge where it is clearly necessary to identify the point really sought to be put in issue, or to put it in such a form as to enable it to be properly considered by the Court of Appeal. What should not be assumed by appellants or their lawyers, however, is that the Court of Appeal or a single Judge of the Court will routinely redraft or reformulate inadequate grounds of appeal or grounds which do not comply with the Rules. It should be anticipated that where a ground of appeal is so inadequately or deficiently framed so as not to have a reasonable prospect of succeeding as framed, it will be struck out (r 43(2)(f)). Likewise, if the particulars given are inadequate to support a ground of appeal, the Court of Appeal or a single Judge may strike out the ground without deciding it (s 40(1)(j) of the Criminal Appeals Act).

10 Returning to the present application, on 21 July 2005 I gave the appellant leave to file an amended appellant's case with grounds of appeal amended to accommodate the difficulties which I had raised with counsel.

11 On 29 September 2005, nothing further having been filed or heard from the appellant's lawyers, the Registrar of the Court of Appeal wrote to them requesting them to advise when the amended grounds of appeal and amended appellant's case would be filed. Those documents were forwarded under cover of a letter from the appellant's lawyers dated 30 September 2005, apparently received on 6 October 2005.

12 The grounds of appeal were then reduced to 10, framed as follows:

"1. There was a miscarriage of justice in relation to the admission of DNA into evidence at the trial hearing and as such the verdict is unsafe and unsatisfactory. The learned trial judge refused to conduct a voir dire on the question of the admissibility of the DNA evidence. The DNA evidence was:

(a) inadmissible because it was based on hearsay (there were breaks in the chain of evidence) and neither of the persons who gave the DNA evidence conducted the DNA testing procedure; and

(b) such that its prejudicial value outweighed any probative value it had, particularly in light of the facts that:

(i) the DNA profile identified was found on a plastic container in the appellant's home, recently occupied by the appellant and four of his children, including an adult child;

(ii) the DNA profile identified was a mixed DNA profile, containing a mixture consistent with having come from two individuals;

(iii) the probability of the DNA having come from the appellant was relatively low;

(iv) there was no statistical analysis data available as to the probability of the DNA profile identified having come from a near relative of the appellant, and particularly given that there was evidence four of the appellant's children had recently occupied the home;

(v) the DNA evidence was based on hearsay; and

(vi) the learned trial judge accepted (in her address to the jury) that the DNA evidence was fraught with difficulty and at best was equivocal evidence, as well as accepting that it had very little value at all and would be of very little assistance to the jury if any.

The refusal to conduct a voir dire was, in these circumstances an error of law and resulted in a miscarriage of justice.

2. There was a miscarriage of justice in relation to the admission of all of the certificates of analysis into evidence and as such the verdicts were unsafe and unsatisfactory. The following certificates of analysis were admitted:

(a) Laboratory Reference No. 02F3356002 and Police Reference No. D131854 and relating to substances removed by the analyst from sealed Drug Movement Envelope No. W0037709 ('the MDMA certificate');

(b) Laboratory Reference No. 02F3355002 and Police Reference No. D131853 and relating to substances removed by the analyst from sealed Drug Movement Envelope No. W0037707 ('the heroin certificate'); and

(c) Laboratory Reference No. 02F3355003 and Police Reference No. D131853 and relating to substances removed by the analyst from sealed Drug Movement Envelope No. W0037708 ('the methylamphetamine certificate').

The certificates of analysis should not have been admitted because:

(i) no evidence was lead [sic] as to how substances placed into drug movement bag W0025727 at the appellant's home could be the same substances removed from drug movement envelopes W0037707, W0037708, W0037709;

(ii) no explanation was given for the disparity in the numbers of bags, and the breakdown in the chain of evidence means that there is no evidence that the substances seized were illicit drugs;

(iii) the learned trial judge should have directed the jury to return a verdict of acquittal, or alternately directed the jury that there was no evidence or no satisfactory evidence that the substances seized were the same substances that were analysed;

(iv) no reasonable jury, properly directed, could have been satisfied beyond a reasonable doubt that the substances seized were illicit drugs; and

(v) the verdict was against the weight of the evidence.

3. The verdict in relation to count two on the indictment (the charge of possess [sic] methylamphetamine with intent to sell or supply) amounts to a miscarriage of justice and the verdict was unsafe and unsatisfactory on the following grounds:

(a) the learned trial judge erred in law and in fact in allowing the methylamphetamine certificate to be admitted into evidence where the analyst received three separate plastic bags containing powdered substances which were mixed prior to analysis, so that:

(i) there was a false proposition that all three bags contained powder containing 1.2 percent ephedrine, 26 percent methylamphetamine and 0.3 percent pseudoephedrine where such proposition was not possible without individual analysis of each of the three bags of powdered substances;

(ii) the methylamphetamine certificate was fundamentally flawed in its assertion that the appellant had 5.1 grams of an admixture containing an illicit drug; and

(iii) the prejudicial value of the methylamphetamine certificate outweighed its probative value; and

(b) the learned trial judge erred in law in failing to direct the jury that, in light of the flaws outlined above, the presumption in section 11 of the Misuse of Drugs Act 1981 could not be relied upon to determine the weight of the admixture containing the illicit drug at all.

4. The primary court's decision in relation to all three counts is unsafe and unsatisfactory because the learned trial judge erred at law in failing to direct the jury that even if they did not believe any of the evidence of the accused they should not convict unless satisfied that the prosecution that proved their case beyond a reasonable doubt.

5. The primary court's decision in relation to all three counts is unsafe and unsatisfactory because the police search of the appellant's premises was not conducted in accordance with the relevant police procedures and as a result the probative value of the evidence procured by the search is highly questionable. The search was conducted in an inappropriate manner, including:

(a) searching in the absence of constant video-recording;

(b) video-recording only after items of interest were located, so that the actual finding of items of interest was not recorded, and as such the 'search' was not recorded;

(c) searching in the absence of both the police officer appointed to video-record the search and only permitting observation by that police officer when he was directed to record;

(d) searching in the absence of the person requested by the police to witness the search in the absence of the appellant and only permitting observation by that person when items of interest were located;

(e) failing to conduct the search in an orderly, systematic fashion, but searching ad hoc and without organisation;

(f) failing to record the persons present during the search and participating in the search;

(g) failing to obtain a statement of evidence from the person (Officer Hett) who suggested a search of the area the substances in question were located.

The evidence located during the search is therefore so unreliable that no jury properly directed and understanding the evidence in relation to the search could have been satisfied of the appellant's guilt beyond a reasonable doubt and the jury erred in fact.

6. There was a miscarriage of justice and the verdicts are unsafe and unsatisfactory because the prosecution failed to comply with its duty to disclose material facts to the appellant and or his counsel prior to trial, being information known to police, including:

(a) that Officer Hett suggested a search of the area the substances in question were located, denying the appellant's counsel the opportunity to examine a crucial witness to the discovery of the substances in question;

(b) in relation to count 2 on the indictment, an additional video of the search of the appellant's home and of the handling of substances at the police station after the search of the appellant's home, being information which would have enabled the appellant and his counsel to determine the admissibility and significance of the amphetamine certificate and allowed them [sic: to] object to [sic: its] admission using the procedure in section 38B of the Misuse of Drugs Act;

(c) misleading the appellant's counsel as to the existence of police procedures for the conduct of search warrants at the commencement of the hearing, denying the appellant's counsel the opportunity to cross-examine the various police officers fully and appropriately in light of the relevant procedures and as such the probative value of the evidence of the various police officers is diminished.

7. The primary court's decision in relation to all three counts on the indictment is unsafe and unsatisfactory because the prosecutor refused to accept the appellant's counsel's objections to the admissibility of the certificate of analysis Laboratory Reference No. 02F3355003 and Police Reference No. D131853 and relating to substances removed by the analyst from sealed Drug Movement Envelope No. W0037708 and argued that the appellant had not complied with the procedures in circumstances where his lack of disclosure and provision of false information (as outlined in ground 6 above) meant compliance with the procedure in section 38B of the Misuse of Drugs Act within the time allowed in that provision was not possible. The prosecutor's continued reliance on the certificate of analysis was therefore unconscionable and the probative value of the evidence able to be put before the court was diminished. The appellant's counsel put the prosecutor on notice of the difficulties with the admissibility of the certificate of analysis on 5 April 2005 and was advised by the prosecutor the appellant should have complied with the procedure in section 38B of the Misuse of Drugs Act and the prosecutor presented the State's case on the basis that the appellant had not done everything necessary to object to the admissibility of the certificate, in circumstances where the fact there were difficulties with the certificate were [sic: was] not apparent until a late date because of the lack of disclosure and misleading information provided by the prosecutor to the appellant's counsel.

8. The primary court's decision in relation to all three counts is unsafe and unsatisfactory because the jury erred in fact in light of the evidence of the appellant, various police officers, Ryan Koushappis and Tammy Hyde that the premises were visited and occupied by more than one adult person and that the search was not conducted in accordance with standard procedures. Any jury properly directed and understanding the evidence could not have found the appellant guilty beyond a reasonable doubt where the only evidence was primarily that the substances were found in the appellant's home.

9. The primary court's decision in relation to all three counts is unsafe and unsatisfactory because, in light of all of the deficiencies in the evidence, any jury, properly directed and understanding the matters before them could not have found the appellant guilty beyond a reasonable doubt.

10. The primary court's decision in relation to all three counts is unsafe and unsatisfactory because all the errors in this matter, taken together, mean that the appellant has not had the fair trial to which he is entitled and as such the verdict is unsafe and unsatisfactory".

13 All criminal appeals to the Court of Appeal now require leave to appeal in respect of each ground (s 27(1) Criminal Appeals Act). Leave must not be given unless the Court of Appeal or single Judge dealing with the application is satisfied the ground has a reasonable prospect of succeeding. This means the appellant must satisfy the Court the ground has a rational and logical prospect of succeeding; that is, that it would not be irrational, fanciful nor absurd to envisage it succeeding before three Judges of the Court of Appeal; in effect, that it has a real prospect of success (Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [56]).

14 There were still obvious problems with the grounds of appeal.

15 A refusal by a trial Judge to conduct a voir dire on the admissibility of evidence is not a proper ground of appeal. Other than preliminary appeals against separate trial decisions under s 26 of the Criminal Appeals Act, appeals are against either conviction or sentence. There are only three possible grounds of appeal against conviction. They are that (s 30 Criminal Appeals Act):

(a) the verdict should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

(b) the conviction should be set aside because of a wrong decision by the Judge on a question of law, or

It is not permissible merely to assert a ground of appeal in those terms - concise and succinct particulars must be given (r 32(4)(b) of the Rules).

16 In that light, whether or not a trial Judge refuses to conduct a voir dire is irrelevant. The complaint must, in reality, be that the verdict was unreasonable or cannot be supported by the evidence, or that there was a miscarriage of justice, (here, that DNA evidence was wrongly admitted into evidence).

17 Ground 7 remained prolix and unclear. Whether a prosecutor "accepts" or does not "accept" an objection made by the defence is of no moment to the integrity of a verdict or conviction; nor is the fact that a prosecutor puts a particular argument. The substance of this ground, so far as it could be gleaned, seemed to be that the probative value of the evidence the appellant was able to put before the Court in relation to the analysis was diminished, but there was no specification nor particularisation of why that was so, what the "difficulties" with the certificate were said to be, nor how they rendered the verdicts unsafe or unsatisfactory. If the difficulties were those referred to in ground 3, then the point would have been covered by that ground. Ground 7 failed otherwise to identify any way in which the verdicts were rendered unsafe or unsatisfactory.

18 As framed then, ground 8 did not identify the point the appellant sought to raise. It appeared from counsel's submissions that the point sought to be ventilated here was that the evidence was incapable of establishing beyond reasonable doubt that it was the appellant who was in possession of the prohibited drugs, as opposed to one or more of the other persons who lived in or who had access to the premises.

19 Ground 9 was repetitive of other grounds and also failed to state any adequate particulars.

20 Proper consideration of the appellant's case required examination of the trial transcript. As the trial had taken place on circuit in Kalgoorlie, the proceedings had been recorded but no transcript had been typed. I requested that be done. Following receipt and consideration of the transcript, it seemed to me leave to appeal should be given on some grounds, appropriately amended, but not others. On 21 November 2005 I accordingly directed that the application be listed, ex parte, to enable the appellant's lawyer to make oral submissions. Pursuant to r 7(1)(f) I limited the time for such submission to not more than 20 minutes.

21 The appellant's solicitors were notified by facsimile from the Court of Appeal office on 22 November that the application had been listed for hearing on 28 November.

22 On that day, there was no appearance for the appellant. Nor had there been any response to the Court's notification, nor any document filed, on behalf of the appellant.

23 I formally adjourned the application to a date to be fixed, notwithstanding that a single Judge of Appeal may dismiss an appeal if the appellant has not obeyed the rules or any order made under them (r 43(2)(g)(ii)). The application was subsequently re-listed for 12 December 2005.

24 On that occasion, Mr Stephen Walker appeared for the appellant. The substance of his submissions on that day was that the appellant wished to file recast grounds of appeal and a new appellant's case. Following discussion with counsel about the difficulties with the formulation of the grounds as they then stood, and on his assurance that re-drafted grounds of appeal and a further appellant's case could be filed within 14 working days, I gave the appellant leave to do that.

25 A document headed "Appellant's Amended Case" was filed on 4 January 2006. That set out (further) substituted grounds, but did not comply with r 32, in that it did not contain a draft chronology and a draft index, nor state the orders wanted. Furthermore, as became apparent in the course of my assessment of an individual substituted grounds of appeal, the references to the trial transcript were frequently incorrect, which necessitated trawling through the transcript to find what was intended to be referred to.

26 On 18 January 2006 the appellant filed a further "Amended Appellant's Case", containing the orders wanted, a draft chronology and draft indices.

27 Although significantly improved on the previous grounds, the present grounds are still imperfectly formulated and the particulars are prolix. The present grounds (filed on 4 January 2006) are:

"1. The convictions should be set aside because of a wrong decision on a question of law by the learned trial judge.

Particulars

(a) The learned trial judge admitted the evidence of Mr A Bagdonavicius and Dr PJ Hallam as to matter found on a plastic container located in the Appellant's home ('the DNA evidence');

(b) The learned trial judge should have excluded the DNA evidence, either because it was inadmissible, or alternatively in the exercise of her discretion;

(c) The DNA evidence was inadmissible because it was based on hearsay (there were breaks in the chain of evidence) and neither of the persons who gave the DNA evidence conducted the DNA testing procedure;

(d) The prejudice to the Appellant arising from the admission of the evidence outweighed any probative value it had, particularly in light of the facts that:

(i) the DNA profile identified was found on a plastic container in the Appellant's home, recently occupied by the Appellant and four of his children, including an adult child;

(ii) the DNA profile identified was a mixed DNA profile, containing a mixture consistent with having come from two individuals;

(iii) the probability of the DNA having come from the Appellant was relatively low;

(iv) there was no statistical analysis data available as to the probability of the DNA profile identified having come from a near relative of the Appellant, and particularly given that there was evidence four of the Appellant's children had recently occupied the home;

(v) the DNA evidence was based on hearsay; and

(vi) the learned trial judge accepted (in her address to the jury) that the DNA evidence was fraught with difficulty and at best was equivocal evidence, and that it had very little value at all and would be of very little, if any, assistance to the jury.

2. The convictions should be set aside because of wrong decisions on questions of law by the learned trial judge.

Particulars

(a) The following certificates of analysis were admitted:

(i) Laboratory Reference No. 02F3356002 and Police Reference No. D131854 and relating to substances removed by the analyst from seated Drug Movement Envelope No. W0037709 ('the MDMA certificate');

(ii) Laboratory Reference No. 02F3355002 and Police Reference No. D131853 and relating to substances removed by the analyst from sealed Drug Movement Envelope No. W0037707 ('the heroin certificate'); and

(iii) Laboratory Reference No. 02F3355003 and Police Reference No. D131853 and relating to substances removed by the analyst from sealed Drug Movement Envelope No. W0037708 ('the methylamphetamine certificate').

(b) The certificates of analysis should not have been admitted because:

(i) no evidence was led as to how substances placed into drug movement bag W0025727 at the Appellant's home could be the same substances removed from drug movement envelopes W0037707, W0037708, W0037709;and

(ii) no explanation was given for the disparity in the numbers of bags, and the breakdown in the chain of evidence means that there is no evidence that the substances seized were illicit drugs.

(c) The learned trial judge erred by failing to put to the jury the defence that the evidence did not prove that the substances seized were prohibited drugs.

3. The conviction on count two on the indictment should be set aside because of wrong decisions on questions of law by the learned trial judge.

Particulars

(a) The analyst who prepared the methylamphetamine certificate had received three separate plastic bags containing powdered substances which were mixed prior to analysis, leading to an erroneous conclusion that all three bags contained powder containing 1.2 percent ephedrine, 26 percent methylamphetamine and 0.3 percent pseudoephedrine;

(b) The learned trial judge should have refused to admit the methylamphetamine certificate as the prejudice its admission caused to the Appellant outweighed its probative value; and, further

(c) the learned trial judge should have directed the jury that in the circumstances the presumption created by Section 11 of the Misuse of Drugs Act 1981 did not operate to determine the weight of the admixture containing the alleged illicit drug.

4. The convictions should be set aside because of a wrong decision on a question of law by the learned trial judge, constituted by her failure to direct the jury that even if they did not believe any of the evidence of the Appellant they should not convict unless satisfied that the prosecution had proved its case beyond a reasonable doubt.

5. The convictions should be set aside because of a wrong decision on a question of law by the learned trial judge.

Particulars

(a) The police search of the appellant's premises breached the relevant police procedures in the following respects:

(i) searching in the absence of constant video-recording;

(ii) video-recording only after items of interest were located, so that the actual finding of items of interest was not recorded, and as such the 'search' was not recorded;

(iii) searching in the absence of both the police officer appointed to video-record the search and only permitting observation by that police officer when he was directed to record;

(iv) searching in the absence of the person requested by the police to witness the search in the absence of the appellant and only permitting observation by that person when items of interest were located;

(v) failing to conduct the search in an orderly, systematic fashion, but searching ad hoc and without organisation;

(vi) failing to record the persons present during the search and participating in the search;

(vii) failing to obtain a statement of evidence from the person (Officer Hett) who suggested a search of the area the substances in question were located.

(b) The probative value of the evidence procured by the search was outweighed by the prejudice which its admission caused to the Appellant, and it ought to have been excluded in the exercise of the judge's discretion.

6. The verdicts of guilty on which the convictions were based should be set aside because, having regard to the evidence, in particular those features of it outlined below, they are unreasonable and cannot be supported.

Particulars

(a) the failure by the prosecution to comply with its duty to disclose material facts to the Appellant prior to trial, being information known to police, including:

(i) that Officer Hett had suggested a search of the area in which the substances in question were located, effectively denying to the Appellant's counsel the opportunity to examine a crucial witness to the discovery of the substances in question;

(ii) in relation to count 2 on the indictment, an additional video of the search of the Appellant's home and of the later handling of substances at the police station, being information which would have enabled the Appellant's counsel to determine the admissibility and significance of the amphetamine certificate;

(iii) as to the existence of police procedures for the conduct of search warrants, effectively denying to the Appellant's counsel the opportunity to fully cross examine the various police officers;

(b) the evidence, given by the Appellant, various police officers, Ryan Koushappis and Tammy Hyde, that the premises were visited and occupied by more than one adult person;

(c) the evidence (particularised in Ground 5) that the search was not conducted in accordance with standard Police procedures;

(d) the deficiencies in the DNA evidence, particularised in Ground 1;

(e) the deficiencies in the evidence constituted by the certificates of analysis, particularised in Ground 2; and

(f) the matters particularised in Grounds 3, 4 and 5."

28 As I have observed, it is not for me to seek to reformulate the appellant's grounds. Having considered them, I would grant leave to appeal in respect of grounds 1, 2, 3, 4 and 6. I would order, pursuant to r 43(2)(a), that the application for leave to appeal in respect of ground 5 be adjourned to the hearing of the appeal.