Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and procedure - Appeal against conviction - Three counts of possessing prohibited drugs with intent to sell or supply - DNA evidence - Whether admissible - No evidence of scientific laboratory analysis relied upon for findings by forensic biologist - Relevance - Sample found on container in appellant's home - No DNA testing nor statistical analysis allowing for family relationships - Whether miscarriage of justice

Appeal - Criminal law and procedure - Drug analysis evidence - Whether evidence that items seized were those analysed - Numbers of drug movement envelopes not corresponding - Certificates of analysis under s38 Misuse of Drugs Act 1982 (WA) - Whether three separate samples mixed - Evidence

Appeal - Criminal law and procedure - Direction in respect of accused's evidence - Whether Liberato direction required

Appeal - Criminal law and procedure - Police search of appellant's premises - Non­disclosure of police procedural instructions - Whether police guidelines followed - Whether evidence should have been excluded in exercise of discretion

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

Criminal Procedure Act 2004 (WA), s 95, s 97

Director of Public Prosecutions Act 1991 (WA), s 24(1), s 24(3)

Evidence Act 1906 (WA), s 50B

Misuse of Drugs Act 1981 (WA), s 38

Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116

Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432

Corker v Western Australia [2004] WASCA 125; (2004) 146 A Crim R 33

E (1995) 89 A Crim R 325

Gordon v The Queen (1982) 41 ALR 64

Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708

Harman v Western Australia [2004] WASCA 230; (2004) 29 WAR 380

Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590

Koushappis v The State of Western Australia [2006] WASCA 14

Latham v The Queen [2000] WASCA 57

Lee (1989) 42 A Crim R 393

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

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

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

Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125

Middleton [2000] WASCA 200; (2000) 114 A Crim R 141

Milat (1996) 87 A Crim R 446

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844

Perry (1990) 49 A Crim 243

R v C [1993] SASC 4095; (1993) 60 SASR 467

R v Christie [1914] AC 545

R v Humphrey [1999] SASC 67; (1999) 72 SASR 558

R v Jarrett [1994] SASC 4596; (1994) 62 SASR 443

R v Ryan [2002] VSCA 176

R v Sang [1979] UKHL 3; [1980] AC 402

R v Sing [2002] NSWCCA 20; (2002) 54 NSWLR 31

R v Tonkin [1975] Qd R 1

R v Ward (1993) 1 WLR 619

Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324

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

1 ROBERTS-SMITH JA: This is an appeal against conviction on three counts of possessing prohibited drugs with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

2 On 20 April 2005 following trial before Crisford DCJ and a jury at Kalgoorlie, the appellant was convicted of one count of possession of MDMA (or ecstasy) with intent to sell or supply; one count of possessing methylamphetamine with intent to sell or supply and one count of possessing heroin with intent to sell or supply.

3 On 21 April 2005 he was sentenced to 2 years 9 months' imprisonment in respect of count 1; 3 years 2 months' imprisonment in respect of count 2 and 2 years 9 months' imprisonment in respect of count 3, all sentences to be served concurrently. His total effective sentence was therefore 3 years 2 months' imprisonment. Her Honour declined to make an order that the appellant be eligible for parole.

4 There were initially 19 grounds of appeal, supported by extensive particulars. Notwithstanding earlier efforts to refine them (see Koushappis v The State of Western Australia [2006] WASCA 14), there are still six grounds of appeal, with particulars. They are still prolix and to a degree repetitive.

"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 sealed 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 [sic W0025272] 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 [sic] 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;

(11) 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."

6 I shall describe the evidence specifically relevant to each ground of appeal when I deal with the individual grounds, but in the meantime it is helpful to give a broad overview of the prosecution case.

7 On 15 March 2003, police officers went to a house in Kalgoorlie. They arrived in the afternoon. The only occupant at that time was the 12-year-old son of the appellant. That being so, a commissioned police officer, Inspector Maslin, who was then stationed in Kalgoorlie, was called to the house as was a Mrs Starr, the appellant's former wife or partner, the mother of the child.

8 The officer co-ordinating the investigation, Detective Senior Constable ("DSC") Gartlan, telephoned the appellant's mobile telephone number. There was an exchange in which the appellant made abusive comments to the officer.

9 Inspector Maslin, who was the senior officer at the premises at the time, but who was there as an officer not involved in the investigation and only to ensure that proper police procedures were complied with, attempted to speak with the appellant but the appellant did not answer his phone.

10 Shortly afterwards, the appellant arrived in a car outside the premises. There were uniformed police officers there and when he saw what was going on and that police were present, he reversed his car and drove off.

11 The police officers searched the house. That lasted over a couple of hours. During the course of the search a set of scales was located at the premises as were some boxes of Glad snap-lock plastic bags. They were found in a kitchen drawer. One of the officers, Detective McLeod, located a small plastic container with a blue lid behind a vase on a shelf in the kitchen. That container had in it ten small plastic clip-seal bags, three of which contained a white powder substance, three of which contained a brown powder substance and one a quantity of purple tablets. There were three empty plastic bags.

12 The powder and tablets were subsequently analysed. There were 13 tablets analysed as ecstasy. In three of the other plastic bags there were about 5.1 grams of methylamphetamine, ranging from 8.37 to 26 per cent purity. In the remaining three bags there was a quantity of heroin with a purity of 8.37 per cent.

13 It was the prosecution case that not only did the appellant occupy the premises but he had access to, or control of the drugs, and they were in his possession.

14 A DNA swab taken from the plastic container was compared with a DNA swab taken from the appellant. The comparison showed that the appellant could not be excluded as a possible source of the DNA on the plastic container.

15 The appellant was found by police a couple of days later on 17 March 2003, hiding in the rear of a motor vehicle at the Elverton motel complex in Kalgoorlie. He was hiding under a blanket. He was found by DSC Gartlan.

16 The prosecution case was that the varying quantities of the drugs and their purities, together with the facts I have outlined and the scales and other items found at the house, were sufficient to establish that the drugs were in the possession of the appellant and that his intention was to sell or supply them to others.

17 This ground complains of a wrong decision on a question of law by the trial Judge. The wrong decision is said to be allowing the admission of the DNA evidence. It is said to be wrong because either the evidence was inadmissible, or alternatively, it ought to have been excluded in the exercise of her Honour's discretion because its prejudicial effect outweighed its probative value.

18 It is necessary to examine the DNA evidence and then to consider what her Honour said about it in her summing-up to the jury.

19 In the course of the trial and before Mr Bagdonavicius, a forensic scientist, was called by the prosecution, Ms McKenzie objected to the DNA evidence being adduced at all, on the ground it lacked any probative force and so was inadmissible. She requested the evidence be taken on the voir dire so that could be canvassed. Her Honour took the view that the matters counsel wished to canvass went to weight rather than admissibility, and declined to conduct a voir dire. She held the evidence should be given before the jury and tested as to its credibility and weight in the ordinary way.

20 Ms McKenzie then raised another matter about which she said she was not yet certain and would not be until she had explored it with Mr Bagdonavicius, who was the author of a scientific report on the DNA analysis ("the DNA report"). She said it appeared to her that the DNA report was inadmissible on its face because it appeared to be based upon hearsay evidence. The submission was that it was not Mr Bagdonavicius who conducted the testing but somebody else and he was accordingly simply relying on what he had been told by someone whose evidence would not be before the court. Ms McKenzie said that she could not fully develop her submissions in relation to that until she had the opportunity to explore the matter with the witness.

21 The State prosecutor, Mr Mactaggart, told her Honour that his understanding was that Mr Bagdonavicius did conduct the tests.

22 On that understanding her Honour declined to have the evidence called on the voir dire for that purpose either.

23 Mr Bagdonavicius then gave his evidence before the jury. He did so by video-link from Perth. He is a forensic biologist. He explained DNA is a chemical found in every cell of the human body. It is a genetic blueprint for the particular individual. It is unique in all people except identical twins. DNA can be obtained from blood, semen, skin cells, saliva, hair roots, teeth, bone and tissue. It does not matter what the physical source of the DNA in the body is - the DNA is the same in every part of the body. An analysis is undertaken to create what is called a "DNA profile" and the profiles so obtained are then compared to reference samples.

24 He explained that skin cells may be transmitted from a person to just about anything the person touches. There could be either direct contact where someone may handle an item or simply by coming in contact with the person's skin in some way.

25 Mr Bagdonavicius was asked whether on 4 April 2003 the PathCentre forensic biology laboratory had received certain items said to have been seized from the appellant's address in Kalgoorlie. He said they did. He was asked if they were a plastic container and four small clear plastic zip-lock bags. He agreed that was so. He said the plastic container appeared to have been used. There were score marks on the base in particular. There was nothing in the container at the time. The object of the examination was to see if it could be determined who had handled that container. The witness said he had a reference buccal sample in the name of the appellant.

26 Mr Bagdonavicius said that on examination of the container:

"We were able to obtain a mixed DNA profile from the sample we took from the lid and the base."

27 He said a single swab was taken and all areas of the outside of the base and the outside of the lid were swabbed. That was what yielded the mixed sample. He explained that in some cases where an item might have been handled by several people, it is possible to get the DNA from more than one person. That is what they call a mixed sample. Occasionally it is possible to tell if there is a major or minor component, but in this case:

"... we couldn't distinguish between the major and minor component of the results."

28 Asked about the evidentiary role of DNA, Mr Bagdonavicius said that it is basically exclusionary; depending upon what the results are, it is possible to exclude people if the result is different to the reference sample.

29 In this instance, the mixed sample was compared with the reference profile of the appellant. The conclusion was that the appellant could not be excluded as contributing to the mixed DNA profile.

30 The outside of each of the small clear plastic bags was sampled but no DNA profiles were obtained.

31 A statistical calculation was done in relation to the mixed profile found on the container. That was to determine the "likelihood ratio", looking at it from the prosecution outcome on the one hand and the defence outcome on the other.

32 Mr Bagdonavicius concluded that if it were assumed that there were two individuals contributing to the mixture, it was 460,000 times more likely to find this mixed DNA profile if it came from the appellant and an unknown individual than if it came from two unknown individuals. He said that calculation was based on Western Australian population data. Other calculations had also been done. Assuming that three persons contributed to the mixed profile, the likelihood ratio came down to 190,000; if four people were assumed to contribute, the figure reduced further to 120,000.

33 In cross-examination Mr Bagdonavicius conceded that he had not done the actual DNA testing. He analysed and read the results at the end. The initial examination, DNA testing and profiling was physically done by someone else in the laboratory and he reviewed the results. It was from the review of those results that he prepared his report.

34 Following that evidence, Ms McKenzie sought to make further submissions in the absence of the jury and of the witness. In those submissions she renewed her earlier contention that the report was not admissible because the evidence now showed it to clearly be based upon hearsay. Mr Mactaggart sought the opportunity to ask further questions of the witness on the voir dire. Mr Bagdonavicius was recalled for that purpose and further examined by Mr Mactaggart. He first said he was present while a colleague obtained the sample, but on further questioning said that although he supervised the item being physically examined, he was unsure if he was present while the swab was taken. He subsequently personally examined the results. At that point there were further exchanges between counsel and the Bench. Mr Mactaggart said he wished to call a further witness, being the person who conducted the examination of the item, namely Dr Hallam. Her Honour agreed to that course, but insisted that the evidence of Mr Bagdonavicius should continue in the meantime. He was recalled and Ms McKenzie continued her cross-examination of him before the jury.

35 Mr Bagdonavicius reiterated that one of the ways in which DNA may be left on an item is by direct contact, but there could be others. They included the possibility that a person may talk over the top of an item like a container and actually spit and at that time and in that way transfer DNA. They may also have some other item that is contaminated with blood or some other body fluid which may transfer DNA to the container as well. DNA could be transferred by someone handling an item or picking it up.

36 As to the statistical analysis, he agreed he had not been asked to provide a statistical analysis which included within the calculation, persons who were direct relatives of the appellant. He confirmed that a person's DNA profile comes from their mother and father and is likewise passed on in that way to their children. Accordingly, if the comparison were comparing the appellant not with the general population but with one of his children, the result would be quite different because they would probably share a few of the results. He said that what would be done in that case would be to obtain reference samples from everybody and do the same sort of calculation as had been done for the appellant. That had not been done (in relation to family members) in this case; only one reference sample was provided and that was from the appellant.

37 In re-examination Mr Bagdonavicius said that Dr Hallam prepared the container for examination and obtained the sample from it, which was then forwarded to the DNA section within the laboratory. Laboratory staff then processed the sample and produced the result which Mr Bagdonavicius retrieved and analysed and from which he prepared his report.

38 Dr Hallam gave evidence by video-link later the same day.

39 In her evidence-in-chief she said that on 4 April 2003 the PathCentre received a plastic container for analysis from the appellant's address. She examined it on 11 June 2003. She photographed and documented the item and swabbed the surfaces of the lid and base of the container with a sterile swab. That was then submitted to the DNA laboratory for analysis. That process involved extraction of the DNA, amplification of it and then the running of it on a genetic analyser.

40 The extracted DNA is processed by a method called polymerase chain reaction ("PCR") which is like photocopying. It is a method of copying the DNA that is present at specific regions (or loci) and multiplying that many times. That is then loaded onto the genetic analyser which has a computer programme which generates the DNA profile.

41 Dr Hallam said that the profiling done in the PathCentre looks at ten regions of DNA. One of those is specific to sex and the other nine regions or loci are areas in which individuals differ greatly. The loci chosen are regions where there are repeat sequences of DNA, and it is the number of those repeat sequences which differ between individuals. This information is transcribed into the DNA profile, which is a series of peaks and the computer can assign the number of repeats for each of those loci which are examined. The DNA profile so produced is then provided to the person who is to write the report - in this case Mr Bagdonavicius.

42 In cross-examination, Dr Hallam confirmed that after she swabbed the container, she sent the swab to the laboratory and that she did not do the DNA analysis work either on that nor on the reference sample taken from the appellant.

43 Counsel for the respondent submits that the PCR technique has been accepted in Australian courts and evidence obtained by means of it has been held to be admissible. That is so (see eg R v Jarrett [1994] SASC 4596; (1994) 62 SASR 443; Milat (1996) 87 A Crim R 446, 448; R v Humphrey [1999] SASC 67; (1999) 72 SASR 558 [6]), but that is not the point here. What is the point, is the requirement for direct evidence of each stage of the DNA analysis process. There is an evidentiary gap. Dr Hallam swabbed the plastic container. She gave the swab to the PathCentre laboratory for analysis. Mr Bagdonavicius' testimony was that he received the results of the laboratory analysis and those were what he then used to do his own comparison, statutory calculations and report. What was missing at trial was any direct evidence about what the person or persons in the laboratory did with the swab.

44 This forensic problem was addressed by s 50B of the Evidence Act 1906 (WA). That section establishes a standard format for the presentation of DNA evidence in court by way of a certificate.

45 In the Second Reading Speech as published in "Hansard" on 23 June 2004, the Hon Attorney General, Mr McGinty, explained the problem and the statutory remedy as follows (at 4185 - 4186):

"A trend is emerging during trials in this State to challenge the evidence of forensic scientists on the basis that the forensic scientist who wrote the report and then gives the evidence at trial is not the same person who originally tested the item for DNA. The evidence is being challenged on the basis that it is hearsay.

A range of people with different qualifications participate in DNA testing and the production of the final report. The DNA testing and reporting process is made up of scientists in charge, team leaders, forensic scientists, scientists, technicians, property officers, laboratory assistants and clerical officers. The scientists and technicians conduct the examinations and test the evidence under supervision. They perform all DNA analysis procedures. The scientist in charge, team leaders and forensic scientists then collate and review all the results, make interpretations, calculate statistics, issue reports, and peer-review the work of others. The difficulty arises because the final report is not a summary of the raw data received from the scientists and technicians; it is an analysis of that data that is interpreted in light of statistics as well as the specific fact scenario. The report is a whole package and is contributed to by a range of people. To ask the laboratory to change its procedures to accommodate this technicality in the law would mean having the forensic scientist do the initial testing and the analysis, as well as writing the final report. This would lead to a significant amount of extra work, the redundancy of a large number of the laboratory staff and resultant inefficiency. In addition, if the results were unable to stand alone and were dependent on the person who tested the evidence to verify them, there would be problems when staff went on leave, resigned, moved interstate or overseas or died.

The Western Australian Evidence Act 1906 is currently silent on this issue. Queensland and the Northern Territory have amended their legislation to accommodate this procedural issue. This Bill has been modelled on those jurisdictions, by establishing a standard format for presenting DNA evidence in court by way of a certificate. The certificate is evidence of when the item was received at the laboratory, of when it was examined, that a DNA profile or a number of DNA profiles were obtained and that all quality assurance procedures for dealing with the item were complied with. The Bill sets out a standard procedure for cases in which the contents of the certificate are to be challenged.

This Bill will produce two major benefits: firstly, enhancing the administration of justice by ensuring that court time is not wasted by having to call witnesses to validate an accepted testing process; and, secondly, restoring efficiencies in laboratory testing by removing the existing burden on the staff of DNA testing labs who are currently required to attend court frequently to give evidence. I commend the Bill to the House."

46 However, s 50B was inserted by s 4 of the Evidence Amendment Act 2004 (WA) (No 24 of 2004) which did not commence operation until 18 June 2005. The present trial was conducted in April 2005, and the section was accordingly not then in operation.

47 To the extent Mr Bagdonavicius' evidence was to the effect, either explicitly or implicitly, that the information or material he was given and relied upon for the formation of his own opinion were the results obtained from laboratory analysis of the swab, it was necessarily hearsay and inadmissible as the truth of those facts. That in turn necessarily reflected on the expert opinion evidence which Mr Bagdonavicius could otherwise have given - that is to say, about his conclusions based upon his comparison of the laboratory results he had been given. The failure to lead evidence of the facts upon which an expert's opinion has been formulated will result in the expert's evidence being held inadmissible (Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324; Perry (1990) 49 A Crim 243, 249; Lee (1989) 42 A Crim R 393). This is what is known as the "basis rule" for the admissibility of expert evidence. What that means fundamentally, is that if an expert opinion is to be admissible (or if admitted, to be of any weight), the facts upon which it is based must be proved by admissible evidence (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844, 846; Gordon v The Queen (1982) 41 ALR 64; R v Tonkin [1975] Qd R 1, 17).

48 The position was the same in R v Ryan [2002] VSCA 176 and R v Sing [2002] NSWCCA 20; (2002) 54 NSWLR 31, in each of which the appeal was allowed and the convictions quashed.

49 In Ryan, the only issue at trial was whether the appellant was the perpetrator of a serious aggravated burglary, attempted rape and other offences. That turned entirely on the admissibility of DNA evidence. There was no other evidence identifying the appellant. The prosecution attempted to prove the presence of the applicant through the evidence of a single witness, a forensic scientist. He gave evidence that, in his opinion, biological material which he understood had been collected from the victim's home contained DNA which corresponded with the DNA that he believed had been extracted from a blood sample secured from the applicant. He gave evidence of the statistical probabilities in relation to that. During cross-examination, the witness said that biological materials were prepared in the Biological Examinations Branch of the laboratory in the Victorian Forensic Centre, for submission to another branch, called the DNA Science Branch. That was where the actual examination was conducted. Although in a general sense the witness was responsible for the conduct of such examinations, it became clear that he played no part whatever in the collection or examination of any of the material that purportedly contained the DNA of the applicant. His evidence was based entirely upon examination of computer generated printouts, the value of which was dependent upon a factual substratum of work and investigations about which no evidence was adduced before the jury. When objection was taken at trial, the Judge ruled that the opinion of the witness was nevertheless admissible. On the appeal, counsel for the Crown conceded, and the Court held, that the Judge fell into error in so ruling. There was simply no evidentiary basis to support the opinion which accordingly should not have been put before the jury ([9]). The Court quoted the following passage from the judgment of Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at 731 - 732:

"The basal principle is that what an expert gives is an opinion based on fact. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved."

50 The Court (Ormiston, Vincent and Eames JJA) held that as the evidence of the scientist was the only evidence upon which a conviction could be based, the position was patently clear - the appeal had to be allowed and the conviction set aside.

51 Sing turned partly on the hearsay point, but more particularly on the Court's conclusion that the failure of the Crown to call witnesses who actually conducted the lab analyses caused unfair prejudice to the appellant and the evidence ought to have been excluded under s 135 or 137 of the Evidence Act 1995 (NSW) (which sections concern a trial Judge's discretion to exclude evidence which is unfairly prejudicial or lacking in probative value; in Western Australia that discretion is still governed by the common law).

52 There, two expert witnesses gave evidence of DNA analyses in circumstances where they had supervised others to carry out the relevant tests. Those other persons were not called. The two witnesses testified there were established procedures for testing samples which result in the printout of relevant parts of DNA, which printouts were examined by them to determine whether two printouts recorded DNA which could be from the same person and, if so, what was the probability of a person selected at random of having DNA with the relevant characteristics displayed by the printouts.

53 It was held that the admissibility of the opinion evidence of the two expert witnesses depended first on relevance, which in turn depended upon the identification of the samples. Hodgson JA (with whom Levine and Howie JJ agreed) said as to that, that the question whether hearsay was involved depended upon whether the procedures themselves involved persons making reports or representations in which they intend to assert that something was the case and it seemed probable to him that this must have happened - if only in order that the ultimate results of the test be identified as relating to the swab taken from the complainant and the sample taken from the appellant. His Honour said that if hearsay was involved in that way, then without the effect of that hearsay material, the position would be that the opinion of the two experts would be irrelevant because it was not shown to relate to the samples taken from the complainant and the appellant. However, his Honour thought that whatever the correct answer to the hearsay question, there was substance in the appellant's complaint that to admit the evidence of the two experts over objection, without the evidence from the persons who actually carried out the procedures that resulted in the printouts, and indeed without any evidence that there was any difficulty in calling those persons, involved unfair prejudice to the appellant. Accordingly, even if the evidence of the two experts was admissible notwithstanding the possibility of hearsay, in his Honour's opinion it should have been excluded under s 135 and s 137 of the Evidence Act.

54 In his concurring remarks, Howie J said the unexplained failure of the Crown to call witnesses necessary in proof of a very significant part of the Crown's case had deprived the appellant of the opportunity to test that part of the case before the jury and had also deprived the court of the opportunity to determine whether or not the evidence was admissible or whether it should be rejected in the exercise of discretion.

55 Ground 1 must succeed on the basis that Mr Bagdonavicius' evidence of the results of the tests or analyses done in the laboratory was hearsay and therefore inadmissible, not being within any of the recognised exceptions to the hearsay rule. A further consequence is necessarily that Mr Bagdonavicius' evidence itself (insofar as it was expert evidence of opinion based on those results) was thereby rendered inadmissible as lacking the necessary evidentiary foundation. It follows that Dr Hallam's evidence was also irrelevant and therefore inadmissible, since as the case unfolded it led nowhere.

56 It is nonetheless necessary to deal with the remaining particulars advanced in support of the ground, which go to the proposition that the DNA evidence should have been excluded in the exercise of her Honour's discretion, because its prejudicial effect outweighed its probative value. I would hold this ground made out on this account also.

57 The facts asserted at items (i) - (vi) of particular (d) of this ground are correctly stated. I do not repeat them. Her Honour obviously thought the DNA evidence lacked probative value. She said this to the jury about it (GAB 2/225 - 226):

"The defence also said, well, there was some DNA evidence led and that was fraught with difficulty and in any event it does no more than say you could not exclude the fact that his DNA was found on the item, which is quite correct. That's putting it at its highest.

What I say to you about this DNA evidence is this: it would seem when one looks at the evidence given by the chemist over the video, you may find that it is of very little value at all. In some cases DNA is of great assistance but here you have got to look at how it fits in with the facts. We are dealing with a household item. The evidence of both Ms Hallam and the chemist was that the DNA may have come from a number of sources, in a number of ways.

The analysis by the scientist did not take into account that there were lineal relatives within his household. What I suggest to you: when you look at it as a whole, you may find that it's of very little assistance, if of any assistance to you. It would appear to be, at best, equivocal."

58 The evidence was, indeed, less than equivocal. Her Honour was quite right to tell the jury that taken at its highest, the DNA evidence did not exclude the appellant as a possible contributor to the mixed DNA found on the container. That is rather like saying the bank was robbed by a red-headed man, and the accused has red hair. The colour of his hair does not exclude him from being the robber, but it does not tend to prove he was. When to this are added the facts that the other inhabitants of the house were lineal and other relatives, no DNA samples had been taken from them and no statistical calculations made taking them into account, and that the plastic container was a normal household item found in the kitchen of the appellant's home, which he could easily have handled or come into contact with in the ordinary course of daily living, the probative value of the DNA evidence can be seen to have been negligible, if not non-existent.

59 The gravamen of this ground is that the evidence of what was found and labelled by police at the appellant's home was not shown to correspond with what was received and analysed at the Chemistry Centre. The argument therefore is, that the prosecution had failed to prove that what was analysed was that which had been seized from the appellant's home.

60 Senior Constable McLeod said the bags containing the brown powder, the white powder and the tablets were all in the plastic box with the blue lid (GAB 1/64) and he was present when Sergeant Van Noort placed them in a drug movement envelope ("DME").

61 It is apparent the prosecution case was conducted on the understanding that continuity was not in issue. The State prosecutor asked virtually no questions of any witness directed to tracking the detailed handling of the items seized.

62 Senior Constable Cornthwaite produced the tape exhibit 1 showing the second part of the search. That was played to the court. There was then the following series of questions and answers (GAB 1/36 - 37):

"MACTAGGART, MR: Obviously a part of the house you are focusing on there is in the kitchen. Is that right, Mr Cornthwaite?---That's correct, yes.

Had your attention just been drawn to a plastic container. Is that correct?---Yes, it is. Yep.

What was in the plastic container?---If I remember correctly, it was plastic bags which had white powder and that in it I think.

Were they taken out in your presence as just been shown?---Yes, that's correct.

They were obviously taken out in your presence?---yep.

What happened to those bags of white powder? Do you know? Were they seized, were they?---I would if our procedures which we normally follow - they'd be then placed into exhibit bags and then taken back to - - -

Were you requested to film the plastic container after it had been found, so to speak? Is that correct?---That's correct, yes.

Thank you. That's all I wanted to ask you. If the video could be played."

63 The video-tape itself shows the small plastic container placed on a kitchen bench. The bottom part of the container is opaque plastic; the lid is blue plastic. The container itself is exhibit 4. It is quite small. It is 5 cm wide, 7 cm long and 3 cm deep. When it is opened on the video, it can be seen to contain a number of small plastic bags. As they are removed there appear to be 5 plastic bags. One is empty; one contains purple tablets; the other three appear to contain brown powder and white powder, possibly in multiple bags. They are not opened nor otherwise separated at that point, but are seen to be placed into DME No. W0025272. The plastic container and lid can be seen to be dropped into a large clip-seal bag.

64 Senior Constable Cornthwaite's evidence then was that on return to the police complex he took a series of photographs of the plastic bags. His evidence about that was (GAB 1/39):

"Would you have a look at these photographs for me, please. There are six photographs. Are those photographs you took?---Yes, they are.

Would you indicate to the court and the members of the jury what each photograph depicts, if you would?---The first photo showing a plastic bag with some tablets, some purple tablets, that were located there. There's a close-up just trying to show the motif on the tablets.

What was the motif in the shape of to the best of your recollection? I can leave that for another officer but - - -?---It's pretty hard to - it looks circular anyway.

Looks circular?---That's about the best I can say. The next photo is showing three plastic bags with white powder contained inside them and one empty plastic bag. The next photo is pretty much just the same photo just a bit further out. The next photo is showing five plastic bags of which three of them have sort of a whitish sort of brownish sort of powder in it and the last one is just a more close-up photo.

What does that indicate?---It's showing three plastic bags with sort of a whitish brownish powder in them and two empty ones."

65 The items shown in the photographs were obviously removed from DME No. W0025272 for the purpose, although no witness was asked anything about that.

66 DSC Gartlan gave evidence that after Detective McLeod found the small plastic container and placed it on the kitchen bench, he instructed Senior Constable Cornthwaite to turn on the video camera. The container was then opened. They saw that inside it were "some powders and some tablets". The State prosecutor then showed him the photographs exhibit 2. DSC Gartlan identified from them what he thought were three different types of drug.

67 The only evidence by DSC Gartlan about what happened thereafter was that as the inquiry officer, it was his responsibility to ensure the items were sent to Perth for analysis and that he subsequently received certificates from the Chemistry Centre. He identified a certificate he had received in respect of DME W0037709 (GAB 2/264) noted as containing a small clip-seal plastic bag and 13 purple tablets bearing a "question mark" logo and a single score on the reverse. That was tendered as exhibit 5, pursuant to s 38 of the Misuse of Drugs Act 1981.

68 The State prosecutor then attempted to put a certificate of approved analyst relating to the methylamphetamine to DSC Gartlan, but objection was taken to that and subsequently heard in the absence of the jury. The objection went to the point of the mixture of the drug, which is the subject of ground 3 and I shall return to it when dealing with that. Her Honour reserved her decision on the objection and the evidence of the witness continued.

69 DSC Gartlan said he submitted the white powder he had found, for analysis. He subsequently received a certificate relating to DME W0037707. He confirmed that certificate indicated the result of analysis was that all three bags contained heroin - the weight of the powder in the first bag was 0.82 grams, with a heroin content of 8.3 per cent. In bag No 2 the weight of the contents was 1.82 grams with a heroin content of 24 per cent. In bag 3 the powder weighed 1.28 grams with a heroin content of 27 per cent. That certificate was tendered as exhibit 6.

70 All DSC Gartlan otherwise said on this was that he ensured that all items seized, including the drugs, were properly secured at police premises and sent off for analysis. He said he did that.

71 The certificate relating to the heroin was subsequently tendered as exhibit 7. That certificate related to the analysis of the contents of a sealed DME No W0037708 enclosing three plastic bags, each containing pale brown powder.

72 Sergeant Van Noort was the Exhibits Officer for the search of the appellant's residence on 15 March 2003. He testified that amongst other things he was handed (he thought) some bags that contained powder, some liquid and a purple gel (these items were subsequently found to be innocuous). Later he was handed a number of bags and he was "pretty sure" some tablets as well, along with a plastic container. He said he secured them in "security drug movement bags" and took them back to the police station. He did not further describe the items, the drugs or the bags in his evidence-in-chief. Asked whether the drug movement bags were sent to Perth for analysis he said (GAB 1/145):

"I presume so. I didn't have any part to play in that."

73 In cross-examination it was put to him that in his written statement he had said the four small plastic bags he was handed he put in a security movement envelope No W005272. He said he could not quote the number, but they were secured in a bag. He was then shown his statement and he confirmed that was what he said in it. As to the plastic container, he agreed he had placed that not in a security movement envelope, but in an ordinary plastic bag. He said he could not be sure, but he thought that might have been because they had run out of security envelopes. He would have put it in a security envelope if he had one. He said he handed the exhibits to DSC Gartlan on return to the police station. He agreed there was "obviously" not the same degree of security with the item being in the plastic bag as there would have been had it been in a security movement envelope.

74 The foregoing was the sum of the evidence adduced on the issue of these items seized from the appellant's residence, their movement and the analysis of them.

75 It is necessary to look at the statutory evidentiary effect of the certificates under s 38 of the Misuse of Drugs Act.

"(1) An approved analyst or an approved botanist may give a certificate in the prescribed form relating to any analysis or examination carried out by the approved analyst or approved botanist.

(2) In any proceedings against a person for an offence, production of a certificate purporting to be signed by an approved analyst or an approved botanist stating in relation to any thing -

(a) that the thing was obtained or received by the analyst or botanist for analysis or examination;

(b) how the thing was obtained, or when and from whom the thing was received;

(c) a description, and the quantity or mass, of the thing obtained or received;

(d) that the thing was analysed or examined by the analyst or botanist;

(e) the method of analysis or examination;

(f) the results of the analysis or examination_;_ and

(g) any other matters relating to the analysis or examination,

is sufficient evidence of the facts stated in the certificate.

(3) For the purposes of subsection (2), proof is not required -

(a) of the signature of the person purporting to have signed the certificate_;_ or

(b) that the person is an approved analyst or an approved botanist."

77 According to the police officers, the four small bags with substances in them found in the plastic container were placed in DME W0025272. The evidence of Senior Constable Cornthwaite, and as shown in the photographs exhibit 2, was that there were subsequently found to be three bags containing brown powder, three bags containing white powder, one bag containing purple tablets and three empty plastic bags. The State case was that the brown powder was methylamphetamine, the subject of the certificate exhibit 7. However that certificate certifies Mr Reynolds received DME W0037708, enclosing three plastic bags containing pale brown powder. The certificate states the items were resealed into DME W0016444.

78 It is, I think, open on the evidence to infer that each time the contents of a DME are dealt with, they are resealed into a different DME. That is, every bag is individually numbered and once opened the same bag cannot be resealed.

79 The evidence indicates that DME W0025272 must have been opened by Senior Constable Cornthwaite at the police complex, so he could take the photographs exhibit 2. Usual practice would have necessitated the items being placed in a different numbered bag (or more than one such bags). The items would have to have been removed from their subsequent bag by Mr Bagdonavicius to enable him to look for DNA on them. Again, if he had followed usual practice they would have been placed in another numbered DME. None of these details were referred to in evidence. The first next mention of specific numbered DME is on the certificates of approved analyst. Since the analyst's certificates refer to receipt of specifically numbered DME in which were only plastic bags containing powder and tablets respectively, the necessary inference is that the empty plastic bags and the (then) empty plastic container were delivered separately to the PathCentre on 4 April 2003 and were not amongst the items received by the Chemistry Centre on 3 April 2003.

80 The evidentiary force of the certificate is "sufficient" proof of the facts stated in it. So far as the issue of continuity is concerned, certificate exhibit 7 is therefore proof that:

(a) Mr Reynolds received DME W0037708 on 3 April 2003;

(b) DME W0037708 contained three plastic bags, each containing pale brown powder (analysed to contain 26 per cent methylamphetamine);

(d) Mr Reynolds received it from Senior Constable Pearmine per Charles Alexander Pierce on behalf of DSC Gartlan.

81 The certificate exhibit 6 is sufficient proof that:

(a) Mr Reynolds received DME W0037707 on 3 April 2003;

(b) DME W0037707 contained three plastic bags each containing white powder and lumps (analysed to be heroin in varying amounts and purities);

(c) the DME was marked "Koushappis, D131853" (that number was also the police reference number);

(d) Mr Reynolds received it from Senior Constable Pearmine per Charles Alexander Pierce on behalf of DSC Gartlan.

82 The certificate exhibit 5 is sufficient evidence that:

(a) Mr Reynolds received DME W0037709 on 3 April 2003;

(b) that DME contained a small clip-seal plastic bag and 13 purple tablets (analysed as being 34 per cent MDMA or ecstasy);

(c) the DME was marked "Koushappis, D131854" (which was also the police reference number);

(d) Mr Reynolds received it from Senior Constable Pearmine per Charles Alexander Pierce on behalf of DSC Gartlan.

83 It can be seen therefore that the DME were sequential (707, 708 and 709). They were all marked "Koushappis". Two of the certificates bore the same police reference number. The third bore the next police number in the sequence. The DME were all received by Mr Reynolds from the same source on behalf of DSC Gartlan, on the same day, 3 April 2003. Apart from the fact there was one fewer (empty) plastic bag in DME W0037708 than the police officers said had been seized from inside the plastic container, the numbers and descriptions of the items and their contents corresponded with the numbers and descriptions given by Senior Constable Cornthwaite, DSC Gartlan and Sergeant Van Noort and as shown in the video and in the photographs exhibit 2.

84 Mr Bagdonavicius' evidence was that on 4 April 2003 the PathCentre received certain items said to have been seized from the appellant's address. They included a plastic container and four plastic bags. I have already adverted to his evidence about this. They were examined to ascertain if DNA could be found. Clearly they would have to have been removed from the DME for that purpose, and they would have to have been put into a different DME afterwards. Neither counsel asked any questions about these matters. That was apparently because continuity was not in issue. Despite that, Ms McKenzie did put to the jury in her closing address (GAB 2/202) that the DME numbers were different and there was "simply no evidence ... to suggest where those particular drug movement bags [the ones noted on the certificates] come from".

85 Whilst the safe custody of critical exhibits such as these ought to be readily proved by clear and specific evidence rather than being left to inference, having regard to the way the case was conducted on both sides, the evidence here was such in my view, as to allow the jury to be satisfied beyond reasonable doubt that the drugs that were analysed by Mr Reynolds as evidence by exhibits 5, 6 and 7 were in fact those seized by police from the appellant's home on 15 March 2003. The jury were directed by the trial Judge that they could not find the appellant guilty on this count unless satisfied beyond reasonable doubt that the drugs analysed were those seized from the appellant's home. Specifically, she directed them (GAB 2/223) that if they were to accept beyond reasonable doubt that what was found in the house was what was analysed by the approved analyst, then they may accept the three certificates as correctly identifying the nature of each substance and correctly stating its weight. Their verdicts indicate they were so satisfied.

86 In my opinion this ground has not been made out.

Ground 3 - Mixing of contents of separate bags

87 Exhibit 7 related to the methylamphetamine. According to that exhibit, Mr Reynolds received three plastic bags each containing pale brown powder. The certificate shows the results of analysis were:

"1. EPHEDRINE, METHYLAMPHETAMINE and PSEUDOEPHEDRINE were identified as components of the powder (Lab No. 02F3355003). The total weight of powder was 5.1 grams. The average EPHEDRINE, METHYLAMPHETAMINE and PSEUDOEPHEDRINE contents were approximately 1.2 percent, 26 percent and 0.3 percent respectively."

88 The submission is that the analyst mixed the contents of the three bags prior to analysis, thus leading to an erroneous conclusion that all three bags contained powder containing 1.2 per cent ephedrine, 26 per cent methylamphetamine and 0.3 per cent pseudoephedrine, when that conclusion was not possible without individual analysis of each of the three bags of powdered substances.

89 It is submitted the conclusion in the certificate of analysis, that the appellant had 5.1 grams of an admixture containing methylamphetamine, was fundamentally flawed. That is said to be because all that can be shown is that the substances analysed contained 1.326 grams of methylamphetamine (5.1 grams x 26 per cent = 1.326 grams). It is then submitted that if the certificate had not been admitted, there would have been no evidence of possession in count 2. Further, it is said that as the certificate could prove only that the substances analysed contained 1.326 grams of methylamphetamine, the presumption raised by s 11 of the Misuse of Drugs Act did not come into play and accordingly there was no evidence of any intent to sell or supply. In fact, of course, the trial Judge had directed the jury that they were entitled to presume that intention (although there was also other evidence on which the State relied for that) because the statutory presumption was brought into play by the weight of the admixture being 5.1 grams.

91 The point was apparently taken because of the different approaches reflected in exhibit 7 and exhibit 6 (relating to the three bags containing heroin). The latter shows a separate analysis and results for each of the three bags. The former gives only one set of results.

92 In my opinion exhibit 7 does not show the results were obtained by physically mixing the contents of the three bags together. The reference to the "average" contents being ephedrine, methylamphetamine and pseudoephedrine in the nominated percentages, could only mean the percentages ascertained for each bag, when averaged across all three bags, produced those figures. Had the contents of the bags been mixed and then analysed, it would not have been possible for the analyst to talk of "average" percentages. There would have been only one set of definite percentage figures. The certificate has to be understood as indicating that each of the three bags contained methylamphetamine and the other substances identified, and that the average percentages were as stated. It could not mean anything else. The contents of all three bags were therefore properly charged as being the subject of count 2 and the total weight of the powder containing methylamphetamine was 5.1 grams - and thus over the 2 gram amount prescribed in Sch 5 of the Misuse of Drugs Act.

Ground 4 - Direction on disbelief of accused

94 All that is advanced in support of this ground is the submission that her Honour acknowledged this error at the conclusion of her summing up.

95 Nothing further was advanced in counsel's oral submissions. Counsel contented herself with saying:

"My point really was that it perhaps was not put as it should have been. It was then not spelt out that even if they didn't believe him, that didn't mean that he could necessarily be convicted and I think that was conceded by her Honour subsequently. I don't seek to address you further on that."

96 Her Honour's directions concerning the appellant giving evidence and how the jury should approach that, were as follows (GAB 2/220 - 221):

"Firstly, whenever you are considering the matters, please bear in mind, as I told you at the very beginning, you must start from the point that Mr Koushappis is presumed innocent. He is innocent of these charges, he is presumed innocent, until it's proven otherwise. Any person who stands trial is presumed to be innocent. That has always been the law. It's just this basic presumption we have. The only people who can remove that presumption of innocence are you, the members of the jury, by returning a verdict of guilty and you can't return that verdict of guilty unless you are satisfied beyond a reasonable doubt that evidence has been produced in this trial which proves that Mr Koushappis is guilty of the three offences charged, so please bear that in mind.

In this particular case Mr Koushappis did give evidence. In criminal trials an accused person doesn't have to give evidence, but in this trial he did so. Because he submitted himself to cross-examination - he gave evidence. He was cross-examined by Mr Mactaggart. You saw him in the witness box. You saw how he gave his evidence. That's very important but it doesn't take away that basic presumption of innocence, so please bear that in mind. There's no detraction from that important principle. It still remains for the state [sic] - or the state [sic] still has the onus of proving the charges that it presents against the accused and he is presumed to be innocent until the charge or charges are proved beyond a reasonable doubt.

If you were to believe all the evidence of Mr Koushappis, if you believed every single thing he said then you would acquit him. Even if you didn't believe him, you wouldn't find against him on an issue, if his evidence did give rise to a reasonable doubt. It's every [sic very] important for you to remember that it's the state [sic] who has to prove the charges. The general rule is that it has to be proved beyond a reasonable doubt. If the evidence gives rise to a reasonable doubt then the accused man gets the benefit of that reasonable doubt.

So what we need to do is to have a look at what the state [sic] must prove before these charges can be found to have been made out ..."

97 At the conclusion of the summing up, counsel for the appellant raised the point with the trial Judge. Having repeated that part of her Honour's directions which commence "If you believe his evidence ...", counsel said:

"I suppose what my concern is that it perhaps wasn't spelt out to the jury - and I'm not certain about - that's what you said and I'm hesitant about this particular issue but essentially I would have thought that it would have been appropriate to say, 'Even if you disbelieved him entirely then that does not again mean that you should convict,' because it is of course - that then in the context, 'It is not for him to prove anything. You would still need to be satisfied that the prosecution have proved the case beyond a reasonable doubt.'

So I suppose it was just because you said, 'If you believed him, all of his evidence, you would acquit. If you didn't believe all of his evidence then you wouldn't necessarily convict if it gave rise to a reasonable doubt.' Generally I would have thought it was appropriate to say, 'Well, even if you disbelieved him then that doesn't mean that you then convict. It still requires' - I know at other times you have certainly said in your direction that the onus of proof lies on the state [sic] and the state [sic] needs to prove beyond reasonable doubt. It was just perhaps the way that that particular passage - - - "

98 Her Honour told counsel that she may finally have hit on something that her Honour might well agree with her about because the third part of that direction was something she did not canvass directly. However, she went on to say that as she thought of the charge as a whole, it seemed to her that she made it clear to the jury that even if they rejected the appellant's evidence, they could not automatically convict him because the State had to prove the charges it brought beyond a reasonable doubt - although she accepted that in the context of that direction she had not said that. The State prosecutor submitted that her Honour's direction had been sufficient. Her Honour ruled that the overall direction had covered what was necessary and redirection might cause confusion. She declined to give a further direction.

99 No authorities are cited by the appellant in support of this ground, but the direction which it is submitted that the trial Judge failed to give is that known as a "Liberato" direction. That was articulated by Brennan J (Deane J concurring) in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

100 Although Brennan and Deane J were in dissent in that case, the passage has been accepted as authoritative since (R v C [1993] SASC 4095; (1993) 60 SASR 467; E (1995) 89 A Crim R 325, 328 - 329; Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116 per Kirby J at [25]. Cases in which it has been applied in this State include Corker v Western Australia [2004] WASCA 125; (2004) 146 A Crim R 33; Harman v Western Australia [2004] WASCA 230; (2004) 29 WAR 380; Middleton [2000] WASCA 200; (2000) 114 A Crim R 141 and Latham v The Queen [2000] WASCA 57.

101 The trial Judge gave very full directions to the jury on the onus and burden of proof. She first adverted to those matters in her introductory directions at the commencement of the trial. She emphasised that the appellant was presumed innocent and that the State had to prove the charges against him beyond reasonable doubt. If at the end of the trial the jury had a reasonable doubt, they had to give the benefit of that to the appellant.

102 In her summing up, her Honour reiterated those directions at the outset. She told the jury that before they could find the appellant guilty, the State had to prove the elements of the offences beyond reasonable doubt. She repeated that the appellant was presumed innocent and they could not return a verdict of guilty unless satisfied of that beyond reasonable doubt. She then reminded them the appellant had given evidence and gave the direction I have set out above.

103 The error in reasoning which the Liberato direction is designed to overcome, is that the jury might think that disbelief of an accused's evidence means that the prosecution case has been proved.

104 Her Honour's statement that "even if you didn't believe him, you wouldn't find against him on an issue, if his evidence did give rise to a reasonable doubt" (my emphasis) was correct. But as a matter of law, even if the jury disbelieves an accused and even if his or her evidence does not give rise to a reasonable doubt, the jury cannot convict unless the State has satisfied them of his or her guilt beyond reasonable doubt on the other evidence in the case. Accordingly, it would have been desirable for her Honour to have given a direction in the terms suggested by Kirby J (Sheller AJ and Dowd J agreeing) in Anderson (supra), at [25]:

"First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.

Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?"

105 Notwithstanding that her Honour did not say, in those express terms, that even if they positively disbelieved the appellant, they still could not convict him unless the State had satisfied them of his guilt beyond reasonable doubt, I do not consider the jury could have been under any other impression, in light of the clear directions her Honour did give them, as to the onus and burden of proof.

106 Whilst it would have been preferable for her Honour to have given a direction of the kind suggested by Kirby J in Anderson, the directions she did give were in substance those required by Liberato, and I am not persuaded there was any real risk here the jury could have thought it permissible to reason simply that if they disbelieved the appellant, then they could accept the State case, without considering specifically whether or not the evidence they did accept was sufficient to satisfy them of his guilt beyond reasonable doubt.

107 I would hold this ground has not been made out.

Ground 5 - Police search of the appellant's premises

108 This ground complains there was a wrong decision on a question of law by the trial Judge. It does not purport to identify the decision. On the hearing, Ms McKenzie eventually expressed it as being the trial Judge's decision to admit the evidence that was obtained in relation to the search. She said this was an error because the search was improperly conducted and the evidence ought to have been excluded in the exercise of her Honour's discretion on the basis that its probative value was outweighed by its unfairly prejudicial effect.

109 It is not clear how wide the ambit of this ground is intended to be. On one view it might be put as arguing that all the evidence of the search itself, as well as of, or relating to, all items found during the search, ought to have been excluded. That would have covered virtually the whole prosecution case. Alternatively, the view might be that the ground says that only the video record of the search ought to have been excluded.

110 It is submitted that on the evidence the police witnesses could not account for their and their fellow officers' movements, nor for the manner in which the alleged illicit substances were located, and it would be dangerous to allow the verdict to stand. The written submissions refer here to an affidavit of C A McKenzie filed 17 June 2005. Although included in the green appeal book, the affidavit was not referred to at the hearing of the appeal. There was no application to adduce evidence on the appeal. In her affidavit, Ms McKenzie deposes to communications between her and the Office of the Director of Public Prosecutions ("ODPP") concerning the then pending trial of the appellant, from about March 2005. She also deposes to actions taken by her office to obtain further information and material from the police and the ODPP, before and during the trial. Although Ms McKenzie did not expressly refer to her affidavit on the hearing of the appeal, her submissions appear to have assumed the information contained in it was properly before the Court. Mr Dempster took no point about it and appears to have proceeded on the same understanding. In those circumstances, I think the decision whether or not to give leave to the appellant to rely upon the affidavit on the appeal (and in the absence of any actual application) must depend upon determination of the merit or otherwise of the ground itself.

111 The trial was listed to commence on Monday 18 April 2005. On 5 April 2005, McKenzie Lalor, the appellant's solicitors, wrote to the ODPP advising that their office appeared to be missing some video recordings of the police search. The solicitor's copy concluded before the alleged drugs were located. They requested the further video recording. They also requested that the first video be edited to remove certain prejudicial or irrelevant material. They said objection would be taken to one of the certificates of analysis.

112 On 6 April 2005, McKenzie Lalor wrote again to the ODPP. They noted objection would be taken to the evidence of Mr Bagdonavicius.

113 By letter dated 7 April 2005 from the ODPP, Mr Mactaggart noted these matters were now being raised when there had been five (court) appearances since 15 September 2003. As to the analyst's certificate, s 38B of the Misuse of Drugs Act had not been complied with and the State therefore intended to rely upon it. He agreed to the editing of video-tapes sought by the solicitors. He said that his understanding was the video-tape referred to by the solicitors as incomplete was what he described as the "main search video" which, together with the appellant's video record of interview, had been served on them.

114 By letter dated 8 April 2005 the solicitors maintained (inter alia) that the search video they had was either deficient or incomplete. They wanted to see "the complete video" urgently.

115 Ms McKenzie deposes that, failing any satisfactory response from Mr Mactaggart, she contacted DSC Gartlan, who advised her that he would locate the video and provide it as soon as possible. The video-tape arrived within three working days. Two further video-tapes were received six days prior to trial. Ms McKenzie deposes that amongst other matters the videos revealed what she says were defects in the search procedures adopted by the police. She does not adumbrate them.

116 In her affidavit, Ms McKenzie states that during the course of the trial, Senior Constable McLeod gave evidence that the person who suggested the shelf on which the alleged drugs were found be searched, was an Officer Hett. She deposes that Hett's name had not been mentioned anywhere else in the prosecution materials and that was the first time she became aware of his involvement.

117 Ms McKenzie deposes that in the course of preparing the case for hearing, it became apparent that there were in existence police procedures for the conduct of searches pursuant to search warrants. She recounts her attempts made to inquire about those procedures. Those attempts were unsuccessful. She states that she spoke to Mr Mactaggart about the procedures at the commencement of the trial and he provided her with an extract from the "COPS Manual" which related to searching unoccupied premises. She states he advised her that was the only procedure in relation to search warrants. On 17 April, Detective Inspector Maslin provided a further document, purporting to be another extract from the COPS Manual. Ms McKenzie then instructed her office to prepare a subpoena for the production of all relevant police procedures. That was filed and served upon the Commissioner of Police on 18 April and numerous documents were produced in response to it that afternoon. Ms McKenzie deposes that the documents produced on subpoena revealed more detailed guidelines and procedures than those previously provided to her. The relevant instruction is annexure CAM 9 to her affidavit (GAB 2/296). She states that by the time she received full disclosure of the relevant police procedures, she had already cross-examined a number of the police officers involved in the search and was unable to put to them the precise procedures she proposed they had not followed.

118 The content of this affidavit primarily goes to the issues raised in ground 6. I relate it here only because it gives some background to the points raised in ground 5.

119 The matters asserted in this ground are argumentative. Thus, in broad terms, counsel for the appellant asserts that certain things were not done in accordance with relevant police procedures, whereas the witnesses maintained they were.

120 Particulars 5(a)(i) - (iv) inclusive, concern the video-taping of the search. The police officers concerned described the process followed as being that, although a number of police officers were present, they had different roles and only two or three were actually conducting the search. The search did not commence until Inspector Maslin arrived. It was also conducted in the presence of Mrs Starr, the mother of the appellant's 12-year-old son. He was the only person home when the police arrived. For that reason, DSC Gartlan contacted Inspector Maslin and Mrs Starr and asked them to attend. The video-tape was not on all the time. It did not record the whole search. If an item of interest was located, Senior Constable Cornthwaite was told to record it in situ, whilst the locating officer made comment to tape (the search videos were played at the trial; parts of them were played without audio). The searchers searched one room at a time. The method was for one officer to search one side of the room whilst the other officer searched the other side. They would then cross over and search. That was in case the first officer had missed something. Once recorded on tape, any item found was taken to Sergeant Van Noort, who was the exhibits officer. He had set himself up in the kitchen for that purpose.

121 It was put to each of the officers in cross-examination that the COPS Manual required the whole of a search to be continuously video-recorded, and that recording only when an item was found (or for some other reason) and then turning the camera off again, was contrary to established procedures. All the officers maintained that in their experience, searches had always been video-recorded in the way it was done here. When referred to documentary extracts from the COPS Manual, they said variously that those were guidelines, did not require continuous recording, or did not require continuous recording in all cases, depending on circumstances.

122 The video-taping was done by Senior Constable Cornthwaite. He had been a police officer for 161/2 years and a forensic officer for 12. Portion of his cross-examination on the process was as follows (GAB 1/43):

"I put it to you that when search warrants are executed and there is a video conducted of the process the video is kept on during the - from the commencement of the search to the conclusion of the search so that there can't be any suggestion that the integrity of the scene or what occurred happened?---You may have seen that. I mean, in, say, the seven years since video has been on I have never done it like that, not once.

You never do it like that?---When every search I've ever been involved in has never ever been done like that.

So what is the - why would you bother doing a video if you are not going to video the whole scene and you are only going to video when some body says, 'Look, I found something, here it is,' and puts it front of you and then the video is turned on? What is the point in that?---I mean, some searches that actually get conducted can last 12, 14 hours.

That's right, yes?---So it's not practical to have a video constantly running that whole time. So basically when something is located, and there's usually an independent person there through the whole search watching as we're searching each room - or maybe not independent but could be the accused or someone else from that household watching us search each individual room.

So you tell me. If the purpose of a video is to maintain the integrity of the scene and to maintain the integrity of the search, how does it help if it's switched on and off? I don't think you have answered my question. How does it assist if we can't see whatever it is of interest where it is, where it was found or located and before it's perhaps even moved or touched? How can it assist?---All I can go on is what our procedure is which is what the WA Police Service procedure is; that we video - the guys do the search and it's conducted in front of someone from the household or an independent person and as they find something, it is then - the search is stopped, we come in with the video, turn the video on and then they talk about the item that has been located.

So am I right in just what you have said, that you are not even necessarily in the room when something is located? You are just simply somewhere else or somewhere maybe in the central location and somebody says, 'Oi, come in here, come into the bathroom. I've found something of interest.' Is that really what happens?---Usually I stand outside.

You are outside?---Yep.

You are not even - so you are not recording anything at all?---No."

123 The subpoena issued by McKenzie Lalor in the afternoon of 18 April was responded to during the trial before the mid-morning break on 19 April. By that time the following police witnesses had given evidence relating to the search: Senior Constable Doulis (was at the premises, tried to locate the appellant's vehicle after it drove off, was in the house with the child afterwards but did not himself search); Senior Constable Cornthwaite; Inspector Maslin (non-investigating officer supervising the search); Senior Constable McLeod (searcher - located the plastic container in the kitchen); and DSC Gartlan.

124 DSC Gartlan was still under cross-examination at that stage, so on resumption after the morning break, Ms McKenzie referred him to the more extensive documentation produced under the subpoena. In particular, she put to him that par 2.6 required that execution of all search warrants should be recorded on video-tape in accordance with the procedures there set out. DSC Gartlan maintained that was what had been done.

125 Following that, evidence was given by Sergeant McAlpine (returned to the police station with the appellant's son after the other officers came back to the house to commence the search) and Sergeant Van Noort.

127 First, the video-tapes (exhibits 1 and 3) show there was much more recorded than just the location of items once found.

128 Secondly, exhibit 3 (which actually showed the first part of the search) shows Mrs Starr hugging Mr Koushappis' child at the beginning and her having a lengthy conversation with police in the kitchen area. Exhibit 1 shows the continuation of the search. Mrs Starr can be seen in quite a number of parts of this recording, including her sitting in the kitchen at the table where the exhibits are being logged and signing exhibit sheets as items are shown to her and described for the tape. In other instances, the recording is of tight frames where, although it is obvious that others are present, they cannot be seen in view - and indeed, in many instances even the searcher cannot be seen completely. The recordings do show much more of the search than simply particular items of interest; there are panning shots of individual rooms and distant and close-up views of items in situ, not limited to those seized.

129 Further, particulars 5(a)(i) and (ii) are predicated on the assertion that the relevant police procedures require constant video-recording of a police search being conducted under warrant. Quite apart from the testimony of the police officers as to what the procedural requirements are, the instruction said to be the relevant one (annexure CAM 9) does not so require.

130 The instruction is headed by a statement of policy. That reads:

"It is the responsibility of all members to ensure that searches are conducted in a thorough and professional manner and the integrity of the search is maintained at all times. For this reason, where practicable, the video recording of search warrants is to be considered." (My emphasis)

"Organised Crime Investigation conduct their operations under Standard Operating Procedures, which require all searches to be video recorded. For the purpose of standardisation and guidance of those utilising Video Recording of Searches those procedures are published below."

132 The instruction requires the nomination of a video operator prior to execution of a search warrant. It sets out what the video operator's duties include, and then states:

"The procedures outline the minimum requirement for the video recording of searches given the limitation of available equipment and resources. Where deemed appropriate and practicable, additional parts of the search or the entire search may be recorded." (My emphasis)

133 The instruction stipulates that the video-recording of the search shall include an introduction to the occupier; the caution; the production of the search warrant; a request to declare any items named in the warrant; an overview of the premises to be searched; an explanation to the occupier of the procedure to be adopted during the search; any items located during the search, which are to be seized; the counting of any money located during the search; the sealing into security movement envelopes of any money seized; and the sealing into security movement envelopes of any drugs located, and other matters.

"Where intermittent video recording is utilised, on each occasion recording is recommenced, the officer in charge will give a short commentary on what has occurred whilst the camera has been switched off, and invite the occupier to comment."

135 Read as a whole, the instruction plainly contemplates that the whole of the search will not necessarily be recorded. What is on the tapes, exhibits 1 and 3, is on the face of it, consistent with the foregoing instruction. It is simply not correct to assert, as this ground does, that the police search of the appellant's premises breached the relevant police procedures.

136 Particular 5(a)(iii) does not accurately reflect the evidence. There was no evidence that Senior Constable Cornthwaite was only permitted to observe the search when he was directed to record. At GAB 1/44 his cross-examination was:

"So you the video operator [sic are] outside?---I'm outside and then as they find something they then say, 'Ian, come inside.' I then come inside, turn the video on and then Detective Gartlan or whoever speaks on the video then talks about it.

So essentially, to perhaps summarise what you have just been telling me, really you only come in when somebody tells you to?---Yes.

You only video what somebody tells you to?---Yes, that's correct.

You make no independent decision about what you should record or not record?---Well, basically I was - as I said, they go into a room, they might have said, 'Come in here, we've found something,' I turn the video on, they start talking, they ask questions and then once that's ceased I turn the video off and then walk outside again.

And you are a forensic technician I take it. Is that right?---That's correct."

137 The evidence of the other officers was to similar effect, that the search was conducted by the searchers and when they found something of interest they would call Senior Constable Cornthwaite to record it. No-one said he was not permitted or not able to see what the searchers were doing and, so far as I can see, no such suggestion was put to any witness.

138 Nor does particular 5(a)(iv) reflect the evidence. The "person" referred to is Mrs Starr. The appellant's counsel submits what is here asserted is "apparent from search videos, being ex 1 and 3". I take that to mean it is apparent because Mrs Starr cannot always be seen on the search videos. The proposition was put to DSC Gartlan in cross-examination (GAB 1/129):

"... they didn't remain with you the whole time, did they?---Mrs Starr did. Whenever that video was turned on, Mrs Starr was there - - -

When the video was turned on, yes?---Yes.

But if you were going on searching, she didn't go with you did she?---Yes, she was.

I would suggest to you she wasn't? ---Well, the way I operate, when a room is to be searched, while she was there she was present when all that house was there - - -

She was present. She was called into each of the rooms when you decided that it was time, an appropriate time for you to turn the video on?---She was called into the rooms to stand next to me so that I could speak to her whilst the video was on.

Yes, while the video was on?---Just because you can't see her doesn't mean she wasn't there.

No, I'm sorry, we seem to be at cross purposes here. I agree with you that she was there when the video was on, but she wasn't there when the video wasn't on?---Yes, she was.

She wasn't there while the search was being conducted?---Yes, she was.

She was called into the room in the same fashion that the video operator was called into the room to see what it was you wanted to be put or recorded on the video?---From my memory, Mrs Starr was present when the house was searched and each room was searched because that's the way (1) I operate, and (2) it was the way it happened.

I would suggest to you that it didn't happen that way this time?---Well, I - - -

She's certainly there when the video is turned on; no dispute about that, but she got called into the room just the same as the video operator got called from outside. 'Come here. We've found something. We want you to video this. Come into the room'?---No, that's not correct.

I suggest to you it is?---I'm sorry, it's not because I was there.

But for some reason or other you didn't have the whole thing recorded so that we could ascertain whether that happened or not?---We don't record the entire search of a premises."

139 He did not resile from that. Mrs Starr was not called to give evidence.

141 Particular 5(a)(v) is again a matter of contentious comment. The police officer - and DSC Gartlan in particular - said the search was conducted systematically, one room at a time.

142 Ms McKenzie repeatedly claimed in the appeal, and indeed at trial, that the kitchen was searched three times and it was only on the third occasion, with the prompting of Officer Hett, that the plastic container with the drugs was found. Again, that was not an accurate statement of the evidence. She had put the proposition to DSC Gartlan and he firmly denied it. The following passage from his cross-examination reveals his account (GAB 1/128):

"So why was it that the kitchen was searched three times?---Who said it was searched three times?

You can see on the video record of what we've got it was searched three times. You start the search in the kitchen?---Yes.

It's very clear that's what happens. That's where it commences?---Yes.

We go away. We search or we go to the lounge room the next time we see on the video record and then we seem to go to a number of bedrooms. Then we go back to the kitchen at which time a pot is removed from a shelf in the kitchen and some plastic contents of it are taken out, and then you go outside and search some sheds and then we come back inside and it would appear we then search the kitchen. The kitchen was searched three times?---The first time the kitchen was, in your words, searched was when the items were removed next to the microwave so the kitchen wasn't searched. Items were secured and removed. Is that what you're talking about? The first time?

The first time it was searched more than that, wasn't it?---No, to my memory, the first time anything was searched or located in the kitchen was when we walked into the premises, located the items next to the microwave and secured them. That was the first time.

You also conducted a further search of the premises at that time, didn't you - of the kitchen, rather, including the cupboards, the above, the overhead cupboards?---Yes, once Inspector Maslan arrived we commenced the search.

Yes, in the kitchen?---In the kitchen, yes.

Searched the kitchen?---Yes, that was the first time the kitchen was actually searched as in the cupboards, fridge, oven, et cetera.

Yes, and then you went off and did the other parts of the house?---Yes, complete the rest of the house.

Then you came back to the kitchen?---We came back to the kitchen because that's where the exhibits officer had set up all his items, his books."

"Can you tell me why it was, Detective Gartlan, that the kitchen was searched on three separate occasions?---Okay. The first time we walked into the kitchen, we located some items next to the microwave which I thought were possibly illegal. They were secured straightaway. Inspector Maslan arrived. Mrs Starr arrived. We commenced a proper search of the premises at which time the kitchen was searched, cupboards, ovens, fridges, et cetera. We moved on to the rest of the house and before the search was completed, the question was asked whether anyone had looked behind a vase on a shelf next to the kitchen, at which time Detective McLeod located the blue plastic container.

That's the third time it was searched actually, isn't it?---Well, physically the kitchen in its entirety was searched once.

We see after the rest of the house has been done, I think it it's yourself actually taking a pot off a shelf in the kitchen?---I think that was at the beginning.

No?---From my memory, that was at the beginning.

I suggest to you it's not. We can look at the times on the tape, I guess, but it's not and then I would suggest to you that it's after, very clearly after you've gone and done the lounge room and the bedrooms and the bathrooms, et cetera?---Mm.

But immediately prior to you going outside?---I don't recall that, no. I remember seeing myself on the video.

You can't tell me why it was searched three times?---The kitchen was searched once as in cupboards, et cetera. It was searched once. It wasn't searched three times. It wasn't searched four times. It was searched once."

143 Particular 5(a)(vi) would only have a consequence for this appeal if there was some evident or likely relevant consequence for the conduct of the trial. None is apparent.

144 Particular 5(a)(vii) is raised also under ground 6 and I shall return to it there.

145 There can be no doubt the evidence of the police search of the appellant's residence and the finding of the plastic container containing the drugs was relevant. The appellant has not shown unequivocally that there were breaches of police procedure in relation to the conduct of the search. The police witnesses denied there were. Whether or not there were breaches of police procedure and if so what, if any, effect they have had on the reliance which could be placed on that evidence as a result, was a matter for the jury. The appellant has not demonstrated any unfair prejudice which would have justified her Honour excluding the evidence on the ground that prejudice outweighed its probative value (R v Christie [1914] AC 545; R v Sang [1979] UKHL 3; [1980] AC 402, 446 - 447; Driscoll v The Queen (1977) 137 CLR 515, 541; Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 594 - 595).

146 Furthermore, the trial Judge never in fact made a decision as such to admit the evidence. She allowed its admission because it was clearly relevant and was not objected to. No point was taken about it at trial.

147 In my opinion this ground must fail. That being so, I would refuse leave to appeal in respect of it. I would also refuse leave for the appellant to rely upon the affidavit of Ms McKenzie in support of it.

Ground 6 - Verdicts unreasonable and cannot be supported

148 This ground is advanced under s 30(3)(a) of the Criminal Appeal Act 2004. This statutory expression has been taken as having a meaning similar to "unsafe and unsatisfactory" (Gipp v The Queen (1998) 194 CLR 106).

149 Mason CJ pointed out in Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 442 - 443:

"It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted; Whitehorn v the Queen [1983] HCA 42; (1983) 152 CLR 657, at pp 660, 686; Chamberlain [No 2] (1984) 153 CLR, at pp 532, 601, 604, 618-619; Morris (1987) 163 CLR, at pp 461, 473. In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused: Whitehorn (1983) 152 CLR, at p 686; Chamberlain [No 2] ((1984) 153 CLR, at pp 534, 606-608; Morris (1987) 163 CLR, at p 461. Or, to put it another way, it is for the court to decide whether, on the relevant evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt: Morris (1987) 163 CLR, at pp 472-473. The appellate court does not discharge its responsibility by finding that there was evidence sufficient to entitle the jury to convict because a verdict may be unsafe or unsatisfactory when there is a sufficiency of evidence for that purpose: Chamberlain [No 2] (1984) 153 CLR, at p 531; Morris (1987) 163 CLR, at pp 473.

In deciding whether the jury, acting reasonably, should have entertained a reasonable doubt, it is the duty of the appellate court to make an independent assessment of the evidence: Ratten (1974) 131 CLR, at pp 515-516; Chamberlain [No 2] (1984) 153 CLR, at p 534; Morris (1987) 163 CLR, at pp 463, 473."

150 The test was restated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 - 494. The question which the court must ask itself is whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question, the court must not disregard nor discount the consideration that the jury has had the benefit of having seen and heard the witnesses, but on the contrary, must pay full regard to those considerations. Their Honours went on to explain the application of the test as follows:

"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."

151 This restatement was affirmed in Jones v The Queen (1997) 191 CLR 439, 452 as being the correct test for an appellate court to apply on a ground that a verdict is unreasonable or cannot be supported by the evidence.

152 The first particular here concerns an alleged breach of the prosecution's duty to disclose material facts to the defence prior to trial.

153 The prosecution has a duty of disclosure at common law. Disclosure of material in the possession of the prosecution is required as an incident of an accused's right to a fair trial (R v Ward (1993) 1 WLR 619, 674). Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708, is authority for the proposition that at common law the prosecution must disclose all relevant evidence to an accused and that a failure to do so may, in some circumstances, require the quashing of a guilty verdict. In Western Australia, there are two statutory sources of the duty. By s 95(6) of the Criminal Procedure Act 2004 (WA) the prosecution is obliged to lodge with the court and serve on the accused a statement of the material facts of the charge; any confessional material of the accused that is relevant to the charge; any evidentiary material that is relevant to the charge and other documents not presently pertinent. Under s 95(9) there is a continuing duty upon the prosecution to disclose such material to the defence when it is received or obtained at any time before a charge is finally dealt with. The consequences of nondisclosure in accordance with s 95 are prescribed by s 97, which provides that on the application of a party affected by the breach, the court may adjourn the trial for a period that allows enough time, if necessary, for the party in breach to obey the requirement and for a party affected by the breach to properly investigate any evidence or other matters disclosed and to obtain any evidence that may be necessary as a result of the disclosure. Further, where the trial is before a jury, the Judge may discontinue the trial, discharge the jury from giving its verdict and adjourn the prosecution.

154 By s 24(1) of the Director of Public Prosecutions Act 1991 (WA) the Director of Public Prosecutions may promulgate a statement of prosecution policy and guidelines ("DPP Statement"). The current DPP Statement was adopted in 2005. The relevant clauses are cl 101 - cl 109.

"Disclosure of State Case

101. The State has a general duty to disclose the case in-chief for the prosecution to the defence.

102. Normally full disclosure of all relevant evidence will occur unless in exceptional circumstances full disclosure prior to the trial will undermine the administration of justice, or when such disclosure may endanger the life or safety of a witness.

Disclosure of Information to the Defence

103. The prosecution is required to disclose to the defence a copy of every statement or deposition, obtained by the prosecution, of any person who may be able to give relevant evidence at the trial.

104. If a prosecutor knows of a person whom they believe may be able to give relevant evidence who has not yet provided a statement, report or deposition, the prosecutor must disclose to the defence the name and, if known, the address of that person, and a description of the relevant evidence concerned.

105. The prosecutor is required to notify the defence of any person whom they propose to call as witnesses at the trial.

106. The prosecutor is required to provide to the defence a copy of every document or exhibit that the prosecution proposes to adduce at the trial, or if it is not practicable to copy the document or exhibit, a description of it and when it can be inspected.

107. The prosecution is required to provide to the defence a copy of the criminal record of the accused.

108. When the prosecutor knows that a State witness is indemnified or has been offered or granted a concession in respect of the matter before the court, that shall be revealed to the defence.

109. These details should be disclosed in good time."

155 Interestingly, s 24(3) of the Director of Public Prosecutions Act states that an act or omission of the Director or a person acting on his behalf shall not be called in question or held to be invalid on the grounds of a failure to comply with any statement issued under that section.

156 Where an appeal is grounded on a failure of the prosecution to comply with its duty of disclosure, the relevant question is whether that deprived the appellant of a fair trial and so caused a miscarriage of justice (Grey, supra per Gleeson CJ, Gummow and Callinan JJ at [23]; Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 per Kirby J at [58]).

157 Particular (a)(i) to this ground asserts that Detective Senior Sergeant Hett "suggested" a search of the area in which the substances in question were located. In fact, his name first came up in the evidence in chief of Senior Constable McLeod, at GAB 1/62:

"When did you first, as best you can recall today, Senior Constable McLeod, search the kitchen area?---I can't remember if we did it as soon as we went in there or whether we searched the bedrooms and then went back to the kitchen. I remember finding the plastic tub and I believe that's towards the end of the search.

I'll show it to you again, just that small portion of the search, in a moment but had you searched in the area of the plastic tub, as you've just put it, before you found it?---I can't remember. I seem to recall that there may've been my boss or someone else around that area and we were just sort of searching and it was pointed out to me towards the end, 'Have you searched up there?'

When you say your boss, was that for the day Detective Senior Constable Gartlan. Is that correct?---No, Detective Senior Sergeant Hett. He's the OIC of the detectives office."

158 Ms McKenzie commenced her cross-examination of Senior Constable McLeod on this (GAB 1/65):

"McKENZIE, MS: Constable McLeod, can you tell me who was actually in charge of this search?---Sean Gartlan.

So what role did Detective Hett play?---he was the - he's our OIC so he sort of comes along to do a quality assurance, have a look, see what his boys are doing and if he can assist in any way. He normally chips in, does a bit of searching.

So did he do a bit of searching that day?---I don't know. I can't say."

159 Later, he was asked if he remembered who instructed him to do what. He said DSC Gartlan would have told him what to do. Then [GAB 1/66 - 67]:

" ... you just said that Detective Hett told you to do something?---At the completion of our search Detective Hett said, 'Have you searched up there?' and I said, 'I don't think so', so then I've gone and done a search. He's sitting back. He's an independent person who has been able to see what has been searched and what hasn't. That's why I said he's been there as a bit of quality assurance just in case I've missed something or someone else has missed something.

What, he's directed you particularly or specifically to that shelf?---Yes.

Yes---Yes. Sorry, yes. It could've been a case of he was sitting there and said, 'Look, you haven't searched behind there. Have a look up there.'

He certainly wasn't sitting there the whole time, was he?---I can't recall."

"That's where you say you were told, 'Have a look on that particular shelf.' Is that right?---Yes. It could've been an oversight on my behalf as to why I missed it to start with or whoever searched, but it was pointed out towards the end and that's when I've gone and found it.

We certainly see earlier on, don't we, that those shelves - and it's a little tiny shelf, isn't it, a very small shelf, am I right?---Yes.

Clearly somebody searches those because part of a video that's being shown is somebody pulling a pot - - -?---Yeah.

- - - the sort of ceramic type pot I described off that particular shelf?---Yes. That was off - - -

And having a look at what was inside of it?---Well, I've seen the video and that was off the bottom tier. Look, it could've been a case of - believe it might've been Sean Gartlan. He's had a look. He's found that pot. He's pulled it out, found the contents of it, been taken up with that and then has not gone back and had a look at the top one but then I've gone back and found it. That's why we search - multiple people search the same area."

" ... you say you found this little plastic container behind the cookie jar, for want of a better description?---Yeah.

You're not sure how you found that. Can't recall whether you shifted something or whether it was just putting yourself up to that particular height. You can't now remember?---Detective Senior Sergeant Hett said, 'Have you looked up there?' He may've even indicated that there looked like there was something up there, so then I've gone and had a look. I can't remember - - -

You can't remember how you discovered it; whether you had to shift something, the cookie jar, or not?---I can't remember.

You can't remember?---No.

And nobody asked you to record that at the time on the video?---No.

How you located it?---No.

Or what had been removed?---I wouldn't - - -

Because we see up on the screen that after the plastic container is down on the bench the cookie jar is in situ, if you like?---yes.

Still up on the shelf?---Yeah.

I assume you didn't move it then?---I don't know whether I got up there, had a look in the cookie jar, couldn't see anything and just found the thing behind it. I don't know.

Nobody asked you to put it back there and sort of, say, have it filmed where it was?---No.

No?---No, we don't do that.

And you're very certain it was Detective Hett that said to you, 'Have you looked up on that shelf?' and that's why you looked there?---Yes.

Didn't conduct another thorough search of the kitchen; just went specifically to that point?---I can't remember if that was at the conclusion of - the completion of it but because of where he was sitting he said, 'Look, you've done that. Just have a look behind there. Have a look on the shelf there.'

Was he not present the first time the kitchen got searched?---I don't know.

But he was there the third time?---Yeah. Darryl Voisey was there as well. I don't know what role other than maybe an observer or recording something. He's on the video."

162 The point was raised in the evidence in chief of DSC Gartlan (at GAB 1/80):

"Do you recall who directed Detective Senior Constable McLeod to search that area?---Detective Senior Sergeant Hett just asked had the rear of the vase been searched on that shelf.

To your knowledge had they?---To my knowledge it hadn't been.

And you've actually seen the portion of video this morning. Could the witness please be shown I think it's either exhibit 4 or exhibit 5, the plastic container, and exhibit 2, the photographs please?

Senior Constable Gartlan, before we get to the photographs just look at the plastic container. Did you see that plastic container?---Yes.

Where was it when you first saw it?---I first saw it when Detective McLeod removed it from behind the vase and put it on the kitchen bench.

What is - to the best you can remember, I appreciate it's some time ago now obviously, but what was the item itself? A vase? We've heard it described as a ceramic teapot, a vase. What's your recollection what it was?---I would describe it as like a Chinese looking vase.

A Chinese?---Yeah, cream in colour.

Where was the plastic container?---I didn't actually see it behind the vase but I saw Detective McLeod remove it from behind the vase.

It was removed from behind the vase?---I don't know where it was exactly behind the vase.

When Detective McLeod removed it from behind the vase what did he do with it?---He placed it onto the kitchen bench in front of me.

We've seen that Detective McLeod then opened it. That is so?---That's correct."

163 It seems no statement was taken from DSS Hett because he was not actually involved in the search. No other mention is made of him.

164 The first question therefore is whether there was a breach of the prosecution's duty of disclosure prior to trial. That in turn depends upon whether the evidence that DSS Hett asked whether the searchers had looked behind the vase on the shelf, was "evidentiary material relevant to the charge" in the terms of s 95(6)(c) or whether he was a person who may have been able to given relevant evidence at the trial (in terms of cl 104 of the DPP statement).

165 I note this was not an example of nondisclosure of the information. It was disclosed because it came out at the trial in the evidence in chief of Senior Constable McLeod. No request or application was made for DSS Hett to be called. There was no application made under s 97(2) of the Criminal Procedure Act for an adjournment, nor for the jury to be discharged and the prosecution adjourned.

166 The defence was not maintaining that the drugs had been planted by the police, although Ms McKenzie contends she wanted to put that to the jury as a possibility. The appellant's position was that he knew nothing about the drugs and had no idea how they got there. He did say in his evidence that at least one of his sons, who visited the house, had been involved with drugs. In the circumstances it is difficult to see what further forensic use counsel for the appellant could have made of DSS Hett reiterating that he had asked Senior Constable McLeod whether he had looked behind the ceramic vase on the shelf. There is no suggestion his evidence would or could have extended beyond that.

167 Counsel for the appellant has not raised anything to suggest, in the context of the evidence that was given, that DSS Hett may have been a "crucial" witness. There is nothing to suggest his evidence would have had any capacity to advance the appellant's case or to detract from that of the State, beyond that which was in fact put before the jury.

168 I would not regard the failure of the prosecution to obtain a statement from DSS Hett or to inform the defence that Senior Constable McLeod looked behind the ceramic vase because DSS Hett asked if anyone had looked there, as a material nondisclosure. Even if I be wrong about that, the failure to disclose that prior to trial did not, in my view, deny the appellant a fair trial and nor did it result in a miscarriage of justice.

169 Particular 6(a)(ii) is supported only by the following statements which appear at [12] of Ms McKenzie's affidavit:

"12. When I viewed the videos in question it was apparent that there was a real difficulty with the evidence of the discovery of the alleged illicit substances. The video contained the balance of the search of the appellant's home, together with footage of the preliminary analysis of substances seized from the appellant's home at the police station. Had all the relevant video footage been made available with the brief or at least twenty-one (21) days prior to Trial I would have prepared the objection notice to the Certificate of Analysis twenty-one (21 days) or more before the Trial and the appellant would have had opportunity to cross-examine the writer of the relevant certificate of analysis and object to the Certificate of Analysis being relied upon. The significant video footage of the finding of the illicit drugs and the subsequent examination of the drugs at the Police Station revealed for the first time the separate packaging of the drugs and the difficulty with the Certificate of Analysis 'CAM 2'. ... "

170 It is noteworthy that neither there nor in her submissions did Ms McKenzie descend to actually identify what the "real difficulty with evidence of the discovery of the alleged illicit substances" was said to be. Nor is there any explanation of what is relevantly shown by the video-tapes, nor the basis upon which the certificate of approved analyst (CAM 2) might have been objected to, other than that it turned on the separate packaging of the drugs. The evidence which was before the Court clearly showed the substances the subject of that certificate (exhibit 7) were in three plastic bags. I have already dealt with that point.

171 I would accept that police video-recordings of the balance of the search of the appellant's home and footage of the preliminary analysis at the police station of the substances seized, should have been disclosed prior to trial. However, according to Ms McKenzie's own affidavit, they were - although it was late disclosure. The point of this particular I think must be not nondisclosure before trial, but late disclosure, which is said to have resulted in counsel for the appellant not having the opportunity to determine the admissibility and significance of the s 38 methylamphetamine certificate earlier than 21 days before trial. But it has not been put that examination of the video-recordings provided a basis for any other objection to that particular certificate than the objection which was in fact made - namely the assertion that on its face the certificate showed that the substances in the three bags had been mixed together before analysis. I have already set out my conclusions about that.

172 So too, I have already dealt with particular 6(a)(iii).

173 Particular 6(b) is advanced in the more general vein, that the verdict was unreasonable and cannot be supported, having regard to the factor, amongst others, that the appellant's premises were visited and occupied by more than one adult person. I take that to be directed primarily towards the issue of possession. However, the evidence was that as at March 2003 the appellant was the only adult constantly living there. His 12-year-old son was the only other person living there at the time. Other members of the family visited from time to time, but not that day. That was the appellant's own evidence in cross-examination. The drugs were found on a high shelf in the kitchen. There was a large quantity of clip-seal bags in a kitchen drawer similar to those which contained the drugs. Also found were hundreds of syringe needles in boxes and five boxes of alcohol swabs. A set of scales was found behind a chair in the lounge room. Beyond doubt the appellant was the adult in charge of the premises. When the appellant arrived at the house to find the police there, he immediately drove off again, leaving his young son there. He hid from the police for two days before he was found by them hiding under a blanket in the back seat of a car. The prosecution relied upon that circumstance as tending to prove guilt, and the Judge left it to the jury on that basis. No point is taken about that nor about the direction given by her Honour with respect to it.

174 Particulars 6(c), (e) and (f) cannot sustain an apprehension that the verdict is unreasonable or cannot be supported by the evidence, for the reasons I have given above. Particular 6(d) concerns the deficiencies in the DNA evidence. It must be accepted that evidence was not probative of the appellant's guilt, as I have explained. The prosecution case must therefore be evaluated on the strength and cogency of the other evidence, putting that aside. In expressing it that way, I do not ignore the argument that the jury may have given the DNA evidence weight it could not properly have, but for the reasons I express below I do not accept it.

175 The critical issue at trial was possession - that is whether the State had proved beyond reasonable doubt the drugs found were in the possession of the appellant. The different types of drugs and the quantities of them were sufficient to enable the jury properly to find intent to sell or supply by whoever was in possession. Making my own independent assessment of the evidence, I am satisfied it was open to the jury properly to return a verdict of guilty in respect of each count and there was no unfairness and no deficiency of the kind mentioned in M v The Queen, supra, which would lead me to consider there is a significant possibility that an innocent person has been convicted.

177 I have concluded that ground 2 has been made out. The DNA evidence led at trial was inadmissible; alternatively, it ought to have been excluded in the exercise of her Honour's discretion. That does not necessarily determine the outcome of the appeal. Section 30(4) of the Criminal Appeals Act 2004 (WA) provides that even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

178 A similar provision (conveniently described as "the proviso") was explained by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. There the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) said of the test embodied in the proviso [39]:

"Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt."

179 Their Honours pointed out that it is inapt for an appellate court to ask what the trial jury (or a hypothetical reasonable jury) might have done had the error not been made; the statutory provision suggests the appeal court is to decide for itself whether a substantial miscarriage of justice has actually occurred. The court is to do that in the same way it decides whether the verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. It must make its own assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist with an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty.

180 The Court emphasised that the appellate court's task must be undertaken on the whole of the record of the trial, including the fact that the jury returned a guilty verdict. Further, it is necessary always to keep at the forefront of consideration, first the accusatorial character of criminal trials and secondly that the standard of proof is beyond reasonable doubt.

181 Finally, the permissive nature of the power ("the court ... may") is important, as is the fact that the power is conditioned upon the court being satisfied that no substantial miscarriage of justice has actually occurred. Although their Honours declined to proffer a single universally valid description of what would constitute a substantial miscarriage of justice, they did state one negative proposition could safely be offered, namely that it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence.

182 The Court pointed out [45] that there may yet be cases in which it would be proper for an appellate court not to dismiss the appeal even though persuaded the evidence at trial proved the appellant's guilt beyond reasonable doubt. Cases where there had been a significant denial of procedural fairness at trial may be an example.

183 Having undertaken that exercise in accordance with the strictures articulated in Weiss, I have come to the conclusion that the wrongful admission of the DNA evidence here would have had no significance in determining the verdict that was returned by the jury and that accordingly no substantial miscarriage of justice has actually occurred.

184 It was made patently clear by the trial Judge that taken at its very highest, the DNA evidence merely did not exclude the appellant as a possible contributor. But further than that, she directed them that even to that extent, they may find it of little value at all because they were dealing with a household item and the evidence was that the DNA may have come from a number of sources, in a number of ways. She reminded them the scientific analysis did not take into account there were lineal relatives within the appellant's household. She suggested that the jury may find the evidence of very little, if any, assistance and reiterated that at best it was

equivocal. Her Honour effectively directed the jury to disregard the DNA evidence.

185 It seems to me that in light of what the evidence about that actually was, and her Honour's directions in respect of it, the DNA evidence could not have influenced the jury in determining their verdict.

186 As I have already said in respect of ground 6, having reviewed the whole of the evidence and having regard to the whole record, including her Honour's directions and the verdict of the jury (but excluding the DNA evidence from consideration), I am persuaded the admissible evidence at trial proved the appellant's guilt beyond reasonable doubt. Further there was no unfairness at trial which would occasion me to conclude that the appeal should be allowed notwithstanding that conclusion.

• Ground 1 - The DNA evidence
• Ground 2 - Drug movement bags
• Ground 3 - Mixing of contents of separate bags
• Ground 4 - Direction on disbelief of accused
• Ground 5 - Police search of the appellant's premises
• Ground 6 - Verdicts unreasonable and cannot be supported
• The proviso