MARSHALL -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 96 (7 May 2007)

Court of Appeal (WA)|2007-05-07|Before: Smith JA

1 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons of Pullin JA and Miller AJA. Subject to what I say below, I agree with both of them. I have a different view than Miller AJA about ground 3 in appeal CACR 31 of 2006 and would come to a different conclusion about that. My reasons are as follows.

2 I agree that Aaron Quinlan's evidence is properly to be characterised as "fresh" evidence. Whilst on one view it might be thought that with reasonable diligence it could have been obtained because (if the appellant's account were true) it was reasonable to believe the package must have come from someone in the appellant's house, I think that is too simplistic in the circumstances of the case. On Quinlan's own evidence he kept quiet about it both at the time and subsequently. He was not prepared to admit it when the appellant specifically asked him. He did not reveal to the appellant that it was his heroin until they were both in prison.

4 Where an appeal is based upon fresh evidence, the question is whether a miscarriage of justice has occurred (Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 per Mason and Deane JJ at 402; Dawson J at 413; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 per Toohey and Gaudron JJ at 301).

5 The relevant test is whether the fresh evidence, if believed, "was likely to bring about a different verdict" (Ratten, (supra), per Barwick CJ at 520), or if the Court considers there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it (Gallagher v The Queen, (supra), per Mason and Deane JJ at 402; Gibbs CJ at 399). The appellate court has a responsibility to examine the probative value of the fresh evidence. As Rich and Dixon JJ explained in Craig v The King [1933] HCA 41; (1933) 49 CLR 429, 439, it cannot be said that a miscarriage of justice has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. Their Honours added:

"The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced."

(These remarks were quoted with approval by Menzies J in Ratten, (supra), at 526, and Aickin J in Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 686).

6 In Mickelberg v The Queen, (supra), Toohey and Gaudron JJ said (at 301 - 302):

"In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ... or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the [accused] ...' For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it." (My emphasis).

8 Whatever ultimate view I might have about its cogency and plausibility, I am unable to conclude that it is evidence which a jury could not accept, or which, at least, could not leave a jury with a reasonable doubt. To that extent (which is sufficient for this appeal) I am of the same view as Pullin JA, that Quinlan's evidence was cogent, plausible and relevant.

9 I agree with Pullin JA that it would be logical for Quinlan or the appellant to dispose of illicit drugs in their possession by throwing them over the fence when police arrived. I cannot accept that the evidence suggests there were two packages.

10 Acceptance of that as a fact - or as a reasonable possibility - would involve accepting that, on the evidence and notwithstanding neither the appellant nor Quinlan knew about the other's package:

both packages contained the same illicit drug (heroin);
the quantities of the drug were in the same form and packed in the same way within the package;
according to the evidence at trial and Quinlan's evidence on the appeal, both were wrapped in black plastic and sealed with black plastic tape and were of identical dimensions;
both were thrown into the same area of the neighbour's yard.

11 When these points are considered in the context of the evidence at trial generally, it seems to me the proposition that there were two packages is not reasonably open.

12 On that understanding, there are only two possibilities with respect to Quinlan's evidence. They are that either Quinlan is telling the truth (in which case the drugs found in the neighbour's property are his and the appellant is innocent); or Quinlan is lying to protect his father (and the appellant is guilty).

13 Given my view that a jury could reasonably find that Quinlan is telling the truth - or at least be left with a reasonable doubt about that - the availability of this fresh evidence reveals a miscarriage of justice in the sense explained in the authorities to which I have referred above.

14 The DNA evidence does not detract from this. It is not the case that the DNA evidence shows the appellant's DNA was on the package. Ms Furmedge was rightly careful to explain that the profile from the taped package "matched the profile" of the appellant. DNA evidence cannot show that a particular sample definitively came from a particular individual. Such evidence speaks in terms of statistical likelihood that the sample came from someone other than the subject. That is how Ms Furmedge expressed it. She said the probability of finding the DNA profile located on the package coming from someone other than the appellant and unrelated to him, was less than one in ten billion. The qualification that her opinion was based on the assumption such a contributor was unrelated to the appellant is important. But it was never raised as an issue at the trial. It clearly is an issue if the other evidence is that the package belonged to the appellant's son. As to that, ordinary usage of the word would convey the meaning that the description of Quinlan as the appellant's son is that he is the appellant's biological son. It was not suggested otherwise in cross-examination, nor at all.

15 Unlike Miller AJA, I do not see the "coincidence" of the appellant being apprehended at a point proximate to Quinlan's window at the side of the house, and that being the window through which Quinlan says he

threw the package, means Quinlan's evidence is not credible. Both the appellant's presence at that point at that time, and Quinlan throwing the package through the window, are explicable by the same event - namely the arrival of the police. The timing is explicable not on the basis it was coincidental, but on the basis it was consequential on that event. It seems to me this is a matter for a jury.

16 There is an obligation on an appellant to satisfy the Court there has, or may have been, a miscarriage of justice, where that is what the appellant asserts. In this case, taking Quinlan's evidence into account with all the other evidence given at trial, I am persuaded there is a significant possibility the jury may have returned a different verdict. I would accordingly allow the appeal against conviction in CACR 31/2006 on ground 3, set aside the conviction and order a retrial.

17 PULLIN JA: I agree with Miller AJA that appeals 28 and 76 of 2006 should be dismissed for the reasons given by him.

18 The facts are set out in Miller AJA's reasons for judgment. I agree with Miller AJA concerning ground 2 and add the following comments. I agree with Miller AJA that the evidence elicited by questions from prosecuting counsel was inadmissible. Once inadmissible evidence is led during a trial an "irregularity" occurs which will amount to a miscarriage of justice: Weiss v The Queen (2005) 224 CLR 300 at [18] and [36]; Bounds v The Queen (2006) 80 ALJR 1380 at [78]; Rinaldi v The State of Western Australia [2007] WASCA 53 at [178]. However, even though a miscarriage has occurred, this Court may decline to set aside a verdict where it considers that the miscarriage does not amount to a substantial miscarriage of justice: see s 30(4) Criminal Appeals Act 2004 (WA); Weiss [35], [39] and [40]; King v The Queen (2003) 215 CLR 150 at [100].

19 In this case the evidence led in response to the questions identified in Miller AJA's judgment was inadmissible because it may have led the jury to infer consciousness of guilt on the part of the appellant. The judgment of Mason CJ, Deane, Toohey and McHugh JJ in Petty v The Queen (1991) 173 CLR 95 makes it clear that this type of evidence is an erosion of the fundamental right of an accused to remain silent.

20 In R v Reeves (1992) 29 NSWLR 109 Hunt CJ explained that there are circumstances in which it may be relevant to ask questions about what was said by the accused during an investigation and that, once the

question is permitted, then the answer given must necessarily be admissible even if it discloses that the accused exercised his right to silence. It is not necessary to discuss the circumstances where this might occur because the circumstances did not exist in this case. Hunt CJ in Reeves went on to say:

" ... where such evidence is given which discloses that the accused has exercised his right of silence, a direction should invariably be given - as soon as the evidence is given and, if necessary, again in the summing up - to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty ... It would usually be appropriate also to remind the jury that (if it be the fact) the accused had specifically been cautioned by the police that he was not obliged to answer any questions, so as to avoid any suggestion of a familiarity by the accused with criminal investigation procedures."

21 In R v Eaton [2005] QCA 191 Jerrard JA, McPherson JA and Philippides J agreeing, referred to the direction which might be given by a trial judge in those circumstances: see [19].

22 The case of Reeves, however, does not lay down any "hard or fast rule": see Callander v The Queen [2004] NTCCA 5; (2004) 144 NTR 1 at [23]. The circumstances in which inadmissible statements may emerge, and their significance, will vary considerably from case to case. So for example in Callander the admission of inadmissible evidence of this kind, and the failure to give a direction of the kind referred to in Reeves, did not amount to a substantial miscarriage of justice. Likewise see Eaton. The fact that no direction is sought by counsel immediately after the evidence is given is a factor relevant to deciding whether or not a substantial miscarriage has occurred: see for example Callander at [23]. However, sometimes the circumstances may be such that the failure to give the direction will amount to a substantial miscarriage of justice, with the result that the verdict will be set aside. See for example Barr v The Queen [2004] NTCCA 1; (2004) 14 NTLR 164.

23 This appellant was represented by counsel at trial. No direction was sought from the trial Judge at the time the inadmissible evidence was led. During the Judge's address to the jury his Honour said "an accused person doesn't have to speak to the police. An accused person doesn't have to give evidence. The onus is on the Crown or the State, the prosecution, to prove the charges that it lays and to do so beyond a reasonable doubt ... ".

24 Counsel for the appellant did not request any further direction after the Judge's charge to the jury. Generally speaking an appellant will not be allowed to rely upon criticism of the Judge's charge which was not taken by way of exception at trial: General Motors-Holden Pty Ltd v Moularas [1964] HCA 39; (1964) 111 CLR 234 at 242 per Barwick CJ and R v Smart [1983] VicRp 22; [1983] 1 VR 265 at 297, unless the interests of justice demand otherwise: Pham v The Queen [2004] WASCA 104 at [15].

25 In my opinion, the fact that there was no objection to the questions, the fact that counsel for the appellant at trial did not seek a direction from the judge when the evidence was given, the fact that counsel for the appellant at trial did not ask for any further direction from the trial Judge after the Judge's charge to the jury, the fact that during summing up the trial Judge explained that the appellant did not have to speak to the police, and the strength of the circumstantial case against the appellant as outlined by Miller AJA, lead me to the conclusion that, although a miscarriage of justice occurred when the inadmissible evidence was led, ground 2 should be dismissed because no substantial miscarriage of justice occurred.

26 I have reached a different conclusion from Miller AJA in relation to ground 3. The evidence is set out in his Honour's reasons. Ground 3 is based upon the introduction of fresh evidence.

27 If both the appellant and Aaron Quinlan were drug users or drug dealers (Quinlan admitted he was both and the appellant was observed by the police engaging in activity which with other circumstantial evidence suggested that he was a dealer), then it is logical that if they were in possession of drugs both would seek to dispose of those drugs when police appeared. One obvious method of disposal in the circumstances of this case was to throw any drugs they had on them over the fence. Counsel for the appellant suggested that it would be too much of a coincidence that two packets could be thrown over the fence, one by the appellant while he was being chased by police and the other by Quinlan, but I do not see why this should be so. Quinlan's room was adjacent to the location where the appellant was apprehended.

28 Quinlan's evidence was that he threw a package containing drugs over the fence, but there was circumstantial evidence to indicate that a package was also thrown over the fence by the appellant. The circumstantial evidence was that the appellant was seen by the police exchanging something with another person, he then tried to evade the police in his car, when he reached his house he ran from the police until he was apprehended, a packet was found over the fence near where he was apprehended, he had the opportunity to throw the packet over the fence when he was unobserved, and DNA was found on the package. The significance of the DNA evidence was led via Ms Furmedge. Her evidence was that "the probability of finding this DNA profile - if the cellular material on the taped envelope had come from someone other than and unrelated to Marshall is less than one in 10 billion based on West Australian population data". (I will refer to the qualification ie "other than and unrelated" below). As it was circumstantial evidence, any hypothesis consistent with innocence would have to be negatived by the prosecution. The appellant's case is that the fresh evidence leaves open the possibility that the package found in the neighbour's yard was Quinlan's package.

29 When an appellant seeks to overturn a verdict on appeal by leading fresh evidence, the Court has a responsibility to examine the evidence in order to ascertain whether it is cogent, plausible and relevant. It is not necessary that the Court should positively believe the evidence. Although the Court inevitably will form its own assessment of the fresh evidence and of any additional evidence adduced which might tend to support, contradict or weaken the fresh evidence, it is necessary for the Court to keep in mind the possibility that, in some instances, a jury, acting reasonably, might come to a different view from the Court about the credibility of the witness or about the cogency of the fresh evidence: see White v The Queen [2006] WASCA 62 at [146] - [147]. I would conclude on that test that Quinlan's evidence was cogent, plausible and relevant.

30 The question then is whether there is a significant possibility that, in the light of the fresh evidence and other admissible evidence led at trial, a jury acting reasonably would have acquitted the appellant: Mickelberg v The Queen (2004) 29 WAR 13 at [417].

31 In my opinion, the fact that Quinlan gave evidence that he threw a package over the fence does not necessarily lead to the conclusion that the appellant did not also throw a package over the fence. There is some evidence that the packages were different if regard is had to evidence given at the trial and the evidence of Quinlan. The evidence that Quinlan gave was that the package which he threw over the fence was one which permitted the contents to be examined via an opening which he had installed when he manufactured the package. The package the neighbour found and gave to the police, and which contained the drugs with which the appellant was charged, had to be cut open before the neighbour could examine the contents. Quinlan's evidence at t/s 55 was as follows:

"Mr Quinlan, can you just explain again how the drugs were packaged?---In a little plastic bag with tape wrapped around and a slit with two smaller bags; clip-seal bags, you know, sealed bags; one with more sachet bags folded up and another one with Glad bags with quarts and halves and different amounts and two different - one with smaller packages, one with bigger packages.

When you say you had it taped up, what kind of tape did you use?---Black electric tape.

Black electric tape. Where did you get that tape from?---Probably just around the corner from a hardware store or the deli, you know?

Where was that tape kept in the house?---In my room.

You said it was like a slit at the top, did you?---Yes."

32 The neighbour's evidence at trial was at follows, at t/s 52 and 53:

"What did you do when you found that tape?---When I found the package?

Yes?---I took it inside and just slit one side of it open to try and ascertain what was inside it. Inside it was what looked like - well, it was tablets and some sort of powder in little plastic sachets.

...

When you found the package of course you took it inside to show your wife. Is that right?---That's correct, yes.

I think you and she - nothing improper in this - opened it up?---That's correct. We just slit the top, just well, one side of the package just to have a look inside it."

33 The neighbour's evidence leaves open the possibility, but not the certainty, that the contents were not examinable without cutting the package open. However, to be set against this evidence was the fact that Quinlan's description of the package, which he said he threw over the fence, was in other respects similar to the package which was found by the neighbour and given to the police.

34 It is also relevant to note that there is no evidence that the neighbour or the police carried out any general search of the neighbour's property to see if there were any other packages in the vicinity. When the neighbour found the package he took it inside, examined it, called the police, and when Detective Calzada attended to collect it, the neighbour merely showed the detective where he had found the package. That leaves open the possibility, but not the certainty, that there was another package in the garden which was not noticed by the neighbour.

35 While Quinlan was in the witness box, counsel for the appellant was invited to consider producing the bag which contained the drugs, possession of which the appellant was charged with, and showing it to Quinlan or showing him photographs of the bag and its contents. However, counsel for the appellant declined to do so. There are possible reasons why the bag was not shown to Quinlan. It is possible, for example that, Quinlan was not prepared to verify that the bag containing the drugs was the one he threw over the fence. However that is a matter of speculation and speculation cannot decide the appeal.

36 An important aspect of Quinlan's evidence was that he said that he had concealed the existence of the drugs he had in his possession from the appellant. He gave evidence that it was kept concealed in his room and that he had bought the tape he used to seal his package of drugs from a shop. He did not obtain the tape from the appellant. That being so, it would seem that the appellant's DNA could not have found its way onto the tape. That leads me to the DNA evidence led at trial. The evidence concerning DNA was expressed in terms of the probability against the DNA being that of someone other than "or unrelated" to the appellant. If Aaron Quinlan is in fact biologically related to the appellant then the evidence about the probability of the DNA not being that of someone other than "or unrelated" to the appellant becomes irrelevant. In light of the fresh evidence, the DNA evidence would have to be recast. The appellant did not lead any evidence that Quinlan was the appellant's biological son. Quinlan merely said he was the appellant's son. A person who refers to a person as his son or a person referring to someone as his father is not proof that there is a biological connection between them. Many modern families are composed of persons who are biologically unrelated but who are content to refer to each other by terms which might signify a biological connection.

37 However, during the appeal the respondent did not challenge Quinlan's claim to be the appellant's son, which leaves open the possibility that he was the appellant's biological son.

38 The result is that the fresh evidence leaves open the possibility that a jury acting reasonably may have been left with a reasonable doubt about the appellant's guilt and may have acquitted the appellant. I conclude that this is a significant possibility based on the evidence as it presently stands. If there is a retrial, it is likely that other evidence would be given, but that is not the concern of this Court.

39 In relation to appeal 31 of 2006, I would therefore uphold ground 3, allow the appeal, set aside the conviction and order a retrial.

40 I agree with Miller AJA's reasons in relation to the other grounds and in relation to the other appeals.

41 MILLER AJA: The appellant was tried in the District Court at Perth on two separate indictments. The first indictment (IND 2016 of 2004) alleged that on 22 January 2004 at Lathlain, the appellant had in his possession a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another. The appellant was tried on this indictment before Williams DCJ and a jury in the District Court at Perth on 1, 2 and 3 March 2006, and he was convicted. He was sentenced to imprisonment for 4 years with eligibility for parole.

42 The second indictment (IND 1637 of 2004) alleged that on 4 February 2002 at Mount Hawthorn, the appellant had in his possession a prohibited drug, namely, heroin, with intent to sell or supply it to another. He was tried on this indictment before Jackson DCJ and a jury in the District Court at Perth on 13, 14 and 15 March 2006. The appellant was convicted and sentenced on 12 April 2006 to an additional 18 months' imprisonment to be served cumulatively on the sentence imposed by Williams DCJ on 3 March 2006.

43 The appeal against conviction originally raised four grounds. One ground was abandoned, leaving the grounds as follows:

"1. The learned trial Judge erred in declining to direct the jury that the State had to negative possession by co-occupants of the house at which the drugs were located.

PARTICULARS

(a) The Appellant was one of four people present at the house at which the drugs the subject of the indictment were found, but was the only person charged with possession thereof;

(b) The State did not open its case on the basis that the Appellant was in possession with any other person;

(c) In the circumstances, it was incumbent on the State to negative beyond reasonable doubt the possibility that one or more of the other people present at the house were in possession of the drugs.

The learned trial Judge erred in failing to direct the jury that before they could convict on circumstantial evidence, that evidence must not only be consistent with the guilt of the accused but inconsistent with any other reasonable explanation.
...
A miscarriage of justice resulted in the Appellant's case in that evidence which would have led to a different verdict was not available to be led at the time of the trial."

44 The appeal against sentence is on one ground only. It is as follows:

"1. The learned sentencing Judge erred in that the sentence of 4 years imprisonment with parole was manifestly excessive having regard to the small quantity of drugs involved and sentencing patterns in comparable cases."

45 The grounds of appeal against conviction were originally three, but the first was abandoned at the hearing of the appeal. The remaining grounds are:

The learned trial Judge erred in failing to direct the jury that the Appellant had a right to remain silent in the face of police questioning and that no adverse inference could be drawn from the exercise of that right in circumstances where the State prosecutor had impermissibly introduced evidence that the Appellant had declined to answer question out [sic] to him by police.
A miscarriage of justice resulted in the Appellant's case in that evidence which would have led to a different verdict was not available to be led at the time of the trial."

46 The grounds of appeal against sentence are as follows:

"1. The learned sentencing Judge erred in making the sentence of 18 months imprisonment wholly cumulative on a sentence of 4 years imprisonment imposed on the Appellant on 3 March 2006, in circumstances where the effect of imposing that sentence is that the Appellant is required to serve the whole 18 months;

The accumulation of the 18 month sentence on the 4 year sentence previously imposed resulted in a total sentence of five and a half years imprisonment that was disproportionate to the gravity of the Appellant's offending behaviour having regard to the small quantities of drugs and sentencing patterns in comparable cases."

47 On 22 January 2004, police arrived at an address in Streatley Road, Lathlain, where there was a rented house occupied by the appellant and his girlfriend, Fleur Chard-Walker. When police arrived at the house, they observed the appellant working on a motor vehicle in the driveway. As the police pulled into the driveway, a Sergeant Brittain alighted from the vehicle and identified herself as a police officer. She requested that the appellant stop where he was, but he ran into the garage to the house and shut the roller door behind him. Sergeant Brittain and a Constable Armstrong ran straight to the garage door and attempted to open it, but found that it was locked. They then went straight to the front door of the house, where they tried to gain entry, but found the front door also locked. Occupants within the house failed to open it, so Constable Armstrong forced the door open with the use of a metal device.

48 The two police officers entered the house and walked down a hall area, through to a room at the rear of the premises. It was first described by Sergeant Brittain as a kitchen, but later as a family room. The appellant was in this room with three females. He was standing and the females were sitting on a couch. The two officers conducted a search of the premises. Sergeant Brittain went to the appellant's bedroom and there, in a side drawer, she located $450 in cash. A thorough search of the premises was conducted by police and other items seized included a set of scales found in a bedroom dresser, a sum of $6105 found in a radio in the dining room, $865 found in the main bedroom in a pocket of a pair of shorts and a clipseal bag containing a brown powder found in the garage of the house in a tent bag. This brown powder was later analysed and found to contain 13.4 grams of 21 per cent pure methylamphetamine.

49 At the conclusion of the search of the house, the appellant was shown a record of the possessions and drugs seized and advised that further inquiries would be conducted. Police then left the premises. He was later arrested on 2 April 2004.

50 The three female occupants at the house on 22 January 2004 were Fleur Chard-Walker, Kylie Mayfield and Ascher Kitchener. Various items were seized from the three women, including drugs. Sergeant Brittain was uncertain in her evidence as to what drugs were seized from what women, but recalled seizing amphetamine from one of the three women and seizing some powder which she believed to be heroin from Ms Chard-Walker. A small amount of cannabis was found in a bedroom occupied by a daughter of the appellant.

51 The prosecution case against the appellant relied upon circumstantial evidence. That evidence was as follows:

(1) The appellant rented the house in which the methylamphetamine was found. He lived in the house with Ms Chard-Walker.

(2) The appellant paid $185 per week by way of rent, but the rent was overdue.

(3) When the police arrived at the house, the appellant ran to the garage and put down the roller door, which he locked.

(4) The methylamphetamine was found in that garage in the open mouth of a tent bag on a storage shelf.

(5) Three sets of scales were found in the house. One was a manual set and others were electronic scales. Deering precision scales were found in the garage.

(6) Mayfield and Kitchener were at the house when police arrived, but they did not live there.

(7) Drugs found in the house and in the possession of the women in the house were of a different character from those found in the garage.

(8) A large amount of money was found in the house. $865 was found in shorts belonging to the appellant which were in his bedroom; $6105 was found in cash hidden in the back of a radio in the dining room; and $450 was found in a bedside drawer in the appellant's bedroom.

(9) The appellant claimed that the $865 found was money for rent.

(10) A number of mobile phones were found in the premises: five behind the bar in the lounge area and five in a box under the bed in the master bedroom.

(11) An open box of Glucodin was found in the games room.

52 This ground contends that the learned trial Judge erred in declining to direct the jury that the State had to negative possession by co-occupants of the house at which the drugs were located.

53 The learned trial Judge made the following observations to the jury:

"So in this case you will need to be satisfied that Mr Marshall knew of the existence of the drug, and we are here talking about he [sic] 13.4 grams of brown powder which were found in the living room, family room. So you must be satisfied that he knew it was there and that he had control over it. It doesn't have to be to the exclusion of everybody else; you can have joint control. As I have said, you may have a television set at home and you know it's there and you are in a position to exercise dominion or control of it, but perhaps other people who live in the house are also in the same position

So that is what is called joint possession. So the state doesn't have to prove, for example, that other people in the house didn't have possession of the drugs. That's not the question here. The question here is that you have got to be satisfied beyond reasonable doubt that this accused was in possession. You don't have to worry about the others, all right?

Provided you're satisfied beyond reasonable doubt that Mr Marshall knew it was there and that he was exercising dominion or control over it, then that satisfies the requirement of possession, notwithstanding that there may be other people in the house who are in the same position, but has to obviously be to the exclusion of other people other than those who are acting jointly with him. So apart from the people who might be in joint possession of it, it has to be to the exclusion of others."

54 The ground of appeal is similar to that which was raised in Jones v The State of Western Australia [2006] WASCA 192. There it was argued that the prosecution was required to negative possession by all persons who might have had access to the drug which was alleged to be in the possession of the appellant.

55 It was held in Jones (supra), at [24], that it is unnecessary for a trial Judge to give a direction that the State is required to negative possession by others who may be in the house in which drugs are located. Wheeler JA, at [18] et seq, dealt with the cases upon which counsel for the appellant relied in this appeal, saying:

"18 The appellant relies upon the cases of Filippetti (1978) 13 A Crim R 335 and Lai v The Queen [1990] WAR 151, referred to in ground 1.2(e). Both of those were cases in which an illicit drug was found in a place to which potentially a number of persons may have had access. In each case, the appellant was one of the persons who could have had access to the drug. In each case, there were indications that particularly linked the appellant with the drug, but those indications were either subjective (in Filippetti the appellant was described as becoming 'very agitated', while in Lai the appellant was said to have 'gone a bit paler and to have become fidgety' as the police approached closer to where the drugs were located), or equivocal (eg, in Fileppetti [sic Filippetti] the appellant said, 'I would like to find out who the bastard was that put me in.'). In each of those cases, the convictions were quashed.

The reasoning in each of those cases was broadly as follows. It may be inferred, as a general rule, that a person who is in control of premises has knowledge of and dominion over items located there. However, that is not an inference that can be drawn in every case. Where the item is concealed, and there is no evidence to suggest by whom it is concealed, and where a number of persons are capable of having concealed the item, there is no reason to draw the inference that any particular person concealed the item. This is not because there is some proposition of law that it is necessary, in cases where items are concealed, to negative knowledge and control by all others. It is because in cases such as the two I have described there is a reasonable hypothesis consistent with innocence, that hypothesis being that the items were placed where they were by some other person without the knowledge or consent of the appellant, and that the appellant remained unaware of them. Whether there is such an hypothesis, so as to prevent an inference adverse to a particular appellant from being drawn, is simply a question of fact."

56 Wheeler JA also referred to Papaluca v The Queen [2001] WASCA 193; (2001) 123 A Crim R 322 and to Cumming (1995) 86 A Crim R 156. In the first of those cases, the appellant was charged with her husband with having possession of methylamphetamine which was found in a chicken noodle soup tin in the pantry of the house occupied by the appellant and her husband. The appellant admitted to being the person responsible for shopping and often purchasing soup, but said she did not purchase chicken noodle soup because she did not like it. The husband gave evidence at trial. He said that he and his wife did the shopping. He said that he never ate tinned soup, chicken noodle or otherwise. The Court held that, because the can of soup was clearly visible on a shelf within the kitchen pantry of the house in which the appellant lived, and because of the evidence relating to her access to and use of the pantry, it was open to the jury to reach a conclusion that any hypothesis consistent with innocence, namely, that the appellant had no knowledge of the existence of the can of soup, had been excluded.

57 In the second case, there was potential joint possession of methylamphetamine in transparent plastic containers in the refrigerator of a house which the appellant shared with her partner. The appellant denied to police that she had any knowledge of the containers in the fridge, or their contents. She conceded that she may have seen one of the plastic containers (described as a Tupperware crisper), but said she did not know what was inside it. She admitted owning the Tupperware container and she admitted doing the shopping and cooking for the household. Owen J dismissed the ground of appeal which contended that the trial Judge had erred by failing to direct the jury that it could not convict the appellant unless satisfied that she had exclusive possession of the drug. His Honour said, at 164:

"The prosecution case was presented on the basis that the appellant had possession of the methyl amphetamine. No evidence of joint possession was led. It was submitted on behalf of the appellant that the learned trial judge should have directed the jury that the prosecution was required to prove that the appellant had exclusive possession of the methyl amphetamine. In my opinion the learned trial judge was not required to direct on the issue of exclusive possession. There was evidence before the jury from which an inference could be drawn that the appellant had possession of the methyl amphetamine irrespective of Merrett's involvement. Merrett's absence was explained to the jury both by counsel for the prosecution and the learned trial judge. The jury was duly directed that it could not and should not convict that appellant on the basis of an association with Merrett. Her case had to be considered separately. No more was required from the trial judge. This ground fails."

58 In Williams v Olsen [1999] WASCA 114, the appellant was charged with possession of heroin. He was sitting with his wife in a motor vehicle when police officers swooped on the vehicle. They searched the occupants and the vehicle. Located in the wife's handbag was a fold of heroin, and located in her underwear were another eight paper folds containing heroin. In the front of the car between the driver's seat and passenger's seat was a syringe. In a pocket of a jacket in the back of the car were two further folds of heroin. The jacket belonged to the appellant, but he denied knowledge of the folds in the jacket.

59 McKechnie J held, at [34], that the question for determination was whether the only reasonable inference to be drawn from the circumstances of the case was that of the guilt of the appellant. His Honour concluded that the prosecution evidence could not exclude beyond reasonable doubt an hypothesis consistent with innocence in relation to the two folds of heroin in the appellant's jacket. That hypothesis was that the appellant's wife had sole possession of all the heroin in the vehicle. She was the one who was found in possession of heroin, which included heroin folds similar in appearance to those in the jacket. She had the opportunity of putting heroin in the jacket during the day. The evidence was capable of establishing that the appellant had general knowledge of possession of heroin by his wife, but in the circumstances of the case that general knowledge was incapable of amounting to proof beyond reasonable doubt that he had particular knowledge of the two folds of heroin. This was not a case in which drugs were found in premises occupied by the person accused of the offence and there were special circumstances which linked the drugs with the appellant's wife.

60 Each of the cases I have reviewed turns on its own facts. In the present case, the prosecution was not required to prove that the methylamphetamine was not in the possession of others. All that it was required to do was prove that the appellant was in possession of that substance. The learned trial Judge's directions to the jury were correct and the ground must fail.

61 This ground contends that the direction on circumstantial evidence was inadequate because the jury was not told that, before they could convict on circumstantial evidence, that evidence must not only be consistent with guilt, but inconsistent with any other reasonable explanation.

62 What the learned trial Judge said about circumstantial evidence was as follows:

"I told you earlier that I would say something to you about inferences in relation to the circumstantial evidence to which I have already referred. You are of course entitled - and in fact you will have to draw inferences as to what happened but you should only draw logical inferences from facts which are proved to you. There is no room for guessing or speculating or conjecture or looking for theories unsupported by the evidence.

The position is that you may draw inferences from facts which you have in the first place found to be established. An inference is merely a logical deduction from such facts and before you may make an inference as against the accused you must be satisfied that it is the only inference that can be drawn consistent with the proven fact. When there are two or more competing inferences you must be satisfied beyond reasonable doubt that the inference leading to a finding of guilt is the only reasonable inference.

If there is a reasonable inference other than that of guilt, you must acquit. If you think there is some alternative reasonable inference which you may draw and which is open to you on the facts, then no inference can be drawn as against the accused. If, however, after consideration you are satisfied beyond reasonable doubt that an inference is the only inference to be drawn, then you may make that inference. As I said to you, your job is not to guess or speculate or conjecture or look for theories unsupported by the evidence."

63 The appellant's complaint is that the learned trial Judge failed to direct the jury as to how to go about an assessment of circumstantial evidence. It is said that the learned trial Judge should have directed the jury that, in a circumstantial case, guilt must not only be a rational inference, but the only rational inference that can be drawn from the circumstances, excluding any reasonable hypothesis consistent with innocence. However, as I read the learned trial Judge's direction, that is what his Honour said. Instead of using the word "rational", his Honour used the word "reasonable". There is no distinction to be drawn between the two. The words are interchangeable: Oxford English Dictionary on Historical Principles, Vol II, pages 1750, 1758.

64 It is also complained that the direction given was a direction about inferences and not a direction tailored to circumstantial evidence. There is no substance to this complaint, as the learned trial Judge prefaced his directions by indicating that what he was talking about was circumstantial evidence.

65 The extent to which a direction on the drawing of inferences needs to be given in a criminal trial depends on the circumstances. In Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, Dawson J said, at 578:

"The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge's case (1838) 2 Lewin 227 [168 ER 1136]; Peacock v The King [1911] HCA 66; (1911) 13 CLR 619; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234. Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. As Barwick CJ, speaking for the Court, observed in Grant v The Queen (1975) 11 ALR 503 at 504:

'Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed.'"

66 In my opinion, this passage is particularly relevant to the present case. It was a simple case and one in which the jury would have had no difficulty in understanding that the critical issue was whether the circumstantial evidence relied upon by the prosecution was such as to lead only to the conclusion that it had been proven beyond reasonable doubt that the only rational inference that could be drawn in all the circumstances was one consistent with guilt. The learned trial Judge told the jury on numerous occasions that the question was whether the prosecution had proven beyond reasonable doubt that the appellant was in possession of the methylamphetamine. The direction given in relation to circumstantial evidence was an amplification of the rule that the prosecution was required to prove the case beyond reasonable doubt.

67 Counsel for the appellant placed reliance upon Clohessy v The Queen [2001] WASCA 314, where Wallwork J (with whom Steytler and Miller JJ agreed) said, at [19]:

"It is usual for Judges to tell juries that circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded and that before a jury can convict on circumstantial evidence, that evidence must not only be consistent with the guilt of the accused but inconsistent with any other reasonable explanation. The jury should be told that it must be satisfied beyond reasonable doubt that the circumstantial evidence from which the prosecution asks it to draw an inference of guilt is trustworthy evidence and is inconsistent with any other reasonable conclusion than that the accused person is guilty."

I consider that the direction given by the learned trial Judge was essentially in these terms.

68 Counsel for the appellant also submitted that a direction in accordance with Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 per Gibbs, Stephen and Mason JJ, at 104, was required. The passage in question is in the following terms:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252; see also Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584 at 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.' (Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, at 661). These principles are well settled in Australia."

69 In my view, the direction given by the learned trial Judge was generally in these terms.

70 It was also contended that the learned trial Judge should have identified the circumstantial evidence and directed in relation to it. It is true that, when directing the jury in relation to the question of circumstantial evidence, the learned trial Judge did not turn his attention to the specific evidence which constituted that circumstantial evidence. However, the case was simple and the learned trial Judge did highlight, in the course of his directions, the evidence which constituted the circumstantial case brought by the prosecution. In doing so, his Honour indicated to the jury that he would be directing them shortly about the issue of drawing inferences. It was clearly stressed what evidence was circumstantial and, at the conclusion of this review of the evidence, the direction which I have quoted was given. In my view, it was an adequate direction.

71 That is not to say that in every case a trial Judge can be content with a direction that does not specify the circumstantial evidence which is the subject of the direction. As Dawson J pointed out in Shepherd (supra), at 578, where the amount of circumstantial evidence involved is slight, a direction in relation to circumstantial evidence may be more confusing than helpful. It is for the trial Judge to determine whether, in the circumstances, a direction should be given.

72 Here, a general direction on circumstantial evidence was given, but the question is whether it went far enough. In my view, it did. There will be cases where it will be necessary to amplify the direction by specific reference to the circumstantial evidence which is under consideration (Clohessy per Wallwork J, at [21]), but this was not one of them. In these circumstances, I would dismiss this ground of appeal.

73 This ground is pleaded in very brief terms. It simply contends that there was a miscarriage of justice by reason of the fact that evidence which would have led to a different verdict was not available to be led at the time of trial. The appellant seeks to adduce what is claimed to be fresh evidence by way of testimony of Fleur Chard-Walker.

74 The first question which arises is whether the evidence is fresh evidence or new evidence. As Pullin JA pointed out in de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291, at [152] - [153], the distinction between "fresh" and "new" evidence is of importance:

" ... The distinction is important because 'new' evidence, after all, is evidence which was available and known by the convicted person to be available at the time of the original trial, or alternatively, 'constructively' (Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 517) known to be available at the time of the original trial. An accused will 'constructively' know about evidence if, although not actually aware of it, he or she could with reasonable diligence have discovered the evidence by the time of the original trial. Admittedly, 'great latitude' (Ratten (at 517)) must be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have been able to produce at trial. This is because an accused will often be disadvantaged in intellectual terms, or in terms of financial and legal resources in the conduct of the case. The fact that such latitude must be shown may be the reason why it has been said that the distinction between 'fresh' and 'new' evidence is not as significant as it once was: Nolan v The Queen (unreported, Court of Criminal Appeal, WA, No 99 of 1995, Malcolm CJ, Pidgeon and Murray JJ, 22 May 1997) [sic unreported; CCA SCt of WA; Library No 970260; 22 May 1997] . The distinction does, however, remain and is soundly based in principle. See Mickelberg v The Queen (at [415]). There will be many cases where no latitude should be granted because the accused is not disadvantaged in any way.

The reason for continuing to distinguish between 'new' and 'fresh' evidence is not to re-establish a set of rules bordering on fixed rules but merely to recognise that, in many cases, the court is likely to exercise its discretion and refuse to admit further evidence - in circumstances where the convicted person chose not to lead the evidence at trial or did not lead evidence which was available on reasonable inquiry. The fact that a tactical decision was made not to lead evidence or the fact that there was a failure to make reasonable inquiry will be facts relevant to the court's decision about whether the convictions should be quashed and a retrial ordered. A decision made for tactical reasons is a decision which an accused person must live with. There will be no miscarriage of justice: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 675 - 676."

75 When considering whether evidence is fresh or new, it is important to bear in mind the trial process in a criminal trial. In Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, Barwick CJ, at 517, said:

"It [a criminal trial] is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial."

76 Against this background of authority, it is necessary to look at the sworn evidence of Ms Chard-Walker before this Court on 9 February 2007. She said that, in January 2004, she was living at 64 Streatley Road, Lathlain with the appellant, his daughter, Sarah and Sarah's boyfriend. She recalled a day in January 2004 when police "did a search warrant" at the house. She said that she had been in bed all day and awoke at some time in the afternoon, and went into the back area of the house to a games room. There, she saw a girl named Kylie Mayfield, who had been staying in the house. There was also a friend with her, whom Ms Chard-Walker said she did not expect to be there. This was Ascher Kitchener. She said that the two women were sitting around a table talking and they had scales and some bags with a substance in them on the table. She said that she tried to confront them about what they were doing. The substance they had looked "brown, kind of a beigey colour I think". She identified it as amphetamines.

77 Ms Chard-Walker claimed that she was taken aback by what she saw. She asked where the appellant was because she did not want him to walk in on the women and the drugs. She was told not to worry because he was not home. She said she was asked for some bags and she went to her room to get them. When she produced the bags, she was told that they were too big. She then returned to her bedroom. The next thing she heard was a commotion in the games room and some loud banging at the door. She went out and saw Kylie, whom she heard calling, "police". She returned to her room, where she wrapped herself in a doona and then observed that the police came in through the front door. She was searched by police and heroin was found in a bag under the bed. She acknowledged it to be hers.

78 Ms Chard-Walker said that Ascher was allowed to leave more or less straight away after she had been searched and Kylie was allowed to leave shortly afterwards. She was asked about the layout of the house and said that directly next door to the games room there was a garage "one door away". Ms Chard-Walker was present when police located a quantity of drugs on a shelf in the garage. She made no comment at the time. She said she did not wish to get Kylie or Ascher into trouble and she did not want to incriminate herself.

79 Shortly after this day, Ms Chard-Walker moved out of the house at Lathlain and went to Goomalling. She had broken up with the appellant. Later, she recommenced living with the appellant at a house in Mount Lawley. She then learned that he had been charged in relation to the amphetamines found at the Lathlain address.

80 Ms Chard-Walker said that she had never told the appellant about what she had seen in the games room on the day the police arrived. She did not want him to know about it. Later, she told the appellant that the drugs in relation to which he had been charged with possession with intent to sell or supply were Kylie's drugs. Kylie had promised her that she would come forward if anybody was charged.

81 Ms Chard-Walker stated that the time at which she had informed the appellant of this fact was prior to his trial. She said:

"Before he came to trial - - -?---Yes.

- - - you had told him that the drugs that he was charged with having been in possession of actually belonged to someone else?---Yes, I told him that even before he was charged because he wasn't charged till quite a while later. I just didn't tell him that I knew that I'd seen it in the first place because I hadn't stopped them or told them not to do it.

But what was the problem? If I can just explore that. Why wouldn't you say to him, 'Look, they were dealing with drugs on the very morning the police came and they must have stuck them out in the garage.' Did you tell him - - -?---Well, I did.

You did tell him that?---Well, yes, I told him that, but I just didn't tell him that I knew previously, you know, that morning. I didn't tell him that I'd seen them together, that I had any conversation with them. I mean, I had already asked those girls to make sure that, you know, I didn't have any knowledge of what was going on.

No, but the point is that you had told him before his trial - - -?---Yes.

- - - that you had seen them that morning dealing in drugs?---No, I told him that I'd spoken to Kylie about the matter and that she'd admitted to me that the drugs were hers and that if need be she would admit to them so that no-one else in the house would get into trouble for them."

82 Ms Chard-Walker said that she told the appellant's lawyer prior to the trial about what she had seen in the games room on the morning in question. She told him that Kylie had said she would come forward and admit to the possession of the drugs. She added that she told the lawyer "about the whole incident". This was definitely prior to the trial, because she thought she would be giving evidence.

83 When cross-examined, Ms Chard-Walker said that she was available to give evidence at trial, but she was never asked to do so. She admitted that she was herself a drug user in 2004, but claimed that the appellant was not, at that time, using drugs and it had been a long time beforehand that he had been a drug user.

84 To clarify exactly what it was that Ms Chard-Walker had told the appellant and his lawyer about what she had seen on the day the police arrived, I asked her a number of questions. The following were her answers:

"Did you know that [Kylie] wasn't coming forward at the trial?---Not until a lot later, no.

No, but before the trial?---Yes, I did.

Then once you knew that she wasn't going to give the evidence - that's what I'm grappling to understand?---Sorry?

If you knew she wasn't coming to give evidence - - -?---Yes.

- - - why then wouldn't you have told him, 'I actually saw what happened that day. They have the drugs. They were dealing with them. They must have put it in the garage. I'll give that evidence'?---Well, the time that I did tell him, I can't be exact, but it was certainly around that time because that's when I went to the lawyer and admitted to him what had happened. David was in gaol and I spoke to his sister about it and admitted to her. She immediately said, 'You've got to go see his lawyer. You've got to tell him this stuff because it's important.' And, you know, I sort of hesitated and said, 'Well, you know, is it really that important if, you know, Kylie is going to come forward?' And then Kylie wasn't coming forward because that was when the pressure was really put on her to come forward. I realised at that time that she probably had no intention in the first place. Yes, so then it was admitted to him but not while we were living together; not, you know, when you say that you expected that I would have.

Just let me get that clear. Before the trial he had been told exactly what you saw that day?---Yes, he would have, yes, only just.

By you?---Well, later by me on - - -

No, before the trial by you?---Yes, initially he was told by his sister."

85 When questioned by Roberts-Smith JA, Ms Chard-Walker replied as follows:

"So after you knew that [Kylie] had bailed out before the trial you told both Mr Marshall and the lawyer. Is that right? Is that what you say?---Well, I told the lawyer. I assumed he would have told Mr Marshall straightaway.

Yes?---I told his sister, you know.

I thought you said earlier that after you had told the sister she must have told him and you then had a discussion with him about - - -?---Yes.

- - - it, did you - - -?---No. I was asked if I had told him personally.

Yes?---And I did, but it would have been either the lawyer or his sister that he heard it from for the first time. That is what I'm saying.

Yes, but you then you spoke to him about it yourself then?---Well, I had a conversation with him about it, yes.

What was the first time that you had that conversation with him?---Well, it was quite some time after. I really don't remember exactly when.

Was it before the trial?---Yes, it was."

86 It is quite clear that the testimony of Ms Chard-Walker could not possibly be categorised as fresh evidence. Assuming it to be new evidence, it is evidence which the appellant chose not to lead at trial. This was a tactical decision on the part of the appellant and/or his counsel and a decision with which the appellant must live (Lawless v The Queen (supra), at 675 - 676).

87 In all the circumstances, I would not admit the new or further evidence of Ms Chard-Walker. A decision was made, for tactical reasons, not to call her to give evidence and there was no miscarriage of justice by reason of the fact that she did not give evidence.

88 In the circumstances, it is unnecessary to reach any conclusions about the cogency and/or credibility of the evidence. If I was required to do so, I would categorise the evidence as entirely without credibility or cogency. I do not consider the evidence of Ms Chard-Walker that Kylie had been dealing with amphetamines on the morning in question and (by inference) had put them in the garage when the police arrived at the door to be credible. She gave no evidence about Kylie's knowledge of the layout of the house, nor did she give any evidence about the time it might have taken to get up from the games room area, go into the garage, deposit the drugs and get back to the games room before the police entered the house. I do not consider Ms Chard-Walker's evidence about Kylie's purported intention to "come forward" to be capable of belief by a reasonable jury.

89 Further, Ms Chard-Walker's testimony was undermined by reason of the fact that she had sworn in an affidavit on 11 August 2006 that at no time prior to the appellant's trial had she told either the appellant or his solicitor about what she knew. The relevant paragraphs of the affidavit are as follows:

"12. David and I moved to a new place in Mt Lawley. While we were there we had a falling out with Kylie because of some money she stole from us. She started threatening us. She then wound up going to gaol for some other drug charges and there was no chance of getting her to come forward.

I still didn't tell David or anyone else about what I had seen in the games room. David said that the police couldn't prove who the drugs belonged to, so I didn't think he would be found guilty.
I did not tell David's solicitor about what I had seen Kylie and Ascher doing the in [sic] games room. I told him about Kylie ringing me and about her saying that she would put her hand up if she had to, but without Kylie coming to court, that could not be used as evidence. I still didn't expect that David would be convicted and I was scared that he would be angry if he found out that I knew what had really happened, so I kept quiet about what I had seen.
When David was convicted I spoke to his sister Robyn ... She told me to ring David's solicitor, which I did. He told me that I should speak to another solicitor about the matter."

90 Ms Chard-Walker appears to have sworn falsely on 11 August 2006 that it was not until after the trial of the appellant that she told the appellant's solicitor about what she had seen in the games room on the morning in question. I do not consider that her sworn evidence before the Court is capable of belief, nor do I think it would be likely to be believed by a jury of reasonable persons. Quite simply, the further evidence could not have produced a different result if it had been available at trial: CDJ v VAJ (1998) 197 CLR 172, per McHugh, Gummow and Callinan JJ, at [111]. I would dismiss this ground of appeal.

91 The single ground of appeal against sentence is that the sentence of 4 years' imprisonment was manifestly excessive having regard to the small quantity of drugs involved and "sentencing patterns in comparable cases".

92 I turn first to the question of comparable cases. Counsel for the appellant made reference to four cases which spanned the four years 2000 to 2004. These, he said, were the only cases that he was able to find that dealt with small quantities of methylamphetamine similar to the quantity in the possession of the appellant in this case. That quantity was 13.4 grams of methylamphetamine.

93 Unfortunately, no assurance could be given by counsel that the cases to which he referred were the only reported cases which dealt with similar amounts of methylamphetamine, and the Court was left in the position where it simply had four cases between the years 2000 and 2004 in which the quantity of methylamphetamine was more or less the same. Each of these cases is quite clearly distinguishable from the present case.

94 The first case is Schlenka v The Queen [2004] WASCA 142, where a 28-year-old offender was convicted after trial of possession of 12.7 grams of high purity methylamphetamine with intent to sell or supply. He was sentenced to 1 year 8 months' imprisonment. A close examination of the facts of the case reveals that the offender was a drug addict who, in company with a co-offender, had intended to use the drugs himself and also sell a quantity to others. There was evidence that he had undertaken a residential course of rehabilitation at Hannick House, an institution run under the auspices of St Patrick's Catholic Church in Fremantle and he had completed the course successfully. He had remained drug-free during the period of the course. He had no prior criminal history at the time of the commission of the offence.

95 The Court (Murray, Miller and McLure JJ) considered the case to be an unusual one. The Court said, at [14]:

" ... The applicant was a person of prior good character. He had, for a short period, fallen into a lifestyle which exposed him to the regular use of amphetamines. He took that up, and soon acquired a substantial habit. Upon his arrest, of his own volition, he immediately set about remedying his fall into serious unlawful behaviour. He undertook that task with some determination and, upon the evidence provided to the sentencing Judge, he succeeded in rebuilding his life. He deserved substantial credit for that effort."

96 Samuel v The State of Western Australia [2004] WASCA 154 involved possession by a 47-year-old of 6.25 grams of methylamphetamine with intent to sell or supply. Following trial, he was sentenced to imprisonment for 2 years, suspended for a period of 2 years. The facts were exceptional. Roberts-Smith J, at [40] - [41], summarised them as follows:

" ... These [the facts] included that the applicant was a 47 year old first offender who had an unblemished history of some 17 years in this country, he was a good family man, married with two sons, was a good worker, the quantity of the drug was not large, he was not a drug user and there was no apparent explanation for his commission of the offence - indeed, his Honour said he failed to understand why the applicant would have committed it.

There was nothing to suggest the applicant was likely to commit any offence in the future."

97 Vogel v The Queen [2002] WASCA 261 was a case in which the offender was sentenced after trial to 3 years' imprisonment (2 years under present law) for possession with intent to sell or supply of 3.8 grams of methylamphetamine with a purity of 11 per cent and 2.86 grams of methylamphetamine with a purity of 37 per cent. The total quantity of methylamphetamine was about half of that in the possession of the appellant in this case. Wheeler J highlighted, at [9], the special circumstances of the case:

"There were significant personal factors in the applicant's favour. He was of previous good character, was employed, had favourable references, and had no significant criminal history. Although clearly old enough to know better, he was a relatively young man. The learned sentencing Judge also considered that it was possible that the applicant may have used some portion of the drugs in his possession for his own use, so that he did not take the view that all of the drug was for the purpose of distribution."

98 Watt v The Queen [2000] WASCA 354 was a case in which the offender had been convicted at trial of possession with intent to sell or supply of 6.74 grams of methylamphetamine with a purity between 18 and 22 per cent. He was sentenced to 4 years' imprisonment (2 years 8 months under present law) and appealed against that sentence. The appeal was dismissed. Miller J (with whom Kennedy and Wallwork JJ agreed) said, at [12]:

"Reference to other sentences imposed in other cases are seldom particularly helpful in these matters. What can be said about this case is that the sentence imposed was relatively severe for the quantity of drug in possession of the applicant but, on the other hand, the learned trial Judge was entitled to reach the conclusion that the applicant was a person who was dealing in drugs purely for commercial gain. That put him in a different light to a person who was a user of such a drug."

Miller J also said, at [5], that the personal circumstances of the applicant in relation to education, occupation, income, family history and criminal history were all in his favour. He was treated as "virtually a first offender".

99 From this review of the cases relied upon by counsel for the appellant, it can be seen that there are clearly factors which distinguish each of the cases from the present case.

100 It has been said on many occasions that there is little value in comparing sentences imposed in other cases without ensuring that one is comparing "like with like". I said as much in Watt (supra), at [12]. Rowland J (with whom Ipp J agreed) said much the same in Bellissimo (1996) 84 A Crim R 465, at 468 - 469:

"It is generally impossible to make sensible comparisons when dealing with the antecedents of persons who have been before the courts.

...

In the end, one simply considers all of the facts and circumstances to ascertain whether it can be shown in this case that the learned sentencing judge's discretion has miscarried to the extent that it can be said that the sentence is manifestly excessive."

101 As the Court pointed out to counsel for the appellant during the hearing of the appeal, this is not a case in which a comprehensive analysis of comparable sentences in like cases was put before the Court. Counsel for the appellant disavowed any assurance that he had incorporated all the known cases, and, in the absence of such an analysis, it is difficult to deal with a ground of appeal which contends that the sentence imposed upon the appellant "was manifestly excessive having regard to ... sentencing patterns in comparable cases".

102 The exercise of looking at comparable cases to ensure an appropriate level of consistency in sentences imposed in this State was carried out in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107. The appellant had been convicted after trial of possession with intent to sell or supply of a very substantial quantity of methylamphetamine. The methylamphetamine was contained within two packages which contained a total of 805 grams of high grade. The sentence imposed was 15 years' imprisonment (10 years under current law) and it was suggested, by reference to a number of decisions of this Court that the sentence was manifestly excessive. I endeavoured to review a number of those cases, at [21] - [41]. McLure J, without attempting to be exhaustive, at [49], reviewed a number of recent relevant cases, all of which showed the 15-year sentence imposed upon the appellant to be within a "relatively consistent sentencing range". The quantities of methylamphetamine under consideration in Tulloh were substantially greater than the quantity involved in the present case and little assistance can be derived from that decision for the purposes of this appeal. What the case does show is that, in appropriate circumstances, a more thorough review of comparable cases can be done.

103 The appellant in this case had prior convictions for drug-related offences. He had been convicted and fined $1500 for possession of a prohibited drug in the Court of Petty Sessions at Perth on 1 December 1999. He had been convicted in the District Court at Perth on 7 February 2000 of six counts of possession of different drugs. Those drugs were amphetamines (in relation to which there was intent to sell or supply), cannabis, heroin, MDMA and an unspecified drug in relation to which there were two counts. He was sentenced to 3 years 6 months' imprisonment for those offences.

104 The appellant was 49 years of age at the time he was sentenced in the present case and it could not therefore be said that he had any mitigating factor in terms of youth. There were no other mitigating circumstances. Although a user of methylamphetamine only two or three times a week, he was clearly a drug dealer. In those circumstances, I do not consider that the sentence was beyond the range of a sound exercise of discretion on the part of the learned trial Judge.

105 The sentence was substantial and could be categorised as severe, but, in my view, it was not manifestly excessive. As the High Court pointed out in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at [15]:

" ... a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic (House v The King [1936] HCA 40; (1936) 55 CLR 499). The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

106 I would dismiss the ground of appeal against sentence.

107 To understand the grounds of appeal against conviction, it is necessary to summarise the facts of the case. They reveal that, on 4 February 2002 a Detective Sergeant Calzada (whom I shall call "Detective Calzada") was driving his police vehicle in Mount Hawthorn when he observed a male person standing next to the driver's window of a parked vehicle. In that vehicle there was a female seated in the driver's position. There appeared to be an exchange between the two of some object. Detective Calzada stopped his vehicle and reversed back towards the parked car. As he did this, the male person got into his vehicle and took off at speed. The female drove off in a different direction. Detective Calzada followed the male's vehicle until it stopped at 45 Coogee Street, Mount Hawthorn. There, the driver got out and ran down a side of the house. Detective Calzada followed. The chase went down one side of the house, through the backyard and along the other side. Detective Calzada lost sight of the fleeing man for a couple of seconds, but when he caught up with him he was crouched down about halfway along the side of the house. He marked the position on a sketch plan which was tendered in evidence.

108 The person whom Detective Calzada apprehended was the appellant. Detective Calzada asked him why he had taken off so suddenly and the appellant's response was that he was driving an unlicensed motor vehicle. He was arrested and conveyed to the Stirling detectives' office. Before leaving, Detective Calzada checked the backyard, the laneway and looked over the fence into the adjoining property but could see nothing "of interest".

109 Some time during the course of the afternoon of the same day, Detective Calzada received a call from a Ray Illingworth who resided at 47 Coogee Street. This was on the right-hand side of the appellant's house, as the property was faced from the street. Detective Calzada went to see Mr Illingworth and he was handed a parcel which Detective Calzada described as being "like a pocket which is made up of what appeared to me like either gaffer tape or gaffer tape material". Detective Calzada returned to the police station with the parcel and there handed it to another detective.

110 Mr Illingworth was called to give evidence and he testified that, on the afternoon of 4 February 2002, he was walking in the front garden and discovered a small package in the garden. It was approximately 100 millimetres by 75 millimetres and wrapped in black tape. Mr Illingworth described his property. It adjoined 45 Coogee Street and had a driveway running down the side of 45 Coogee Street. There was a garden bed immediately next to that driveway. It was in that garden bed, at a point about six metres from the side fence and 10 metres from the front fence that the package was found.

111 When examined, the package was found to contain two clipseal bags which each held smaller knotted plastic bags containing heroin. The total weight of the heroin was 2.77 grams and the purity was 20 per cent. Analysis of the tape on the package revealed DNA. When tested, the major component of the DNA matched the appellant's DNA which had been taken from a buccal swab. The probability of it being the DNA of anybody other than the appellant was said to be one in 10 billion, a statistical figure which the learned trial Judge described as "really beyond our comprehension ... in many ways".

112 The prosecution case against the appellant relied upon five primary facts:

(1) The appellant was observed by Detective Calzada exchanging some sort of object with a woman in a motor vehicle in a suburban street in Mount Hawthorn.

(2) When Detective Calzada stopped his vehicle, the appellant hopped into his vehicle and drove away at speed.

(3) Upon arriving at his residence, the appellant ran down the side of the house, around the back and down the other side where he was ultimately apprehended by Detective Calzada.

(4) A parcel which contained heroin was found in the garden bed of a neighbouring residence close to the position where the appellant was apprehended by Detective Calzada.

(5) The appellant's DNA profile (together with another unidentified partial DNA profile) was found on the package.

113 The appellant gave evidence at trial. He testified that on the afternoon of 4 February 2002 he was driving in Flinders Street, Mount Hawthorn when he observed coming towards him the vehicle of a friend of his girlfriend. He waved to her and indicated to her to turn into Woodstock Street, which she did. She got out of the vehicle and came to the appellant's vehicle. There, she was given a cigarette and she was about to return to her vehicle when she apparently realised she did not have a lighter and came back to the appellant's vehicle, where she was handed a lighter. According to the appellant, she lit the cigarette and then went to her vehicle. It was at this point, that an unmarked police vehicle drove up the street.

114 The appellant said that the police vehicle went down the street, but returned. As it did so, he started his vehicle and left the scene. He turned into Coogee Street and was driving normally. He observed the police vehicle behind him, but drove to his house and parked near the back gate. He said that he entered the back yard "hurriedly" because he was driving an unregistered motor vehicle. He entered the back of the house through a side gate, the entry to which came from Ashby Street (the appellant's house apparently being on a corner).

115 The appellant said that he went to the back door to let himself in, and that at the time he was running. He said that he tripped on the back veranda and as he was picking himself up he heard the voice of a detective whom he identified as Detective Calzada. He was "half marched" out through the gate and asked why he had run into the house. He replied that it was because he was driving an unregistered motor vehicle. A police vehicle arrived and he was taken to the Mount Hawthorn police station.

116 The appellant said that he was later taken back to his residence in Coogee Street, where the house was searched. A plan of the house was produced. The appellant marked the bedroom through which he said the police gained access to the house. This was the bedroom of his son Aaron. The plan which was tendered reveals the bedroom to be immediately behind the first bedroom at the corner of the house and apparently adjacent to the residence of Mr Illingworth. I say this, because on the other side there appears the notation "Ashby".

117 The appellant testified that he had never seen the package which was found in Mr Illingworth's yard and which had been shown to him. He denied ever having touched it, and he denied having anything to do with the packaging of drugs within it. He was questioned in cross-examination as to whether he had any explanation for his DNA being on the package, and he said he did not. He was asked if he knew to whom the package belonged and he said he had suspicions, but nobody had admitted to him whose it was. It was put to him that he had thrown it to the position where it was found in Mr Illingworth's garden, but he denied it. In re-examination he said that his suspicion was that either his elder son, Aaron, or his girlfriend, Fleur Chard-Walker, owned the package.

118 This ground contends that the learned trial Judge erred in failing to direct the jury that the appellant had a right to remain silent in the face of police questioning and that no adverse inference could be drawn from the exercise of that right. It is said that the direction was particularly called for because the prosecutor had impermissibly introduced evidence that the appellant had declined to answer questions put to him by police.

119 Detective Van Der Sluys was called to give evidence for the prosecution. She testified that, on 4 February 2002, she went to 45 Coogee Street, Mount Hawthorn, in company with other officers and was present whilst a "Misuse of Drugs Act search warrant was conducted". The following passage then appears in the evidence:

"And was he asked to comment on anything?---Yes, he was.

Did he make any comments?---No, he didn't make comments."

120 During the cross-examination of the appellant, the appellant was asked about his return to the house with police on the afternoon of 4 February 2002, and the following passage appears:

"And when you went there they showed you a warrant which is a warrant under the Misuse of Drugs Act?---That's correct.

Correct, and it's true, isn't it, that you refused to comment on any items that were found?---I refused to make any sort of a statement at all without a solicitor being present on all occasions."

121 The learned trial Judge addressed the question of the "right to silence" in the course of his directions to the jury when he said:

"An accused person doesn't have to speak to the police. An accused person doesn't have to give evidence. The onus is on the crown or the state, the prosecution, to prove the charges that it lays and to do so beyond a reasonable doubt ..."

This direction came in the context of general directions on the onus of proof, standard of proof and presumption of innocence.

122 The prosecutor's cross-examination of the appellant and examination of Detective Van Der Sluys to the effect that the appellant when questioned declined to make any comments was clearly inadmissible. In Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, at 99, Mason CJ, Deane, Toohey and McHugh JJ said:

"A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless ...

That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply."

123 In R v Reeves (1992) 29 NSWLR 109, it was held in the Court of Criminal Appeal of New South Wales that, where evidence is given which discloses that an accused has exercised his right of silence, a direction should invariably be given to the jury - as soon as the evidence is given and, if necessary, again in the summing up - that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by the jury that he is guilty.

124 Unfortunately, counsel for the appellant at trial made no challenge to the admissibility of the questions asked by the prosecutor of both the appellant and Detective Van Der Sluys. Had she done so, the learned trial Judge may have been alerted to the need to give the appropriate direction. Nor did counsel for the appellant at trial ask for a direction on the subject during the trial Judge's charge to the jury.

125 In Pham v The Queen [2004] WASCA 104, this Court (Steytler, EM Heenan and Le Miere JJ) made, at [15], the following observations about the failure of counsel at trial to take exception to inadmissible evidence:

"[It was] the regrettable fact that no request was made by either counsel at the trial (they were not the same counsel as appeared on the appeal) for a warning to be given by the trial Judge to the jury to disregard the inadmissible hearsay evidence. While it has been said that, speaking generally, an applicant for leave to appeal against conviction will not be allowed to rely upon a criticism of the Judge's charge which was not taken by way of exception at the trial (see R v Smart [1983] VicRp 22; [1983] 1 VR 265 at 297, per Young CJ and McInerney and Gobbo JJ; General Motors - Holdens Pty Ltd v Moularas [1964] HCA 39; (1964) 111 CLR 234 at 242, per Barwick CJ; R v Gaffney [1968] VicRp 54; [1968] VR 417 at 423; and R v Clarke & Johnstone [1986] VicRp 64; [1986] VR 643 at 662), that rule 'retains some flexibility where the interests of justice demand that a new trial be had' (R v Clarke & Johnstone, above, at 662, per Crockett, McGarvie and Southwell JJ)."

126 In my view, the evidence led by the prosecution of both the appellant and the Detective was inadmissible evidence and, in accordance with R v Reeves (supra), the learned trial Judge should have directed the jury at the time the evidence was led that the accused had no obligation to answer the questions put to him by police officers and no adverse inference could be drawn by reason of his failure to do so. That direction should have been repeated during the course of the Judge's charge to the jury. The jury should have been told that the accused's exercise of the right of silence was no basis of inferring any consciousness of guilt: Petty v The Queen (supra).

127 The ground of appeal has merit, and would ordinarily succeed. However, given the circumstances of the case, and particularly the failure on the part of counsel for the appellant at trial to make any objection, or seek any direction, it seems to me that in the light of the strong case against the appellant, the appeal should be dismissed because no substantial miscarriage of justice has occurred.

128 It should be noted that the answer of Detective Calzada when questioned about the appellant's response was merely that the appellant had made no comments when asked to comment. There was no specific question about any subject upon which there was a failure to comment. When the appellant was cross-examined, he made it clear that he refused to make any statement at all "without a solicitor being present on all occasions". He explained to the jury why it was that he was refraining from making any comment. He wanted the presence of a solicitor.

129 Although no direction was given by the learned trial Judge as to the entitlement of any person to have a solicitor present when questioned by police, no suggestion was made by the prosecution in the course of his address to the jury that any adverse inference could be drawn from the appellant declining to make comments in the absence of his solicitor.

130 In Petty v The Queen (supra), the trial Judge had made a particular point of contrasting what the accused said at trial with his exercise of the right of silence when first questioned. In R v Reeves (supra), the prosecutor asked a police officer whether the accused had co-operated in any way at all and the answer was "no, he was most unco-operative". Mahoney JA, at 111, made the point that it was possible that the jury would take from the accused's answer, an inference that, when questioned, he had acted in an untoward manner. There was also the possibility that, from what was said, they could infer a consciousness of guilt on his part. I do not think that those observations can apply to the present case.

131 The case against the appellant relied on circumstantial evidence. When the five pieces of evidence to which I have referred were put together, it was clearly open to the jury to conclude beyond reasonable doubt that the only rational inference that could be drawn was that the appellant, when chased into his house, had thrown over the neighbour's fence the package which contained heroin. That package was found adjacent to the point where Detective Calzada said he apprehended the appellant and on that package was found the DNA profile of the appellant.

132 The way in which the appellant sought to escape police attention, and his running into the house and around the side of it, constituted circumstances which, together with the others, led only to one conclusion, and one which was the only rational inference that could be drawn; namely, that the accused was guilty of possession of the heroin found nearby with intent to sell or supply.

133 Pursuant to the provisions of s 30(4) of the Criminal Appeals Act 2004, I consider that the appeal on ground 2 should be dismissed because no substantial miscarriage of justice has occurred by reason of the trial Judge's failure to address the question of the inadmissible evidence adduced by the prosecution.

134 As in the previous appeal, this ground is in very brief terms. It asserts that a miscarriage of justice resulted in the appellant's case, by reason of the fact that evidence which would have led to a different verdict was not available to be led at the time of the trial. This evidence was put before the Court as fresh evidence. It is the testimony of Aaron Quinlan, a son of the appellant, who was living at the appellant's house on 4 February 2002. He was not called as a witness at the appellant's trial.

135 The testimony which Quinlan gave before this Court was as follows:

"Mr Quinlan, you know that you're here to discuss an incident which occurred at the house in Mount Hawthorn in 2002. Do you recall a day that the police attended that house?---No. It was early 2002 and Fleur has made a commotion in the lounge room, you know, and then she's yelled out my name and then 'police' and I've gone running in there.

Sorry, I'll stop you there. Firstly, where were you when you heard this commotion?---I was in my bedroom.

Can you recall what time of day it was?---Mid-morning.

Okay. When you say 'commotion', what was it that you heard?---Well, the commotion - I could hear Fleur like going, 'What's going on?' You know, like gawking at something out the window.

Okay?---She was observing something.

Sorry, she?---She must have been observing something.

What did you see or do at that stage?---I left my room and proceeded to the lounge room and looked out the window to see what she was looking at and see where these police were, and I seen a police officer and that was it. I hightailed it back to my room and I've grabbed - - -

...

---I've gone to my wardrobe which is next to my bed - - -

... because I had a stash of heroin in there. Then I've proceeded to my window and I've thrown it out. Then I've grabbed my jacket and just out the door, turned to the left and down the corridor, out the front door and up the street."

136 Quinlan was asked about where in the house he had thrown the bag from. He said:

"You then said that you've then thrown that out of your window?---Yes.

Where did you throw it?---Out over the fence, because my room is right close to the fence and there's another house."

137 Quinlan said that he found out some time later that the appellant had been charged "over some heroin found". It was perhaps a week later. He did not tell the appellant about throwing his "stash" over the fence because he said that if the appellant knew that he was using drugs in the house, he would kick him out. Quinlan said that the appellant asked him about a month later whether the drugs had been his, but he denied that they were. The appellant then moved to another house and would not have Quinlan there. It was not until nine months later that he saw the appellant, but he still did not tell him about throwing his stash over the fence. It was never talked about again until the appellant was convicted of the present offence.

138 According to Quinlan, he saw the appellant at Hakea prison, where he himself was in custody. His evidence was as follows:

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