McIlwraith v R

Court of Criminal Appeal (NSW)|2020-08-05|Before: Meagher JA, Fullerton J, Button J

Judgment

MEAGHER JA: On 25 January 2019, the appellant was found guilty of two counts of supplying a prohibited drug following a trial in the District Court before Mahony SC DCJ and a jury: Count 1: Supplying 23.40 grams of methylamphetamine, on 12 September 2017 at Fairlight, contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1). Count 2: Supplying 69.48 grams of heroin, on 12 September 2017 at Fairlight, contrary to Drug Misuse and Trafficking Act, s 25(1).

Possession for personal use

Given that the amount of each of the drugs involved exceeded 3 grams - the "traffickable quantity" - the appellant was deemed to have those drugs in his possession for supply, unless he proved otherwise (see Drug Misuse and Trafficking Act, schedule 1 column 1 (heroin and methylamphetamine)). At trial it was not contested that the appellant possessed the drugs, in the case of the methylamphetamine in the amount particularised, and in the case of the heroin a lesser quantity than that particularised.
The only issue was whether the jury was satisfied that the appellant possessed the drugs for his personal use. It is settled (and was not disputed) that he bore the onus of rebutting the presumption of possession for supply, the standard of proof being the balance of probabilities: R v Carey (1990) 20 NSWLR 292 at 294 (Hunt J, Wood and Finlay JJ agreeing); McEwen v R (1998) 99 A Crim R 421.

The Crown and defence cases

The Crown case was that at about 7am on 12 September 2017, police were called to premises in Fairlight. The appellant was found at the back of the property seated on a small stairway wearing "a black puffer jacket, black running shorts, compression tights and a pair of runners". He was searched. His jacket pockets contained a piece of cigarette packet cardboard containing a crystalline substance later identified as methylamphetamine, and a small case containing $3,625 in cash, a razor blade and two mobile phones. Hidden in his underwear beneath the compression tights was a plastic bag containing 23.40 grams of methylamphetamine; and between his buttocks was found a plastic bag containing heroin pellets weighing in total 69.48 grams.
The appellant's evidence was that he was addicted to drugs including methylamphetamine and heroin. In July 2017 he received a payment of $300,000 described as "insurance from my mother's death". At that time he was living in Cremorne as full time carer for his father, who had cancer and dementia. During that same month there was a further cash deposit of $60,000 to his bank account. On 4 and 5 September 2017 he withdrew a total of $45,000 to buy "heroin and ice". The methylamphetamine and heroin in his possession at the time of his arrest (in the case of the heroin, he maintained about 28 grams) was purchased a few days before, the methylamphetamine for less than $4,000 and the heroin pellets for just over $5,000.
On the night of 11 September, having already taken methylamphetamine, heroin and the benzodiazepine medication, Rivotril, the appellant spent some time at the Brookvale Hotel playing the poker machines, with some success. His winnings totalled $9,633, of which he received $5,000 in cash, and the balance by cheque. At some stage later in the evening he left the hotel and was given a lift to a house in Willoughby where he stayed "with a lady" until the early hours of the morning. He then travelled by taxi to the Fairlight area where he arrived after 6am. He described himself at that time as "scared", "veered out", "hysterical, obviously sweating" and affected by drugs.

The appellant's evidence as to personal use

The appellant gave evidence that he purchased the methylamphetamine and heroin for personal use. He estimated that the "golf ball size of methylamphetamine" would have taken him "a working week maybe" to consume; and that the heroin pellets would have "lasted probably the same amount, probably a little bit more, probably a little bit less". He agreed that he could have bought the drugs in smaller "satchels" but said that he did not want to "go back and forth. I didn't really want to talk to anyone, I wasn't in the right state to really get around and see people every day" and that as well it would have cost "heaps more" to buy the drugs in smaller satchels.
In relation to the cash, razor blade and mobile phones found in his possession when he was arrested, his evidence was that the blade was used to cut the heroin from the pellets because the pellets were not easy to crush up; that he had two phones because he had left one at someone's house and only just got it back - "people were trying to get into my phones and people were stealing my phones and I'd receive them back later"; and that in relation to the cash in his possession, in addition to his poker machine winnings he had further cash (it would seem $1,700) "on him".
As to why he was carrying such a quantity of drugs (8 times the indictable quantity of methylamphetamine and, as charged, 23 times the indictable quantity of heroin), the appellant agreed that "28 grams of methylamphetamine and 28 grams of heroin" was more than was necessary to carry around for one day's use. He also agreed that when he left the Cremorne house he "probably" took the drugs with him and put them down the front of his pants because he "constantly believed that I was being followed or stalked or people were trying to rob me".

The police officer's opinion evidence as to 'personal use' amount

This evidence was given by Detective Sergeant McGeachie. He made a written statement. That statement was served and, before the jury was empanelled, was the subject of argument as to admissibility. The trial judge delivered short ex tempore reasons ruling the relevant evidence to be admissible. It will be necessary to return to those reasons, and to the transcript of argument.
In his later oral evidence in chief, the officer gave the following evidence as to his experience and qualifications (by reading out loud, mostly verbatim, parts of his statement). That evidence was not objected to: I have been a member of the New South Wales Police for 21 years. Between February 1998 and September 2003 I performed uniform general duties at The Rocks. Between September 2003 and November 2010 I worked at the State Crime Command, Drug Squad and Firearms and Organised Crime Squad. In May 2005 I became a designated detective. Whilst at State Crime Command my duties focussed on organised crime, drug law enforcement and firearms investigation. I have been involved in the investigation of Middle Eastern crime syndicates, outlaw motorcycle crime syndicates and organised crime syndicates that are known as the East Coast … (not transcribable) … In November 2010 I was promoted to sergeant at the Northern Beaches performing general duties. In May 2012 I won a position of Team Leader of the Northern Beaches Proactive Crime Team which predominantly involved street level drug investigation. In June 2015 I transferred to the Northern Beaches detectives' office where I am currently performing duties as the team leader for the Northern Beaches detectives' strike force team. … I have regularly been involved in and supervised investigations involving the use of police undercover informants and police informants who were utilised to covertly engage in various prohibited drug transactions. I have listened to many recorded conversations and examined transcripts relating to the supply activity relevant to the use of undercover police and informants. Analysis of these conversations and debriefing of undercover officers and criminal informants has allowed me to develop the very strong understanding of the nature of the illicit drug trade, pricing, drug purity, drug related terminology and general behaviour related to the illicit drug trade.
The evidence relied on included paras 14 and 16, as extracted below. The italicised parts of those paragraphs are the subject of ground 1: 14. With regards to the matter of the accused I have reviewed 'Certificate issued in accordance with Clause 11(3), 16M(1)(b) of the Drug Misuse and Trafficking Regulation, 2011'. Exhibit reference XD700015109, item 1.1.1 - 23.40 grams crystalline substance. A sub-sample of this weight has been sampled under sub-exhibit reference XD700002003 and indicates the substance is methylamphetamine. This amount satisfies an 'Indictable Quantity'. In my opinion this exceeds the amount that could be expected to be carried as a 'personal use' amount. In my opinion if 23.40 grams was dealt in one gram amounts its street value would be approximately $5750. In my opinion ice can be sold in amounts as small as point 1 of a gram, commonly referred to as a point. In my opinion, if 23.40 grams were sold as individual point deals the street value could be as much as $11500. … 16. The substances that have shown to be heroin make a combined weight of 69.48 grams. This weight meets the 'Indictable Quantity'. In my opinion this amount far exceeds a quantity that could be deemed as personal use.
There is a dispute as to whether the italicised opinion evidence was objected to, and if so, on what basis.

Discussion

The criteria which require this Court to allow an appeal against conviction include where "it thinks" that there has been a "wrong decision of any question of law" or "that on any other ground whatsoever there was a miscarriage of justice": Criminal Appeal Act, s 6(1). As Gageler J uncontroversially observed in Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [49] the first of these criteria has always been understood to have the effect that "if there is a wrong decision of any question of law the appellant has the right to have his appeal allowed" subject to the operation of the proviso. (Any controversy as to the correctness of what his Honour then said as to the application of the proviso was resolved in Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16.)
However, as McHugh J observed in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72], where "the appellant has failed to object to evidence or failed to ask for a direction concerning evidence" the trial judge will have made no error of law within this criterion because he or she has not been asked for and given a ruling: see also Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 at [49] (McHugh and Gummow JJ). In that event, as McHugh J also observed in Papakosmas at [72], an appeal relying on the wrong admission of evidence that was not objected to can only succeed if this Court is satisfied that the admission of the evidence has caused a "miscarriage of justice" (Criminal Appeal Act, s 6(1)). In that context, rule 4 of the Criminal Appeal Rules (NSW) is likely to apply.
Gaudron J (Gummow J agreeing) observed in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26] that the question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". Her Honour added at [32] that an accused "will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial".
At [107]-[108] Hayne J, with whom Gummow J also agreed, described that question as calling for "an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?". If there could be such an explanation that "will be the end of the matter. It is not to the point then to inquire whether counsel did or did not think about the point, or acted competently or incompetently …". This Court (Bathurst CJ, Hoeben CJ at CL and Bellew J) considered and applied these principles in Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [255]-[258].
As formulated ground 1 asserts error by the trial judge in admitting opinion evidence as to whether the quantities of drugs found on the appellant exceeded what could be expected to be in his possession for the purpose of personal use. The appellant's written submissions contend that the admission of this evidence involved an error of law because it was not evidence of an opinion based on specialised knowledge within the exception in Evidence Act, s 79 and accordingly "not admissible" to prove the existence of that asserted fact. It is said that it should also have been excluded under Evidence Act, s 137 on the basis that "its probative value [was] outweighed by the danger of unfair prejudice to the defendant".
In oral argument the appellant contended that his counsel had objected to the officer's 'personal use' opinion evidence, at least in relation to the methylamphetamine. On closer examination of the transcript, and the trial judge's reasons, it was apparent that this submission was clearly contestable. As a result, after the Court had reserved its decision, the parties were directed to (and did) exchange short written submissions addressing (1) whether the relevant opinions were objected to; (2) whether rule 4 applies; and (3) if so, whether leave under rule 4 should be granted in relation to ground 1.
Taking these further submissions into account, the appellant's primary position is that counsel objected to the admission of the italicised sentence in para 14 of Detective Sergeant McGeachie's statement on the ground of relevance. That is said to be apparent from the transcript and the trial judge's reasons. It is accepted that there was no objection to any part of para 16, which dealt with the possession of heroin for personal use. Anticipating a finding by this Court that there was no objection to para 14, and recognising that there was no objection directed to the non-satisfaction of section 79 or application to exclude the evidence under section 137, it was submitted in the alternative that by the wrong admission of the 'personal use' evidence the appellant had "lost a real chance (or a chance fairly open) of being acquitted". This alternative submission involves a reformulation of ground 1 as being or including that "there was a miscarriage of justice". It would also require leave under rule 4, as to which see ARS v R [2011] NSWCCA 266 at [147]-[148] (Bathurst CJ, James and Johnson JJ agreeing). The appellant contends that there was a miscarriage justifying a grant of leave because any failure to object could not have been "because of some tactical or forensic advantage as perceived by trial counsel".
In response the Crown says (1) there was no objection to the italicised (fifth) sentence in para 14; and (2) that the only objection was to the relevance of the sixth sentence (which addresses the street value of the methylamphetamine). That is said to be confirmed by reference to the transcript of argument and the judge's reasons. Accordingly rule 4 applies and leave to appeal on the ground of miscarriage should be refused. It was then said that defence counsel had made an informed and deliberate decision not to object to the personal use opinion evidence, which was in very general and ambiguous terms; and at the same time had sought to obtain the officer's agreement that the amount a person may purchase for personal use varies depending on the quantity consumed, the period of intended use, the quantity purchased and the user's financial capacity to purchase larger quantities. Thus, the Crown's submissions respond to the appellant's proposed reformulated ground 1.

Disposition of ground 1

The Crown's submission that there was no objection to the personal use opinion in para 14 should be upheld. It follows that the trial judge did not make an error of law in admitting the 'personal use' evidence.
The transcript of the argument concerning admissibility includes the following: HAWKINS [counsel for the accused]: Your Honour, I did have a discussion with my friend about this this morning, was with respect to the issue of the relevance of the price on the street with respect to particular drugs. It's just with respect to the relevance of that. HIS HONOUR: You have to be a bit more precise for each paragraph. HAWKINS: Your Honour, para 14, in the fifth last line, that the officer states 23.4 grams of methylamphetamine exceeds the amount that could be expected to be carried as a personal use amount. Then, he gives a street value of $5,750 and how it can be sold as amounts of .1 of a gram, and that it could be as much as $11,500. It doesn't, in my submission, apart from the issue of the personal use I say that the rest of that is not relevant, with respect to this case, because it's referring to points of a gram, and what would be the value if they were sold as points. Because we have a whole bag of it, rather than a situation where the accused was found with points, in particular bags. That's why I say that it's not relevant. [The Crown then made some submissions as to the relevance of this material, some of which have been omitted. The Crown then continued] SOLICITOR ADVOCATE: Yes, however, what this statement does is it helps to paint a picture for a jury any profit that the accused could have made if he did on sell the drugs in point amounts. It also allows the jury to, I guess, have evidence before it in relation to the common amounts. That is dealt with. What this statement does, and these statements are often tendered without objection, in deemed supply cases so that the jury can have this evidence before it in relation to what are the common amounts that people on the street buy. Is, perhaps the jury might think, 70 grams, is it not unusual amount? What this statement does is it shows the sheer amount of 70 grams of heroin. HIS HONOUR: No, you're talking about the statement generally. I'm just focusing on para 14 the part objected to. SOLICITOR ADVOCATE: The sentence, "In my opinion if 23 grams were dealt with in one gram amounts the street value would be $5,750." Is that the sentence that your Honour is referring to? HIS HONOUR: Yes. That's what's been objected to, from the words, "In my opinion", down to the end of the paragraph.
Counsel's (italicised) reference to the "fifth last line" is to that line in para 14 of the officer's statement. As set out in the typed form of that statement (and not as set out in the extract in [17] above) the line answering that description commenced "to be carried as a 'personal use' amount".
The trial judge's reasons addressing the question of admissibility include: … The accused, by his counsel, objects to the following parts of Sergeant McGeachie's statement. First, [14] from the middle of the paragraph the words commencing, "In my opinion", down to the end of the paragraph, together with [19]. [20] and [21]. Paragraph [14] concerns an opinion as to whether the quantity of methylamphetamine exceeds what could be expected to be carried for personal use and provides an opinion as to the selling price or street value of the amount of methylamphetamine involved. The accused objects to that part of the statement on the grounds of relevance. There is no attack to Sergeant McGeachie's qualification by way of education or experience, as a police officer involved in drug investigations, to provide those opinions. In my view he is entitled to provide that opinion and therefore the objection to that particular of para 14 is not upheld and the Crown will be allowed to adduce that evidence.
The appellant submits that trial counsel's reference to "the fifth last line" and then to the "personal use amount" indicates an intention to object to that opinion. However that is inconsistent with counsel's following statement which puts aside "the issue of the personal use" and focuses on "the rest of that [which] is not relevant", the "rest" referring to the opinion evidence about street value. That being the focus and limitation of the objection is confirmed by counsel's earlier reference to discussion "with respect to the issue of the relevance of the price on the street". None of this is contradicted by the later exchange between the trial judge and the solicitor advocate which confirms that the point value opinion was "what's been objected to".
Turning to the trial judge's reasons, on one view of the second sentence extracted above his Honour has incorrectly included the personal use opinion as part of what was objected to in para 14. On another view he is to be taken in the sentence commencing "The accused objects …" to be referring only to the last mentioned 'street value' opinion. Neither of these understandings of the reasons necessarily supports a conclusion that the personal use opinion was objected to. The transcript of argument indicates that it was not, and where the reasons are ambiguous they should not be read as suggesting otherwise. It follows that in relation to the admission of the personal use opinion there was no wrong decision by the trial judge of any question of law. That evidence was not objected to and accordingly was admissible as opinion evidence, the opinion rule (s 76) only making evidence of an opinion inadmissible over objection: Perish at [261]-[271]. Its mandatory exclusion under s 137 was not engaged because in the absence of any objection made under that section the trial judge was not required to form any view as to whether its probative value outweighed the danger of its unfair prejudice. Accordingly, no question of leave under rule 4 arises in respect of ground 1 as originally formulated. The appeal on that ground should be dismissed.
It remains to be considered whether leave under rule 4 is required and should be granted to allow the appellant to press a reformulated ground 1, which includes in the alternative that by the admission of the evidence there was a miscarriage of justice which was substantial.
As the Crown submits the record shows that the appellant's counsel made a forensic decision not to object to Detective Sergeant McGeachie's personal use opinions, that course being taken in part because of the general and ambiguous terms in which the opinions were expressed.
Counsel then cross-examined the officer to obtain his agreement to the following uncontroversial propositions - that the amount of methylamphetamine purchased at the one time by someone for personal use was likely to be influenced by "their ability to pay", "their habit", "how much they're consuming daily or weekly" and "their lifestyle". The evidence obtained was not inconsistent with at least some of the appellant's explanations for the large quantities of the two drugs in his possession. At the same time, the officer's evidence did not descend to a level of detail that might have made less plausible the appellant's evidence that the drugs were for his personal use only.
In her closing address the appellant's counsel made the following submission based on the officer's evidence: You always have to look to the circumstances, and you remember Sergeant McGeachie who came in here yesterday afternoon and gave evidence, he is an expert …When it came down to his evidence as an expert to say that it was an amount over 3 grams, it would be not likely that it would be for personal use or whatever were the exact words he used. He was then asked regarding someone who had a lot of money on their hands, who could pay for larger amounts and he did agree in cross-examination that it's not necessarily the case that someone who has that street value deals, such as one little satchel, would be applicable to everybody.
The tolerably clear objective of this submission was to draw attention to the parts of the officer's cross-examination where he accepted that depending on the circumstances, someone may purchase and possess an amount of drugs in excess of the traffickable quantity for personal use.
Thus, there could be (and was) a reasonable explanation for counsel's decision not to object to the evidence. It follows, applying the reasoning in TKWJ, that any chance of acquittal, which might otherwise have been open had the personal use opinion evidence been objected to, was not "fairly open" in circumstances where an informed and deliberate decision to refrain from taking that objection could have been made and was capable of leading to a forensic advantage (at [26], [27]). It follows that this is not a case in which the appellant should be permitted to press an argument based on the reformulation of ground 1. There was no miscarriage of justice. Accordingly there should be no grant of leave under rule 4 to make that argument, and ground 1 as originally made should be dismissed.

Ground 2

In considering whether a verdict is unreasonable, the question for this Court is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty; and a finding that a verdict is unreasonable requires that the appellate court be satisfied that the jury must, as opposed to might, have entertained a reasonable doubt as to the accused's guilt: see M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]; and Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 at [37]-[39].
Here, the sole issue was whether the appellant had established on the balance of probabilities that he possessed the prohibited drugs for a purpose other than supply. In such circumstances the same principles apply in determining whether the verdict is unreasonable, however it must be kept in mind that at trial the accused bore an onus of proof in relation to that issue which had to be satisfied on the balance of probabilities.
In Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229, the accused was convicted of murder at trial. One of the grounds of appeal was that the verdict was unreasonable because the jury should have accepted the partial defence of substantial impairment (see Crimes Act 1900 (NSW), s 23A(1)(b)). The accused had the onus of establishing that defence on the balance of probabilities. That being the position did not mean that the unreasonable verdict ground could not apply: R v Welsh (1996) 90 A Crim R 364; Potts at [97]. Rather the question was whether "it was open [on] the evidence for the jury not to find, on the balance of probabilities, that the appellant was substantially impaired": Potts at [123] (Johnson J, McClellan CJ at CL and Fullerton J agreeing). The correctness of that approach is not controversial. See: Goodridge v R [2014] NSWCCA 37 at [119] (Hoeben CJ at CL, Simpson and Johnson JJ agreeing); R v Holden [2014] NSWCCA 230 at [26] (Harrison J, Garling and Johnson JJ agreeing). It follows that to succeed on this ground, the appellant must establish that acting reasonably the jury must have found on the balance of probabilities that the drugs were possessed for personal use.
This defence largely turned on whether the jury accepted the appellant's evidence. In essence it was that the drugs were purchased for his personal use; that he did not have in his possession items such as resealable bags and mobile SIM cards which are commonly associated with the supply of prohibited drugs; and that he held the items found in his possession - phones, a razor blade, and cash - for the reasons recorded earlier which were also unrelated to the supply of drugs.
The jury was required to make an assessment of the reliability and credibility of that evidence. It was not incumbent on them to accept it. They might reasonably have asked themselves why it was necessary for the appellant to carry around an amount of drugs which he accepted would have lasted him for the better part of a week. His explanation for doing so (see [12]) was by no means clear or persuasive. There was also the issue of the discrepancy between the cash recorded as found on his possession (see [9] above) and his evidence as to the amount which he received in cash from his poker machine winnings and otherwise recalled having in his possession (see [11] and [13] above).
In the circumstances, this was plainly not a case where the jury acting reasonably had to accept the appellant's evidence that he had the drugs in his possession for his personal use. That is, it was reasonably open to the jury to reject that evidence as either untrue or unreliable and to return verdicts of guilty to the charge that he had those drugs in his possession for the purposes of supply. For that reason leave to appeal on this ground should be refused.

Conclusion

In the result, the orders I propose are: 1. Extend to 5 June 2019 the time within which notice of intention to appeal was required to be given. 2. Refuse application to amend ground 1. 3. Dismiss ground 1. 4. Refuse leave to appeal in relation to ground 2. 5. Appeal otherwise dismissed.
FULLERTON J: I agree with Meagher JA and with the orders he proposes.
BUTTON J: I agree with Meagher JA.

Amendments 23 October 2020 - Paragraph 34 - "likely" replaced with "taken" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2020

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