PHAN -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 131 (30 August 2019)

(1) Three counts of possession of unlawfully obtained property, contrary to s 417(1) of the Criminal Code (WA), namely:

(2) Four counts of possession of a prohibited drug with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1987 (WA), namely:

1. The facts alleged by the State in opening were as follows.
2. On 29 July 2016, in execution of a search warrant, police found the appellant and a woman inside unit 56 of an apartment complex in East Perth (unit 56).[1] The appellant was in the only bedroom of unit 56, holding $2,950 cash the subject of count 1.[2]
3. Police physically searched the appellant and found a further $520 cash in his pocket.[3] Police located another $750 cash inside a cloth banking bag on the bed in the bedroom.[4] Together, those two sums of cash were the subject of count 2.
4. In an area in the kitchen, police located a Cryovac machine next to a set of digital scales and a black glass board which had some white crystal material on it.[5]
5. Within unit 56, police also located a large number of unused clipseal bags, two glass smoking implements, six mobile telephones and various quantities of prescription medication packaged in a Tupperware container.[6]
6. The appellant was in possession of the front door key for the next door unit (unit 57).[7] Unit 56 and unit 57 shared an entrance and a common laundry area.[8] Police observed that an electricity cord ran from unit 56 into unit 57.[9] When asked by police, the appellant admitted that this was so, saying that a friend of his had bypassed the power for unit 56 so that the power for unit 57 ran off his unit, unit 56.[10]
7. Police conducted a search of unit 57.[11] Inside, they found the following, many of which were stored in Tupperware containers or together with numerous other clipseal bags:

(1) In a lounge room table drawer and in a chest of drawers, inside Tupperware containers, in several clipseal bags, a total of 20.91 g of MDMA in pill or powder form (count 4).[12]

(2) In a drawer in the lounge room, with some of the MDMA tablets, 2.01 g of MDA tablets (count 5).[13]

(3) In the lounge room table drawer and a chest of drawers, in clipseal bags, a total of 12.91 g of cocaine (count 6).[14]

(4) In the lounge room table drawer and inside the television unit, in clipseal bags, a total of 10.66 g of methylamphetamine (count 7).[15]

Also inside a drawer in the living area, police found $20,000 cash (count 3).[16]

1. Other items located in, and seized from, unit 57 included Cryovac bags, digital scales, additional empty clipseal bags, a blank firing handgun, instructions on how to produce methylamphetamine, and small quantities of cannabis and prescription medication.[17] Police also located the driver's licence of the appellant's co-accused inside the cover of a mobile telephone found in unit 57.[18]
2. Unit 56 had a television that was set up with CCTV of the outside of the units and the lift area.[19] Unit 57 had a television set up with similar CCTV footage showing.[20]
3. Red walkie-talkies of a similar, if not identical, model were found on the bed in unit 57 and in a drawer in unit 56.[21]
4. The appellant admitted that he owned unit 56.[22] However, he said that he lived in unit 3 of that block of units.[23] He told police that he did not really use unit 57 and could not remember the last time he was there.[24]
5. After units 56 and 57, police searched unit 3, seizing from it over $18,000 cash.[25]
6. The co-accused's DNA was matched to samples taken from two of the clipseal bags found in unit 57, containing MDMA tablets, and from a 'Despicable Me' pencil case, in which a quantity of methylamphetamine was located.[26]
7. The State case was that the appellant (and his co‑accused) were in the business of dealing prohibited drugs and that:

(1) they were using units 56 and 57 to package and store drugs and run that business;[27]

(2) they were in joint possession of the drugs as part of their drug‑dealing business;[28] and

(3) the cash the subject of counts 1 ‑ 3 was proceeds of that business.[29]

Alternatively, the State contended that the appellant knowingly assisted his co‑accused's possession of the drugs and of the $20,000.[30]

1. The State case was circumstantial: that it could be inferred, from the various facts and circumstances that it identified in opening and closing addresses, that the appellant and his co‑accused were engaging in a drug dealing business. In addition to the facts already referred to, the State relied on the appellant's previous convictions, for selling, supplying or possessing each of methylamphetamine and MDMA, as propensity evidence admitted under s 31A of the Evidence Act 1906 (WA).[31] Those previous convictions and the facts of the offences were the subject of an admission by the appellant.[32]
2. The prosecution called three witnesses:

(1) Detective Callisto, the exhibits officer for the police searches, who gave evidence concerning, among other things, the location and seizure of various items during the searches of the units.

(2) Detective Solly, the investigating officer who also gave evidence as to the searches and her observations at the units; and

(3) Dr Broom, a DNA expert, who gave evidence matching the co‑accused's DNA to two clipseal bags which contained MDMA, and to a 'Despicable Me' pencil case which contained methylamphetamine, found in unit 57.

1. The appellant disputed that the cash found in unit 56 the subject of counts 1 and 2 was unlawfully obtained. He gave evidence denying that it was and saying it was obtained from legitimate sources to be used for legitimate purposes.[33]
2. The appellant disputed that he possessed the $20,000 or prohibited drugs found in unit 57 the subject of counts 3 - 7, on the basis that he had no knowledge of them and, therefore, no intention to exercise control or dominion over them.[34] He gave evidence, referred to later in these reasons, in which he denied having any knowledge of the drugs or cash inside unit 57.

1. Like the appellant, the substance of the co‑accused's case was a denial of any knowledge of, and therefore possession of, the $20,000 and drugs the subject of counts 3 - 7.[35] The co‑accused gave evidence denying this knowledge and denying that he resided at unit 57 at the relevant time. In substance, the co‑accused's defence sought to implicate the appellant as the sole responsible party.[36] Counsel for the co‑accused emphasised the appellant's prior offending and drug association and that the appellant's explanations regarding cash found and cash deposits were implausible.[37]

Outline of the evidence The evidence led by the State

1. As we have said, the State called three witnesses: Detective Callisto, Detective Solly, and Dr Broom, a DNA expert.[38]
2. Detective Callisto gave evidence on 29 July 2016, that a number of police executed a search warrant at unit 56, and also searched units 57 and 3.[39] She gave evidence that police found, on the appellant's key chain, a key which they used to access unit 57.[40] She gave evidence as to the items seized from units 56 and 57 consistent with the State case as outlined above.[41] She did so largely by reference to the search videos of those units,[42] which were played and tendered during her evidence, and to corresponding exhibit logs.[43]
3. Detective Callisto was cross-examined by the appellant's trial counsel, including, as follows:[44]

You mentioned searching unit 56. You found and seized quite a number of items. And one of those items was a set of scales?---Quite possibly, yeah. If I refer to my exhibit log, I would be able to tell you what item number that was, if you need to know.

I should have directed you to it, I apologise?---That's okay. So it was from 56, wasn't it? From unit 56, do you know what item number it was?

It's all right. No, in fact sorry, my question should have been do you recall seeing one in unit 56?---Seeing scales?

Scales?---Yeah, I don't recall off the top of my head, sorry.

But certainly looking at the exhibit log, there were no scales seized?---Correct.

And no scales that had any sort of illicit drug on them?---Correct.

1. Detective Callisto agreed with the appellant's trial counsel's further suggestions that:[45]

(2) no documents or clothing associated with the appellant were found in unit 57.

1. A number of exhibits were tendered through Detective Solly, including:

(1) A certificate of title of unit 56 in the name of 'Empire Resources Australia Pty Ltd of [Unit 3]' (exhibit 26.2),[46] which the appellant later admitted was the business of his wife and him.[47]

(2) A bundle of photographs of the inside of unit 56 (exhibit 10),[48] depicting various items, including some items on the kitchen bench, a television set up with CCTV, and a red walkie talkie.

(3) A bundle of photographs of the inside of unit 57 (exhibit 11),[49] depicting, among other things, a red walkie-talkie and several documents.

(4) A trust account receipt, seized from unit 57, addressed to Kelvin Kong at unit 57, in the following terms (exhibit 12):[50]

Trust Account Receipt No: 012928

Received from: Kelvin Kong Date: 21/09/15

Tenant name: Kelvin Kong T/Ref: KONG57/20

For the rental of: [Unit 57] Owner: STOJ57

Received: Total $1,800.00 (Cash $1,800.00)

Being: Amount Date From Date To Arrears Credits

Rent $600.00 21/09/15 04/10/15 $0.00 $0.00

Res Bond $1,200.00 $0.00

Domain 100 Trust Account Receipt TC 57913

(5) Certificates of the drug analysis undertaken on items seized from the units (exhibit 25).[51]

1. Detective Solly gave evidence consistent with the State case as to the results of the searches. By reference to photographs forming part of exhibit 10,[52] she identified items 'just to the left of the kitchenette within [u]nit 56'[53] as a Cryovac machine and a black glass plate, what she believed to be a set of scales on the tabletop,[54] and an open Cryovac bag with white crystals splattered around it.[55] This aspect of her evidence and the photographs comprising exhibit 10 are central to some of the appellant's complaints in grounds 1 and 3.
2. The jury was provided, as aids, with documents entitled 'exhibit summaries' setting out, in summary form, the effect of the evidence as to the results of each search.[56]
3. Counsel for the appellant put to Detective Solly, and she agreed, that when the kitchen of unit 56 was searched, a Cryovac machine was found in the kitchen.[57] Counsel then explored what had occurred when police examined the contents of the refrigerator in unit 56.[58] Counsel for the appellant also put, and Detective Solly agreed, that none of the items swabbed for DNA came back with a match of the appellant.[59]
4. After obtaining leave to re‑open his cross‑examination of Detective Solly, counsel for the co‑accused put the following to her:[60]

Detective Solly, I just want to confirm with you ... can you confirm there's no vacuum sealing machine found in unit 57?---No, there was no vacuum sealing machine.

1. The judge then inquired of counsel for the appellant whether he wished to cross‑examine further, which counsel declined to do.[61] The appellant's submissions on ground 3 complain of that choice by his trial counsel. As we will explain, in our view, counsel's decision not to further cross‑examine on this point reflected a well‑founded exercise of forensic judgement.

1. As to counts 1 - 2, the appellant gave evidence that the $2,950 cash the subject of count 1 was legitimately obtained and was to pay for car repairs, and the sums of $520 cash and $750 cash the subject of count 2, respectively, were savings and belonged to his girlfriend.[62]
2. As to counts 3 - 7, the appellant gave evidence in which he denied having any knowledge of the drugs or cash inside unit 57.[63]
3. The appellant also gave evidence that:

(1) At the appellant's invitation, the co‑accused resided in unit 56 and subsequently moved into unit 57.[64]

(2) The co‑accused installed a keypad on the door of unit 56 for which the co‑accused knew the password; the appellant did not change the password when the co‑accused moved out of unit 56.[65]

(3) After the co‑accused moved out of unit 56, he (the co‑accused) still had access to it and did access it.[66]

(4) The appellant's wife had access to unit 56, in that there was a spare key in unit 3, but she never came to units 56 and 57.[67]

(5) He had a spare key to unit 57 which the co-accused had given to him when he moved into unit 57.[68]

(6) He resided at unit 3 of the apartments but spent time in unit 56 and would see the co-accused there pretty much every day.[69] He would 'hang out' there for 'quite a while', meaning '[p]robably, like, all day'.[70]

(7) He got a friend to install a cable running power from unit 56 into unit 57.[71]

(8) He was aware that the co-accused's motorbike was parked in his bay for unit 3.[72]

(9) He smoked methylamphetamine maybe a couple of times a week, but not in front of the co-accused.[73]

(10) The Cryovac machine found in unit 56 belonged to him. He had taken Cryovac bags home from the pizza shop he had owned, 'Empire Pizzeria', and used them, and the Cryovac machine found in unit 56, to seal food and dog food which he bought in bulk.[74]

(11) Any clipseal bags in unit 56 were for storing nuts, bolts and screws.[75]

(12) The phones found in unit 56 were either his or belonged, or had belonged, to his ex-wife or his girlfriend.[76]

(13) He took out several loans for money to open and run restaurants, including 'Empire Pizzeria', which turned over quite large amounts of money, a lot of which was paid in cash, and this accounted for cash deposits into his bank account.[77]

(14) Towards the end of 2015 he sold one restaurant for around $70,000 and, in early 2016, 'Empire Pizzeria' was put into voluntary administration after he learnt that he owed the ATO around $50,000 to $70,000.[78] In cross-examination by the prosecutor, he accepted that when 'Empire Pizzeria' went into administration he owed about $170,000.[79]

(15) The co-accused lent him $20,000 to pay his debt to the ATO.[80]

(16) At the time of the searches, he was not employed but was working with the co-accused to start up a home audio-visual business.[81]

1. In cross-examination by the prosecutor, the following exchanges occurred:[82]

[W]hen police were going through and searching that unit [57], a lot of the things they found were sitting on the top of a drawer?--- (No audible answer) .

Would that be fair to say?---Yeah, I think so.

What I'm getting at, is not particularly hidden or locked away?--- (No audible answer) .

The drugs that were found were not secured in any way?---Yeah.

Any person that - could access that room could easily access the cash or the drugs in that room?---Yeah.

...

You had digital scales in unit 56?---Those so-called scales was not - they weren't scales, it was a clock. It was a digital - - -

A clock?--- - - - clock.

A digital clock, okay. You had a cryovac machine?---Yeah.

And cryovac bags in unit 56?---Yeah.

You had clipseal bags in unit 56?---Yeah.

You had everything you needed in unit 56 to package drugs, didn't you?‑‑‑We didn't have those scales like you say. But that - everyone has those, so everything else that you mentioned. (emphasis added)

1. The co-accused gave evidence that, following a breakdown in his marriage, the appellant offered him unit 56 to stay in for $300 a week, and he moved into unit 56 in around 2014 to 2015.[83] He admitted that, when he moved into unit 56, he used drugs in unit 56, which he occasionally got from the appellant, and that they used drugs, including pills, there together.[84] He gave evidence that, when living in unit 56, he learned from the appellant that the appellant had leased unit 57 in the co‑accused's name, using the co-accused's driver's licence.[85] He said that, at that time, a woman named Zoe was living in unit 57.[86] He said that he had never signed any documentation in connection with the leasing of unit 57.[87]
2. The co‑accused said that the appellant began spending time with the appellant's girlfriend in unit 56 daily, that a lot of his stuff got moved to unit 57, and that he would 'just go there instead of 56';[88] at other points he said he would 'occasionally' go to unit 57.[89] He admitted that his clothing and electronic items were found in unit 57,[90] and that the seized 'Despicable Me' pencil case belonged to his daughter.[91] He gave evidence that he moved back in with his wife on 20 May 2016 and did not go back to the apartments again.[92]
3. The co‑accused's evidence concerning access to units 56 and 57 included the following:

(1) To his knowledge, only he and the appellant had keys or access to unit 56.[93]

(2) In effect, the position was the same with unit 57.[94] He knew that the appellant had moved his stuff into unit 57 because the appellant 'was the only one that had the key'.[95] He was able to access unit 57 because he had a key.[96] Although Zoe had, at an earlier time, been staying in unit 57, he did not know whether she still had a key.[97]

(3) At the time the power was diverted, he was living in unit 56 but had access to both units. He understood the appellant to be in control of unit 57 and it was the appellant who had given him a key. Although the appellant was living in unit 3, the appellant was at units 56 and 57 every day.[98]

(4) As far as he was aware, only he and the appellant had keys or access to unit 57 at the time the searches were carried out.[99]

1. The following exchanges occurred in cross-examination of the co‑accused by the prosecutor,[100] in which the co-accused refers to the appellant as 'Brendan':

[W]as there ever an occasion where you came home to the units or went into unit 57 and saw some drug paraphernalia lying around, that you hadn't put there?---Yes.

All right. Obviously, if you've walked in and just seen it there, you can't say who put it there, but there were occasions where you would find that?---Yes.

And would that be in unit 56 and unit 57?---56.

56. All right. And who else had access to unit 56?---Just far as I know?

Mm?---Myself and Brendan.

Yourself and Brendan. All right. So it'd be fair to say that Brendan felt - Brendan had left stuff in an apartment, that you could access and you - did you have an agreement with him to sort of leave his stuff alone, you didn't use his drugs?---There was no agreement, no.

No agreement. Was there an unspoken way in which you dealt - you left his stuff for him and he left your stuff for you, you wouldn't interfere with each other's drugs?---No. Well, if I took anything that was his I'd let him know out of courtesy.

Okay. So you trusted each other with leaving your - your drugs around?‑‑‑If you say so.

And if you did use some, you'd let him know?---Yeah.

Because of course they can be quite expensive, it's not cheap?---Yeah.

And it's not good form to just to taking someone [sic] drugs?---That's correct.

...

Was Mr Phan the only person you used drugs with in unit 56?---Yes.

Did you ever see Mr Phan doing drugs himself with anyone else in unit 56?---No.

...

You accept that police found a walkie talkie of the same sort in each of the units?---Yes.

And that there were cryovac bags in each of the units?---According to the video, yes.

Or vac seal bags. Do you know what they are?---Yes.

Just - just as a general proposition. I'm not saying specifically. Yes? There was scales, little digital scales, in both units?---Yes, that I saw on the video.

1. The judge began his summing up by outlining the charges and identifying the main issues in the trial.[101] His Honour then gave a number of general directions, including as to the role of counsel, the judge and the jury, and as to the burden and standard of proof.[102] No complaint is made as to any of the judge's general directions.
2. The judge then outlined the State case in terms consistent with the summary at [9] ‑ [[[103]](2019_131.html#_Ref The mere fact that drugs are found, for example, in a cupboard in your kitchen or in a freezer in your fridge does not necessarily constitute possession. There is no law that says if drugs are found in your kitchen or in your cupboard or in your fridge on your property that you're in possession of it. The State does not contend that.

Nevertheless the location where the drugs are found is a matter to be taken into account by you in determining whether or not you can infer the possession of the drugs by the accused. It is one of the circumstances to be considered.

...

... The State says that each of the accused, Mr Phan and Mr Kong, were in a drug dealing relationship or business with each other. The State submits each of the accused had knowledge of the drugs, each of them had the custody or control over the drugs and each had the intention to exercise control over the drugs.

On the State case, Mr Phan had control over the drugs by having access to unit 57 where the drugs were easily seen and accessed. And Mr Kong had control of or custody over the drugs by living in unit 57. And that each of them had a strong association or connection with the other. They were the only two who had access to unit 57.

I remind you that there is no law, for example, that if something is found in your kitchen it is yours. Nobody suggests that. The location of where the drugs are found is a matter to be considered, but it is an evidentiary matter as to whether you are satisfied of possession of that item or not. The mere fact that, for example, it was found in someone's kitchen does not constitute by itself possession. It is a factor to be considered when you are deciding if the person did have possession of it.

1. The judge gave the jury a detailed and conventional direction as to the drawing of inferences.[110]
2. In identifying, for the jury, the evidence and circumstances on which the State relied for the inference of the element of possession, the judge said, among other things:[111]

The State points to the following evidence and circumstances from which it submits the only reasonable inference is that Mr Phan and Mr Kong were jointly in possession of each of the quantities of drugs found in unit 57. I'm not going to repeat everything that the prosecutor said. I'm going to summarise what seemed to me to be essentially the main points.

Each of the accused were the only two people with access to unit 57. Each of the accused knew the other had access to unit 57. Neither of the accused would have allowed the other to have access to unit 57 if that person didn't know of the prohibited drugs present in unit 57. The drugs and the cash in the sum of $20,000 were not hidden. Anyone walking into unit 57 could easily have seen or come across the drugs and the cash.

There was too great a risk that a person who had access to unit 57 would see the drugs. Mr Kong wouldn't have let Mr Phan have access to unit 57 if Mr Phan didn't know of the drugs. Mr Phan wouldn't have let Mr Kong have access to unit 57 if he wasn't involved and didn't know of the drugs. Mr Kong was living in unit 57. He admitted to police he was leasing unit 57.

...

Mr Phan had a key to unit 57. He arranged for the power to 57 to be diverted through unit 56. He told police he couldn't recall when he was last in unit 57, by which the State says you can infer he had been in unit 57. He was in unit 56 on a daily basis, which was next to unit 57.

... The drugs and drug-related items were not hidden and were easily seen upon entry into unit 57.

A person either living in unit 57 or walking into unit 57 would easily see or find out about the drugs. The drugs are valuable. The owner of the drugs wouldn't leave them lying around unless the people who had access to the unit were trusted with the drugs.

...

... There were Cryovac bags, scales, Tupperware containers and large sums of cash in each unit, although there is an issue about whether there was a Cryovac bag in unit 57. ...

...

These are all matters for you to consider in light of the law as I have explained it to you. You cannot draw an inference either of the accused is guilty of the offence with which he has been charged unless the evidence is inconsistent with any reasonable conclusion other than that the person is guilty of that charge. (emphasis added)

1. The judge then outlined the cases for each of the two co‑accused as to why an inference as to possession could not be drawn.[112] In relation to the appellant, the judge referred to:[113]

(1) His evidence that he used the Cryovac machine for sealing dog food and bulk meat, not for packaging drugs.

(2) The fact that, the appellant submitted, it could be observed in the search video of unit 57 that there was a vacuum‑sealing machine, so that it could not be inferred that the Cryovac machine found in unit 56 was used for sealing drugs in unit 57.

(3) His evidence that the cash deposits in his bank account were legitimate takings from his pizza business.

(4) The fact that, unlike the co‑accused, the appellant's DNA was not found on any of the drug‑related items in unit 57.

(5) The fact that there were no notes or records consistent with drug dealing found in unit 56.

(6) The fact that the scales found in unit 56 were not seized by police, unlike those in unit 57, and that the appellant's evidence was that the scales in unit 56 were not used as scales, but were a clock.

1. After concluding his directions as to the elements of counts 4 - 7 on the State's primary pathway to guilt, the judge turned to direct the jury as to the alternative pathway in respect of the appellant's guilt on counts 3 - 7: that he knowingly aided his co-accused to possess the drugs and/or $20,000 with intent.[114] No complaint is, or could be, made as to the manner in which his Honour explained the relevant legal principles. In the course of so directing, the judge said, relevantly:[115]

The State points to the Cryovac machine and bags in unit 56. Mr Phan, the State submits, allowed Mr Kong access to unit 56 where there was the Cryovac machine which the State submits was used for the purpose of packaging drugs. The drugs found in unit 57 were packaged in the same sorts of bags which were found in unit 56.

1. Later in his summing up, the judge said:[116]

You heard evidence of what the prosecution says were drug-related items found in both units 56 and 57. In particular the State refers to the total amount of cash of $4,220 found in unit 56 on or with Mr Phan, the area of the kitchen which was set up with a Cryovac machine and scales, a large number of unused clipseal bags, a glass smoking implement, the diverted power from unit 56 to unit 57.

In unit 57, police located scales, empty clipseal bags, a blank firing handgun, written instructions on how to make methylamphetamine, $20,000 in cash, 22.2 grams of MSM found in the kitchen cupboard, small quantities of cannabis, and small quantities of prescription medication.

...

You are entitled to look at the evidence of the other items found to assist you in deciding whether the accused was in possession of the prohibited drugs with the intention to sell or supply them or some of them to another or others. Evidence of the so-called drug paraphernalia found in the unit may be relied upon by the prosecution to show that the accused was engaged in the business of selling or involved in dealing with drugs.

What the prosecution says is that this evidence tends to show that the accused were involved in dealing with drugs and contradicts or rebuts their defence that they had no knowledge of and were therefore not in possession of the drugs found in unit 57. (emphasis added)

1. The judge then directed as to the appellant's admissions of his prior convictions and their permissible use under s 31A of the Evidence Act.[117] Again, no complaint is made concerning this aspect of the judge's directions to the jury.
2. Next, the judge directed the jury as to the elements of the offences the subject of counts 1 ‑ 3.[118] The judge outlined the following, as one of the circumstances from which the State submitted both accused's knowledge of the $20,000 the subject of count 3 could be inferred:[119]

The poor financial positions of each of the accused. ... Mr Phan's business was in administration and he had a large ATO debt. Each of the accused had access to unit 57, and they were the only people who had access to unit 57.

1. Towards the end of his summing up, the judge directed the jury not to speculate about matters not in evidence, making reference to specific submissions and to the fact that certain people were not called to give evidence.[120]
2. At the conclusion of the summing up, counsel raised some issues, none of which is relevant to any ground of appeal.
3. In response to a jury question, the judge re-directed as to the State's alternative pathway to the appellant's guilt on counts 3 - 7. In doing so, the judge said:[121]

... I explained to you some of the matters that the State points to. The Cryovac machine and bags in unit 56. Mr Phan allowed Mr Kong access to unit 56 where there was the Cryovac machine which the State submits was used for the purpose of packaging drugs.

The drugs found in unit 57 were packaged in the same sorts of bags found in unit 56. ...

1. We will deal with the grounds of appeal in turn. The question of leave to appeal was referred, on each ground of appeal against conviction and sentence, to the hearing of the appeal.[122]

Conviction - ground 1: miscarriage from prosecutor's misleading or unsupported submissions?

1. Ground 1 is in the following terms:[123]

The appellant suffered a miscarriage of justice by reason of submissions made to the jury by the prosecutor which were unsupported by the evidence or misleading.

Particulars:

(a) The evidence put to the jury by the State regarding the scales and Cryovac machine found in unit 56 was misleading.

(b) The submission by the State that the Appellant rented unit 57 to the co-accused was unsupported by the evidence led at trial.

(c) The submission by the State that only the appellant and co‑accused had access to unit 57 was unsupported by the evidence led at trial.

(d) The submission by the State that the drugs found at unit 57 were packaged in unit 56 was not supported by the evidence led at trial.

1. The appellant's submissions in support of ground 1 reflect, with one exception, the particulars to the ground. The exception relates to submissions the substance of which mirrors the complaint made in, and which we will deal with in the context of, ground 2. It is convenient to deal in turn with the complaints particularised in ground 1.

Particular (a): scales and Cryovac machine in unit 56

1. The appellant fixes on the following statement by the prosecutor, in opening:[124]

Whilst searching unit 56, other items were located and seized by police, including an area in the kitchen where police located a cryovac machine next to a set of digital scales and a black glass board which had some white crystal material on it. (emphasis added)

The appellant submits that this submission was misleading and unfair, as it was not supported by the evidence.[125] He also points to the following further submission, made by the prosecutor in opening:[126]

And unit 56 had items in it, the vac-seal machine, the scales, some vacuum-sealed bags, items in it that could be used to package drugs.

1. He submits that it is clear, from the earlier parts of the search video of unit 56,[127] that the Cryovac machine was on a shelf above the bench and that scales were not visible.[128] He also points to part of the search video in which a bottle of Wild Turkey bourbon and a tripod can be seen on the bench, whereas they are not shown in that location in the photographs.[129] In addition, the appellant relies upon the following later exchange, in the search video, between himself and Detective Solly:[130]

[T]here was a, a Cryovac machine and there's a set of scales. ... Okay. Tell me about all those items[.]

Okay. You understand that, that looks like an area that you've been weighing and packaging methamphetamine? Would I be correct in that assumption?

Can you ex-, if that's not what you've been using that area for, can you explain to me what you have been doing over in that area?

1. Further, the appellant points to Detective Solly's evidence at trial concerning the photographs which became exhibit 10. He submits that Detective Solly's evidence did not correct the implicit impression that police found the items as they were shown in the photographs.[131] Therefore, in the appellant's submission, Detective Solly's evidence and exhibit 10 were misleading, 'dangerous' and 'highly prejudicial' to the appellant, because exhibit 10 was left to the jury as showing the way in which items were found by the police when it actually showed them as positioned by police on the kitchen bench.[132] Detective Solly gave evidence that the item she saw on the bench, shown in the photograph, was scales,[133] when the appellant gave contrary evidence.[134] In the appellant's submission, the effect of this evidence was to put to the jury that 'there was a designated area in [u]nit 56 that was set up for the purpose of packaging drugs' and, thereby, occasioned a miscarriage of justice.[135]
2. Examination of the search video of unit 56[136] and the photographs constituting exhibit 10 reveals that the area the subject of the photographs was not in an identical state for the entire period in which the search of unit 56 was conducted.
3. Exhibit 10 shows:

(1) the Cryovac machine sitting on top of something on the left‑hand side of the bench;[137]

(3) a red box with an unidentified object on top of it;[139] and

(4) an object described by Detective Solly as 'scales',[140] and a box on which is written 'multifunction clock', located at the right‑hand side of the bench.[141]

(1) The item described as 'scales' is not visible in the earlier parts of the search.[142]

(2) At early stages of the search, the Cryovac machine is not on top of the item at the left of the bench; rather, it is on the bench next to that item.[143] By later in the search, the Cryovac machine is on top of the item.[144]

(3) In the course of the search, items can be seen on the bench that do not appear in the photographs comprising exhibit 10. These include a bottle of Wild Turkey bourbon, a tripod, and a yellow item.[145]

(4) Following a period in which the camera was turned off, there is an exchange between Detective Solly and the appellant, outlined at [64] above, regarding the presence of a Cryovac machine and scales in or around the area of the kitchen benchtop.

(5) Shortly after this, the search video shows items on the kitchen bench consistent with what can be seen in the photographs comprising exhibit 10.[146]

1. In our view, these matters fall well short of giving rise to a miscarriage of justice. There is no doubt, on the evidence, that a Cryovac machine was located on the kitchen bench. What the appellant said, both during the search and at trial, acknowledges that this was so. The movement of the Cryovac machine from the bench space to the top of the item on the left of the bench is immaterial. Further, the appellant accepts that the Cryovac machine was in the vicinity of the position in which it is photographed in exhibit 10.[147] It is true that the item described by Detective Solly as 'scales' is not shown in the earlier part of the search video. However, neither during the search nor in his evidence at trial did the appellant assert that the item was not located in the area of the kitchen bench. Moreover, on the appeal, the appellant has not sought to adduce evidence to this effect. The appellant's submissions in support of particular (a) seek to attribute an exaggerated significance to the precise location of these items.
2. On the hearing of the appeal, counsel for the appellant described the crux of particular (a) as whether the item in question was a set of scales, emphasising that the appellant was 'adamant' that it was not.[148] The existence of a conflict of evidence does not make the evidence led by the prosecution, or the prosecution's submissions about that evidence, misleading. Moreover, Detective Solly's evidence that the item was a set of scales was not challenged in cross‑examination. For the reasons given in relation to ground 3, portions of the search video, which were ultimately removed by agreement, reveal a firm foundation for the State's submission that the item was a set of scales. In short, those portions of the search video reveal that, if questioned, Detective Solly would, very likely, have explained that she had tested the item, in a manner demonstrating that the item was a set of scales.

1. Relying on particular (a) and its supporting submissions,[149] the appellant contends that it was not open on the evidence to infer that an area of unit 56 was set up for packaging of drugs, that being an aspect of both the primary and alternative State case against the appellant.[150] Further, it could not be inferred that the drugs found in unit 57 were packaged in unit 56, because another inference was reasonably available, namely that the drugs were packaged in unit 57.[151] This other inference arose from evidence that unit 57 also contained Cryovac bags and a Cryovac machine.[152] As to the latter, the appellant points to his trial counsel's suggestion in cross‑examination of the co‑accused that an item in unit 57 was a Cryovac machine.[153]
2. Insofar as particular (d) is founded on acceptance of the complaint made by particular (a), it fails with our rejection of particular (a). Particular (d) also contends that the inference that the drugs found in unit 57 were packaged in unit 56 could not be drawn, because another inference was reasonably available. The appellant contends that it was a reasonable inference that the drugs were packaged in unit 57, given the existence of evidence that unit 57 also contained Cryovac bags and a Cryovac machine.[154] However, in oral submissions, counsel for the appellant properly accepted that there was no evidence that unit 57 had a Cryovac machine.[155] Detective Solly gave evidence that there was no Cryovac machine in unit 57.[156] When counsel for the appellant put to the co‑accused that a black object visible in the search video[157] was a vacuum‑sealing machine, the co‑accused said that he had '[n]o idea'.[158] As properly conceded by counsel for the appellant on appeal,[159] a viewing of the search video provides no evidence that the object is a Cryovac machine.
3. Insofar as the trial judge permitted counsel for the appellant to submit to the jury, without adverse comment from the judge, that a Cryovac machine was visible in the search video of unit 57,[160] his Honour took a generous approach, favourable to the appellant.[161]
4. For these reasons, there is no merit in particular (d).

Particular (b): appellant's renting of unit 57 to co-accused

1. In opening, the prosecutor stated that the appellant was renting unit 57 to the co‑accused.[162] The appellant submits that there was no evidence to support that assertion,[163] so that the assertion was misleading;[164] while there was evidence that the co‑accused had entered a lease agreement for unit 57, there was no evidence that the appellant was the owner/lessor.[165]
2. It is not, and could not reasonably be, suggested that the prosecutor's statement in opening was made without reasonable foundation. The mere fact that a factual matter asserted in opening is not ultimately established does not give rise to any miscarriage of justice. Apart from suggesting it fed into particular (c), the appellant did not explain any other basis on which the complaint in particular (b) could be said to give rise to a miscarriage of justice.[166]

Particular (c): exclusive access of the appellant and co-accused to unit 57

1. The appellant submits that the State's assertion that the appellant and the co‑accused were the only ones with access to unit 57 was not supported by the evidence, in that, given the co‑accused's lease of unit 57, the owner or the owner's property manager must have had key access to unit 57.[167]
2. Particular (c) is without merit. It asserts that the State's submission that only the appellant and co‑accused had access to unit 57 was not supported by the evidence. To the contrary, the State's submission was well founded; it reflected the evidence at trial. The co‑accused said, in effect, that the only people with keys to unit 57 were he and the appellant.[168] The co‑accused understood the appellant to be in control of unit 57, and it was the appellant who had given him the key to unit 57.[169] The appellant gave no evidence that, at the relevant time, anyone, apart from the co‑accused, had access to unit 57. The appellant's submission, that at least the property manager or landlord from whom the co‑accused rented unit 57 must have had access to unit 57, is not supported by any evidence, given the absence of evidence as to the terms of the lease agreement. For completeness, we note that, even if there were evidence that the property manager or landlord of unit 57 retained access, that would not have made the State's submission misleading, and would not have given rise to any miscarriage of justice. That fact, if established by evidence, would not have diminished, to any substantial degree, the foundation for, or force of, the State's submission that the appellant and co-accused's ready access to both units supported an inference that the drug‑dealing operation occurring in, at least, unit 57 was a joint one.
3. For the above reasons, there is no merit in any aspect of ground 1. We would refuse leave to appeal in relation to it.

Conviction - ground 2: erroneous direction that drugs were in plain sight?

The trial judge erred in giving a direction to the jury that was unsupported by the evidence, leading to a miscarriage of justice.

Particulars:

(a) The submission by the State that the drugs and cash in [u]nit 57 were in plain sight was unsupported by the evidence led at trial.

(b) The inference that was put [to] the jury by the State, that because the drugs were not hidden, and were easily located by any person accessing the unit, an inference of guilt could be drawn, was not an inference that was open to the jury to consider.

(c) The Trial Judge's direction on inference, which included that the drugs were not hidden, was not based on evidence at the trial, but on the State's erroneous proposition that they were in plain sight.

1. The appellant's submissions on ground 2 may be summarised as follows. The appellant points to the following statement by the prosecutor,[170] made in the course of opening:[171]

As you will see in the search video, the items seized by police were not particularly concealed. They were in plain sight and, the State say, it would have been obvious to anyone living there. ... (emphasis added)

1. He also points to the passages of the judge's direction set out at [49] and [[[172]](2019_131.html#_Ref There was a miscarriage of justice as a result of the incompetence of defence counsel.

Particulars:

(a) Defence counsel failed to cross-examine any of the police officers regarding a Cryovac machine present in unit 57.

(b) Defence counsel failed to cross-examine any of the police officers where the item police allege were scales was originally located within [u]nit 56; whether the item was capable of being used as scales, and why this item was not seized by police.

(c) Defence counsel failed to cross-examine any of the police witnesses as to the discrepancy between the area in [u]nit 56 police allege was set up for the purpose of packaging drugs, and how this area was originally found.

...

(e) Defence counsel failed to properly examine or cross-examine any of the witnesses regarding the Appellant's conduct during the search of [u]nit 57.

1. The parties accept that the applicable principles were as outlined in Huggins v The State of Western Australia,[181] as follows:[182]

An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant.

In Nudd v The Queen, the court concluded that notwithstanding that counsel's conduct of the trial was incompetent to a serious degree and that some of that conduct could not be rationally justified, there was no miscarriage of justice. That illustrates the challenging character of a ground of appeal that asserts a miscarriage of justice arising through counsel's conduct of the trial.

Because the ground of appeal is that there was a miscarriage of justice, the focus of inquiry must be upon the consequences of the alleged incompetence, and the extent to which it caused or contributed to a miscarriage of justice, rather than upon the cause or nature of the incompetence alleged. So, generally at least, the question will not turn on the adjectival characterisation of competence, such as being 'flagrant' or, with some exceptions, to the reasons for an incompetent act or omission. The focus is on what happened or did not happen, not on why any error occurred.

Buss P has recently explained the objective character of the inquiry when an appellant asserts that counsel's conduct of the trial caused a miscarriage of justice:

'An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).'

...

In McMahon, McLure P (Buss JA and Mazza JA relevantly agreeing) said as follows:

'In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).'

...

An alleged error by defence counsel in failing to adduce evidence or in failing to obtain and adduce evidence must necessarily relate to new, not fresh evidence.

In order to establish that a failure to call a witness caused or contributed to a miscarriage of justice, an appellant is ordinarily required to call the witness in question to give evidence in a form which would be admissible at trial so that the appeal court can be satisfied of what the witness would actually say under oath and the relevance and cogency of that evidence.

...

... An assessment of whether or not there has been a miscarriage of justice will be made in the context of the trial as a whole, having regard to the relative strengths and weaknesses of the cases of each party, and the cumulative effect of any defects, irregularities or omissions that are shown on appeal to have occurred at trial. (footnotes omitted)

1. The appellant's particulars identify the aspects of counsel's conduct of his case which he says gave rise to a miscarriage of justice. We will deal with them in turn, outlining the appellant's complaint and explaining why, in our view, each complaint has no merit.

1. The appellant complains that his trial counsel did not seek to establish, in cross-examining Detective Solly or Callisto, whether a Cryovac machine was found in unit 57.[183] He submits that 'it was critical to his defence to establish that the drugs were capable of being packaged in [u]nit 57';[184] his trial counsel's failure to cross-examine meant that an alternative inference, that the co‑accused had all the necessary instruments to package the drugs in unit 57, was not left to the jury.[185] The appellant submits that a miscarriage of justice arose from his trial counsel's failure to cross‑examine Detective Solly as to the Cryovac machine in unit 57.[186] He further submits that this miscarriage was compounded by the terms of the judge's direction referring to the Cryovac machine in unit 56 and not in unit 57.[187]
2. The appellant asserts that 'it was a fundamental part of the defence case that a Cryovac machine was found in unit 57'.[188] There is no foundation for this assertion. The appellant does not seek to adduce additional evidence on the appeal. As already noted, based on the trial record, there is no evidence that there was a Cryovac machine in unit 57. The co‑accused's evidence did not advance the appellant's position in this respect. What can be seen on the search video of unit 57 falls well short of giving rise to any reasonable inference that there was a Cryovac machine in unit 57. Particular (a) fails accordingly.
3. The appellant submits that it would have been clear to his counsel, during counsel for the co-offender's re-cross-examination of Detective Solly, that Detective Solly's evidence that no Cryovac machine was found in unit 57 was a matter which the appellant was going to contradict.[189] He submits that this is evident from his trial counsel's (we interpolate, later) cross-examination of the co-accused.[190] He submits that his trial counsel's failure to cross-examine was a critical failure and in dereliction of the duty he owed to him.[191]
4. There is no merit in these submissions. Given the terms of Detective Solly's evidence when questioned by the co‑accused's counsel,[192] there is no reason to suppose that cross‑examination by the appellant's trial counsel would have produced any response from Detective Solly that assisted the appellant's case. To the contrary, it might fairly be expected to have caused her to repeat and, thereby, reinforce (and, potentially, also firm up) her evidence on the point. Moreover, given the appellant's case at trial - that he had little or nothing to do with unit 57 - he could not sensibly have given evidence of the presence of a Cryovac machine there. That being so, and given that nothing is apparent from the search video, it is difficult to see what foundation would have existed for the appellant's trial counsel to have run a case that there was a Cryovac machine in unit 57.
5. As already noted, far from giving rise to a miscarriage of justice, the judge's direction, concerning the presence of a Cryovac machine in unit 57, was favourable to the appellant.
6. Particular (a) is without merit.

1. The appellant submits that it was a fundamental and critical part of his defence that the 'scales' found in unit 56 were, in fact, a clock.[193] He points to his evidence in cross‑examination, set out at [40] above.
2. The substance of the appellant's complaints appears to be the following failures of his trial counsel:

(1) Leaving wholly unchallenged Detective Solly's 'speculative evidence';[194] in his submission, the search video did not show whether the item identified by Detective Solly as 'scales' was in fact scales and/or capable of functioning as scales.[195]

(2) Failing to explore in cross‑examination of Detective Callisto whether there were scales in unit 56, beyond that at [29[196]] above.196

(3) Failing to raise the issue with the appellant in examination‑in‑chief and failing to re-examine him so as to reinforce or reiterate the evidence he gave in cross‑examination at [40[197]] above.197

1. He submits that there is no rational forensic purpose in counsel failing to cross‑examine Detective Solly so as to put the appellant's case - that the item was not scales and was not tested at the time.[198]
2. Contrary to the appellant's assertions, his trial counsel's forensic choice not to cross-examine Detective Solly on her evidence concerning the scales in unit 56 was, objectively assessed, well‑founded. Available to the appellant's counsel at trial were passages in the transcript of the search video, ultimately edited out by agreement, in which Detective Solly referred to the scales being 'relatively accurate down to a point [meaning 0.1 of a gram]'.[199] In those circumstances, counsel's forensic decision not to put to Detective Solly in cross‑examination that the item was not a set of scales, and was not tested at the time, was a well‑founded one. Counsel would have confidently anticipated that, had these propositions been put to Detective Solly, she would have answered them in a manner that was damaging to the appellant's case.
3. Moreover, the approach taken by the appellant's trial counsel sought to make the most of aspects of the evidence that lent some support to his case. Counsel obtained from the exhibits officer, Detective Callisto, acceptance that no scales were seized from unit 56.[200] Using that evidence, counsel then submitted to the jury:[201]

You've heard the evidence that there were potentially scales in unit 56 and Mr Phan's given evidence about that. He says it was a clock and keep in mind as well that the exhibits officer whose sole job it was to seize relevant items and record them gave evidence that no scales were seized from unit 56. That evidence is reflected in the exhibit log which has been tendered to evidence.

You can be absolutely certain that if police found functioning scales with drugs on them in an investigation concerning drugs and potential dealings of drugs, they would have seized those scales. They seized the scales in unit 57.

Counsel's approach to cross‑examination concerning whether the disputed item was a set of scales revealed a rational and well‑founded exercise of forensic judgement.

1. Further, the appellant's evidence that the item was a set of scales emerged only in cross-examination. The appellant has not adduced evidence on appeal to establish that, at the time Detective Solly was cross-examined, or prior to his evidence in chief, he had instructed counsel that the item was a set of scales.
2. For these reasons, particular (b) is without merit.

1. The appellant submits that '[i]t was a fundamental part of the defence that the Cryovac machine found in [u]nit 56 was used for a purpose other than for packaging drugs.'[202]
2. The appellant relies on his submissions in respect of particular (a) of ground 1 that the effect of the evidence on this point was left to the jury in the misleading manner that there was a designated area in unit 56 set up for the purpose of packaging drugs.[203] He complains that his trial counsel left this evidence 'wholly unchallenged' and there was no reasonable explanation or forensic justification for doing so.[204]
3. This particular fails, substantially for the reasons we have given in rejecting particular (a) of ground 1. In circumstances where:

(1) there was no doubt that the Cryovac machine was found in the kitchen bench area;

(2) the appellant gave evidence at trial, evidently rejected by the jury, advancing an innocent explanation for the presence of the Cryovac machine; and

(3) the appellant gave no evidence, in what he said to the police or at trial, and has not sought to adduce evidence on appeal, that the scales were not in the area of the kitchen bench,

there is no reason to suppose that exploration, by the appellant's counsel at trial, of the precise location of these items would have materially advanced the defence case.

Particular (e): failing to examine or cross‑examine any of the witnesses regarding the appellant's conduct during the search of unit 57

1. The appellant submits that it was 'available' to be put to the jury that the demeanour and behaviour of the appellant during the search of unit 57 was that of someone who did not honestly know what was in unit 57.[205] The appellant submits that, to properly support this submission, it would have been necessary for trial counsel to either ask the appellant about his behaviour during the search, or to ask the police officers about it, or both.[206] The appellant complains that his trial counsel's failure to examine, cross‑examine or re‑examine the witnesses on this issue 'severely prejudiced' the appellant's defence that he had no knowledge of the drugs in unit 57.[207]
2. These submissions are wholly without merit. In our view, having watched the search video of unit 57, a choice by the appellant's counsel to ask the police officers for their views as to the appellant's state of mind, based on his demeanour, would have been both impermissible and ill‑advised. It would have been impermissible because it would have invited the witness to speculate as to another person's state of mind. It would have been, to say the least, ill‑advised because, in our view, it would have been far more likely to elicit an unfavourable response than a favourable one. Counsel's approach in not examining or cross‑examining witnesses did not prejudice the defence. To the contrary, it was the appropriate approach.
3. For the above reasons, there is no merit in any of the complaints, individually or taken together, made in the particulars of ground 3. We would refuse leave to appeal in respect of it.

1. For the above reasons, each of the three grounds of appeal against conviction is without merit. We would make the following orders:
   1. Leave to appeal on each of grounds 1, 2 and 3 is refused.
   2. The appeal is dismissed.
2. That brings us to the appeal against sentence.

1. The judge made the following findings of fact as to the circumstances of the appellant's offending, reflecting the State case at trial. In his appeal against sentence, the appellant does not challenge any of these findings.
2. At the time of the offending, the appellant lived at unit 3. He also owned unit 56 and had access to unit 57 which adjoins unit 56.[208]
3. On 29 July 2016, police executed a search warrant at unit 56. The appellant was in the bedroom, with a woman, when police forced entry into the unit. Police found various items of drug paraphernalia, including glass smoking implements with detectable traces of methylamphetamine, a Cryovac machine, electronic scales and six mobile phones.[209] The appellant was holding $2,950 cash (count 1) and a further $1,270 cash was found (count 2).[210]
4. The appellant had a key to unit 57. He regularly accessed that unit. The power for unit 57 ran from the power for unit 56 through cables which the appellant admitted he had arranged to be installed.[211] In searching unit 57, police found:

(2) clipseal bags containing a total of 12.91 g of cocaine, of which 10.7 g had a purity of 21% and 2.21 g had a purity of 23% (count 6);

(3) a total of 20.91 g of MDMA in both pill and powder form, of which 13.8 g, in pill form, had a purity of 15%; 2.11 g in powder form had a purity of 70%, and 2.32 g in pill form had a purity of 11% (count 4);

(5) clipseal bags containing a total of 10.66 g of methylamphetamine of which 10.6 g had a purity of 48% (count 7).[212]

1. The appellant and the co‑accused were the only persons with access to unit 57. Both accused used both units to deal in prohibited drugs, including packaging and storing drugs for sale, as evidenced by the paraphernalia found including clipseal bags, vacuum‑seal bags, a vacuum‑sealing machine, multiple mobile phones, scales, 22.2 g of cutting agent and cash.[213]
2. Both offenders were in joint possession of the drugs and the $20,000 cash found in unit 57. The $20,000 cash the subject of count 3 was the proceeds from their joint drug‑dealing activities together.[214] The cash the subject of counts 1 and 2 was also proceeds from the appellant's drug‑dealing activities.[215]
3. The appellant was a principal in the drug‑dealing activities, equally as involved as the co‑accused, and not simply an accessory to the co‑accused's offending.[216]
4. The appellant was dealing for commercial purposes beyond simply funding his own drug habit. The principal purpose of the operation was to make money.[217]
5. The offending was not isolated or one‑off. It occurred in the context of drug dealing over a period of time.[218]

1. At the time of sentencing the appellant was aged 39. He came to Australia with his family in 1982, aged 4. He grew up in a supportive family.[219]
2. At the time of the offending, the appellant was married, but, by the time of sentencing, was in another relationship. He has a young child with his former wife.[220]
3. The appellant attended the same high school as the co‑accused. After completing year 12, he worked in his parents' bakery businesses, working long hours.[221]
4. The appellant commenced using methylamphetamine to help cope with his long hours of work.[222]
5. The appellant was convicted of drug offending in 2001 and 2002 and sentenced to a term of imprisonment.[223]
6. Upon his release from prison in 2004, the appellant returned to work at his parents' bakery. In about 2008, with the assistance of his parents, the appellant bought a pizza business. He later opened a second pizza shop and bought a third business.[224]
7. In the period of 2015 to 2016, the appellant's pizza businesses had financial problems, culminating in a significant debt to the ATO. The businesses went into voluntary administration.[225]

1. Given the sole ground of appeal asserts implied error, it is not necessary to detail his Honour's careful and comprehensive sentencing remarks.
2. The judge found that the appellant was involved in at least the mid-level of the drug distribution chain.[226]
3. The judge identified the importance of general deterrence in sentencing for offences of the kind of which the appellant had been convicted.[227] He observed the consequence that mitigating circumstances personal to the offender carried less weight than might otherwise be the case, although they were not irrelevant.[228]
4. The judge also observed that the appellant's previous offending for drug offences, the subject of his admissions under s 32 of the Evidence Act, meant that personal deterrence was of significant weight in the sentencing process.[229]
5. The judge noted that counsel had accepted that only terms of immediate imprisonment were appropriate, given the seriousness of the appellant's offending. The judge observed that this was an appropriate concession.[230]
6. The judge imposed the following sentences:
   • Count 1 - 12 months' imprisonment
   • Count 2 - 12 months' imprisonment
   • Count 3 - 20 months' imprisonment
   • Count 4 - 2 years 2 months' immediate imprisonment
   • Count 5 - 9 months' immediate imprisonment
   • Count 6 - 2 years' immediate imprisonment, reduced to 11 months for totality reasons
   • Count 7 - 2 years 2 months' immediate imprisonment
7. The judge referred to the totality principle, concluding that a total effective sentence of 5 years 3 months' appropriately reflected the appellant's overall criminality in committing the offences, having regard to all the relevant circumstances, including the need for the protection of the public and the need for punishment and personal and general deterrence.[231] He therefore reduced the sentence on count 6, the cocaine offence, to 11 months' imprisonment, and ordered that the sentences imposed on counts 4 and 6 be served cumulatively on each other, and cumulatively upon the sentence imposed on count 7. The remaining sentences, for counts 1, 2, 3 and 5, were to be served concurrently with each other and with the sentence imposed on count 7.[232]
8. The judge ordered that the commencement of the term of imprisonment be backdated to 16 March 2018, and made an order that the appellant be eligible for parole.[233]

1. The appellant appeals on the sole ground that the judge erred in imposing a sentence that offended the first limb of the totality principle. The ground contains two particulars. The first asserts that the judge erred in ordering counts 4, 6 and 7 to be served cumulatively on each other. The second asserts error in the total effective sentence of 5 years 3 months.
2. The appellant does not challenge the length of the individual sentences on each count.[234]
3. The appellant submits that the facts and circumstances of each count were similar and points to the fact that all of the drugs were found in one location, namely unit 57, on the occasion of a single search.[235] He submits that, while some cumulacy was appropriate, it was 'open' to the judge to consider making only count 7 cumulative.[236] He submits that, in making the sentences on counts 4, 6 and 7 cumulative on each other, and in imposing a sentence of 5 years 3 months, the judge 'erred in taking into proper consideration the "one transaction" rule'.[237]
4. In written submissions, the appellant asserted that, in imposing a sentence of 5 years 3 months, the sentencing judge imposed a sentence that was 'well outside' the range of sentences imposed or upheld on appeal for similar types of offending.[238] However, in oral submissions, the appellant's counsel contended that the comparable cases were distinguishable and so did not provide positive support for the sentence imposed.[239] In so contending, counsel, in effect, accepted that the comparable cases provide no support for the appellant's assertion that his sentence reveals implied error. In our view, counsel was right to do so. Consequently, it is not necessary to say anything concerning comparable cases.

1. The general principles applicable to an appeal against sentence on the ground of implied error are well‑established and need not be repeated.[240] The appellant has fallen well short of establishing that his total effective sentence of 5 years 3 months' imprisonment is so high as to reveal implied error.
2. Insofar as the appellant invokes the 'one transaction rule', that so‑called 'rule' does not assist him. As is well‑established, the one transaction rule is no more than a rule of thumb designed to assist judges to ensure that the total sentence imposed for offences which occur close in time or in a spree is proportionate to the offender's overall criminality.[241] The real question is whether the total sentence properly reflects the overall criminality of the offender's offending, having regard to all of its circumstances and the offender's personal circumstances.[242]
3. One indication of the seriousness of the appellant's offending is the maximum sentence for the offences he committed. His four offences of possession of a prohibited drug with intent to sell or supply each carried a maximum of 25 years' imprisonment.[243] His offences of possessing property reasonably suspected to have been unlawfully obtained each carried a maximum of 7 years' imprisonment.[244]
4. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing within the particular organisation or generally, and whether the offending was committed for commercial gain. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[245]
5. Serious features of the appellant's offending included the following:

(1) He was in possession, for the purposes of dealing, of four different serious illicit drugs, namely methylamphetamine, cocaine, MDMA and MDA. Some accumulation of individual sentences was an appropriate reflection of this feature of the appellant's offending.

(2) He was a principal offender in a drug‑dealing operation.

(3) The appellant was at least mid‑level in the drug distribution chain. The principal purpose of his drug dealing was to make money.

(4) The substantial sums of cash, the subject of the three counts of possessing property reasonably suspected to be unlawfully obtained, were the proceeds of his drug dealing. While the judge ordered the terms on those counts to be served concurrently, they reflected additional criminality that bears on the totality evaluation.

(5) The appellant's offending was not an isolated incident; the appellant had been selling or supplying drugs over a period of time.

1. Personal deterrence was a significant factor in the sentencing process, given the appellant's criminal record, which included eleven convictions in the District Court for drug offences.
2. There was little in the way of mitigation. The appellant was convicted after trial and did not demonstrate any remorse. He did not have the mitigating benefit of youth. As we have said, he did not have prior good character, given his previous convictions.
3. In all these circumstances, in our view, the total effective sentence of 5 years 3 months' imprisonment was well within the range of sentences reflecting the overall criminality of the appellant's offending in its circumstances and in light of his personal circumstances.
4. We would refuse leave to appeal on the sole ground of appeal against sentence. Consequently, the appeal must be dismissed.

1. For the above reasons, we would make orders as follows.
2. On the conviction appeal:
   1. Leave to appeal on each of grounds 1, 2 and 3 is refused.
   2. The appeal is dismissed.
3. On the sentence appeal:
   1. Leave to appeal on ground 1 is refused.
   2. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[32] ts 67 - 69, 217 - 218; BGAB 124 - 126.

[34] ts of closing addresses 17 - 18; ts 407, 408, 410, 411 - 412, 421 - 422, 443, 454. See also ts 427.

[35] ts of closing addresses 25; ts 407, 408, 410, 411 - 412, 421 - 422, 443, 454. See also ts 427.

[36] ts of closing addresses 24 - 25, 32.

[37] ts of closing submissions 31 - 32; ts 423.

[38] Dr Broom's evidence related to the case against the co‑accused and so it is not necessary to say anything further about it.

[41] Including at ts 89 - 90, 91 - 92, 95, 99 - 106.

[42] Exhibit 1.1, ts 85 - 86; exhibit 1.2, ts 95; exhibit 1.3, ts 108.

[52] Exhibit 10.1 - 10.4, BGAB 49 - 52.

[54] See exhibit 10.1, 10.4, BGAB 49, 52.

[56] ts 107, MFI 6.1 - 6.3; BGAB 34 - 48.

[68] ts 303; see also ts 317 - 318, 361.

[77] Including cash deposits shown in exhibit 21, BGAB 69 - 92; ts 305 - 308, 357 - 358, 422.

[122] Orders of Mazza JA, 25 January 2019.

[123] At the appeal hearing, counsel for the appellant applied for, and was granted, leave to amend ground 1 in such terms: appeal ts 10 - 11.

[126] Appellant's submissions [2], referring to ts 59. The appellant also refers to another passage at ts 62 but this is a reference to things found in unit 57.

[127] WAB 26, appeal ts 12 - 15, referring to exhibit 1.1 at 3:48 - 3:51, 4:20, 9:38 - 9:40, 13:49 - 14:17, 16:04.

[128] Appellant's submissions [8] - [9].

[129] Appellant's submissions [8], appeal ts 14, referring to exhibit 1.1 at 13:49.

[130] Exhibit 1.1 at 15:21 - 15:44; unedited search video ts 17.

[132] Appellant's submissions [10], [13], [61].

[133] ts 171 - 172. See [32] above.

[134] ts 371. See [40] above.

[137] Exhibit 10.1, BGAB 49; exhibit 10.2, BGAB 50.

[138] Exhibit 10.1, BGAB 49; exhibit 10.3, BGAB 51.

[139] Exhibit 10.1, BGAB 49; exhibit 10.3, BGAB 51.

[141] Exhibit 10.1, BGAB 49; exhibit 10.4, BGAB 52.

[142] Exhibit 1.1 at 3:49 - 3:51, 13:50 - 14:17.

[143] Exhibit 1.1 at 3:49 - 3:51, 4:23 - 4:24.

[145] Exhibit 1.1 at 3:48 - 3:51, 4:23 - 4:24, 13:49 - 14:17.

[146] Exhibit 1.1 at 16.04 and following.

[149] Appellant's submissions [19]; appeal ts 20, 24.

[150] Appellant's submissions [17] ‑ [19].

[151] Appellant's submissions [20] ‑ [24].

[152] Appellant's submissions [20], [62].

[153] Appellant's submissions [23], referring to ts 246.

[156] ts 205. See [35] above.

[160] ts of closing addresses 18 - 19.

[161] ts 422. See [52](2) above.

[165] Appellant's submissions [31], [32]. See also appellant's submissions [27].

[167] Appellant's submissions [34] ‑ [41]; appeal ts 21 - 23.

[170] Appellant's submissions [67]. See also appellant's submissions [42].

[172] Appellant's submissions [68]. See also appellant's submissions [45].

[173] Appellant's submissions [69]. See also appellant's submissions [46].

[174] Appellant's submissions [46] - [48].

[175] Appellant's submissions [72], [74], [81] - [83].

[176] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 331 - 332; Huggins v The State of Western Australia [2018] WASCA 61 [681].

[177] ts 422. See [52] above.

[178] See, for example, ts of closing addresses 6 - 8.

[179] ts 370. See [40] above.

[181] Appellant's submissions fn 78; respondent's submissions [40].

[183] Appellant's submissions [89]. Beyond this, the appellant's submissions on this particular did not refer further to Detective Callisto.

[184] Appellant's submissions [104].

[186] Appellant's submissions [101], [105] - [106].

[187] Appellant's submissions [101], [106], referring to ts 205. See [54] above.

[189] Appellant's submissions [96]. See also appellant's submissions [105].

[190] Appellant's submissions [96]. See also appellant's submissions [93] - [95], referring to ts 246.

[191] Appellant's submissions [105], referring to R v Birks (1990) 19 NSWLR 677.

[192] See [35] above.

[193] Appellant's submissions [107], [115]; appeal ts 16 - 17.

[194] Appellant's submissions [109]. See also appeal ts 16 - 17.

[195] Appellant's submissions [108].

[196] Appellant's submissions [110].

[197] Appellant's submissions [111] - [112].

[198] Appeal ts 16, 17. See also appellant's submissions [116].

[199] Unedited search video ts 17. See also unedited search video ts 31.

[200] ts 165 - 166. See [29] above.

[202] Appellant's submissions [117].

[203] Appellant's submissions [118] - [120], [122]. See also appeal ts 15.

[204] Appellant's submissions [121], [123]. See also appeal ts 16, 17.

[205] Appellant's submissions [134].

[206] Appellant's submissions [135].

[207] Appellant's submissions [136].

[234] Appellant's submissions [10]; appeal ts 42.

[235] Appellant's submissions [11], [13].

[240] See, for example, Salkilld v The State of Western Australia [2017] WASCA 168 [48].

[241] Salkilld [84] and cases there cited.

[242] Salkilld [84] and cases there cited.

[243] Misuse of Drugs Act 1987 (WA), s 34(1)(aa).

[245] Gaskell v The State of Western Australia [2018] WASCA 8 [128].