1. The Misuse of Drugs Act, s 3, defines trafficking in the following terms:

"traffic, in relation to a controlled substance, includes -

(a) sell the substance; and

(b) prepare the substance for supply with the intention of selling it or in the belief that another person intends to sell it; and

(c) transport the substance with the intention of selling it or in the belief that another person intends to sell it; and

(d) guard or conceal the substance with the intention of selling it or in the belief that another person intends to sell it; and

(e) possess the substance with the intention of selling it; and

(f) import the substance into Tasmania with the intention of selling it or in the belief that another person intends to sell it."

1. There was no issue at trial that N-ethylpentylone, 1,4-Butanediol, MDMA, methylamphetamine and cocaine were controlled drugs. It was an agreed fact that N-ethylpentylone was an analogue of pentylone and thus a controlled drug by operation of the Act, Schedule 1, Pt I, 1(c)(vi) and Pt 2 Item 29AA. A controlled drug is a controlled substance by virtue of the definition in s 3.
2. For each count, the prosecution was effectively required to prove beyond reasonable doubt that the appellant was in possession of the controlled substance the subject of that count. In the circumstances of this case, the allegations of preparing for supply and guarding or concealing both necessarily involved the assertion that the accused knew about, and exercised some control over, the substances. As to the concept of possession, the trial judge directed the jury that a person is in possession of property "if he or she has it within his or her power, disposition or control", and that unless it was proved that the accused knew about an item he could not have been in possession of it. Thus, on whichever basis the accused was found guilty of trafficking, the jury must have been satisfied beyond reasonable doubt for each count that the accused knew of, and exercised some control over, the controlled drugs which he had told the police were not his and did not know about.
3. The trial judge correctly directed the jury that, for count one on the indictment, s 12(2) of the Act applied when it came to consider whether the appellant had the requisite intention or belief concerning the controlled substance in his possession. The provision read:

"(2) If it is proved in proceedings for an offence under subsection (1) that the accused -

(a) prepared a trafficable quantity of a controlled substance for supply; or

(b) transported a trafficable quantity of a controlled substance; or

(c) guarded or concealed a trafficable quantity of a controlled substance; or

(d) possessed a trafficable quantity of a controlled substance; or

(e) imported a trafficable quantity of a controlled substance into Tasmania -

it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled substance required to constitute the offence."

1. The only drug found in a trafficable quantity was N-ethylpentylone. A trafficable quantity of that drug was a quantity of not less than 25 grams: the Act, s 3A(1)(a), and Sch1, Pt 2, item 29AA. The total quantity found during the search was 30.1 grams. As a result, for count one, it was for the prosecution to prove beyond reasonable doubt that the appellant prepared the N-ethylpentylone for supply, guarded or concealed it or possessed it. If the jury was satisfied of one or more of those things, then s 12(2) operated to create a presumption that the appellant had the relevant intention or belief concerning the sale of the drug unless he proved otherwise on the balance of probabilities. Thus, for that count, it followed from the verdict that the jury was satisfied beyond reasonable doubt that the appellant either prepared for supply, guarded or concealed or possessed the N-ethylpentylone and that the appellant failed to displace the presumption that he had the relevant intention or belief.
2. None of the drugs 1,4-Butanediol, MDMA, methylamphetamine and cocaine were found in a trafficable quantity. As a result, for counts 2 and 3 on the indictment the prosecution carried the onus of establishing every element of the charge. That meant that, for 1,4-Butanediol for count two and one or more of MDMA, methylamphetamine and cocaine for count three, the prosecution was required to establish not only that the appellant either prepared the drug for supply, guarded or concealed it or possessed it, but also that he did so with the required intention or belief notwithstanding that he was in possession of less than a trafficable quantity. It followed from the verdicts on each of those counts that the jury was satisfied of both elements beyond reasonable doubt. In light of those verdicts, it would be difficult to accept that the verdict on count one would have been any different even if the presumption had not applied.
3. The case against the appellant that he had possession of the controlled substances, and for counts 2 and 3 that he had the relevant intention or belief, was a circumstantial one. The jury was required to assess the credibility of the account given by the appellant during his interview. Otherwise, the prosecution case depended entirely on drawing an inference of guilt from the largely uncontroversial evidence of the results of the search. Thus, subject to operation of the presumption for count 1, the prosecution bore the onus of establishing, for each count, that the circumstances were inconsistent with any reasonable hypothesis other than the guilt of the accused. The learned trial judge did not give a circumstantial evidence direction in the conventional sense. However, a number of relevant directions were given which, in my respectful view, were sufficient. Her Honour directed the jury that the prosecution bore the onus of proof of the charges beyond reasonable doubt. In the context of giving a direction about the drawing of inferences, her Honour directed the jury to examine with care any possible inference to ensure that the inference was justifiable and logical, and continued:

"Importantly, you should not draw an inference from direct evidence that supports the guilt of the accused unless it is the only rational inference available to you in the circumstances."

1. The jury was directed to consider each count on the indictment separately, although her Honour noted that much of the evidence was relevant to all counts. The trial judge continued by indicating:

"It's not a situation where you look at the first and say, for example, I'm satisfied beyond reasonable doubt. They've proved that one, therefor he must be guilty of all of them. That would be a most erroneous approach."

1. The trial judge reminded the jury, in particular about count 1, that the defence case was that the appellant "knew nothing about it", and "if he knew nothing about it, if he didn't know it was there, he can't possibly be in possession of it." Her Honour then continued:

"And that will be a matter for you to consider, whether you are satisfied beyond reasonable doubt that the State have (sic) proven he was in possession of it, or is it a reasonable possibility that you can't exclude, that he did not know anything about it and therefor was not in possession of it."

1. The jury could have been left in no doubt that if it considered that there was a reasonable possibility, for each count considered separately, that the appellant did not know about the controlled substance or substances, the appellant was to be acquitted. Similarly, for the second and third counts, if there was a reasonable possibility that the appellant did not intend to sell at least some of the drug or drugs to which those counts related, the appellant was to be acquitted.

1. This ground of appeal concerns the conduct of the appellant's trial counsel, Mr Callum Purcell. The appellant's principal contentions are that Mr Purcell failed to comply with his instruction to call, and adduce evidence from, defence witnesses, and wrongly refused to accept that the appellant terminated his instructions during the trial. The appellant, on this appeal, does not complain about the decision that he would not give evidence himself. He accepted that his instructions to Mr Purcell, at trial, were that he would rely on the account he gave in his police interview.
2. The appellant also makes a secondary contention that Mr Purcell failed to sufficiently challenge aspects of the circumstantial evidence adduced by the prosecution.
3. As will be further explained, a contention that a conviction should be set aside on the ground that trial counsel acted incompetently or contrary to instructions will not, of itself, attract appellate intervention: R v Birks (1990) 19 NSWLR 677 at 684; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 per McHugh J at [196], Macartney v R [2006] WASCA 29; 31 WAR 416. The onus is upon the appellant to establish that "on any ground whatsoever there was a miscarriage of justice": the Code, s 402(1). The appellant must establish a deficiency or conduct which resulted in a miscarriage of justice: TKJW v The Queen [2002] HCA 46; (2002) 212 CLR 124 per McHugh J at 149 [79]. The question of whether a miscarriage of justice has occurred raises two issues: did counsel's conduct result in a material irregularity in the trial and, if so, is there a significant possibility that the irregularity affected the outcome: TKWJ per McHugh J at [79]; Ali v The Queen [2005] HCA 8; 214 ALR 1 per Hayne J at [18].
4. The first issues for determination are whether the appellant has established that Mr Purcell did refuse to follow instructions or refuse to accept that his instructions were withdrawn and allow the appellant to represent himself. They are questions which require findings about disputed questions of fact. To enable determination of those contentious factual issues this Court exercised the power to receive evidence: the Code, s 409(1)(c). The appellant gave evidence and was cross examined. He also tendered a statutory declaration made by his son, on 6 September 2024, and called evidence from a witness, Tayla Colbeck. The respondent adduced evidence from Mr Purcell.
5. The appellant's evidence to this Court, part of which emerged under cross-examination, was that the drugs found in the hollowed out rock near the water feature, N-ethylpentylone and MDMA, belonged to a man named Luke Jackson. The appellant told the police in his interview in 2023 that he did not know about those drugs. However, in his evidence, the appellant admitted that what he told the police was not completely true. He admitted that Mr Jackson had "showed [the drug] to me and we'd had some of it", but he gave a different version to the police because he did not want to "dob anyone in". However, the appellant claimed that he did not know that Mr Jackson, after he had gone to live somewhere else, had "stashed them there, in my property". According to the appellant, it was the N-ethylpentylone he thought he was "in trouble for", and so in 2020, soon after the raid, he had Mr Jackson prepare a statutory declaration accepting responsibility for the drugs in that sealed bag. At the time, he said, Mr Jackson was on the run from the police and was going to be "hard to find." After having obtained the statement from Mr Jackson he gave it to the lawyer who first acted for him, Stephen Wright. He asked Mr Wright "if I could just give it to the police", presumably to persuade the police to not proceed with the charge against him, but Mr Wright told him "we had to wait till court."
6. Mr Wright ceased acting for the appellant in circumstances which were not fully explained by the evidence. Another lawyer, Fabiano Cangelosi, was engaged. Mr Cangelosi was based in Hobart. Then, in 2023, not long before the trial of the charges against the appellant was due to commence, Mr Purcell was engaged after Mr Cangelosi, according to the appellant, told him that he "didn't want to travel". The appellant met with Mr Purcell in his office in Devonport. The appellant's account of that meeting was that he told Mr Purcell about Luke Jackson. He said that he instructed Mr Purcell that, by then, Mr Jackson was in prison in Tasmania, that "he'd done a statutory declaration that was given to Stephen Wright in Burnie when the charges first happened", and that the appellant "wanted him as a witness". The appellant had not kept a copy of Mr Jackson's 2020 statement, but he understood Mr Purcell had asked for Mr Cangelosi's file and expected Mr Jackson's statement was on it. He thought that was important because "that was the spot that I thought I was in trouble for".
7. According to the appellant, by the time of the trial, when he knew that he was being charged not only for the drugs in the hollow rock which he said belonged to Mr Jackson, but in respect to all of the drugs found at his home, he told Mr Purcell about other witnesses. He said he instructed Mr Purcell that he wanted to call the other persons who would accept responsibility for the drugs which belonged to them, who were all willing to "come to court and claim theirs". He claimed he instructed Mr Purcell that he wished to call "everybody that had drugs there", which included Adrian Wood, Renee Davey, Taylor Colbeck, Amy McDermott and Jed McDermott, as well as Mr Jackson. He said that he gave Mr Purcell a copy of the "drugs sheet", referring to the drug exhibit list provided by the police, with notes identifying which drugs the proposed witnesses agreed they owned. The appellant's evidence was that, at the start of the trial, "we were having my witnesses", and Mr Purcell, on the first day of the trial said "we would have my witnesses" after the prosecution witnesses. Then, however, on the second day, Mr Purcell "threatened to quit if we had my witnesses" and "wasn't interested" in having them. With particular reference to Mr Jackson the appellant's evidence continued:

"I wanted him as a witness and - and then Mr Purcell said he didn't - he wanted to have the last say and didn't want witnesses, and we couldn't agree on that. Mr Purcell wanted to say Mr Nobody put it there and I didn't know who it was, whereas I did know who it was and the person who put it there admits that they did. I couldn't understand why - it wasn't a better way to go in court."

1. The appellant's evidence was that Mr Purcell then threatened to quit if he insisted on "having [his] witnesses":

"And on the second day, he said he'd quit if he had my - if I insisted on having my witnesses. The judge - Judge Jago had already growled at me for not having a lawyer. Um, so, I didn't want him to quit, but by the end of the second day, that was around dinnertime that that meeting happened, and by the end of the second day, I said, "Maybe you should quit, mate, 'cause I think - I think I'd rather have my witnesses." You know."

1. Although the appellant was not entirely sure about when the conversations with Mr Purcell took place, he thought the first exchange about Mr Purcell quitting as his counsel occurred in the middle of the second day of the trial, Wednesday 13 September 2023. When it was suggested to the appellant in cross examination that he agreed with Mr Purcell that the witnesses would not be called, the appellant said that he did "agree with [Mr Purcell] for that afternoon, and went along with it", but by the end of the afternoon he had changed his mind and said that "he should put them", by which he meant that he still thought that the witnesses should be called. Each time he raised the suggestion, he said, Mr Purcell responded to the effect that "he wanted to have the last say and thought that was more important than the people that owned it saying they owned it". The appellant accepted that he knew about the right of "last say" from his experience of, and advice from another lawyer during, a different trial.
2. The appellant's evidence was that even though he had told Mr Purcell at the end of the second day of the trial that he should quit, Mr Purcell arrived at Court the following morning and told him that he "couldn't sack him at that stage of the trial." That passage of the appellant's evidence reads:

"... I sort of said, 'Why - why are you here, you' - because the night before - at the end of the night before I - we sort of - I thought we agreed to part company, but, um, he said I couldn't sack him at that stage of the trial."

1. According to the appellant he did not know what to do. During a break he tried to have a security guard get a message to the judge but that person reported back to Mr Purcell. He said Mr Purcell "came out and reiterated that we couldn't sack him at that stage", and that this was said in the presence of the appellant's partner Amy McNulty and his son. He said "Amy ended up emailing the judge's assistant". The appellant was asked during cross-examination why "didn't you just put your hand up and say [to the judge], I want to sack my lawyer". He answered "I've never done that before. I've never seen it done before." He could not remember being asked the question in Court at the close of the prosecution evidence whether he intended to give or adduce evidence, or what his answer was.
2. The appellant relied upon a statutory declaration made by his son on 6 September 2024. None of the contents were disputed by the respondent. It is relatively brief and may conveniently be set out in full. The appellant's son declared:

"...on one of the days of my dad's trial I attended court with him and his partner Amy. Callum Purcell his lawyer said he won't be using dad's witnesses so he could have last say not the prosecution and it was too late in the trial to seek other legal advice. These conversations took place in the small private room off the court room and in the waiting area."

1. The appellant adduced evidence from a witness, Tayla Colbeck. She claimed that the plastic container in the refrigerator which contained about 4 millilitres of 1,4-Butanediol, which she called liquid G, was hers. She said that she paid about $15 per millilitre for it. The purchase was organised by her friend and the drug was delivered to the appellant's house by "a man" she did not identify. When cross-examined she agreed that she was not present at the time of the police raid. She did not tell anyone at that time that the container was hers but said that if she had been asked she would have. She made a short statutory declaration admitting ownership of the four millilitres of that drug but agreed that the appellant did not ever tell her to go to his lawyer or the police to tell them about it, and did not ever ask her to go to court to give evidence.
2. Before referring to Mr Purcell's evidence reference should be made to what the material before this Court reveals about the course of the trial. The trial began on Tuesday, 12 September 2023. The prosecution evidence continued through 13 September and for most of 14 September. As soon as the Court convened on Thursday, 14 September, Mr Purcell asked the trial judge, in the absence of the jury, to allow him time to speak to the appellant "prior to the election being made". He foreshadowed that he anticipated that then "the election can be made and then closings tomorrow and then finalise at that stage." The prosecution case did not then conclude until towards the end of that day. During the day, the jury heard evidence from Detective Sergeant Jennifer Hawkins, and from the two scientists Mr McLachlan-Troup and Dr Griffiths. The final piece of evidence was the playing of the audio visual recording of the appellant's police interview.
3. At the conclusion of the prosecution case, the following exchanges occurred between the trial judge and Mr Purcell, in the presence of the appellant and the jury:

"HER HONOUR: Thank you. Are you in a position to have the election put Mr Purcell?

MR PURCELL: Your Honour, if I may just have a moment. It would only be five minutes.

HER HONOUR: All right. Ladies and gentlemen that's all of the evidence that the State intend to put before you. Very shortly we'll turn and find out what the accused seeks to do but I'm just going to give Mr Purcell five minutes, I'll ask you to just step into the jury room for a moment, please."

1. Then, when the Court reconvened, the transcript records:

HER HONOUR: Right, thank you, ladies and gentlemen. My associate will put the question to the accused, but it's customary that his counsel answers it for him.

HER HONOUR: The accused will not give nor adduce evidence.

THE ACCUSED INDICATED THAT HE WOULD NEITHER GIVE NOR ADDUCE EVIDENCE".

1. It can be seen from the foregoing that, when the accused was asked whether he would give or adduce evidence, the accused answered for himself "No, thank you, your Honour", despite having heard the trial judge say to the jury that it was customary for his counsel to answer for him. In his evidence before this Court he claimed that he did not, at the time, properly understand what he was being asked.
2. On 14 September 2023, after the appellant was put to his election, the jury was sent away until the following day. Before the Court was adjourned, in the presence of the appellant, counsel and the trial judge spent time addressing the terms of the draft memorandum to the jury her Honour had prepared, and making submissions about other possible directions to the jury. The trial resumed on Friday, 15 September 2023 when the jury heard closing addresses, first from counsel for the prosecution and then from defence counsel, before her Honour summed up.
3. Mr Purcell had a substantially different account of these events. His evidence was that the appellant contacted his office in August 2023 to arrange an appointment. Before meeting with the appellant Mr Purcell contacted the prosecuting authority and was informed that the trial was listed in the very near future. He sought and obtained an agreement that the trial would be adjourned for about a month and was provided with some disclosure from the police and a copy of the Crown papers. His first meeting with the appellant took place at Mr Purcell's office, but not until after he had reviewed the material he had been given, including a transcript of the appellant's police interview. During the meeting, according to Mr Purcell, he reminded the appellant of what he had told the police during the interview and they discussed how the charges could be defended. At the conclusion of the meeting Mr Purcell recommended that the appellant maintain his plea of not guilty to each charge on the basis that "he did not have possession of the drugs", relying also on evidence from the police and from the appellant's police interview of "a number of people attending the residence", which might explain the presence of the drugs. According to Mr Purcell, the appellant confirmed his instructions to defend the charges on that basis. In the course of their meeting the appellant told Mr Purcell about his two previous lawyers. As a result, Mr Purcell then wrote to Mr Cangelosi with a request that he be provided with the file, but he did not receive a response. According to Mr Purcell, the appellant, during that first meeting, also referred to "rumours that people were storing drugs at his house", and said that he had a list of who actually owned the drugs. Mr Purcell asked the appellant to provide details of those persons and, if possible, statements from them. However, at that time, no names or contact details were given, and Mr Purcell's view was that the witnesses "were not necessary for the defence being run at that stage".
4. According to Mr Purcell, he spoke to the appellant again about the basis of the defence case prior to the start of the trial. He said that the appellant was "happy with it...given it was his defence and his record of interview". Mr Purcell's evidence was that it was not until Thursday, 14 September 2023, the third day of the trial, that the appellant said to him that he wished to call witnesses. This was said to him, he said, outside the court room during an adjournment, just before the audio visual recording of the appellant's police interview was to be played. It was then that he asked the trial judge for some time to speak with the appellant. He then met with the appellant in a small room outside court, in the presence of the appellant's son. According to Mr Purcell the appellant confirmed his instructions that he did not intend to give evidence himself. As has already been noted, no issue with that evidence is taken in this appeal. As to the suggestion that evidence should be called from other witnesses, Mr Purcell's account was as follows. He said that during that conversation the appellant gave him the names of three persons, all with the surname McDermott. The appellant also told him that there was a person in Queensland who was "on the run from the police in Queensland" who may also give evidence. None of the persons were present at the Court. He had not been given contact details of, or statements from, any of the proposed witnesses. He advised the appellant that these witnesses should not be called. He was, he said, concerned about "the issues with respect to credit and me not knowing what the persons would say in relation to the drugs and potential...of [the appellant's] knowledge in relation to the drugs". He was also concerned that if evidence was adduced on the defence case he would lose the right of last address to the jury.
5. Mr Purcell agreed that there was a discussion about whether he should withdraw and leave the appellant to proceed unrepresented. Mr Purcell said that his view at the time was that he would not be able to proceed unless his advice was followed because it was a condition of the grant of legal aid to the appellant that he follow "reasonable legal advice". According to Mr Purcell, "after considering it for a short time...[the appellant] wanted to continue with me and that he would not adduce evidence after having already...given the indication that he wouldn't be giving evidence himself."
6. Mr Purcell gave evidence that, when the guilty verdicts were returned, the appellant's partner became distraught, and the appellant commented quite openly in Court and sought to address the trial judge directly. On 20 September 2023, by which time the appellant had been remanded in custody, Mr Purcell had a further meeting with him by audio visual link for the purpose of taking instructions for sentencing submissions. The appellant sought to raise the issue of not having called the defence witnesses. When Mr Purcell informed him that "we're beyond that point now" the appellant terminated his instructions. Mr Purcell wrote a letter confirming the termination of his instructions and filed and served a notice that he had ceased to act for the appellant.
7. When cross-examined by the appellant, Mr Purcell's evidence was the he knew nothing of Luke Jackson prior to the trial and did not know that name until reading the papers prepared for this appeal. He said that he was not informed by the appellant that Mr Jackson was the person who had been "on the run in Queensland" and there was no discussion of Mr Jackson being in custody at the time of the trial. He was not told, at any stage, about any written statement made by Mr Jackson, or that Mr Cangelosi's file may contain such a statement. Although he had the police drug exhibit sheet, the appellant did not, he said, give him a version of that document annotated with the names of the people who claimed ownership of the relevant listed drugs.
8. The principles to be applied in an appeal on this ground were summarised by Porter AJ, with whom I agreed, in JAGD v Tasmania [2021] TASCCA 16; 34 Tas R 250 at [63] and [64]:

"[63] The proper approach to cases in which a miscarriage of justice is alleged to have arisen from the incompetence of counsel has been explained by the High Court in TKWJ v The Queen [2002] HCA 46, 212 CLR 124 and in Nudd v The Queen [2006] HCA 9, 80 ALJR 614.

• Incompetence of counsel is not of itself a ground of appeal, the relevant ground is whether there was a miscarriage of justice as referred to in s 402(1) of the Criminal Code: Nudd per Gleeson CJ at [2].
• The concept of a miscarriage of justice has two relevant aspects; outcome and process - different but related in the sense that due process is to secure a just result. A failure of process that departs from the essential requirements of a fair trial is a miscarriage of justice: TKWJ per McHugh J at [76]; Nudd at [3]-[7] per Gleeson CJ.
• If there has not been 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 per McHugh J at [76]; Nudd at [3]-[7] per Gleeson CJ.
• In other cases - perhaps the majority - irregular conduct of counsel will not deprive a person of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues; did counsel's conduct result in a material irregularity in the trial, and is there a significant possibility the irregularity affected the outcome?: TKWJ per McHugh J at [79]; Nudd per Gummow and Hayne JJ at [24].
• In a case of that kind, the enquiry is an objective one; the question is whether so viewed, the course taken by counsel was capable of rational justification or explanation: TKWJ per Gleeson CJ at [16], Gaudron J at [26]-[27], McHugh J at [95], Hayne J at [107]; Nudd per Gleeson CJ at [9], [16], per Callinan and Heydon JJ at [158].
• Where an applicant contends that the conduct of counsel has caused a criminal trial to miscarry, he or she carries a heavy burden: TKWJ per McHugh J at [74]. As a general rule, counsels' decisions bind the client; the party is held to the way in which counsel presented the case: TKWJ per McHugh J at [79]; Nudd per Gleeson CJ at [9]. This is so even if decisions were made without or contrary to instructions, or involve errors of judgment or even negligence: TKWJ per McHugh J at [79].
• Describing trial counsel's conduct as 'incompetent' - with or without some emphatic term like "flagrantly" - must not distract attention from the question of whether there was a miscarriage of justice. That requires a consideration of what did or did not occur at the trial, not why that situation came about. The question does not turn on adjectival classifications of competence. TKWJ per Gaudron J at [31], per McHugh J at [75], per Hayne J (with whom Gummow J agreed) at [103]; Nudd per Gleeson CJ at [8], per Gummow and Hayne JJ at [24]-[27].
• Sometimes however, a decision about whether a miscarriage of justice has occurred requires an understanding of the circumstances; this may involve an understanding about why something happened: Nudd per Gleeson CJ at [9]. (Footnotes omitted)."

1. Porter AJ's summary JAGD v Tasmania was applied by this Court in Braslin v Tasmania [2022] TASCCA 8 and Davey v Tasmania [2024] TASCCA 11. Refer also to the principles stated by Gleeson CJ in Crampton v R [2000] HCA 60; 206 CLR 161 at [15]- [19] which include the overarching social interest in the finality of criminal litigation. I would add reference to the reasons of Hayne J, with whom McHugh J agreed in Ali v R [2005] HCA 8; 214 ALR 1 at [18]:

"As McHugh J pointed out in TKWJ v The Queen, '[t]he critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred'. The conduct of counsel remains relevant as an intermediate or subsidiary issue because the issue of miscarriage of justice in a case such as the present requires consideration of the two questions which McHugh J identified in TKWJ. Did counsel's conduct result in a material irregularity in the trial? Is there a significant possibility that the irregularity affected the outcome? But the ultimate question is whether there has been a miscarriage of justice." (citations omitted)

1. In Huggins v The State of Western Australia [2018] WASCA 61 the Western Australian Court of Appeal summarised the relevant principles and stated at [376]:

"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." (citations omitted)

1. For the following reasons I am not satisfied that the appellant has demonstrated any irregularity in the conduct of the trial. The appellant has not established that Mr Purcell's conduct of the trial was in any way incompetent or contrary to the appellant's instructions. There was a rational and proper basis for Mr Purcell's decisions about the conduct of the trial, and in particular the decision about whether or not to adduce evidence from defence witnesses. I am also satisfied that Mr Purcell did not continue to act for the appellant after having had his instructions terminated. Wherever there is conflict between the evidence of Mr Purcell and the appellant, I would accept the evidence of Mr Purcell.
2. In my view, Mr Purcell's evidence was inherently more logical and plausible than the appellant's account. I believe Mr Purcell when he said that he was not given the names of contact details of any potential witnesses until the appellant, during the trial, gave him three names all with the surname McDermott. That is a detail unlikely to be remembered unless it were true. I accept Mr Purcell's evidence that he was not given a copy of the drug list annotated with the list of the supposed owners. I also regard it as entirely likely that Mr Purcell would have, when the prospect of calling witnesses was raised with him, advised the appellant against calling witnesses when there was no way of reliably knowing what any of them might have said, and when there was a distinct possibility that one or more of them may have given evidence damaging to the appellant's defence. Calling witnesses would have resulted in loss of the forensic advantage of the right of last address. None of the witnesses were present. According to the appellant he was waiting to be told when they were required, but I do not accept that to be true. To the limited extent that the evidence addresses the attendance of those witnesses at the trial the appellant's account is inconsistent with Ms Colbeck's evidence that nothing was said to her about attending court.
3. The appellant's evidence that his discussions with Mr Purcell about calling witnesses commenced prior to the trial, but that Mr Purcell altered his position on the second day, makes little sense. There is no rational explanation for such a change of view on Mr Purcell's part. Mr Purcell's version also fits more coherently with the chronology of the trial. By the middle of the second day the prosecution evidence was far from complete and the prosecution case did not close until later on the third day. It was plain from what was said by Mr Purcell to the trial judge prior to and at the conclusion of the prosecution evidence on the third day of the trial that he intended to take further instructions about the appellant's election following the close of the prosecution case. Mr Purcell's account is also more consistent with the way in which the appellant responded when the election was actually put. It is very unlikely that the appellant would have responded in that way if he was still in active disagreement with his defence counsel about the calling of witnesses. His present claim that, at the time, he did not really know what to do has a distinctly hollow ring. In all of those circumstances, I accept as true Mr Purcell's account that the appellant, after considering his position for a short time, confirmed his instructions that he would not give or adduce evidence and then made that election.
4. Even if, contrary to my finding, Mr Purcell failed to comply with an instruction to call the witnesses he referred to, no miscarriage of justice is established. The failure to call the witnesses was an apparently rational decision. Had there been an instruction to call witnesses an adjournment of the trial would almost certainly have been necessary. As has already been made clear, none of the witnesses were present at Court at the time of the trial and able to give evidence. According to the appellant, his plan, if Mr Purcell had ceased to appear for him, was to ask the trial judge for "a mistrial", a course unlikely to have been acceded to by the trial judge. On Mr Purcell's assessment, the witnesses were not necessary for the conduct of the appellant's defence. As the authorities to which I have referred make clear, it is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel.
5. Nor do I accept the appellant's evidence that he terminated Mr Purcell's instructions at the end of the second day of the trial. I would accept that there must have been, when the prospect of calling witnesses was raised by the appellant, a discussion about whether Mr Purcell should continue as his counsel. Otherwise, there would have been no need for Mr Purcell to have mentioned the condition of the appellant's grant of legal aid requiring him to follow reasonable legal advice. Nothing said by his son in his affidavit is inconsistent with Mr Purcell's account. The email from the appellant's partner which the appellant referred to as having been sent to the judge's chambers, was not in fact sent until 25 September 2023, many days after the conclusion of the trial. The appellant's evidence that Mr Purcell told him that he could not "sack him" at that stage of the trial defies logic and reason. On the view of the evidence most favourable to the appellant, he likely misunderstood what was being said to him. Be that as it may, I am satisfied that if the appellant had terminated Mr Purcell's instructions, there is no rational reason Mr Purcell would not have complied. It may have been inconvenient for the trial court, but there was no plausible explanation for why he would not have done so and he would very likely have explained the position to the trial judge. As counsel for the respondent correctly submitted, when Mr Purcell's instructions were in fact terminated on 20 September 2023, he promptly complied and ceased acting.
6. Moreover, there was no reason that the appellant, himself, could not have informed the trial judge that he no longer wished Mr Purcell to appear for him. He claimed to have attempted unsuccessfully to send a message to the judge through a security officer, but there was ample opportunity for him to raise the matter directly with the judge in Court in the absence of the jury before or immediately after he was called upon to make his election.
7. There is another even more fundamental reason why no miscarriage is demonstrated. With the exception of Ms Colbeck, none of the witnesses which the appellant claimed would have given exculpatory evidence at the trial have appeared to confirm with this Court that they would have given evidence at the trial or explain the evidence that they would have given had they been called. That failure to attend is to be understood in the context that the appellant was given notice well in advance of the appeal that the attendance of those witnesses would be necessary. Mr Jackson, Mr Wood and Renee Davey-Linklater each swore affidavits in the appeal proceedings but none appeared. The appellant informed this Court that Mr Jackson had, shortly before the hearing, agreed to attend but failed to do so. No explanation for the absence of Mr Wood and Ms Davey-Linklater, or any of the other persons named by the appellant, was offered. In the absence of that evidence there is no basis upon which it could be established that the failure to call any of those persons to give evidence at the trial affected the outcome of the trial.
8. The principles to be applied to an appeal based on the conduct of trial counsel also put an end to the other complaints which the appellant now seeks to advance about Mr Purcell's conduct of the trial. The appellant made clear that these matters were subsidiary to his principal argument about the failure to call witnesses, but nevertheless he asserted that during the trial he handed notes to Mr Purcell about matters raised by the prosecution witnesses, but "he just wasn't interested". The appellant now claims that Mr Purcell, in his cross examination of witnesses at the trial:
   • failed to make sufficiently clear to the jury that the reference in the police interview to "hash" was to a pond enzyme, not a drug;
   • failed to sufficiently address with the witnesses the appellant's instructions that many of the surveillance devices described in the evidence were not operative cameras;
   • failed to make enough of his instructions that the vacuum bags containing drugs were not compatible with the vacuum sealer machine belonging to him;
   • failed to make sufficiently clear that the snap lock bags found in his desk drawer were consistent with use for storing ink in the tattoo parlour and larger than the very small bags in which some of the drugs were found, called "scam bags".
9. Mr Purcell's evidence about his treatment of the evidence complained about should be accepted. The reference to "hash" was inconsequential. His cross-examination of the police witnesses achieved the concession that the number of operative cameras, and whether some could have been sensors, was uncertain. Evidence was obtained in cross-examination that the cryovac bags found inside the shed were different to those which contained drugs and the difference was pointed out to the jury. A similar concession was obtained from the prosecution witnesses in relation to the snap lock bags. It is necessary to point out again that the basis of the defence case was that the jury could not be satisfied beyond reasonable doubt that the appellant knew of the presence of the drugs and that the possibility that they had been left in the locations in which they were found by others, could not be excluded beyond reasonable doubt. As was noted by Gleeson CJ in Ali v The Queen at [6]:

"It is not a mark of competent advocacy to pursue at trial every line or argument that can be imagined, regardless of its consistency with other arguments, and regardless of its prospects of success. On the contrary, such an approach is the hallmark of incompetence."

1. I am satisfied, considering the matter objectively, that Mr Purcell made legitimate, rational and understandable forensic decisions in relation to the evidence. The appellant has not demonstrated that he was deprived of a chance of acquittal that was fairly open to him and he is bound by the conduct of his counsel: Crampton v The Queen [2000] HCA 60; 206 CLR 161 at [18].
2. This ground of appeal is not made out.

1. The Criminal Code, s 402(1), provides that the Court "shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence." The approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; 181 CLR 487 at 493. The Court must ask itself:

"whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".

1. As explained in M, and restated in MFA v The Queen [2002] HCA 53, 213 CLR 606, and in Pell v The Queen [2020] HCA 12, 268 CLR 123 at [43], the question does not depend on whether, as a matter of law, there is evidence to support the verdict, but rather whether the evidence required the jury, acting rationally, to have entertained a doubt as to the appellant's guilt. An appellate court must conduct an independent review of the evidence, but making full allowance for advantages enjoyed by the jury, including from having seen and heard the witnesses. Because of the central role of the jury in the administration of criminal justice, this Court is not to substitute trial by an appeal court for trial by jury: R v Baden-Clay [2016] HCA 35, 258 CLR 308 at [65]- [66]. The Court must proceed on the basis that issues of credibility and reliability of oral testimony are matters primarily for the jury. The function of this Court is then to examine the record to see whether, notwithstanding that assessment, either by reason of other evidence, inconsistencies, discrepancies, or other inadequacy, the Court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt: Pell at 145 [39].
2. Of course, this ground is to be determined according to the evidence which was before the jury at the trial. As was explained in the context of the first ground of appeal, the prosecution case depended almost entirely on drawing an inference of guilt from the largely uncontroversial circumstantial evidence of the results of the search. The jury did not enjoy any particular advantage over this Court in a review of the evidence except in one important respect, in the assessment of the appellant's police interview. Having reviewed the evidence my view is that, for counts 1 and 3, the evidence did not require the jury, acting rationally, to have entertained a doubt as to the appellant's guilt and the appeal against the appellant's conviction on those two counts should be dismissed.
3. For each count it was for the prosecution to prove beyond reasonable doubt that the appellant was in possession of the controlled drugs. The drugs were found at his home. Access to the house, the shed and the back yard was monitored by cameras and a sensor activated alarm. Access to the back yard was restricted by a locked gate with spikes at the top. There was every reason to believe that the appellant knew who was coming and going from his house, even if visitors were frequent. He told the police that the water feature had only been there for six or seven months, which meant that the drugs must have been hidden within that time. There was no plausible explanation for why others would hide drugs at that house rather than keep them themselves. It defied logic that the supposed true owners of the drugs would conceal them in or around that water feature or under the hedge without the appellant's knowledge, when there was no ready access without the appellant's knowledge and permission. The packages were bound by black tape matching the tape found in the shed and outside which the appellant admitted was his. DNA with a very high grade match to the appellant's was found on bags within two of the sealed packages. The appellant had vacuum sealer machines and packaging and scales. Other drugs were found in his desk.
4. It was primarily for the jury to assess the credibility of the account given by the appellant to the police during his interview. However, I regard the account, as the jury must have, with a high degree of scepticism. The appellant's claim that the spikes on the fence which restricted access from the driveway to the back of the house were "bird spikes" was, in the context of the other security and surveillance measures in place, an unlikely explanation. The jury was entitled to reject his contention that the sealed bags in which the drugs were found were not compatible with his vacuum machine. His explanation for the substantial amount of cash found sealed in a vacuum bag was unlikely in the extreme.
5. The combined force of the circumstantial evidence gave rise to a very strong inference that the drugs were his. The jury was correct to exclude, as a reasonable and rational hypothesis, that the drugs subject to counts 1 and 3 on the indictment belonged to someone else, were hidden without the appellant's knowledge and were not in his possession.
6. Once it was proved that the N-ethylpentylone was in the appellant's possession there was little or no evidence to displace the presumption which applied to count 1 that the appellant possessed the substance intending to sell it. As to count 3, it was necessary only for the jury to be satisfied beyond reasonable doubt that the appellant intended to sell some of the methylamphetamine, cocaine or MDMA in his possession. He told the police that he used MDMA and cocaine only rarely. He was in possession of a quantity of methylamphetamine which was inconsistent with his claim to have purchased it weekly for personal use. Having regard to the quantity and value of the drugs in the appellant's possession, the manner in which the drugs were concealed, packaged and stored and all of the other circumstantial evidence, the jury was correct to exclude as a reasonable possibility, that the appellant did not intend to sell at least some, if not all, of the drugs. There was no other evidence which required the jury to have a reasonable doubt of his guilt. There is not a significant possibility that an innocent person has been convicted of either count.
7. I have reached a different conclusion in respect to count 2 on the indictment. The quantity and value of the 1,4-Butanediol found in the refrigerator in the workshop was modest to say the least. The drug was divided between three plastic containers. There was no forensic connection to the appellant. The drug was left in an obvious place and was not concealed or packaged in the same manner as the other drugs. At least four other persons were present in the direct vicinity of the place where the three containers were found when the police arrived very early that morning, the inference being that they had been occupying that area overnight. In my view, a reasonable jury could not exclude, beyond reasonable doubt, as a reasonable and rational hypothesis, that the drug belonged to one or more of those persons or another of the appellant's associates and was for personal use.

1. For those reasons I would grant leave to appeal on each count but dismiss the appeal against the convictions on counts 1 and 3. The appeal against the appellant's conviction on count 2 should be allowed, the conviction quashed and a verdict of acquittal substituted. The matter should be remitted to Jago J for re-sentence on counts 1 and 3. It will be a matter for her Honour to determine whether, and if so to what extent, the original sentence should be varied.

1. I agree with the reasons for judgment of Pearce J.