Court of Appeal (WA)|2013-02-20|Before: Lure P, Buss JA, Mazza JA

SANTOS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 39 (20 February 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SANTOS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 39

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Leave to appeal against conviction - Admissibility of evidence - Overruling pre-trial directions - Adequacy of directions - Unreasonable verdicts - Joint criminal enterprise - Disclosure - Failure to adjourn trial - Failure to order separate trials - Bias - turns on own facts

Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87

Cornell v Green 1823 WL 2195 (Pa), 10 Serg & Rawl 14

DAIR v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Evans v The State of Western Australia [2011] WASCA 182

Evans v The State of Western Australia [2012] WASCA 13

Ferris v The State of Western Australia [2007] WASCA 69

Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1

Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524

Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439

McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108

Michaels v The State of Western Australia [2009] WASCA 174

Moloney v The State of Western Australia [2006] WASCA 193

PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489

Punevski v The Queen [2000] WASCA 71

R v Carter; Ex parte Gray [1991] Tas R 174

R v Von Einem (1985) 38 SASR 207

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251

Russell v The State of Western Australia [2011] WASCA 246

Santos v The State of Western Australia [2011] WASCA 216

Scarce v Killalea [2003] WASCA 81

The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81

The State of Western Australia v Micalizzi [2010] WASCA 147

Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

White v The Queen [2006] WASCA 62

1 McLURE P: This is an application for leave to appeal against conviction. The appellant and his co-offender, Joseph Frank Micalizzi, were convicted after a trial in the District Court before Stevenson DCJ and a jury of two counts of possession of a prohibited drug with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). In broad terms, the facts are as follows.

2 The appellant piloted a light aircraft from Bankstown in New South Wales to Jandakot Airport in Perth. His only passenger was Mr Micalizzi. Shortly after landing, the aircraft was intercepted and searched by police. In a black bag in the rear cargo area of the aircraft police located approximately 9 kg of ecstasy and approximately 22 kg of methylamphetamine.

3 The appellant was found in possession of just over $9,000 in cash. He was at the time an undischarged bankrupt. He was also found to be in possession of two mobile phones which were not subscribed in his name or at addresses associated with him. The appellant told police that his passenger was on a joy flight from New South Wales to Western Australia and, although Mr Micalizzi had offered to pay for the cost of the fuel for the journey, no money had yet been paid for this purpose. The appellant also told police that he did not know the name of his passenger, that the black bag was not his and that he did not know if the passenger had any bags when he came on board the plane. There is no forensic evidence to link either the appellant or Mr Micalizzi with the bag that contained the drugs.

4 Mr Micalizzi's phone records revealed that during the flight from Bankstown to Jandakot he had been in contact with two people known as Oz and Bowa. The telephone contact between Mr Micalizzi and Oz and Bowa was prolific right up until his arrest. SMS exchanges revealed that Mr Micalizzi was to meet both Oz and Bowa in Perth upon his arrival at Jandakot Airport on 5 March 2008.

5 At the trial, propensity evidence concerning two prior drug offences committed by the appellant in 2004 and 2008 was adduced pursuant to s 31A of the Evidence Act 1906 (WA). The purpose of this evidence, in combination with other evidence, was to demonstrate that the appellant was involved in the business of drug dealing.

6 The State's primary case was that the appellant and Mr Micalizzi jointly possessed the drugs found in the aircraft and that they were transporting them from Sydney to Perth as part of a larger drug distribution enterprise.

7 The appellant's case was that he flew the aircraft without any knowledge of the drugs that were on board. The appellant did not give evidence at trial. However, he called his father who gave evidence to the effect that the appellant's lifestyle was funded by legitimate means.

8 In April 2010 Mr Micalizzi was successful in an application for separate trials. The State successfully appealed against that decision: The State of Western Australia v Micalizzi [2010] WASCA 147.

9 The trial was scheduled to commence on 2 May 2011. The appellant made a very late application for a separate trial. The application was refused and the appellant sought to appeal that decision. The appeal was dismissed on 6 May 2011 because it had not been brought within time: Santos v The State of Western Australia [2011] WASCA 216. However, the trial did not proceed as scheduled in May 2011 because of very late disclosure by police of evidentiary material. The trial resulting in the appellant's convictions commenced on 23 November 2011.

10 The appellant relies on 19 grounds of appeal. Although not legally represented, it is apparent from the Appellant's Case that it has been prepared with assistance from a person with some legal training. This court convened on 12 October 2012 to hear oral submissions from the appellant on his application for leave to appeal and a related application. At the commencement of the hearing the court dismissed the appellant's application for a 'McKenzie friend'. A McKenzie friend assists a party before a court by, for example, making notes and giving suggestions to a litigant in person but does not perform the role of an advocate or representative: Scarce v Killalea [2003] WASCA 81 [47]. The appellant was well able to put his case in the leave hearing, which was conducted on an ex parte basis.

11 The appellant contends the trial judge did not have jurisdiction or power to overrule a pre-trial decision made by Macknay AUDCJ as to the admissibility of the appellant's prior convictions under s 31A of the Evidence Act. As we shall see, the ground is misconceived because there was no relevant overruling on the subject of the appellant's prior convictions.

12 The factual background is as follows. On 24 January 2011 the State applied for leave under s 31A to adduce propensity evidence at the appellant's trial. The evidence sought to be adduced by the State comprised:

(a) all flights made by the appellant in the 12-month period preceding 5 March 2008;

(b) numerous cash payments made by the appellant in the 12-month period preceding 5 March 2008, including a $20,000 cash payment for the purchase of the aircraft and cash payments for aviation fuel in relation to the flights in question; and

(c) the appellant's convictions in the District Court of New South Wales on 15 November 2010 and 13 March 2005 in relation to drug offences committed by the appellant in 2008 and 2004 respectively.

13 In April 2011 Macknay AUDCJ ruled, relevantly, that:

(a) the 2010 drug conviction was admissible, but the State was confined to adducing evidence of the agreed facts relating to the conviction and the certificate of conviction;

(b) evidence of flights to and from Western Australia was admissible, but evidence of other flights was inadmissible;

(c) evidence of cash payments in relation to the purchase of the aircraft and flights to and from Western Australia was admissible, but evidence of other cash payments was inadmissible; and

(d) the fact of the appellant's bankruptcy was admissible.

14 Macknay AUDCJ reserved his decision on the admissibility of the 2005 conviction.

15 On 11 February 2011 the joint trial of the appellant and Mr Micalizzi was listed to start on 2 May 2011. The appellant's application for a separate trial, made on 18 April 2011, was listed for hearing on 29 April 2011. On 29 April 2011 the trial judge adjourned the application to 2 May 2011. The trial judge refused to vacate the trial date because of the lateness of the application and the need for the trial to proceed without further delay.

16 On 2 May 2011 the appellant and Mr Micalizzi were arraigned and pleaded not guilty. The trial judge then proceeded to hear argument on the appellant's application for a separate trial, which he dismissed. The trial judge also heard and, on 4 and 19 May 2011, upheld an application by the State for a reconsideration of the admissibility of evidence of all flights and cash payments made by the appellant in the 12-month period before 5 March 2008. That ruling did not cover the 2005 or 2010 convictions.

17 The appellant subsequently made an application under s 98(2)(d) of the Criminal Procedure Act 2004 (WA) (CPA) to refer a question of law to the Court of Appeal, that question being whether the trial judge had jurisdiction to 'overrule' the interlocutory decision of Macknay AUDCJ. That application came before Martino CJDC on 26 May 2011. He dismissed the application on the basis that there was no sufficient doubt about the question of jurisdiction to warrant a review by the Court of Appeal.

18 Ground 1 has no reasonable prospect of success. The trial judge's ruling did not relate to the 2005 or 2010 convictions. In any event, the jurisdiction of a judge in a criminal trial to alter or recall a prior ruling as to the admissibility of evidence, whether made by the trial judge or another judge, is well established: Rogers v The Queen (1994) 181 CLR 251, 268 - 269; Donaldson v Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [17]. The jurisdiction is not conditional on the existence of a material change in evidence or circumstances, although that will be a relevant consideration in determining whether to exercise the power. The trial judge is the person responsible for the conduct of the trial according to law, which includes ultimate responsibility for ruling on the admissibility of evidence in or out for the purpose of the trial. It cannot be the case that a provisional interlocutory ruling on the admissibility of evidence binds the trial judge even if he or she comes to the view that it is erroneous.

19 It was open to the trial judge, being the person in charge of the conduct of the trial and with full knowledge of the prosecution brief, to consider and rule on the State's further application.

20 The appellant contends that Martino CJDC erred in not referring the question of law for review by the Court of Appeal. Ground 2 also has no reasonable prospect of succeeding. There is no right of appeal from an interlocutory decision under s 98(2)(d) of the CPA. In any event, the decision not to refer the question to the Court of Appeal was clearly correct.

21 The appellant contends the trial judge erred in ruling that evidence as to the appellant's prior convictions was admissible under s 31A of the Evidence Act. It appears from the written submissions that the ground is confined to the 2005 drug conviction. However, I will deal with both convictions.

22 In May 2005 the appellant pleaded guilty in the District Court of New South Wales to a charge of cultivating a commercial quantity of cannabis for which he was sentenced to a term of 18 months periodic detention (exhibit 1). The agreed facts (exhibit 25) in relation to the offence the subject of the 2005 conviction were as follows. On 5 August 2004 New South Wales police executed a search warrant on a house at Ogunbil. They located a complex hydroponic system. Three rooms of the house contained cannabis plants at different stages in growth. These rooms all had lighting and hydroponic watering systems installed for the production of the cannabis plants. All the lighting, heating and watering systems were connected to electronic timers. Located growing in pots in one room were 183 cannabis plants. A further 153 cannabis plant stems with root systems were located in the main room. Police also seized 894 g of cannabis leaf at the house.

23 The appellant also pleaded guilty in the District Court of New South Wales to a charge that between 1 January and 8 March 2008 at Narrabri he knowingly took part in the cultivation of cannabis, being not less than a commercial quantity of 298 plants. On 16 November 2010 he was sentenced to a term of imprisonment of 2 years and 9 months. The agreed facts were that on 8 March 2008 police attended a property named 'Bimbadeen', 25 km south of Narrabri. Pursuant to a search warrant, police located in the house on the property 28 cannabis seedlings being grown hydroponically. Police located a further 270 cannabis plants being cultivated hydroponically in a shed on the property. These plants were at varying stages of maturity.

24 The appellant's defence at trial was, in broad terms, that he had no knowledge of the black bag on the aircraft and no knowledge that it contained drugs. He said he was taking Mr Micalizzi, who he did not know, on a joy flight to Western Australia in order to increase his (the appellant's) flying hours because he wanted to obtain a commercial pilot's licence.

25 Relevant agreed and uncontested facts include the following. The appellant was declared bankrupt on 21 November 2006. As at March 2008 the appellant had been unemployed for some years and had been receiving a government allowance.

26 Two mobile telephones belonging to the appellant were seized by police from his aircraft at Jandakot on 5 March 2008. The registered user details of the telephone numbers (name and address) were false and/or fictitious. The appellant was also in possession of just over $9,000 in cash.

27 The registered owner of the aircraft flown by the appellant was Santos Aviation Pty Ltd. That company was registered on 29 May 2006. The appellant was its sole shareholder. The aircraft was purchased in May 2007.

28 Bimbadeen, a 81.36 ha rural property on which the appellant and his family resided, was also purchased in May 2007. The appellant conducted the negotiations for the purchase of the aircraft and Bimbadeen. With the exception of a cash deposit of $20,000 paid by the appellant for the aircraft on 18 May 2007, both the aircraft and Bimbadeen were paid for by a friend of the appellant's father. The appellant also paid cash ($9,530) in two instalments in May and July 2007 for a shed for Bimbadeen.

29 The flights undertaken by the appellant and expenses paid by him in cash in the period March 2007 to March 2008 were agreed (exhibit 23). He had made numerous flights, including from Bankstown to Jandakot and return in April 2007, June 2007, June/August 2007 and September 2007. He had on each occasion paid cash for aviation fuel. He also paid cash for the hire of aircraft prior to the purchase of his aircraft in May 2007.

30 It is clear that the evidence relating to the 2005 and 2010 convictions was properly admissible under s 31A of the Evidence Act which provides:

31A. Propensity and relationship evidence

(1) In this section -

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

31 The proper construction of this section is uncontroversial. See, for example, Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122; VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; DAIR v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413; and PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489.

32 The only live issue in the appellant's trial was whether he was in possession of the prohibited drugs that he transported to Western Australia in his aircraft. Possession requires, inter alia, knowledge of the prohibited drugs. Knowledge is established if the appellant had a belief in the likelihood that he was transporting prohibited drugs. If in possession of the drugs, the intent to sell or supply was overwhelmingly established by the enormous quantity of drugs which he had transported to Western Australia.

33 The prosecution case on possession was circumstantial. Nevertheless it was a very strong case. The appellant was effectively caught red-handed. He had in fact transported a very large and very valuable quantity of prohibited drugs in his aircraft from Bankstown to Perth. The use of mobile phones which are not subscribed in the name or address of the user is a common feature of the modus operandi of those involved in the distribution of prohibited drugs, as is the use of cash for the payment of expenses. The appellant, an undischarged bankrupt with no objectively verifiable source of income other than a government allowance, regularly made cash payments of expenses associated with flying his aircraft, including the flight from Bankstown to Jandakot on 5 March 2008. He also made cash payments connected with the purchase of the aircraft and a shed on Bimbadeen and had just over $9,000 cash in his possession on arrival at Jandakot.

34 The appellant's explanation of the circumstances surrounding the flight stretched credulity. He did not know Mr Micalizzi or his name. He did not know how the black bag containing the prohibited drugs, which weighed about 30 kg, got onto his aircraft. Mr Micalizzi wanted to go on a one-way 'joy flight' from Bankstown to Jandakot. No money had changed hands between Mr Micalizzi and the appellant at any time before police met the aircraft at Jandakot Airport. The State relied on the convictions as part of this wider body of circumstantial evidence against the appellant.

35 For propensity evidence to be admissible pursuant to s 31A of the Evidence Act, it must satisfy the criteria set out in subsection (2)(a) and (b). The probative value of the convictions has to be assessed as part of the circumstantial evidence as a whole. It was significantly probative in two respects. First, it was capable of supporting an inference that the appellant was involved in, and financially benefited from, activities connected with the commercial distribution of prohibited drugs. Second, it was capable of completely undermining the innocent explanation of the objective facts given by the appellant.

36 With respect to the criterion set out subsection (2)(b), any risk of an unfair trial was obviated by the directions given by his Honour to which I refer in my analysis of ground 4. In this light, fair-minded people would think, having regard to the probative value of the evidence, that the public interest lay in adducing the evidence.

37 When regard is had to the limited issue in question and the purpose of the convictions as part of a body of circumstantial evidence, the appellant has no reasonable prospect of succeeding in his claim that the prior convictions were not admissible under s 31A.

38 The appellant claims the trial judge 'failed to effectively direct the jury on the circumstantial evidence of past criminal conduct'. This ground is also without merit.

39 The trial judge in his summing up repeatedly directed the jury that the prior convictions were part of the wider body of circumstantial evidence relied on by the State; that standing alone the convictions proved nothing; and that the jury could not infer from the convictions that the appellant was automatically guilty of the offences with which he was charged (ts 1952 - 1953, 1979 - 1980).

40 The direction given by the trial judge was on all fours with that sought by the appellant's senior counsel at trial (ts 1829 - 1832). The direction was appropriate and sufficient in all the circumstances. Ground 4 has no reasonable prospect of succeeding.

41 The appellant contends that the trial judge failed to 'adequately direct the jury' on the unreliability of the accomplice evidence. This is a case in which one or other of the co-accused, or both, must have committed the relevant offences. Both the appellant and Mr Micalizzi ran cutthroat defences at trial, the effect of which was to position each other as the sole offender.

42 Mr Micalizzi gave evidence at trial directly implicating the appellant as the sole offender. His evidence included admissions allegedly made to him by the appellant whilst they were in custody. The evidence is summarised by the trial judge (ts 1893 - 1894, 1896 - 1897, 1940 - 1941, 1971 - 1973, 1981 - 1984).

43 In broad terms, Mr Micalizzi's defence was that he had a serious drug addiction and owed money to a drug dealer; he went on the flight under duress from the drug dealer, involving the threat of serious harm to himself and his mother; prior to and during the flight he was 'stoned out of his mind' and under the influence of sleeping tablets; he thought his role was to accompany cash, not drugs, from New South Wales to Western Australia.

44 The jury could have been left in no doubt of the effect of Mr Micalizzi's evidence. As the trial judge told the jury in his summing up:

[S]ome of the evidence Mr Micalizzi gave in his own defence, inculpated - which means to blame or accuse - [the appellant] as being the person who was in sole possession of the drugs at all relevant times, as opposed to himself.

Because the case of Mr Micalizzi is that it was [the appellant] who had sole possession of the drugs on the flight and not him. Mr Micalizzi says that his knowledge of the content of the bag was that it was money (ts 1897).

Whilst I have said you may give the evidence from Mr Micalizzi which inculpates [the appellant] such weight as you want when considering his own case, it might be that when you are considering that evidence in the case against [the appellant] that you would want to consider it more carefully because of the circumstances in this case and because both accused contend that they were not in joint possession, or in sole possession, leaving of course the clear implication that one or other of them must have been in sole possession (ts 1899).

46 A trial judge is prohibited from giving an accomplice corroboration warning to a jury unless the judge is satisfied that such a warning is justified in the circumstances: Evidence Act, s 50. A corroboration warning will not ordinarily be justified unless there is a 'hidden danger', being one which the jury would not appreciate without being assisted by a warning: White v The Queen [2006] WASCA 62 [66].

47 Moreover, cases in which accomplice evidence is given by a co-accused fall into a very special category: Moloney v The State of Western Australia [2006] WASCA 193 [13]; Ferris v The State of Western Australia [2007] WASCA 69 [40]; Evans v The State of Western Australia [2012] WASCA 13 [49]. Where the particular circumstances are such that a warning should be given, a trial judge has considerable latitude as to its terms which must strike a balance between the interests of each accused.

48 In this case a corroboration warning was not required or justified. There were no hidden dangers or other circumstances justifying such a warning. As in Evans, it would have been blindingly obvious to the jury that both accused were seeking to advance their interests by blaming the other. Moreover, any remote prospect of a jury being left in any doubt was met by the balanced direction given by the trial judge. This ground has no reasonable prospect of succeeding.

49 The appellant contends the trial judge erred by failing to exclude opinion evidence pursuant to s 27B(4) of the Evidence Act. Section 27B, which provides that the opinion rule does not apply to voluminous or complex evidence the subject of a direction, has no application. I take the appellant to be relying on the definition of 'opinion rule' in s 27B(4) to mean the common law rule that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. This definition is consistent with that in the Evidence Act 1995 (Cth), s 76(1). There are, of course, exceptions to the common law opinion rule.

50 Mr Micalizzi gave evidence that he was driven to Bankstown Airport in the company of Bowa and a young man who was driving the vehicle. That car pulled in front of another car. Mr Micalizzi saw the appellant standing 'with another guy'. He had never met the appellant before. He did not know who he was (ts 1563). Mr Micalizzi said Bowa told him to get out of the car. His evidence continued:

What happened next?---I got out of the car. I saw Bowa go and shake [the appellant's] hand and the other guy's hand.

Did you know who the other guy was?---I don't know who he was.

...

In relation to the interaction between Bowa and [the appellant] what did you observe about that ?---They knew each other. They definitely knew each other.

What was their - the demeanour like between the two of them?---It was - it wasn't like - like, 'Hi, nice to meet you', handshake, you know what I mean. It was like a, 'How you going, mate?', handshake with a smile.

Were words spoken?---Yes, but I wasn't close. I don't know what they said (ts 1564).

51 There was no objection to this evidence. Accordingly leave will be granted on this ground only if the appellant has a reasonable prospect of succeeding in a claim that the admission of the evidence occasioned a miscarriage of justice. Although it is appropriate to characterise Mr Micalizzi's inference that the appellant knew Bowa as opinion evidence, the factual basis for the opinion was stated. In those circumstances no prejudice is occasioned to the appellant and there is no arguable miscarriage.

52 The appellant contends the trial judge erred by not excluding hearsay evidence. Two matters are relied on. Mr Micalizzi was asked in cross-examination about a conversation he had with Bowa and he replied:

[H]e just told me straight out that he wanted me to deliver money to a friend he owed money to. I asked where, when and he - then he told me that he had a friend that owned an aircraft. He wanted me to deliver to - money that someone he owed in Perth. He told me his friend was trusted. He works - he does fly on his behalf and, yeah (ts 1691).

53 That evidence was admissible in the State case against Mr Micalizzi but was inadmissible hearsay evidence in the State case against the appellant. The trial judge gave detailed directions to the jury as to the evidence which was and was not cross-admissible (ts 1888 - 1895). The trial judge also provided the jury with a documentary aid identifying the cross-admissible evidence. There is no suggestion that this evidence fell within that category.

54 The appellant also refers to a statement made by Mr Micalizzi whilst in prison that the appellant confessed to him that he flew drugs around the country for Bowa. That evidence is admissible in the State case against the appellant, it being an admission against interest.

55 Ground 7 has no reasonable prospect of succeeding.

56 The appellant contends the trial judge erred in dismissing his application to exclude 'propensity and circumstantial evidence'. The ground of appeal relates to part of an application dated 22 September 2011 seeking a 'reconsideration' of orders previously made. In particular, he sought orders that:

... [A]ll evidence of other flights made by the [appellant] prior to [5] March 2008 be excluded from his trial.

... [A]ny evidence of the [appellant's] bankruptcy be excluded.
... [A]ll evidence of prior conviction be excluded from his trial.
... [A]ll evidence in relation to the Bimdadeen [property] ... be excluded from his trial.

57 The application was heard by the trial judge on 26 October 2011. The oral submissions made on behalf of the appellant are very difficult to follow. The changed circumstances relied on by the appellant in support of reconsideration were, it seems, the disclosure of listening device product capturing communications between Mr Micalizzi and a Mr Ciraolo in Hakea Prison and the prospect of the appellant making admissions at the start of his trial.

58 The trial judge did not rule on that part of the application relating to the appellant's bankruptcy and financial affairs because of the prospect that they would be the subject of admissions. However, the trial judge dismissed the balance of the application. He concluded that the additional evidence disclosed by the State and the possibility of admissions were not material changes that impacted on any of the relevant prior rulings. In any event, the trial judge was satisfied of the correctness of the prior rulings.

59 As discussed earlier, the evidence under challenge was relied on by the State as part of the circumstantial evidence justifying an inference that the appellant was involved in, and financially benefited from, the commercial distribution of prohibited drugs. The evidence was properly admissible. The appellant has no reasonable prospect of succeeding in his claim that the trial judge erred in dismissing the application.

60 The appellant claims the verdicts should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported: Criminal Appeals Act 2004 (WA), s 30(3)(a). The jurisprudence relating to this statutory expression developed using the phrase 'unsafe or unsatisfactory'. There is no material difference in their meanings: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492. The question for this court is whether, having regard to the whole of the relevant evidence, it was open to the jury as a matter of fact (not law) to be satisfied beyond reasonable doubt that the appellant was in possession of the prohibited drugs: M v The Queen (493 - 494); Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; Evans v The State of Western Australia [2011] WASCA 182.

61 As will be apparent from the discussion of the evidence when dealing with ground 3, I am in no doubt that it was open to the jury on the evidence to be satisfied beyond reasonable doubt that the appellant was in possession of the prohibited drugs. As explained by the trial judge (ts 1944 - 1945), that required the appellant to have knowledge of the prohibited drugs and custody or control of those drugs with an intention to possess them. It was plainly open to the jury to be satisfied beyond reasonable doubt that the prohibited drugs were, to the appellant's knowledge, on the aircraft which was under his command and control with the intention and purpose of transporting the drugs to Perth for supply to another. Ground 9 does not have reasonable prospects of succeeding.

62 At the close of the State case, the State sought and obtained a ruling that there was evidence to support a claim of joint criminal enterprise. The doctrine of joint criminal enterprise, as explained by the High Court, is that if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continued understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission: McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, 114; Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1, 35 - 36; Michaels v The State of Western Australia [2009] WASCA 174.

63 What is known as the 'co-conspirators rule' applies to parties to a joint criminal enterprise: Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, 7; Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, 92 - 93; Michaels v The State of Western Australia [23]. The co-conspirators rule is to the effect that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others; the combination implies an authority in each to act or speak on behalf of the other: Tripodi (7). Anything said or done by a participant in a joint criminal enterprise in furtherance of the common purpose can be treated as having been said or done by another participant, and is admissible in evidence for all purposes. The evidence is admissible as an exception to the hearsay rule.

64 Two things must be established before the co-conspirators rule can apply. First, there must be evidence of a joint criminal enterprise and second, it must be made to appear that the accused was a participant in the joint criminal enterprise: Punevski v The Queen [2000] WASCA 71 [39] - [40].

65 The question of the admissibility of evidence under the co-conspirators rule is a legal question for the judge to decide: Ahern (103 - 104). As to the standard of proof, there must be prima facie evidence; that is, evidence on which a tribunal fact could lawfully and properly reach the conclusion the accused was a participant in the joint criminal enterprise: Ahern (93); Punevski [41] - [42].

66 In determining the first question the appellant's conduct is to be considered, not in isolation, but in the context of 'coincident conduct' of the alleged co-offenders: Punevski [45]. Counsel for both accused conceded, correctly on any view, that the evidence in the State case was sufficient to establish a joint criminal enterprise of the same general character as the offences charged (ts 1526). The evidence relied on by the trial judge on that issue included:

- one of the mobile phones in the appellant's possession, referred to as Santos 2, was activated on 17 January 2008, a few days after the activation of another mobile telephone in the possession of someone identified as 'A'. A's mobile number was also registered in a false or fictitious name and/or address;

- there were communications between Santos 2 and A's mobile on 28 February 2008 at 2.55 pm which included an SMS text message from A to Santos 2 with the words 'Probably early next week';

- there was a further message at 2.40 am on 5 March 2008 from A to Santos 2 which said 'Five mins'. This was shortly before the appellant's aircraft took off from Bankstown for Jandakot;

- at 4.07 pm on 5 March 2008 (after the appellant had arrived at Jandakot and was being questioned by police) there was a message from A to Santos 2 saying 'How are you going, brother?';

- both the appellant and Mr Micalizzi were at Bankstown Airport at 3.00 am on Wednesday 5 March 2008 ready to fly to Jandakot;

- Mr Micalizzi had no cash or credit cards with him on his arrival at Jandakot;

- the mobile phones in Mr Micalizzi's possession during the flight were registered in a false or fictitious name and/or address and were activated shortly before takeoff from Bankstown;

- during the flight there were multiple communications between Mr Micalizzi and Oz and Bowa, both of whom arrived in Western Australia from New South Wales at about 4.00 pm on 5 March 2008, shortly after the appellant's aircraft had landed in Jandakot.

67 The joint criminal enterprise was the transportation of prohibited drugs by private aircraft from New South Wales to Western Australia on 5 March 2008 for sale or supply to others.

68 Proof of the second element must be by way of evidence admissible in the ordinary way against an accused (that is, excluding evidence only admissible under the co-conspirators rule). The evidence relating to the appellant's participation in the joint criminal enterprise relied on by the trial judge included the following:

- the appellant was in command and control of the aircraft at all relevant times;

- the appellant paid cash for fuel he purchased at stops at Forrest and Whyalla en route to Jandakot;

- the appellant was in possession of a significant amount of cash on arrival at Jandakot;

- the appellant's responses to police questions (captured on a video of the search of the aircraft) were evasive, in the sense the appellant did not answer the questions put to him, and some of the answers made no sense at all. This characterisation of the evidence extended to the appellant's evidence that he did not know the name of his passenger or what baggage was loaded onto the plane at Bankstown and the description of his passenger's one-way flight to Perth as a 'joy flight';

- the appellant's use of mobile phones registered in a false or fictitious name and/or address and the content of the appellant's communications with A;

- the substantial quantity and substantial value of the prohibited drugs on the aircraft which was under the command and control of the appellant.

69 There was more than ample evidence of both a joint criminal enterprise and the appellant's participation in it. This ground has no reasonable prospect of succeeding.

70 The appellant contends the trial judge erred in (1) refusing to determine his separate trials application on 29 April 2011; (2) adjourning the application to the day the trial was listed to commence; and (3) refusing to adjourn the commencement of the trial.

71 The background is as follows. On 11 February 2011 the joint trial of the appellant and Mr Micalizzi was listed to start on 2 May 2011. On 18 April 2011 the appellant filed an application for separate trials. The application was listed for hearing before the trial judge on Friday 29 April 2011. The trial was listed to commence the following Monday.

72 The State's application seeking a reconsideration of the admissibility of evidence of all flights and cash payments made by the appellant in the 12-month period preceding 5 March 2008 was also before the trial judge on 29 April 2011. At the commencement of the hearing the trial judge informed the parties that he was unable to hear and determine the separate trials application on that date. He had a civil matter at 2.15 pm on 29 April 2011 which he intended to deal with. As at 29 April 2011 the trial judge was also of the view that both applications should be heard simultaneously (ts 417). He was also troubled by the very long delay in the matter proceeding to trial, it having been listed for trial on multiple previous occasions. The delay was occasioned by the refusal of New South Wales authorities to consent to the transfer of the appellant to Western Australia to stand trial while he was being dealt with for the 2008 offence in the New South Wales criminal justice system. See The State of Western Australia v Micalizzi [10] - [15].

73 The appellant has failed to establish that he has a reasonable prospect of establishing error by the trial judge in the exercise of his discretion to adjourn the appellant's application for separate trials to the following Monday. To have adjourned the commencement of the trial in the circumstances of this case would be to undermine the evident legislative purpose of s 26(5) and s 26(6) of the Criminal Appeals Act, which is to prevent appeals which have not commenced before the day on which the accused's trial is listed to start.

74 In any event, the appellant suffered no prejudice as a result of the failure to vacate the trial dates pending the determination of the separate trial application and the commencement of any appeal from that decision. Having regard to the admissibility of the evidence in question in the State's case against the appellant, any appeal must have failed for the reasons given by Hall J in Santos v The State of Western Australia [181] - [190].

75 Ground 11 has no reasonable prospect of succeeding.

76 The appellant claims that the prosecution failed to give full disclosure of relevant material. Particulars of the ground claim the prosecution failed to provide records of all visits to Mr Micalizzi in Hakea Prison and all surveillance material on Adam Ciraolo who had visited Mr Micalizzi in Hakea.

77 The written submissions in the Appellant's Case refer in non-specific terms to an application by the appellant's solicitor to subpoena all surveillance material 'in regards to any operation that concerned this case, of which they only disclosed a fraction' which the appellant asserts, without substantiation, would have shown Mr Micalizzi's involvement and connection and the appellant's 'non involvement'. He also asserts that Mr Micalizzi had in excess of 40 prison visits but that the State only disclosed material relating to six or seven visits. There is no evidence to support the assertions made by the appellant in his written submissions.

78 At the leave hearing, the court also had before it an application filed on 12 September 2012 seeking an order pursuant to s 42 of the CPA 'for the prosecution to provide full disclosure of all evidence in regards to [Indictment] 1616 of 2008, all surveillance information on operation "Narang" and "Nattai" and any other evidence linked to these operations, all running sheets, notes, reports, emails, electronic communications, audio and visual recordings, opinions, and copies of all warrants issued with these operations or linked to these operations'. The appellant also seeks an order requiring the prosecution or relevant police 'to explain why they made false statements to the Court'. An affidavit of the appellant sworn on 7 September 2012 in support of this application (the appellant's September affidavit) is seriously deficient. It contains submissions and assertions without providing references to the source material on which he relies.

79 At the leave hearing the court gave the appellant liberty to file a further affidavit providing an evidentiary foundation for his repeated assertions that there had been a failure to give full disclosure of relevant material. The appellant filed an affidavit sworn on 23 October 2012 (the appellant's October affidavit) which repeats slabs of what is in the appellant's September affidavit. The appellant also took the opportunity to provide further written submissions in support of his October affidavit together with a copy of a newspaper article on which he relies.

80 The appellant's affidavits focus largely on allegations of police misconduct. In the absence of any references to the relevant source material, it has been necessary to delve into matters preceding the commencement of the trial on 23 November 2011.

81 As stated earlier, the trial of the appellant and Mr Micalizzi was listed to commence on 2 May 2011. On that date and following, the trial judge dealt with a number of applications filed by the parties. On 9 May 2011 the prosecutor informed the court that full disclosure of evidentiary material had not been made. She identified four categories of material that had not been disclosed, being (1) listening device product of communications between Mr Micalizzi and Mr Ciraolo when the latter visited the former at Hakea Prison; (2) surveillance product of Mr Ciraolo; (3) telephone intercept product relating to Mr Ciraolo's phone; and (4) the content of telephone calls made by the appellant and Mr Micalizzi from prison.

82 On 9 May 2011 the prosecutor informed the court that:

[T]he investigator informs me that there's nothing inculpatory in the product. And so from our perspective, what I can say to the court in terms of this trial proceeding this week, regardless of what's in there that might be inculpatory, the State doesn't propose to lead anything in that material (ts 706 - 707).

83 The matter came before the trial judge again on 13 May 2011. The prosecutor informed the court that there were five disks that were relevant and that they had been provided to the parties and were in the process of being transcribed. The trial judge asked the prosecutor to explain why the material had not been disclosed earlier. She explained:

Your Honour, through my inquiries with the investigating officer it certainly appears, your Honour, that there has been a misconception in terms of that which is disclosable to the parties. And I say that for this reason, is that when one looks at that material one can clearly see that, from the State's perspective, the material is enormously probative. And so when I say this to your Honour, clearly, if the investigating officer in this matter thought that this material had any value to it, either inculpatory or exculpatory, it would have been disclosed at an earlier time.

So it seems, your Honour, from my discussions with the investigator that he certainly wasn't fully appraised of that material, knew of its existence, but wasn't fully appraised of the content of it. And so matters have just really progressed from there. So really ignorance of the content of the material and the consequences that flow from it (ts 768).

84 That explanation was repeated in summary form by State counsel in a bail application in this appeal (ts 70, 25/7/12).

85 On the day before the hearing on 13 May 2011, the appellant's solicitor had served a witness summons on the investigating officer, Detective Sergeant Morrish. The summons sought, relevantly, disclosure of the following:

All documentary and electronic material of Operation Nerang including any arrests made and any persons of interests or targets in the operation and specifically target 'Bowa' and target 'Oz'.

86 Police commenced Operation Nerang on 6 March 2008 with a view to identifying the source of the drugs located on the aircraft on which the appellant and Mr Micalizzi had arrived in Western Australia the previous day. Counsel for Mr Micalizzi informed the court that the witness summons served on behalf of the appellant replicated in substance a summons issued on behalf of Mr Micalizzi some three years earlier (ts 769).

87 Following discussions between counsel for the appellant and counsel for the Commissioner of Police, the appellant's witness summons was not pressed. On 13 May 2011 counsel for the appellant informed the court as follows:

[I]n speaking to Mr O'Sullivan [counsel for the Commissioner], your Honour, we've come to - after discussions with him, he's willing to take away the requests made from the summons and to look through the originating file and himself to undertake an assessment of the file. And if there's anything in that file that he feels ought to be disclosed, in the general requirements of disclosure as part of this trial, he will make that recommendation and make that material available.

If there's any material in that file that he feels, for operational reasons, ought not to be disclosed, he's provided an indication to me that he'll convey that to me ... and then we can then have an assessment - make an assessment of whether we pursue that in terms of bringing it before your Honour as a contest or whether it's resolved and it's not relied on (ts 773).

88 That information was confirmed to the court by Mr O'Sullivan (ts 774). The late disclosure meant the trial could not proceed in May 2011.

89 On 26 October 2011 counsel for the State (Ms White) informed the court that there were 13 occasions on which police put a listening device in a meeting between Mr Micalizzi and a prison visitor. She continued:

Of those 13 some didn't work. Some were lost. Some were with his mum and simply weren't relevant. And five remained as relevant. And of course, their relevance comes, in fact, that he's sitting there and talking to Adam [Ciraolo].

90 It is clear from the court transcript of the hearing on 26 October 2011 that the sound quality of some of the listening device product was poor and significant technical efforts were made to assist in the preparation of a complete and accurate transcript. Further, Ms White's advice to the court is inconsistent with the appellant's assertions, unsupported by evidence, that Mr Micalizzi had more than 40 prison visits that were the subject of covert surveillance.

91 At the same hearing, the appellant's counsel requested the trial judge to inquire whether there was any further evidentiary material that had not been disclosed. The prosecutor informed the court that there was no further material (ts 932). There is nothing in the transcript to suggest that the material sought by the appellant in his witness summons had not been provided. Further, there was no cross-examination of Detective Sergeant Morrish on behalf of the appellant or Mr Micalizzi at trial suggesting any incomplete disclosure of evidentiary material.

92 Against that background, I turn now to the specific matters raised by the appellant in his affidavits and submissions relating to this ground. First, the appellant asserts that the investigating officer misled the prosecutor by informing her that there was nothing of interest on the listening device product, which the prosecutor relayed to the court. The accuracy of that statement is borne out by the transcript of the hearing on 9 May 2011 set out above. However the appellant asserts that Detective Sergeant Morrish 'tried to mislead the Court and pervert the course of justice with his misleading comments to the prosecutor'. The evidence is incapable of supporting a finding to that effect.

93 Second, the appellant asserts that police withheld evidence, lied to cover up the existence of the listening device product, failed to answer a subpoena on behalf of Mr Micalizzi in 2009 and signed certificates under s 45 of the CPA in 2008 and 2009, knowing of the existence of the listening device product. In the absence of evidence on the subject I will assume the police signed s 45 certificates in 2008 and 2009. However, the evidence does not enable a conclusion of dishonest, intentional misconduct to be drawn. Even so, the conduct of police before 9 May 2011 in relation to their disclosure obligations fell well below any acceptable standard.

94 Third, the appellant relies on the prosecutor's explanation to the trial judge on 13 May 2011 for the failure to disclose the listening device product and other material. The prosecutor's statement to the court involved some shifting of position. First, she said the investigating officer had a misconception as to what was disclosable and later said, in effect, he was not fully appraised of the content of the material which, as she correctly observed, was 'enormously probative' in the State case against Mr Micalizzi which of course also assisted the appellant's cutthroat defence. We are left to speculate about whether Detective Sergeant Morrish knew what was on the listening device product but did not appreciate its relevance or that he was not fully appraised of the content of the material. It does not reflect well on him, either way. However, in light of subsequent events (including the cooperative response to the appellant's summons) it does not provide any proper evidentiary foundation for the appellant's claim of non-disclosure by the time the trial commenced in November 2011.

95 Fourth, the appellant claims that Detective Sergeant Morrish made intentionally false statements to the court. The officer said in his statement in the prosecution brief (pg 2457) that 'a listening device was utilised in the visitors room at Hakea Prison during visits to MICALIZZI between March 8 and March 20, 2008'. In support of the falsity of this statement, the appellant says that there is listening device product recorded on 18 April 2008. Even if that is correct, it is incapable of establishing that the error was intentional and an attempt to pervert the course of justice. There was no cross-examination of Detective Sergeant Morrish at trial impugning the correctness any part of his statement in the prosecution brief. Moreover, Mr Morrish's statement in the prosecution brief refers to and annexes the covert surveillance product relating to Mr Ciraolo, which I assume to be Operation Nattai.

96 Fifth, the appellant relies on the statement made by Ms White to the court that some listening device product had been 'lost'. She gave no detail of that statement and none was sought by counsel for the appellant or Mr Micalizzi at the hearing on 26 October 2011 or at trial. Disclosure cannot be given of material that is lost.

97 Sixth, the appellant claims the police lied in saying that they had to enhance the listening device product, there being evidence that police picked up the enhanced listening device product in April 2008. That enhanced listening device product was collected from Maylands in April 2008 is confirmed by the documentary evidence. However, it is clear from the transcript on 9 May 2011 that the sound quality of the listening device product was poor and that enhancement attempts continued up to 26 October 2011, as explained by Ms White to the court.

98 Seventh, the appellant swears in his October affidavit that Detective Sergeant Morrish visited him in prison about three months after he was taken into custody, on which occasion the appellant said to the officer that his investigation should show that he (the appellant) was not involved and Detective Sergeant Morrish replied 'he knows, but he's going to stich [sic] me with it any way'. That proposition was not put to Detective Sergeant Morrish in cross-examination at trial. It can be given no weight now.

99 Finally, in his submissions filed with the October affidavit the appellant says:

It is my belief that there is critical evidence that has not been disclosed that would exonerate me, in the Western Australian Newspaper ... the article states that my co-accused was an associate of the people involved in the drug syndicate [44].

100 The article to which the appellant refers is under the headline 'Bikie drug web mired in venom and war'. Jason Ayik was identified as being the 'Mr Big' of a New South Wales based drug syndicate. In discussing the circumstances of the offence committed by the appellant and Mr Micalizzi, the article states:

[The] Perth District Court was later told the drugs were worth up to $8 million. Pilot Jamieson Andrew Santos and passenger Joseph Frank Micalizzi were jailed for 15 years.

Micalizzi was later identified as an associate of Ayik.

101 It was always known prior to trial that Mr Micalizzi was communicating with persons operating under the pseudonyms 'Bowa' and 'Oz' who were part of the joint criminal (drug distribution) enterprise. The subsequent identification of the actual identity of an associate of Mr Micalizzi involved in a drug syndicate takes the matter no further.

102 In summary, there is no evidentiary foundation for the appellant's claim that, by the time of the trial in November 2011, the police had not given full disclosure of all evidentiary material, as that term is defined in the CPA. Accordingly, there is no reasonable prospect of this ground succeeding and leave to appeal must be refused.

103 However, the conduct of police up to and including the revelation of late disclosure on 9 May 2011 is a matter of concern that warrants further investigation by appropriate authorities. The Court of Appeal does not have jurisdiction to conduct an investigation of the nature required in this case. If such an investigation uncovers evidence that the police did not in fact provide full disclosure of evidentiary material by the time of the trial in November 2011, there are avenues (Sentencing Act 1995 (WA), s 140) which can enliven this court's jurisdiction to consider a further appeal against the appellant's convictions.

104 This ground contains a hotchpotch of alleged errors in the trial judge's directions to the jury. Particular 13.1 complains of the following direction:

Members of the jury, I don't understand either accused to be suggesting to you that there is no evidence of a joint criminal enterprise similar to the one involved in this case (ts 1894).

105 As noted in the discussion of ground 10, that is a correct statement of the position taken by counsel for both accused. In any event, the evidence was overwhelming.

106 Particular 13.2 complains that the trial judge asked the jury to speculate about unproven facts. Although a transcript reference is provided, the direction complained of is not expressly identified. I take it to be the following. After referring to Mr Micalizzi's evidence that the appellant was very friendly with Bowa at the airport before they left Bankstown and that he saw Bowa give the appellant a yellow envelope, the trial judge continued:

Which, if you accept is true, might raise a question in your mind about why a third party would be giving things to the pilot shortly before a takeoff involving a joy flight of somebody else. And also that [the appellant] had done about six previous flights to Western Australia for Bowa.

There is no direct evidence from Mr Micalizzi himself or [the appellant] as to whether Mr Micalizzi's two previous trips to Western Australia and other places using his false ID were also one-way trips from Sydney with [the appellant] (ts 1897).

107 The trial judge is not asking the jury to speculate. In the first of the paragraphs complained of, the trial judge is raising a question for the consideration of the jury if they accept Mr Micalizzi's evidence. In the second paragraph, the trial judge is referring to the absence of evidence.

108 The appellant asserts in particular 13.3 that the trial judge erred in directing the jury that possession need not be exclusive. He did not err. The statement is accurate.

109 Particular 13.4 is to the effect that the trial judge used strong language to suggest to the jury that the appellant should be found guilty and that he had control of the bag containing the drugs. As I understand it the directions complained of are as follows:

If you find that they had knowledge [of the drugs on the aircraft], you are likely to find, I would suggest, members of the jury, also that they had an intention to exercise control or dominion over them.

...

In this case, as you know and I would suggest to you, although it is of course, as always, a matter for you, members of the jury, both accused had the capacity to exercise control over the drugs (ts 1949 - 1950).

110 The trial judge's observations are permissible comments on the evidence and justified by it. The comments have to be seen in the light of the trial judge's direction to the jury that what he said about the facts of the case did not in any way restrict the jury's right and responsibility to determine for themselves the facts of the case (ts 1885).

111 Particular 13.5 claims the trial judge stated incorrect facts about the appellant receiving a phone call. Reference is made to 'T 1892, [6]'. I am unable to identify any direction to that effect.

112 Particular 13.6 claims the trial judge failed to adequately direct the jury about exclusive possession. The appellant does not descend to detail of the claim. I see no error in the trial judge's directions on the subject (ts 1946 - 1947).

113 Particular 13.7 claims the trial judge failed to give proper directions to the jury about credibility and lies. Mere assertion falls well short of raising an arguable ground. No error is apparent.

114 Finally, particular 13.8 claims the trial judge misdirected the jury saying that the appellant was responsible for everything on the aircraft (ts 1950). The statement is correct in its context, which was of the appellant being in command and control of the aircraft.

115 None of the matters the subject of ground 13 have a reasonable prospect of succeeding.

116 The appellant contends that counsel gave incorrect legal advice about s 26(4) of the Criminal Appeals Act. This ground is not supported by evidence. Even if incorrect advice was given, the appellant was not prejudiced. See ground 11. This ground has no reasonable prospect of succeeding.

SANTOS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 39 (20 February 2013)

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Judgment (229 paragraphs)

SANTOS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 39 (20 February 2013)

Legislation Cited (4)

Cases Cited (18)