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[2017] WASCA 185
Court of Appeal (WA)
2017-10-16
Mazza JA
Original judgment source is linked above.
CACR 137 of 2016 (Bamba's appeal against sentence)
[12] Trial ts 86 - 107, 119 - 121, exhibits 1 - 7.
[17] Trial ts 218 - 219, exhibits 22, 23.
[22] Trial ts 223 - 228, exhibits 24, 25.
[23] Trial ts (17 February 2016, Closed Court) 10 - 12, 33 - 34, exhibit 30.
[24] Trial ts (17 February 2016, Closed Court) 6, 14 - 15.
[25] Trial ts (22 February 2016, Closed Court) 16 - 17.
[26] Trial ts (22 February 2016, Closed Court) 17, trial ts (17 February 2016, Closed Court) 16.
[27] Trial ts (17 February 2016, Closed Court) 15 - 16, trial ts (19 February 2016, Closed Court) 5 - 6, trial ts (22 February 2016, Closed Court) 11, 22, exhibit 31.
[28] Exhibit 31, trial ts (22 February 2016, Closed Court) 12.
[29] Trial ts (17 February 2016, Closed Court) 16, trial ts (22 February 2016, Closed Court) 17.
[30] Trial ts (17 February 2016, Closed Court) 22 - 23, trial ts (22 February 2016, Closed Court) 17 - 20, exhibit 33.
[31] Trial ts (17 February 2016, Closed Court) 21; ts of video record of interview with Mr Bamba, page 76 - 77.
[32] Trial ts (17 February 2016, Closed Court) 23 - 24.
[33] Trial ts (17 February 2016, Closed Court) 25, trial ts 260 - 261, 780 - 782.
[36] Trial ts (17 February 2016, Closed Court) 28, trial ts 524, 528 - 529, exhibit 47.
[42] Trial ts 531 - 532, 540, 803 - 804.
[44] Trial ts 585 - 589, 599 - 600, exhibit 50.
[47] Trial ts 585 - 589, 613, exhibit 57.
[49] Trial ts 684, exhibit 48, exhibit 70.
[50] ts of video record of interview with Mr Omereonye page 44 (Omereonye Blue AB 79), exhibit 58.
[53] Trial ts 590, 608 - 609, exhibit 54.
[54] Trial ts 608 - 609, 612, exhibit 54.
[56] Trial ts 590 - 591, exhibit 48. Exhibit 39 shows that the mobile number ending in 640 was the only number used in IMEI 219.
[57] Trial ts 609 - 610, 612, exhibit 55.
[58] Trial ts 531 - 532, 540, 803 - 804.
[59] Trial ts 643, exhibit 48, exhibit 67.
[61] Trial ts 610 - 612, exhibit 56. Alvin Kaba is Youssouf Bamba's former name: Trial ts 519 - 520, exhibit 46.
[63] Trial ts 591 - 592, 603 - 604, exhibit 53.
[66] Trial ts 591 - 592, 602 - 603, exhibit 52.
[68] Trial ts 627 - 628, exhibit 48, exhibit 65.
[69] Trial ts 627 - 628, exhibit 49, exhibit 65.
[71] Trial ts 401. In Telstra records, the last digit of the IMEI number is ignored because it is a variable number depending on the phone's software: Trial ts 404, 407.
[72] Trial ts 401 - 402, 404 - 406, 435, exhibits 36, 37.
[73] Trial ts 600 - 602, 604, exhibit 51.
[99] Trial ts 439 - 440, 998, exhibit 40.
[100] Trial ts 439 - 440, 998 - 999, exhibit 40.
[104] On the State's case this entry represents a return call from TNT as the number differs only by one digit from the direct line of Mr Campbell: trial ts 148 - 150, 967 - 968.
[109] Trial ts 411 - 412, 414 - 416, exhibit 41.
[120] L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545.
[121] L [65] - [66], [73].
[122] Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331.
[129] Warren and Ireland v The Queen [1987] WAR 314, 327 - 329.
[138] Trial ts 1179. The example appears to have been taken from the direction of Smith J in R v Lowery (No 2) [1972] VicRp 63; [1972] VR 560.
[140] Appeal ts 14 - 15, 53, 57, 70 - 71.
[157] Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282.
[162] The Criminal Code (Cth) was subsequently amended to incorporate s 11.2A which provides that a person who enters an agreement to commit an offence is taken to have committed the offence where that offence is committed in accordance with the agreement.
[164] Gandy v The State of Western Australia [2017] WASCA 93 [72] - [73], [84].
[165] L [54]; as to the interaction between s 7 and s 8 of the Code see Gandy [84] - [88].
[167] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 - 493.
[168] EAGD v The State of Western Australia [No 2] [2014] WASCA 68 [35], citing SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14].
[169] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; Bibovic v The State of Western Australia [2016] WASCA 22 [34]. See also Mansell v The State of Western Australia [No 6] [2013] WASCA 120 [16] - [19].
[170] Kalbasi v The State of Western Australia [2016] WASCA 144 [84] - [92], [98]. See also Reid v Director of Public Prosecutions (WA) [2012] WASCA 190 [14], R v English (1993) 10 WAR 355.
[171] Ritchie v The State of Western Australia [2016] WASCA 134 [84] and cases there cited; Taylor v The State of Western Australia [2016] WASCA 210 [58], [310], [316] - [317].
[172] Appellant's written submissions, par 23.
[182] See Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 576, 585, 586.
[187] Trial ts 593 - 594, 700 - 701, exhibit 42.
[192] Trial ts 806 - 807, 808 - 810, 828 - 829.
[194] Trial ts 801 - 804, 811, exhibit 75.
[201] See appeal ts 35 referring to trial ts 999.
[209] Trial ts (17 February 2016, Closed Court) 21; ts of video record of interview with Mr Bamba, pages 76 - 77.
[211] Ts of video record of interview with Mr Bamba, pages 22, 38 - 39.
[223] The findings are at trial ts 1331, and the criticism of the findings are set out in item 4 of Sheriff's 'Schedule of Factual Errors Relating to Telephone Evidence - Sheriff CACR 91 and 92/2017 dated 30 May 2017'. Note that items 2 and 5 of that Schedule do not refer to errors of the trial judge.
[225] Barry v The State of Western Australia [2012] WASCA 175 [55] - [57].
[226] Section 34(1)(a) of the Drugs Act.
[227] See Chen v The State of Western Australia [2017] WASCA 114; Chen v The State of Western Australia [2017] WASCA 99; Nguyen v The State of Western Australia [2017] WASCA 35; Yiu v The State of Western Australia [2016] WASCA 172; Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1; Tresnjo v The State of Western Australia [2015] WASCA 193; Hoang v The State of Western Australia [2015] WASCA 130; Le v The State of Western Australia [2015] WASCA 73; Ly v The State of Western Australia [2015] WASCA 18; Phan v The State of Western Australia [2014] WASCA 144; Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324; Ozan v The State of Western Australia [2013] WASCA 27; Kitis v The State of Western Australia [2013] WASCA 34; Pham v The State of Western Australia [2011] WASCA 244; Mikulic v The State of Western Australia [2011] WASCA 127; Penney v The State of Western Australia [2011] WASCA 71.
[228] Phan, Ly, Le, Nembousse v The State of Western Australia [2015] WASCA 68 and Pham.
[229] Phan, Le, Nembousse
[231] The State of Western Australia v Johnson [2010] WASCA 187 [17].
Barry v The State of Western Australia [2012] WASCA 175
Bibovic v The State of Western Australia [2016] WASCA 22
Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331
Chen v The State of Western Australia [2017] WASCA 114
Chen v The State of Western Australia [2017] WASCA 99
EAGD v The State of Western Australia [No 2] [2014] WASCA 68
Gandy v The State of Western Australia [2017] WASCA 93
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
Hoang v The State of Western Australia [2015] WASCA 130
Kalbasi v The State of Western Australia [2016] WASCA 144
Kitis v The State of Western Australia [2013] WASCA 34
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Le v The State of Western Australia [2015] WASCA 73
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Ly v The State of Western Australia [2015] WASCA 18
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mansell v The State of Western Australia [No 6] [2013] WASCA 120
Mikulic v The State of Western Australia [2011] WASCA 127
Milenkovski v The State of Western Australia [2014] WASCA 48
Nguyen v The State of Western Australia [2017] WASCA 35
Ozan v The State of Western Australia [2013] WASCA 27
Penney v The State of Western Australia [2011] WASCA 71
Pham v The State of Western Australia [2011] WASCA 244
Phan v The State of Western Australia [2014] WASCA 144
Reid v Director of Public Prosecutions (WA) [2012] WASCA 190
Ritchie v The State of Western Australia [2016] WASCA 134
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Taylor v The State of Western Australia [2016] WASCA 210
The State of Western Australia v Johnson [2010] WASCA 187
Tresnjo v The State of Western Australia [2015] WASCA 193
Yiu v The State of Western Australia [2016] WASCA 172
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1
The case against the appellant was circumstantial. Circumstantial evidence is not necessarily inherently less compelling than direct evidence. As Gleeson CJ and Kiefel J noted in AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438:
Where the prosecution relies upon circumstantial evidence, guilt must be the only reasonable and rational inference that could be drawn from the circumstances: Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 243; Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578.
Circumstantial evidence must be evaluated in its entirety, not considered on a piecemeal basis in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Shepherd (579 - 580). In R v Hillier [2007] HCA 13; (2007) 228 CLR 618, Gummow, Hayne and Crennan JJ stated:
(2016) 50 WAR 331
(2011) 245 CLR 282
(2016) 49 WAR 545
(2007) 230 CLR 559
(1994) 181 CLR 487
(1993) 10 WAR 355
(1990) 170 CLR 573
(2011) 243 CLR 400
(2016) 50 WAR 1
(2008) 232 CLR 438
(1963) 110 CLR 234
(2007) 228 CLR 618
(2014) 46 WAR 324