La Bianca v The State of Western Australia

[2010] WASCA 84

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LA BIANCA -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 84

CORAM:   OWEN JA

HEARD:   13 & 28 APRIL 2010

DELIVERED          :   4 MAY 2010

FILE NO/S:   CACR 168 of 2009

BETWEEN:   ANTHONY LA BIANCA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MAZZA DCJ

File No  :IND 995 of 2009

Catchwords:

Criminal law and procedure - Appeal against conviction - Application to adduce new evidence - Leave to appeal - No point of principle

Legislation:

Nil

Result:

Leave granted to adduce additional evidence
Leave to appeal referred to hearing of the appeal

Category:    D

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr K M Tavener

Solicitors:

Appellant:     Malcolm J Ayoub

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Davies v The State of Western Australia [2006] WASCA 151

De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

Samuels v The State of Western Australia [2005] WASCA 193

1. OWEN JA:  The appellant was convicted by a jury of one count of possession of methylamphetamine with intent to sell or supply to another.  This is an application for leave to appeal against the conviction and an application for leave to adduce additional evidence.

Background

1. Police executed a search warrant at a room in a suburban hotel.  When police entered there were five people in the room, including the appellant and one Chad Brunet.  A bag was located in the room.  In the bag were 8.16 g of methylamphetamine, $5,000 in cash and documents associated with the appellant.  The appellant was charged with possession of a prohibited drug with intent to sell or supply to another.

2. The history of the matter is set out in an affidavit of Malcolm Ayoub sworn 10 March 2010 in support of the application to adduce additional evidence.  When the appellant's then counsel was preparing for the committal mention he came into possession of an unsigned statement from Brunet in which he (Brunet) claimed the drugs were his.  Counsel spoke to Brunet.  The appellant was aware of Brunet's statement and instructed counsel 'that [he] would leave the issue to his judgment': see the appellant's affidavit sworn 22 April 2010, par 8.  The inference is open that those then representing the appellant were not minded to call Brunet as a witness. 

3. The appellant then terminated the instructions of his then legal representatives and says he was not aware of the final stance that counsel had taken in relation to Brunet.  According to the appellant's affidavit, counsel who appeared for him at trial may not have been aware of Brunet's statement until the last day of the trial.  They made unsuccessful attempts to contact Brunet by telephone and a deliberate decision was taken not to seek an adjournment of the trial.  The appellant did not give evidence at his trial.  The jury returned a guilty verdict.

Grounds of appeal

1. There are two grounds of appeal. First, the trial judge misdirected the jury as to the meaning of 'possession' for the purposes of s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act) in that he told the jury they had to be satisfied the appellant intended to possess the drugs, when intent is not relevant to the question of possession.  The second ground is that new evidence that has emerged since trial establishes that a miscarriage of justice occurred.  The new evidence is the statement made by Brunet.

Ground 1

1. The trial judge directed the jury (ts 177) that the State had to satisfy them that the appellant had knowledge of the drug 'and at the same time he intended to possess it'.  Arguably, this is a misdirection as the definition of 'possess' in the Act does not require proof of an intention to possess: Davies v The State of Western Australia [2006] WASCA 151 [36] ‑ [53]. However, it is a misdirection that may have worked in the appellant's favour because it required the jury to be satisfied of an element in addition to those that were otherwise in contention.

2. This necessarily brings in to play the question whether the misdirection (assuming it to be a misdirection) brought about a substantial miscarriage of justice: Criminal Appeals Act 2004 (WA) s 30(4). Generally speaking, it is preferable that issues arising under the proviso should be dealt with at the substantive hearing of an appeal rather than on an application for leave to appeal: Samuels v The State of Western Australia [2005] WASCA 193 [56].

3. In the circumstances, the application for leave to appeal on ground 1 should be referred to the substantive hearing of the appeal.

Ground 2 and the application to adduce additional evidence

1. Ground 2 originally alleged that the new evidence rendered the conviction unsafe and unsatisfactory.  I gave leave to the appellant to amend the ground so that the focus of attention was on a miscarriage of justice: De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [156].

2. When the application to adduce additional evidence first came before me it related to the affidavit of Malcolm Ayoub sworn 10 March 2010.  There was a lot of material in that affidavit that I felt could lead to the opening up of a broad range of issues that were not germane to the central point, namely, the Brunet statement.  I was also concerned that, as the appellant had not given evidence at his trial, he should not now be afforded an opportunity, via the back door, of revisiting that decision.  The materials have since been refined.

3. The additional evidence the appellant wishes to adduce is not 'fresh'.  It was available at the time of trial and was known to the appellant.  It is, at best, 'new'.

4. I am prepared to grant leave to the appellant to adduce additional evidence for the purposes of the appeal.  The additional evidence is:

   (a)the (unsigned) statement of Chad Brunet and the (unsworn) statutory declaration of Chad Brunet at pages 27 and 28 respectively of the affidavit of Malcolm Ayoub sworn 10 March 2010; and

   (b)the affidavit of the appellant sworn 22 April 2010.

5. The affidavit of Malcolm Ayoub should be available to the members of the coram hearing the substantive appeal to explain the background, especially in so far as it relates to the position of the appellant's former legal representatives (see, in particular, an email from counsel to the instructing solicitor at page 18 of the affidavit).  However, leave does not extend to calling further evidence as to the background.  Nor does the appellant have leave to give any other or further evidence and I note that the State has indicated it does not wish to cross‑examine the appellant on his affidavit.

6. Brunet is to be made available for cross‑examination at the hearing of the appeal.  If Brunet does not appear, the court may revisit the question whether to receive the statements.  It would certainly affect the weight to be afforded to it. 

7. There are some obvious problems with the additional evidence.  For that reason I would refer the question of leave to appeal on ground 2 to the substantive hearing of the appeal.