Supreme Court of Western Australia - Court of Appeal

118. Ms Stephens' cross‑examination was to the following effect.
119. Ms Stephens asked the police if her then partner needed to make a statement and they said he did not (ts 406).
120. When Ms Stephens opened the makeup case, the clip was not shut and the tray of makeup on top of the methylamphetamine fell out (ts 407). Ms Stephens gave evidence that her guess that the substance was methylamphetamine was based on movies (ts 408).
121. Ms Stephens did not recognise the name on the parcel. Ms Stephens accepted that she opened the parcel because she thought it might have been a parcel that she had ordered. Ms Stephens accepted that a parcel had never previously been delivered to her address in the wrong name (ts 408).
122. Ms Stephens accepted that when she opened the parcel in the corridor and spoke to her partner, she was speaking quietly (ts 412).
123. Ms Stephens had not had any dealings with the appellant at that time, but knew he was the owner of the property from paperwork (ts 409).

124. The parcel with a tracking number ending in '997' (see [27] above) contained the methylamphetamine. Exhibit 4 at the trial included a document showing the event history for the tracking number ending in '997' (combined blue and green appeal book p 14). The event history recorded that the APCN registered in the name of Jessica John added the tracking number to their watch list on 4 June 2020 at 2.07 am (AWST) and that the APCN registered in the name of John Sigaro added the tracking number to their watch list on 4 June 2020 at 12.46 am (AWST).
125. The parcel with a tracking number ending in '994' (see [28] above) contained at least the human growth hormone the subject of counts 2 to 7. Exhibit 4 at the trial included a document showing the event history for the tracking number ending in '994' (combined blue and green appeal book p 19). The event history recorded that the APCN registered in the name of Jessica John added the tracking number to their watch list on 27 May 2020 at 10.45 am (AWST).

126. The appellant did not give evidence at the trial. Defence counsel did not call any witnesses.
127. Defence counsel submitted to the jury in his closing address that the State had not proved beyond reasonable doubt that:

(a) the appellant knew that the parcel in question contained methylamphetamine or another prohibited drug; or
(b) the appellant intended to possess the parcel containing the methylamphetamine.

128. Defence counsel suggested to the jury that the State's case was 'like a puzzle with very important pieces missing' (ts 495).
129. Defence counsel argued that the State's case in relation to the appellant's alleged knowledge and intention did not 'make sense' because:

(a) the parcel was sent to the Banksia Grove house;
(b) the appellant did not live at the house;
(c) the appellant had never met the tenants;
(d) on the evidence, there were several parcel lockers linked to the telephone number of the mobile telephone found in the appellant's possession when he was arrested;
(e) the appellant had no capacity to control whether or not the tenants would be at home when the parcel containing the methylamphetamine was delivered;
(f) the appellant had no way of knowing whether the tenants would accept or reject the parcel;
(g) the appellant had no capacity to control the parcel or what happened to the parcel;
(h) the quantity of methylamphetamine involved (namely 133.74 g) was large; and
(i) whoever ordered such a large quantity of methylamphetamine was not a minor operator in the drug market and, by implication, a person in the position of the appellant would not have arranged for the methylamphetamine to be delivered in the circumstances alleged by the State.

130. The trial judge directed the jury in relation to the propensity evidence.
131. Neither the prosecutor nor defence counsel sought any redirection or additional direction from her Honour in connection with the propensity evidence.
132. The appellant does not make any complaint in the appeal about the trial judge's directions. It is therefore unnecessary to reproduce or summarise the directions.

133. Counsel for the appellant acknowledged that at the hearing before MacLean DCJ the appellant conceded that the evidence the subject of the State's application was 'propensity evidence' as defined in s 31A(1) of the Evidence Act 1906 (WA).
134. According to counsel, the relevant propensity was merely 'a propensity in a general way ... to source illicit drugs' (appeal ts 4). Counsel added that, in his submission, 'the factual matrix surrounding the possession of the steroids and the human growth hormone, the modus operandi by which those drugs were obtained is noticeably different, differing from the modus operandi in relation to the allegations on count 1' (appeal ts 5).
135. Later, however, in discourse with the court, counsel accepted that the appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based 'showed that the appellant had a tendency to be involved in the remote sourcing of prohibited drugs, arranging the delivery of prohibited drugs to him by using the Australia Post service and using assumed identities in arranging deliveries of prohibited drugs to him' (appeal ts 5).
136. Counsel submitted that the evidence of the appellant having procured, through the postal system, human growth hormone and anabolic steroids for sale or supply was not significantly probative of any fact in issue in respect of count 1.
137. It was argued that the offending conduct the subject of counts 2 to 13 was 'too remote from the issue of possession in respect of count 1' to have significant probative value. In particular, the conduct the subject of counts 2 to 13 did not have significant probative value because of the absence of 'sufficient circumstantial evidence [creating] an evidentiary nexus' between the conduct the subject of counts 2 to 13 and the conduct the subject of count 1.
138. Counsel for the appellant also submitted that there was a real risk that the jury would be unfairly prejudiced against the appellant by reason of the propensity evidence. In particular, it was argued that the jury would be inclined to convict the appellant of count 1 without properly assessing the sufficiency of the totality of the evidence adduced at the trial. Counsel submitted that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must not have priority over the risk of an unfair trial.

139. Counsel for the State submitted that the appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based constituted 'propensity evidence', as defined in s 31A(1) of the Evidence Act, in that they constituted relevant 'evidence of the conduct of [the appellant]'.
140. The propensity asserted by the State at trial was 'a tendency ... to be involved in the remote sourcing of prohibited drugs, the arranging of the delivery of prohibited drugs to him by using the Australia Post service and the use of assumed identities ... in arranging deliveries of prohibited drugs to him' (ts 588).
141. It was argued that the convictions on counts 2 to 13 and the material facts on which those convictions were based were capable of proving the asserted propensity and, having regard to the other evidence adduced by the State in relation to count 1, would rationally affect, to a significant extent, the jury's assessment of the probability of the existence of the following facts in issue (appeal ts 42):

(a) whether the appellant had the required intention to commit the offence of attempting to possess the parcel containing the methylamphetamine; and
(b) whether the appellant knew that the parcel contained methylamphetamine or another prohibited drug.

142. It was also argued that the evidence of the alleged propensity, having regard to the other evidence adduced by the State in relation to count 1, would rationally affect, to a significant extent, the jury's assessment of the probability of any innocent association based on the appellant's statement in his electronically recorded interview with police that he was merely tracking the parcel containing the methylamphetamine for another person and without any knowledge of its contents (appeal ts 42).
143. Counsel submitted that the probative value of the convictions on counts 2 to 13 and the material facts on which those convictions were based, compared to the degree of risk of an unfair trial, was 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. The trial judge's directions to the jury appropriately guarded against the risk of an unfair trial arising from any impermissible reasoning by the jury based on the propensity evidence.

144. Section 31A of the Evidence Act provides:

31A. Propensity and relationship evidence

(1) In this section —

propensity evidence means —

(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.

145. The principles governing the admission of propensity evidence under s 31A of the Evidence Act are well established. They were summarised recently in Chuguna v The State of Western Australia.[1] It is unnecessary to repeat the summary. We merely note the following.
146. The question of whether propensity evidence has significant probative value can only have one correct answer, but it is a question about which reasonable minds may sometimes differ. In an appeal against conviction, the appellate court must determine for itself whether the evidence is of significant probative value, as distinct from deciding whether it was open to the primary judge to arrive at his or her conclusion. See R v Bauer (a pseudonym).[2]
147. An assessment of the probative value of propensity evidence requires the court to determine the extent to which:

(a) the evidence is capable of proving the propensity; and
(b) proof of the propensity increases the likelihood of the commission of the offence.

See Hughes v The Queen.[3]

148. In Director of Public Prosecutions v Benjamin Roder (a pseudonym),[4] the High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ) stated that tendency or propensity evidence is a 'special class' of circumstantial evidence [23]. Their Honours then referred to Hughes and Shepherd v The Queen[5] as follows [24]:

In Hughes v The Queen, the majority in this Court explained that with tendency evidence, '[t]he trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to [determining] the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue' (emphasis added) (Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [16]; [2017] HCA 20; 92 ALJR 52). The process of reasoning involved is similar to the manner in which an assessment of the significant probative value of the evidence is undertaken by the trial judge for the purpose of determining its admissibility, namely, by first assessing the strength of the evidence in establishing the tendency and then considering 'the extent to which the tendency makes more likely the elements of the offence charged' (Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [64]; [2017] HCA 20; 92 ALJR 52). In the language of Shepherd (Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579; [1990] HCA 56; 65 ALJR 132), the tendency is an 'intermediate fact' that the prosecution seeks to establish and rely on as circumstantial proof of the elements of the offence.

149. As we have mentioned, in the present case the State contended at trial that the appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based established that the appellant had a tendency to be involved in the remote sourcing of prohibited drugs; in arranging for the delivery of the drugs to him by using the Australia Post service; and in using assumed identities in arranging for the delivery of the drugs to him. It was that tendency which the State asserted the appellant had, at the material time, within the definition of 'propensity evidence' in s 31A(1) of the Evidence Act.
150. We are satisfied, for the following reasons, that the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State, established that, at the material time, the appellant had the alleged tendency.
151. First, the appellant was involved in the remote sourcing of the prohibited drugs the subject of counts 2 to 13.
152. Secondly, the remote sourcing of those prohibited drugs related to 12 discrete quantities. The appellant was involved in attempting to possess each quantity of human growth hormone or anabolic steroid.
153. Thirdly, there was an extremely close temporal connection between each of the attempts to possess the prohibited drugs the subject of counts 2 to 13.
154. Fourthly, all of the attempted possessions the subject of counts 2 to 13 involved the attempted delivery of the prohibited drugs to the appellant by use of the Australia Post service.
155. Fifthly, all of the attempted possessions the subject of counts 2 to 13 involved the delivery of each prohibited drug in a parcel or envelope addressed to a name apparently unconnected to the appellant but to a place to which the appellant had access.
156. Sixthly, the appellant was involved in the parcels and the envelopes being addressed to names apparently unconnected to the appellant but being delivered to a place to which he had access.
157. Seventhly, Jessica John had been in a relationship with the appellant from January to April 2018. Ms John knew nothing about the packages or the prohibited drugs. The appellant used her identity, without her knowledge or consent, to establish the APCN registered in her name.
158. Eighthly, on 27 May 2020 at 10.45 am (AWST), the appellant was involved in adding the parcel with the tracking number ending in '994' to the watch list for the APCN registered in the name of Jessica John.
159. Ninthly, the appellant went to the Australia Post outlet at around 12.40 pm (AWST) on 5 June 2020 and collected the package addressed to Jessica John that contained the human growth hormone the subject of count 13.
160. Tenthly, when the appellant was arrested at the Australia Post outlet at around 12.40 pm (AWST) on 5 June 2020, the white mobile telephone in his possession was open to the APCN registered in the name of Jessica John. The appellant was tracking the package addressed to Jessica John which contained the human growth hormone the subject of count 13.
161. We are satisfied, for the following reasons, that the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State, had significant probative value in relation to count 1 as follows:

(a) proof by the State that the appellant intended to commit the offence of attempting to possess the parcel containing the methylamphetamine;
(b) proof by the State that the appellant knew that the parcel contained a prohibited drug; and
(c) rebuttal by the State of any innocent association based on the appellant's assertion in his electronically recorded interview with police that he was merely tracking the parcel containing the methylamphetamine for another person and without knowledge of its contents.

162. First, the tendency which the State asserted that the appellant had, at the material time, within the definition of 'propensity evidence' in s 31A(1) of the Evidence Act, was formulated with a reasonable degree of specificity. It was not formulated at a high level of generality.
163. Secondly, the appellant's propensity, at the material time, was to be involved in the remote sourcing of prohibited drugs; in arranging for the delivery of the prohibited drugs to him by using the Australia Post service; and in using assumed identities in arranging for the delivery of the drugs to him.
164. Thirdly, there was very close temporal proximity between the appellant's commission of counts 2 to 13 and his alleged commission of count 1. The interval between the commission of counts 2 to 13 and the alleged commission of count 1 did not deprive the propensity evidence of significant probative value or diminish its probative value.
165. Fourthly, the fact that counts 2 to 13 concerned human growth hormone and anabolic steroids whereas count 1 involved methylamphetamine did not deprive the propensity evidence of significant probative value or diminish its probative value. The propensity evidence related, in part, to the appellant's method of operation in attempting to possess prohibited drugs. The propensity evidence did not relate to the appellant dealing solely or exclusively with a particular kind of prohibited drug.
166. Fifthly, the evidence adduced by the State (in addition to the propensity evidence) in relation to count 1 included:

(a) the evidence that the appellant was a part owner of the Banksia Grove house;
(b) the evidence that the parcel containing the methylamphetamine was addressed to Brett Downs (who had no connection with the Banksia Grove house) at the Banksia Grove house;
(c) Jessica John's evidence that she had been in a relationship with the appellant from January to April 2018;
(d) Ms John's evidence that she had never permitted another person to take images or make copies of her driver's licence; she had never had an account with Australia Post; she had never had a parcel locker; and she did not recognise the telephone number ending in '156';
(e) the evidence (including the appellant's admission in his electronically recorded interview with police) that the appellant was in possession of the mobile telephone with the telephone number ending in '156' when he was arrested;
(f) Detective Marron's evidence that the mobile telephone in the appellant's possession when he was arrested included a photograph of Jessica John's driver's licence; information purporting to give directions to Jessica John about a delivery to a parcel locker; a photograph of a substance that was consistent with the appearance of methylamphetamine or possibly MSM modified to mimic the appearance of methylamphetamine; and a photograph of a white powder that had the appearance of cocaine;
(g) Detective Psaila‑Borrie's evidence that a search of the appellant's computer revealed images of driver's licences in the names of Paul Watson, Ian Sheppard and Jessica John;
(h) Detective Baker's evidence that on the afternoon of 5 June 2020 he located at the appellant's home the packaging for a Telstra prepaid SIM card surround and the packaging for the mobile telephone with the telephone number ending in '156';
(i) Mr Liedermoy's evidence that he had not opened any accounts or parcel lockers with Australia Post; he did not have a mobile telephone with the number ending in '156'; and he had never lost or reported to police any lost property including a driver's licence or documents with any of his details on them;
(j) Mr Sheppard's statement that, although the mobile telephone with the number ending in '156' was registered in his name, he did not have a mobile telephone with a number ending in '156'; he did not recognise that telephone number; and he did not know anyone with that telephone number;
(k) Mr Harmes' evidence that he had never had an Australia Post account; he had never used any parcel lockers in Western Australia; he did not recognise the mobile telephone number ending in '156'; he had never shared his personal details with any people to allow them to open any accounts in his name or in another name; and he had never permitted any people to use his details to open an Australia Post account in their name or in another name;
(l) Mr Brown's evidence to the effect that in the early afternoon of 2 June 2020 he arrived at the Banksia Grove house with two parcels including the parcel containing the methylamphetamine; the parcel containing the methylamphetamine did not require a signature; the two parcels were addressed to the address of the Banksia Grove house but to different addressees; and when Mr Brown returned to the distribution centre later in the afternoon of 2 June 2020 he and Mr May locked the parcel in a filing cabinet in the manager's office;
(m) the evidence that the parcel containing the methylamphetamine had a tracking number ending in '997';
(n) the evidence that an APCN had been registered in the name of Jessica John without her knowledge or consent and that the APCN had been set up using her driver's licence details without her permission;
(o) the evidence that the APCN registered in the name of Jessica John listed the mobile telephone with the telephone number ending in '156' for the customer and that the number was connected to a SIM card that was used in the mobile telephone that was in the appellant's possession when he was arrested; and
(p) the evidence in exhibit 4 that the event history in relation to the parcel with the tracking number ending in '997' included a record that a person had used the APCN registered in the name of Jessica John to add the tracking number to their watch list on 4 June 2020 at 2.07 am (AWST).

167. Sixthly, there was a significant and logical connection between the evidence of the appellant's propensity, on the one hand, and the other evidence adduced by the State (in particular, the evidence to which we have referred at [166] above), on the other, having regard to the purposes for which the State relied upon the propensity evidence. See [141] ‑ [142] above.
168. Seventhly, we consider that the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State (in particular, the evidence to which we have referred at [166] above), in the context of the evidence as a whole, made it more likely, to a significant or an important extent, that:

(a) the appellant intended to commit the offence charged in count 1 of attempting to possess the parcel containing the methylamphetamine; and
(b) the appellant knew that the parcel contained a prohibited drug.

169. Eighthly, we consider that the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State (in particular, the evidence to which we have referred at [166] above), in the context of the evidence as a whole, made it less likely, to a significant or an important extent, that there was any innocent association, based on the appellant's assertion in his electronically recorded interview with police, that he was merely tracking the parcel containing the methylamphetamine for another person and without knowledge of its contents.
170. We are satisfied, for the following reasons, that the probative value of the evidence which the State adduced at the trial in relation to the appellant's propensity, compared to the degree of risk of an unfair trial, was such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt on count 1 must have priority over the risk of an unfair trial.
171. First, the trial judge gave directions to the jury in relation to the propensity evidence having regard to the specific circumstances of the appellant's propensity and the whole of the evidence adduced at the trial. The directions ensured that any impermissible prejudice to the appellant arising from the admissibility of the propensity evidence was overcome or guarded against. As we have mentioned, neither the prosecutor nor defence counsel sought any redirection or additional direction from her Honour in connection with the propensity evidence. Further, as we have mentioned, the appellant does not make any complaint in the appeal about her Honour's directions.
172. Secondly, the directions which her Honour gave to the jury were not of such complexity as to be beyond the capacity of a jury to understand and apply. The jury was capable of performing the function required of them.
173. MacLean DCJ was correct in granting the State's application to adduce evidence of the appellant's convictions on counts 2 to 13 and the material facts on which those convictions were based as propensity evidence at the appellant's trial on count 1.
174. Ground 1 fails.

175. The trial judge directed the jury on the elements of count 1.
176. The prosecutor did not seek any redirection or additional direction from her Honour in connection with any of the elements of the offence.
177. Defence counsel discussed with the trial judge the directions her Honour had given on one of the elements of count 1 but, ultimately, defence counsel did not seek any redirection or additional direction from her Honour in connection with any of the elements of the offence.
178. The appellant does not make any complaint in the appeal about her Honour's directions. It is therefore unnecessary to reproduce or summarise the directions.

179. Counsel for the appellant submitted that the evidence adduced at the trial did not establish that there had been an 'attempt' within the meaning of s 4 of the Code.
180. Counsel noted that at the trial the State relied upon two acts to prove that the appellant attempted to possess the methylamphetamine. First, the State relied upon an inference that the appellant must have provided the address of the Banksia Grove house to the sender of the parcel containing the methylamphetamine or to another person who provided the address to the sender. Secondly, the State relied upon an inference that the appellant was the person who had used the APCN registered in the name of Jessica John to add the tracking number ending in '997' to their watch list on 4 June 2020 at 2.07 am (AWST).
181. It was argued that the evidence relied upon by the State was insufficient to exclude a reasonable inference that the appellant's acts were merely preparatory to the commission of the offence; alternatively, to exclude a reasonable inference that the appellant's intention was other than to possess the parcel containing the methylamphetamine.
182. Counsel submitted that an inference that the appellant must have provided the address of the Banksia Grove house to the sender of the parcel containing the methylamphetamine or to another person who provided the address to the sender was not the only inference reasonably open on the evidence. Counsel referred to the appellant's assertions in his electronically recorded interview with police that he had 'not done anything to actively acquire that package or methamphetamine' (EROI 71) and that he had used the Australia Post tracking system at the request of another person who had asked him to relay information to assist the other person to 'go and obtain the package' (EROI 73).
183. It was submitted that even if the jury rejected the appellant's assertion in his electronically recorded interview, there was an available inference that the parcel containing the methylamphetamine was delivered to the Banksia Grove address 'for the purpose of somebody other than the appellant to take sole possession of it'. Counsel referred to the telephone calls made by the person who identified himself as John Sigaro which enquired about the non‑delivery of the parcel containing the methylamphetamine. The first call was made on 3 June 2020 at 3.32 pm (AEST). The second was made at an unspecified time on 4 June 2020. Counsel also referred to the person who had used the APCN registered in the name of John Sigaro to add the tracking number of the parcel containing the methylamphetamine to their watch list. That occurred at 12.46 am (AWST) on 4 June 2020. Counsel noted that Detective Psaila‑Borrie gave evidence that the APCN account in the name of John Sigaro did not track any parcel apart from the parcel containing methylamphetamine.
184. Counsel emphasised that there was no evidence that the appellant knew the parcel in question contained methylamphetamine or that he knew the quantity of the methylamphetamine. Counsel also emphasised that there was no evidence that the appellant had ordered the methylamphetamine or had caused it to be ordered. Counsel reiterated that the propensity evidence did not bear upon the likelihood that the appellant would intend to possess methylamphetamine specifically, but merely established that he had a tendency to source other prohibited drugs through the postal system using pseudonyms.
185. According to counsel for the appellant, having regard to the evidence as a whole, an inference that the appellant provided the address of the Banksia Grove house for the purpose of the delivery of the methylamphetamine was not the only inference reasonably open. The alternative inference reasonably open was that a person other than the appellant, who knew that the appellant was a part owner of the Banksia Grove house, had asked the appellant to track the parcel containing the methylamphetamine without the appellant knowing the destination of the parcel. Further, according to counsel, having regard to the evidence as a whole, an inference that the appellant was the person who had used the APCN registered in the name of Jessica John to add the tracking number ending in '997' to their watch list on 4 June 2020 at 2.07 am (AWST) was not the only inference reasonably open. The alternative inference reasonably open was that the person who, on the appellant's assertion in his electronically recorded interview, had asked the appellant to track the parcel containing the methylamphetamine, without the appellant knowing the destination of the parcel, had used the APCN registered in the name of Jessica John to add the tracking number to their watch list.
186. It was significant, so it was submitted, that the appellant did not take any physical step towards taking physical possession of the methylamphetamine; for example, by attempting to collect the parcel either when delivery was attempted at the Banksia Grove house or from Australia Post.
187. Finally, counsel submitted that even if it was open to the jury to infer that the appellant had supplied the address of the Banksia Grove house for the purpose of the delivery of the methylamphetamine, in the knowledge that the parcel was to contain a prohibited drug, and even if it was open to the jury to infer that the appellant was the person who had used the APCN registered in the name of Jessica John to add the tracking number ending in '997' to their watch list on 4 June 2020 at 2.07 am (AWST), those two acts did not prove that the appellant had attempted to possess the methylamphetamine. The two acts were merely preparatory to the commission of the offence charged in count 1.

188. Counsel for the State submitted that there was a strong body of circumstantial evidence which supported the State's case that the appellant intended to commit the offence charged in count 1. The jury was entitled to conclude that the only reasonable inference open on the evidence was that the appellant intended to possess the methylamphetamine. Counsel emphasised that the jury was entitled to use the propensity evidence to negate any innocent explanations; for example, that the appellant had no knowledge of the contents of the parcel containing the methylamphetamine and was merely tracking it innocently. It was submitted that the jury was entitled, on the whole of the evidence, to reject the appellant's assertions in his electronically recorded interview with police and in his defence at trial, and to be satisfied beyond reasonable doubt that the appellant intended to commit the charged offence. In particular, the jury was entitled to reject, as a reasonable inference, that the appellant's only involvement was that another person had asked him to track the package and to relay information about it.
189. The State's case at trial was that the appellant had attempted to bring the parcel containing the methylamphetamine under his control, and not that the appellant was the only person who was attempting to possess the methylamphetamine. The State did not allege that the appellant was the only person connected with the drug. Two or more accused can jointly possess a prohibited drug at the same time, even though one or more of the accused does not have the drug in his or her actual physical possession at that time.
190. It was submitted that the acts relied upon by the State at trial went beyond mere preparation. Those acts comprised the appellant assisting with delivery of the package by providing the address of the Banksia Grove house to which the package was sent and the appellant using the APCN registered in the name of Jessica John to add the tracking number ending in '997' to his watch list.
191. According to counsel, the trial record does not require the conclusion that the jury must necessarily have entertained a reasonable doubt about the appellant's guilt.

192. The principles to be applied in determining whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported are set out in Sandy v The State of Western Australia.[6] It is unnecessary to repeat the applicable principles. As we have mentioned, the sole basis on which the appellant alleges that the verdict of guilty is unreasonable or cannot be supported is because the evidence adduced at trial was incapable of establishing that the appellant attempted to possess the methylamphetamine, in that the acts relied upon by the State as acts of attempt were no more than merely preparatory to the commission of the offence.

193. Section 33(1)(a) of the MD Act provides, relevantly:

A person who attempts to commit an offence under this Act (the principal offence) commits —

(a) if the principal offence is a crime, the crime; ...

...

and is liable on conviction to the same penalty to which a person who commits the principal offence is liable.

194. Section 6(1)(a) of the MD Act provides that a person who, with intent to sell or supply it to another, has in his or her possession a prohibited drug, commits a crime.
195. Methylamphetamine is a 'prohibited drug' as defined in s 3(1) read with s 4 of the MD Act.
196. The expression 'to possess' is defined in s 3(1) of the MD Act as follows:

to possess includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings.

197. The concept of 'possession', in the context of s 6(1)(a) of the MD Act, is explained in Sgarlata v The State of Western Australia.[7]
198. The compendious expression 'to sell or supply' is not defined in the MD Act. However, the words 'to supply' have an extended definition in s 3(1) and include:

[T]o deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied.

199. Section 11(a) of the MD Act reads:

For the purposes of —

(a) section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug[.]

200. Schedule V of the MD Act provides that the presumption applies where the quantity of methylamphetamine is not less than 2 g.
201. The presumption in s 11(a) of the MD Act had no application to the attempt charge the subject of count 1.[8]
202. In Kalbasi v The State of Western Australia,[9] Mazza and Mitchell JJA made these observations in relation to the offence of attempting to possess a prohibited drug:

In order to possess a prohibited drug it is necessary that the accused has knowledge of that drug, being 'knowledge ... that he or she had possession of a prohibited drug of some kind, even though that person did not know what prohibited drug he or she possessed'. Knowledge is established 'if there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she had a prohibited drug in his or her physical possession or otherwise in his or her control or under his or her dominion': The State of Western Australia v R [2007] WASCA 72; (2007) 33 WAR 483 [50], [67]. The State does not have to prove that the accused has knowledge that the prohibited drug in his or her physical custody or control or dominion is, as a matter of law, a prohibited drug: Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176. The State must prove that the accused had an intention to possess the prohibited drug: Davis v The Queen (1990) 5 WAR 269; (1990) 50 A Crim R 55, but cf Davies v The State of Western Australia [2006] WASCA 151. The elements of knowledge and control must coincide: Lai v The Queen [1990] WAR 151; (1989) 42 A Crim R 460 and Cumming v The Queen (1995) 86 A Crim R 156, 162 ‑ 163.

See also Sheriff v The State of Western Australia.[10]

203. Section 4 of the Criminal Code (WA) (the Code) provides:

When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

It is immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.

The same facts may constitute one offence and an attempt to commit another offence.

204. Section 4 of the Code supplements the provisions of s 6(1)(a) read with s 33(1) of the MD Act, which create the offence of attempting to possess a prohibited drug. See, generally, the reasoning in Trajkoski v Director of Public Prosecutions (WA).[11] See also Lia v The State of Western Australia.[12]
205. In Weggers v The State of Western Australia,[13] Buss JA considered s 4 of the Code and its interaction with the provisions of s 6(1)(b) read with s 33(1) of the MD Act, which create the offence of attempting to manufacture or prepare a prohibited drug. Although Buss JA dissented in the result in Weggers, his analysis of s 4 is not inconsistent with the reasons of the majority in that case. It is convenient to reproduce what Buss JA wrote about s 4 on that occasion.
206. The first paragraph of s 4 defines 'attempt'. It specifies three elements. First, an intention by a person to commit an offence. Secondly, the doing by the person of an act which is more than 'merely preparatory' to the commission of the offence, such act being done as the initial step in putting his or her intention into effect. Thirdly, non‑fulfilment by the person of his or her intention to commit the offence in question.
207. As Franklyn J noted in R v English,[14] the second paragraph of s 4:

(a) is directed to and intended to clarify the words 'but does not fulfil his intention to such an extent as to commit the offence' appearing in the first paragraph;
(b) assumes the requisite intention and the doing of the act which is more than 'merely preparatory'; and
(c) declares that certain matters are immaterial in determining whether the elements of the attempted offence have been made out (358).

208. The matters that are immaterial comprise: whether the offender does all that is necessary on his or her part for completing the commission of the intended offence; whether the complete fulfilment of the offender's intention is prevented by circumstances independent of his or her will; and whether the offender desists of his or her own motion from the further prosecution of his or her intention.
209. Section 4 distinguishes between:

(a) a person doing an act that is 'merely preparatory' to the commission of an offence which he or she intends to commit; and
(b) a person, intending to commit an offence, beginning to put this intention into execution by doing an act that is more than 'merely preparatory' to the commission of the offence.

210. Acts are 'merely preparatory' to the commission of an offence if they involve devising or arranging the means or measures necessary or convenient for the commission of the offence. The word 'merely' emphasises that an act by a person which is, to any extent, more than preparatory to the commission of an intended offence, and which involves, to any extent, the person beginning to put his or her intention to commit the offence into execution, will be an act satisfying the second element of the definition of 'attempt' in the first paragraph of s 4.
211. The commission of an offence will ordinarily, as a matter of fact, comprise a series of acts which originate from a person's idea to perform a criminal act. For example, the person's idea may mature into a decision to commit the offence; a plan may be conceived for implementing the decision; preparation may be undertaken with a view to carrying out the offender's decision and plan; and the person, after completing the preparation, may put his or her decision and plan into execution by performing an act towards the commission of the offence. See R v Cline.[15]
212. Numerous different tests for determining whether acts by a person are merely preparatory to the commission of an offence or constitute an attempt to commit the offence have been formulated and referred to from time to time in legislation and judgments. All of them appear to have been criticised in varying degrees. See the detailed appraisal in Meehan and Currie, The Law of Criminal Attempt (2nd ed, 2000) ch 5. See also Williams, Wrong Turnings on the Law of Attempt [1991] Crim L R 416. Parliaments have struggled to make the distinction and judges have had difficulty in applying it.
213. In R v Barker,[16] Salmond J (Stringer J agreeing) said in relation to the distinction between preparation and an attempt:

All that can be definitely gathered from the authorities is that to constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required. The dividing line between preparation and attempt is to be found somewhere between these two extremes; but as to the method by which it is to be determined the authorities give no clear guidance (398).

214. That passage was adopted by Stable J in R v Williams; Ex parte Minister for Justice and Attorney-General.[17] His Honour added:

I would consider it unlikely that the authorities will ever give ... 'clear guidance' as to the method of finding the dividing line between preparation and attempt, for that would mean the discovery of a legal formula universally applicable to the enormous variety of method by which nefariously inclined individual persons apply their infinite disparity of intellect and capability to the carrying out of criminal intentions. That is just a long way of putting the evergreen truth ‑ each case depends on its own facts (102).

215. Laidlaw JA observed in Cline, in the context of the common law of criminal attempt, that in determining whether an act is sufficient to constitute an actus reus each case must be determined on its own facts, 'having due regard to the nature of the offence and the particular acts in question' (26).
216. In Deutsch v The Queen,[18] Le Dain J, delivering the judgment of the majority of the Supreme Court of Canada, noted in relation to 'the distinction between attempt and mere preparation' (6):

It has been frequently observed that no satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt, and that the application of this distinction to the facts of a particular case must be left to common sense judgment (22 ‑ 23).

Le Dain J expressed his 'essential agreement' with this conclusion (23).

217. Le Dain J indicated in Deutsch that 'the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished' (23). Le Dain J explained that 'relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt' (26).
218. A correct understanding of the definition of 'attempt' in s 4 of the Code and the elements it specifies requires close attention to the statutory text. The language of the provision should not be paraphrased.
219. The distinction between acts that are merely preparatory to the commission of an offence and acts that are more than merely preparatory to its commission, for the purposes of s 4 of the Code, is often, as a matter of fact, imprecise. Each case will turn on its own facts and circumstances but, ordinarily, matters of importance in applying the distinction between acts that are merely preparatory and acts that are more than merely preparatory include:

(a) the nature of the completed offence;
(b) the actions which are necessary for carrying out the completed offence;
(c) the nature of the particular acts of the accused that are in question; and
(d) the relative proximity (including in time and place) of the acts in question to those actions that would have been necessary for the successful carrying out of the completed offence.

220. We are of the opinion, based on our assessment of the trial record as a whole, that the facts and circumstances established by the evidence proved beyond reasonable doubt that:

(a) the appellant provided the address of the Banksia Grove house to the sender of the parcel containing the methylamphetamine or to another person who provided the address to the sender; and
(b) at 2.07 am (AWST) on 4 June 2020, the appellant, using the APCN which he had registered in the name of Jessica John, added the tracking number for the parcel containing the methylamphetamine to his watch list.

221. We are also of the opinion, based on our assessment of the trial record as a whole, that the facts and circumstances established by the evidence proved beyond reasonable doubt that:

(a) the appellant intended to commit the offence charged in count 1 of attempting to possess the parcel containing the methylamphetamine; and
(b) the appellant had the requisite knowledge that the parcel contained a prohibited drug.

222. Further, we are of the opinion, based on our assessment of the trial record as a whole, that the facts and circumstances established by the evidence negated, as a reasonable possibility, that the appellant was merely tracking the parcel containing the methylamphetamine for another person, innocently and without the requisite knowledge that it contained a prohibited drug.
223. We consider that the appellant's act in providing the address of the Banksia Grove house to the sender of the parcel or to another person who provided the address to the sender was, having regard to his knowledge that the parcel would contain a prohibited drug and his capacity to track the parcel should he so decide, an act that was more than merely preparatory to the commission of the offence charged in count 1.
224. However, we consider that the appellant's act in using the APCN which he had registered in the name of Jessica John to add the tracking number for the parcel to his watch list was not, of itself, an act that was more than merely preparatory to the commission of the charged offence.
225. Our reasons for arriving at the opinions we have expressed in relation to ground 2 are as follows.
226. As we have mentioned, the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State, established that, at the material time, the appellant had a tendency to be involved in:

(a) the remote sourcing of prohibited drugs;
(b) the delivery of the drugs to him by using the Australia Post service; and
(c) the use of assumed identities in arranging for the delivery of the drugs to him.

227. Also, as we have mentioned, the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State (in particular, the evidence to which we have referred at [166] above), in the context of the evidence as a whole, made it more likely, to a significant or an important extent, that:

(a) the appellant intended to commit the offence charged in count 1 of attempting to possess the parcel containing the methylamphetamine; and
(b) the appellant knew that the parcel contained a prohibited drug.

228. Further, as we have mentioned, the evidence adduced by the State as propensity evidence at the trial, having regard to the other evidence adduced by the State (in particular, the evidence to which we have referred at [166] above), in the context of the evidence as a whole, made it less likely, to a significant or an important extent, that there was an innocent association, based on the appellant's assertion in his electronically recorded interview with police, that he was merely tracking the parcel containing the methylamphetamine for another person and without knowledge of its contents.
229. There is a distinction between evidence contained in an accused's out‑of‑court statements, on the one hand, and evidence of an accused or other witness given on oath or affirmation at the trial, on the other. Out‑of‑court statements made by an accused to police officers which are tendered by the prosecutor as evidence at the trial become evidence of the facts in issue whether those statements are inculpatory or exculpatory. See R v Yusuf.[19] An accused's out‑of‑court statements are not sworn or affirmed testimony and have not been tested in cross‑examination. It is open to the jury to evaluate an accused's out‑of‑court statements in that light. Exculpatory parts of an out‑of‑court statement do not necessarily have the same weight as inculpatory parts. The weight to be given to an accused's exculpatory out‑of‑court statements is a matter for the jury to consider and determine. See Mule v The Queen.[20]
230. We are satisfied, on our examination of the trial record, that it was reasonably open to the jury to reject (and, subject to the jury's significant advantage, on our assessment of the trial record as a whole, we reject):

(a) the appellant's assertion in his electronically recorded interview with police and his defence at the trial that he had 'not done anything to actively acquire that package or methamphetamine'; and
(b) the appellant's assertion in his electronically recorded interview with police and his defence at the trial that his only involvement with the parcel containing the methylamphetamine was that another person had asked him to relay information to assist the other person to 'go and obtain the package'.

231. It was reasonably open to the jury to reject (and, subject to the jury's significant advantage, we reject) those assertions and defences because, having regard to the evidence as a whole (in particular, the propensity evidence and the evidence to which we have referred at [166] above), the appellant's assertions and defences are highly implausible and unworthy of belief.
232. We are satisfied, on our examination of the trial record, that it was reasonably open to the jury to reject (and, subject to the jury's significant advantage, we reject) the appellant's contention that there was an available inference at the trial that the parcel containing the methylamphetamine was delivered to the Banksia Grove house 'for the purpose of somebody other than the appellant to take sole possession of it'. The State did not allege at the trial that the appellant was the sole person with a connection to the methylamphetamine. Two or more accused may simultaneously jointly possess or attempt jointly to possess a prohibited drug. The expression 'to possess' is defined in s 3(1) of the MD Act to include 'to control or have dominion over, or to have the order or disposition of'. The evidence as a whole (in particular, the propensity evidence and the evidence to which we have referred at [166] above) established that the only reasonable inference at the trial was that the appellant provided the address of the Banksia Grove house to the sender of the parcel or to another person who provided the address to the sender and, when he provided the address, the appellant had the requisite knowledge that the package would contain a prohibited drug.
233. We are also satisfied, on our examination of the trial record, that it was reasonably open to the jury to reject (and, subject to the jury's significant advantage, we reject) the appellant's contention that there was an available inference at the trial that the person who, on the appellant's assertion in his electronically recorded interview, had asked the appellant to track the parcel containing the methylamphetamine, without the appellant knowing the destination of the parcel, had used the APCN registered in the name of Jessica John to add the tracking number ending in '997' to their watch list on 4 June 2020 at 2.07 am (AWST). The evidence as a whole (in particular, the propensity evidence and the evidence to which we have referred at [166] above) established that the only reasonable inference at the trial was that the appellant was the person who had used the APCN registered in the name of Jessica John to add the tracking number to his watch list.
234. The appellant's act in providing the address of the Banksia Grove house to the sender of the parcel or to another person who provided the address to the sender, having regard to:

(a) the appellant's knowledge, when he provided the address, that the package would contain a prohibited drug;
(b) the appellant's capacity, at all material times, to track the parcel, should he so decide, by using the APCN which he had registered in the name of Jessica John;
(c) the appellant's propensity as established by the propensity evidence;
(d) the evidence to which we have referred at [166] above; and
(e) the nature of the completed offence, the actions which are necessary for carrying out the completed offence and the nature of the appellant's act,

constituted an act that was more than merely preparatory to the commission of the offence charged in count 1.

235. That act of the appellant, in the circumstances we have mentioned at [234] above, was sufficient to give the appellant control of or dominion over the parcel containing the methylamphetamine. It was unnecessary for this control or dominion to be sole or exclusive. The appellant was in a position to be able to obtain physical possession of the parcel by retrieving it from the Banksia Grove house (of which he was the part owner) when it had been delivered.
236. The appellant's act in using the APCN which he had registered in the name of Jessica John to add the tracking number for the parcel to his watch list was not, however, of itself an act that was more than merely preparatory to the commission of the charged offence because that act did not, of itself, give the appellant any control of or dominion over the parcel containing the methylamphetamine.
237. It was not necessary for the State to prove that the appellant had taken any physical step towards taking physical possession of the methylamphetamine; for example, by attempting to collect the parcel. That is, it was not essential to the State's proof beyond reasonable doubt that the appellant intended to commit the offence charged in count 1 that the appellant had taken any physical step towards taking physical possession of the methylamphetamine.
238. Further, it was not necessary for the State to prove that the appellant had ordered the methylamphetamine or had caused it to be ordered or that he knew the quantity of the methylamphetamine contained in the parcel the subject of count 1.
239. We are satisfied, after reviewing the trial record and weighing the whole of the evidence, that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant attempted to possess the methylamphetamine, as alleged in count 1. The trial record does not require the conclusion that the jury must necessarily have entertained a reasonable doubt that each and every act relied upon by the State as an act of attempt was no more than merely preparatory to the commission of the offence. The jury's verdict was supported by evidence that the jury was entitled to accept and by inferences that the jury was entitled to draw. Our assessment of the matters complained about by the appellant, in the context of ground 2, does not persuade us that the jury, acting reasonably, should have decided that the State had not proved all of the elements of the offence. A jury, acting reasonably, was not precluded by the state of the evidence at trial from convicting the appellant. The nature and quality of the evidence was sufficient to remove any doubt that the appellant was guilty. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the significant advantage (which this court does not have) of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his conviction. It would not be dangerous, in the circumstances, to permit the verdict of guilty to stand.
240. Ground 2 fails.

241. We would refuse leave to appeal. The appeal must be dismissed.

VANDONGEN JA:

242. I have had the great advantage of having read the reasons of Buss P and David AJA in draft (the joint reasons). I gratefully adopt their Honour's summary of the relevant background to this appeal against conviction, the relevant statutory provisions, and their Honour's comprehensive summary of the evidence adduced at the appellant's trial.
243. For the following reasons, I would also dismiss this appeal against conviction. My reasons assume familiarity with the joint reasons.

244. Ground 1 is concerned with whether MacLean DCJ made a wrong decision on a question of law in concluding that evidence relating to the offences charged in counts 2 to 13, to which the appellant pleaded guilty, was admissible in relation to count 1 under s 31A of the Evidence Act 1906 (WA). Alternatively, the appellant argues that the admission of that evidence at his trial resulted in a miscarriage of justice.
245. On either basis it is necessary for this court to determine for itself whether that evidence was admissible under s 31A of the Evidence Act.[21]
246. The relevant principles to be applied in determining whether the evidence relating to the offences charged in counts 2 to 13 had significant probative value for the purposes of s 31A(2)(a) were recently referred to in Chuguna v The State of Western Australia,[22] and need not be repeated.
247. As the High Court explained in Director of Public Prosecutions v Roder (a pseudonym),[23] an assessment of the strength of the evidence in establishing the tendency relied on by the State must first be undertaken.[24] The particular tendency relied on by the State at the appellant's trial was expressed as follows:[25]

[A] tendency for [the appellant] to be involved in the remote sourcing of prohibited drugs, the arranging of the delivery of prohibited drugs to him by using the Australia Post service and the use of assumed identities by [the appellant] in arranging deliveries of prohibited drugs to him.

248. I will refer to that tendency as the 'relevant tendency' in the balance of these reasons.
249. After undertaking an assessment of the strength of the evidence in establishing the relevant tendency, it will then be necessary to determine the extent to which that tendency made more likely the elements of the offence charged.[26]
250. In carrying out these assessments, the ultimate questions will be whether the evidence relied on by the State to establish the relevant tendency had, either by itself or having regard to other evidence that was adduced, significant probative value (s 31A(2)(a)), and whether the probative value of that 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 (s 31A(2)(b)).
251. At the hearing of the appeal, counsel for the appellant accepted that the evidence relating to the offences charged in counts 2 to 13 established that the appellant had the relevant tendency.[27] The appellant's counsel was correct to make that concession.
252. The facts relating to the admitted offending the subject of counts 2 to 13 were set out in a statement of agreed facts that became Exhibit 1 at the appellant's trial. Those facts were elaborated upon in the evidence of the investigating police officer, Detective Senior Constable Loki Diel Psaila‑Borrie.[28]
253. That evidence established that on 4 June 2020, the appellant attempted to take possession of two packages that had been sent through the mail and which were waiting to be collected from an Australia Post outlet in West Perth. Inside the two parcels were various other smaller parcels ('Express parcels' or 'Ebay envelopes'), each containing a quantity of human growth hormone or steroids.
254. The Express parcels were addressed to several different people at different addresses. The appellant's name did not appear on any of those parcels and there was no evidence that he had any connection with any of those people or addresses.
255. Curiously, there was no evidence adduced at the appellant's trial that established whether any of the names or addresses on the parcels were real or whether they were fictitious. However, the two packages that contained the smaller parcels were addressed to and/or were waiting to be collected by a 'Jessica John'. Unchallenged evidence was adduced at the appellant's trial that established that Jessica John was the appellant's former girlfriend.
256. On 5 June 2020, the appellant attempted to collect another package addressed to Ms John from the same Australia Post outlet. This package had also been sent through the mail. When the appellant arrived at the outlet, the package was in a parcel locker.
257. Inside this package was an Express Post prepaid envelope addressed to a person at a Caversham address. This parcel also contained a human growth hormone. Once again, and for reasons that are unclear, there was no evidence adduced at the appellant's trial about whether the person to whom the package was addressed, or the address on the package, existed.
258. Ms John gave evidence at the appellant's trial. For reasons that do not appear from the trial record, Ms John was never asked whether she knew anything about any of the packages that had been addressed to her. Nevertheless, it was never seriously in dispute that the appellant had used Ms John's name in connection with the three packages and that he had done so without her knowledge or permission. In that regard, the appellant's counsel never suggested to Ms John in cross‑examination that she had any involvement with those packages.
259. In any event, after the appellant was arrested on 5 June 2020, he was found in possession of a mobile telephone that was being used to track the parcel that he was then attempting to collect, using an APCN in Ms John's name. An electronic copy of Ms John's driver's licence was found on that mobile telephone. There was also evidence that one of the parcels the appellant attempted to collect on 4 June 2020 had been added to a watch list for an APCN in his name on 17 May 2020, before it was very quickly removed and then added to a watch list for the APCN in Ms John's name.
260. As the appellant pleaded guilty to counts 2 to 13, and the facts underlying those offences were the subject of agreed facts, there was very little, if any, dispute about the evidence relied on to establish the existence of the relevant tendency. In that respect, this evidence was highly cogent.
261. The State also adduced evidence from Detective Senior Constable Daniel Millson, who participated in a search of the appellant's home on 5 June 2020. Detective Millson gave evidence that he found '[o]nline chats [and] online message boards with regards to the distribution of steroids and a ledger containing [Australia] Post tracking numbers with what looked to be invoice numbers matched to an email address'[29] on a computer that was found at the appellant's home. Detective Millson later gave the following evidence about what he found on the computer:[30]

What was the bulk of the files that you downloaded from the computer?---So it's still images of a notebook divided into columns. Approximately four columns per page on the - so two sets of two columns per page. On the left-hand side is the [Australia] Post tracking number that you rip from an express post package and on the right-hand side, or the second column, is an invoice number.

All right. So you downloaded - are they in photograph form? Or what form were they in? Were they - - -?---So they were all photographs and at the top of every page there was a date.

Photographs of what?---Photographs of that notebook.

The bontebok [sic]?---Of the notebook - - -

And the notebook - - -?--- - - - or the pages of that notebook.

Pages of the notebook wherein those records were kept?---Yes.

All right. What else did you download from that computer?---I took photographs of an email account that referenced those invoice numbers and what they referred to and photographs or various conversations in chat groups in relation to the managing of an online steroid marketplace.

All right. Did you find anything by way of identification?---There was numerous photographs of identification, particularly a motor driver's licence - a [Western Australian] motor driver's licence in the name of Jessica John.

You remember that there was a [Western Australian] motor driver's licence in the name of Jessica John?---Yes.

262. Evidence was adduced that police found a cardboard surround for a SIM card during the search of the appellant's home. On that item was written a mobile telephone number. That number had been used to register APCNs in the names of Ian Sheppard, Paul Watson and Jaaron Mahar. Images of driver's licences in each of those names were also located on the computer that was found during the search of the appellant's home.
263. Police located Mr Sheppard, and he provided a witness statement that was read into evidence. Mr Sheppard did not know the appellant and had nothing to do with the mobile telephone number connected to the APCN. While he did have an Australia Post account, it was clearly not related to the APCN that was linked to the mobile number on the carboard surround found at the appellant's home.
264. Police were unable to locate Mr Watson. The address on the copy of the driver's licence found on the computer was for a 'backpackers' or refuge house in Northbridge.
265. The driver's licence for Mr Mahar was issued in Victoria. Police did not carry out any investigations in relation to that identification.
266. The evidence also established that the packaging for an iPhone 6 was found at the appellant's home. That packaging was associated with the mobile telephone the appellant was using to track a parcel when he was arrested on 5 June 2022. The telephone number that was connected to that telephone was registered in the name of Mr Sheppard, using his former residential address in Queensland. As I have already noted, Mr Sheppard knew nothing about the telephone number.
267. The same telephone number was linked to the APCN registered in the name of Ms John. It was also linked to other APCNs in the names of David Robert Harmes, Daniel Hicks and Wayne Stephen Liedermoy.
268. Mr Harmes was previously married to the appellant's partner. He had only met the appellant on three or four occasions, they had only ever exchanged greetings, and the last time he lived in the same State as his ex‑wife (and presumably, by extension, the appellant) was in 2018. Mr Harmes gave evidence that he has never had an account with Australia Post, had not given anyone his details to use to open an account, and that he did not recognise the mobile number or email address linked to the relevant APCN.
269. No evidence about Mr Hicks was adduced at the appellant's trial.
270. A statement signed by Mr Liedermoy was read into evidence. According to that statement, Mr Liedermoy did not know the appellant, had never opened an account with Australia Post, and had nothing to do with the relevant mobile telephone number.
271. In my view, the evidence that I have summarised very clearly demonstrated that the appellant had the relevant tendency. The evidence convincingly established that the appellant had engaged in a determined pattern of behaviour over a period of time that was designed to have prohibited drugs, in particular steroids and growth hormones, delivered to him through the mail system by Australia Post, under assumed identities. The appellant's behaviour involved, but was not limited to, his attempts to obtain physical possession of a significant quantity of prohibited drugs on both 4 and 5 June 2020.
272. It is then necessary to consider the extent to which the existence of the relevant tendency made more likely the elements of the offence charged in count 1. Before dealing with that issue, it is first necessary to identify the elements of the offence charged.
273. The appellant was charged in count 1 with attempting to possess a prohibited substance, namely methylamphetamine, with intent to sell or supply it to another, contrary to  s 33(1)(a)  of the  Misuse of Drugs Act 1981  (WA), which is in the following terms:
     33. Attempts, conspiracies, incitements and accessories after the fact

(1) A person who attempts to commit an offence under this Act (the principal offence) commits -

(a) if the principal offence is a crime, the crime; or
(b) if the principal offence is a simple offence, the simple offence,

and is liable on conviction to the same penalty to which a person who commits the principal offence is liable.

274. In the circumstances of this case, the relevant 'principal offence' was an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act .
275. As has been previously noted by this court, although  s 33(1)  of the  Misuse of Drugs Act  uses the word 'attempts', there is nothing in the Act that defines what constitutes an attempt to commit an offence contrary to that Act.[31]
276. The parties conducted the trial and the appeal on the basis that s 4 of the Criminal Code (WA) supplies the meaning of 'attempts' for the purposes of an offence contrary to  s 33(1)  of the Misuse of Drugs Act. That is consistent with the approach taken by this court in cases such as Milenkovski v The State of Western Australia;[32] Weggers v The State of Western Australia;[33] and more recently in Lia v The State of Western Australia.[34] I will also adopt that approach.
277. In Lia,[35] a case in which it was argued that a verdict of guilty for an offence of attempting to commit an offence contrary to s 6(1)(a) of the  Misuse of Drugs Act  was unreasonable or could not be supported, it was said that an attempt to commit an offence is established if it is proven that the accused:

(a) had an intention to commit an offence;
(b) began to put that intention into execution by doing an act that is more than merely preparatory to the commission of the offence; and
(c) did not fulfil his or her intention to the extent of committing the offence.

278. In the circumstances of this case, the State was required to prove, for the purposes of the first element of the offence charged in count 1, that the appellant intended to commit an offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the  Misuse of Drugs Act . This required proof that the appellant specifically intended each element of that offence. However, I note that in Reid v Director of Public Prosecutions (WA),[36] McLure P said:[37]

In order to be guilty of an attempt to commit an offence under  s 6(1)(a) , the only possible element missing from the completed offence is possession of the prohibited drug. The intention to sell or supply must be in existence at the time the attempt is made to obtain possession of the prohibited drugs.

279. As I will explain in more detail in the context of ground 2, the State's case was, in essence, that the appellant had taken steps to have the parcel that was later found to contain methylamphetamine, delivered to a unit in Banksia Grove that he part owned (Banksia Grove unit).
280. The State case was that the appellant intended that the parcel would contain prohibited drugs when it was sent in the mail, and that by arranging for it to be delivered to the Banksia Grove unit, the appellant intended to possess those drugs once they had been delivered.
281. However, the State's case was not limited only to an allegation that the appellant intended to take physical possession of the prohibited drugs once they were delivered to the Banksia Grove unit. The State also did not assert that the appellant was the sole intended recipient of those drugs. The State's case was that the appellant at least intended to exercise control over those drugs simply by having them delivered to the Banksia Grove unit. As the prosecutor explained in his opening address, the State's case was that the appellant 'tried to bring that methylamphetamine within his control'.[38] In that regard, and in the context of  s 6(1)(a)  of the  Misuse of Drugs Act , 'to possess' includes 'to control', and inflections and derivatives of the verb 'to possess' have correlative meanings.[39]
282. The second element of the offence charged in count 1 required proof that the appellant began to put his intention to commit an offence contrary to s 6(1)(a) of the  Misuse of Drugs Act  into execution by doing an act that was more than merely preparatory to the commission of that offence. In this case, the second element was concerned with specifically identified conduct the appellant was alleged to have engaged in, and whether that conduct amounted to an act that was, or acts that were, more than merely preparatory to the commission of an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act .
283. I will say more about the specific acts the State relied on as acts that were more than merely preparatory to the commission of an offence contrary to s 6(1)(a) in the context of ground 2. For the purposes of ground 1 it is enough to note that the trial judge directed the jury that the State's case was that one of the appellant's acts was providing the address of the Banksia Grove unit to either the person who sent the parcel containing the methylamphetamine in the mail, or that he provided it to another person who then directed it to the sender. The appellant disputed this allegation.
284. Further, the trial judge also explained that the State relied on a second act. That act was entering the tracking number for the parcel into an electronic Australia Post 'app' after delivery of the parcel had been rejected, and then using that 'app' to track the movements of the parcel using an APCN in the name of Ms John. There was no dispute at the appellant's trial that he had been tracking the parcel. The appellant admitted as much in his record of interview. What was in issue was why the appellant had been tracking the parcel. In that regard, the appellant told police, in essence, that an unnamed person had given him the tracking number for the parcel, and that he had been asked to 'keep an eye' on it and to let them know when it had been delivered.
285. It is unnecessary to dwell on the third element of the offence charged. There was no issue at the appellant's trial that if the evidence established that the appellant had the necessary intention, and if he had done an act that was more than merely preparatory to the commission of the relevant offence, the appellant had not fulfilled his intention to the extent of committing the relevant offence.
286. In assessing the probative value of the evidence, the starting point is to note that the evidence was more than capable of establishing that the appellant had the relevant tendency at a time that was proximate to the acts and the state of affairs alleged to give rise to the appellant's criminal liability. Although there was no direct evidence about when the parcel that contained the methylamphetamine was first sent in the mail, or when the sender of the parcel was provided with the address of the Banksia Grove unit, it is open to infer that both events occurred within days of the unsuccessful delivery of that drug. Further, the evidence established that the appellant added the parcel to the watch list associated with the APCN in Ms John's name a very short time after the unsuccessful delivery had taken place.
287. It is also important to appreciate that the relevant tendency was, in effect, reflected in the circumstances in which the methylamphetamine had been remotely sourced, including the fact that both the mail service offered by Australia Post and assumed identities had been employed in an unsuccessful effort to bring about a delivery of those drugs to the Banksia Grove unit. The close correlation between the relevant tendency and the circumstances in which the offence was alleged to have been committed meant that the proximate existence of the relevant tendency was highly probative of it having been the appellant who provided the address of the Banksia Grove unit to the supplier of the methylamphetamine, directly or indirectly, and that he did so with an intention to possess a prohibited drug.
288. When the relevant tendency is then considered together with the other evidence that was adduced at the appellant's trial, it is very clear that the evidence that established the existence of the relevant tendency would rationally affect, to a significant extent, an assessment of the probability that the appellant provided the address of the Banksia Grove unit to the supplier of the methylamphetamine, directly or indirectly, and that he did so with an intention to possess a prohibited drug.
289. That other evidence included evidence that the methylamphetamine was to be delivered to a unit in which the appellant had an interest. It also included the evidence that the parcel in which the methylamphetamine was contained was added to an APCN registered in the name of Ms John on 4 June 2020, after the delivery was rejected, as well as the evidence that the appellant had been tracking the parcel after the delivery was rejected (including the appellant's admissions in his record of interview to that effect).
290. It is true that the evidence relied on to establish the relevant tendency concerned the sourcing of human growth hormones and steroids. However, the probative value of the relevant tendency in relation to the elements of the offence was not reduced on that account. The relevant tendency was not expressed in terms that limited it to a particular type of prohibited drug and the probative value of the evidence did not depend on the nature of the particular prohibited drugs with which the evidence of the relevant tendency was concerned. The probative value of the evidence lay in its capacity to establish that the appellant had the tendency to adopt a particular methodology in connection with the delivery of prohibited drugs, and significantly, in connection with the delivery of prohibited drugs to him.
291. Further, the probative value of the relevant tendency must be evaluated in the context of other evidence that was capable of establishing that the appellant was not unfamiliar with methylamphetamine, and that his experience with prohibited drugs was not limited to steroids and human growth hormones. In that regard, Detective Marron gave evidence about a series of photographs taken of the screen of the iPhone seized from the appellant when he was arrested. The effect of Detective Marron's evidence was that several images were found on that iPhone, which depicted substances resembling methylamphetamine and cocaine. Further, when Detective Psaila‑Borrie was asked in cross‑examination to confirm that he did not find any paraphernalia associated with dealing in methylamphetamine at the appellant's home, he disagreed and referred to the fact that several smoking implements, and a set of scales were found during the search of the appellant's home.
292. Logically, this analysis demonstrates that the evidence relied on to establish the relevant tendency would also rationally affect, to a significant extent, an assessment of the appellant's account in his video record of interview that he had been asked by an unnamed person to track the parcel and to relay information about its location so that the unnamed person could then obtain possession. The evidence would be important and of consequence in the jury's assessment of the appellant's account that, in effect, he had a limited, and innocent, involvement in the parcel containing the methylamphetamine.
293. For these reasons, I am satisfied that the evidence relied on by the State as propensity evidence was significantly probative for the purposes of s 31A(2)(a) of the Evidence Act.
294. Section 31A(2)(b) then directs attention to the question of whether the probative value of the evidence compared to the degree of risk of an unfair trial, was 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, for the purposes of s 31A(2)(b).
295. For the same reasons as those expressed in the joint reasons, I am of the view that the probative value of the evidence compared to the degree of risk of an unfair trial was 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.
296. For these reasons, I am of the view that ground 1 does not have a reasonable prospect of succeeding. Accordingly, leave to appeal in respect of that ground must be refused.

Introduction

297. The principles to be applied in determining whether a verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported are well established and need not be repeated. As noted in the joint reasons, those principles were recently referred to in Sandy v The State of Western Australia.[40]
298. Before dealing with ground 2, it is necessary to say something about the trial judge's directions to the jury about the elements of the offence.
299. In his written submissions, the appellant expressly accepted that the trial judge's directions about the elements of the offence were correct. That acceptance accords with the approach taken by the appellant's counsel at the trial, who did not seek any redirections or further directions from the trial judge. It must also be said that the prosecutor who appeared at the trial did not ask the trial judge to redirect the jury about the elements of the offence.
300. However, the trial judge's directions did suggest that it was an element of the offence that the substance found in the parcel that was to be delivered to the Banksia Grove unit was a prohibited drug. The directions also tended in other respects to suggest that the State was required to prove that the appellant had actually committed an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act , when what was required to be proved was an intention to commit such an offence.
301. It may be that trial counsel, and senior counsel who appeared at the appeal, formed the view that while the directions tended to elide the elements of the substantive offence proscribed in  s 6(1)(a)  of the  Misuse of Drugs Act , with the 'inchoate' offence of attempting to commit that offence contrary to  s 33(1)  of the same Act, the directions were either unduly favourable to the appellant or they sufficiently conveyed to the jury the essential ingredients of the offence charged. In any event, as no complaint is made about the directions, I intend to approach the question of whether the verdict of guilty was unreasonable or cannot be supported by reference to the elements of the offence charged as identified earlier in my reasons.

The issues

302. Although ground 2 asserts that the evidence adduced at the appellant's trial was 'incapable of establishing that [the appellant] had committed any act that was more than merely preparatory to the commission of the offence', the appellant's written submissions travel beyond that contention.
303. At the hearing of the appeal, and in response to a specific question from the bench about the scope of the ground of appeal, senior counsel for the appellant advised that the only basis on which it was said the verdict of guilty was unreasonable or cannot be supported was that the two specific acts relied on by the State as acts constituting the offence of attempting to commit an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act  were not more than merely preparatory acts.[41] However, under pressure of questions from the court, senior counsel's oral submissions broadened the appellant's challenge to the guilty verdict. In that regard, senior counsel also submitted that it was not open to the jury to find, as a matter of fact, that the appellant had done one of the two acts relied on by the State constituting the charged offence.[42]
304. I will approach ground 2 on the basis that it raises issues about whether this court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that:

(a) the appellant provided the address of the Banksia Grove unit to the sender of the methylamphetamine, either directly or indirectly; and/or
(b) the appellant tracked the parcel that contained the methylamphetamine in the early hours of the morning of 4 June 2020 using the APCN in Ms John's name; and
(c) either or both of the acts in (a) and (b) were more than merely preparatory to an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act ; and
(d) at the time the appellant did either or both of the acts in (1) and (b), he intended to commit an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act .

305. Before dealing with those issues, it is convenient to first consider the appellant's video record of interview conducted with police on 5 June 2020.

The appellant's video record of interview

306. I am grateful to Buss P and David AJA for their comprehensive summary of what the appellant said in his video record of interview. That summary accords with my review of that evidence.
307. In my opinion, the appellant's exculpatory explanations for his alleged involvement in the methylamphetamine that was to have been delivered to the Banksia Grove unit, were so lacking in credibility that it was well open to the jury to reject his account.
308. In the interview, the appellant was asked about the mobile telephone he had in his possession upon his arrest, which was at that time being used to track one of the parcels containing human growth hormones and steroids. The appellant responded that it was not his telephone, that he had only had it for a 'couple of months', and that he did not know its number.
309. This was plainly untrue.
310. The packaging for that telephone was later found by police when they searched the appellant's home. Further, the telephone number for that telephone was linked to the APCN in the name of his former girlfriend, Ms John.
311. The same telephone number was also registered in the name of Mr Sheppard, without his knowledge. It may be recalled that the police found a copy of Mr Sheppard's driver's licence on a computer at the appellant's home, and Mr Sheppard's name had been used to register an APCN without his knowledge.
312. The telephone number was also linked to other APCNs in the names of David Robert Harmes, Daniel Hicks and Wayne Stephen Liedermoy. Mr Harmes was previously married to the appellant's partner, but barely knew the appellant himself. Mr Liedermoy did not know the appellant. None of those people had ever opened an account with Australia Post, or had anything to do with the relevant mobile telephone number.
313. The appellant also said he knew nothing about how the mobile service connected to the telephone was being paid for, stating that 'it just looks after itself'. The appellant himself agreed with the officer conducting his interview that this was 'a bit unusual'.
314. The appellant's credibility was further undermined to a significant extent by his repeated false assertions that he did not know of Ms John, in response to being told that the parcel he had attempted to collect earlier that day was addressed to 'Jessica Johns [sic]'. The appellant's explanation for why he had a copy of Ms John's driver's licence, namely, that it had been sent to him to be used 'if anything was to be collected', was also a blatant lie.
315. Having regard to these matters alone, it was well open to the jury to reject the appellant's exculpatory explanation that he had been given a tracking number for the parcel that was later found to contain methylamphetamine, and that he had merely been asked by an unnamed person to relay information about the movement of that parcel. Acting in accordance with the trial judge's Liberato direction, it was then open to the jury to put the appellant's innocent explanation to one side and to determine whether the State had proved the appellant's guilt based on the rest of the evidence adduced at the trial.

Was it open to the jury to be satisfied that the only rational inference was that the appellant provided the address of the Banksia Grove unit to the sender of the methylamphetamine, either directly or indirectly?

316. The State's case was that the evidence considered in its entirety, and not on a piecemeal basis, established that the only rational inference was that the appellant directly or indirectly provided the address of the Banksia Grove unit to the sender of the methylamphetamine.
317. At the hearing of the appeal, senior counsel for the appellant accepted that an inference that the appellant directly or indirectly provided the address of the Banksia Grove unit to the sender of the methylamphetamine was one of the inferences that was open on the evidence adduced at the trial. Having conducted my own review of the evidence, I am of the view that it was open to the jury to conclude that it was the only rational inference.
318. The obvious starting point is to note that the methylamphetamine was to be delivered to a unit of which the appellant was a part owner. Although the appellant was not living at the Banksia Grove unit at the time the delivery was attempted, there was no evidence that the female tenant who initially discovered the methylamphetamine hidden in the parcel, or her husband, were in any way involved in the delivery of that substance to their home.
319. The female tenant who was present at the Banksia Grove unit at the time the postal officer attempted to effect delivery of the parcel gave evidence that she had nothing to do with the parcel or with its illicit contents. There is nothing in the evidence that I have independently reviewed that causes me to have any doubt about the truthfulness and reliability of the female tenant's account generally, or in relation to her denials of involvement with the methylamphetamine.
320. The male tenant did not give evidence. However, the evidence given by the postal officer who attempted to effect delivery of the parcel was consistent only with both tenants having no connection with the parcel or its contents. In that respect, the postal officer's evidence established that the male tenant behaved in a manner that clearly indicated that he had not been expecting the parcel and knew nothing about it. Further, when the female tenant opened the parcel to examine its contents, and discovered what she thought were prohibited drugs, she immediately disclaimed ownership and returned the parcel.
321. The jury had the advantage, not available to this court, of seeing and hearing both the female tenant and the postal officer give evidence. Having had that advantage, and in light of the evidence as a whole, it was open to the jury to conclude that both of the tenants who were present at the Banksia Grove unit at the relevant time had nothing whatsoever to do with the methylamphetamine or the parcel in which it was contained.
322. The postal officer gave evidence that the parcel did not require a signature to be provided upon delivery and explained that in those circumstances it would ordinarily have been left in a safe place at the Banksia Grove unit for collection. It appears the only reason there was an attempt made to deliver the parcel to the tenants in person was because another parcel was to be delivered at the same time, and that parcel required a signature.
323. In my view, it was open to the jury to conclude that arrangements had deliberately been made to have Australia Post deliver the parcel to the Banksia Grove unit in a manner in which a signature would not be required so that the parcel would be left in a safe place outside the Banksia Grove unit without involving the tenants. The parcel would then have been available to be collected later, thereby reducing any risk of detection. As a part owner of the Banksia Grove unit, the appellant, or anyone else attending to collect the parcel based on information provided by the appellant, would also have had a plausible innocent explanation for being at the Banksia Grove unit if one was ever required.
324. The uncontroverted documentary evidence, and the evidence about the appellant's previous relationship with Ms John, also established that the appellant added the parcel containing the methylamphetamine to a watch list using the APCN in Ms John's name, and that he did this after delivery of the parcel had been rejected by the tenants. The appellant also made admissions in his video record of interview that he was, in effect, tracking the parcel, albeit for someone else.
325. Accordingly, it was open to the jury to conclude that the appellant had been expecting the parcel to be delivered to the Banksia Grove unit. Further, it was open to the jury to find that the appellant had this expectation because he knew where the parcel was supposed to be delivered as he had directly or indirectly supplied the address to the person who sent the methylamphetamine in the mail.
326. There was evidence that another person had added the parcel to a watch list for an APCN associated with a 'John Segaro' just over one hour before the appellant added the parcel to a watch list. There was also evidence that telephone enquiries had been made to Australia Post by a person using that name after the failed delivery of that parcel. However, the fact that someone other than the appellant may also have been interested in following the movements of the parcel after the failed delivery does not logically affect the capacity of the evidence to support the inference that the appellant provided the address of the Banksia Grove unit to the sender of the methylamphetamine, either directly or indirectly.
327. As I have explained in the context of ground 1, the relevant tendency was also significantly probative of the fact that the appellant provided the address of the Banksia Grove unit to the sender of the methylamphetamine, either directly or indirectly. In that regard, it must be appreciated that the relevant tendency relied on by the State was not just a tendency for the appellant to be involved in the remote sourcing of prohibited drugs. The relevant tendency extended to a tendency to use Australia Post and assumed identities to arrange for the delivery of prohibited drugs to him.
328. After conducting my own assessment of the evidence in its entirety, I am of the opinion that the only rational inference was that the appellant directly or indirectly provided his address to the sender of the methylamphetamine. I am not persuaded that the jury, acting reasonably, must have decided that the State had failed to prove that the appellant had done that act.

Was it open to the jury to be satisfied that the only rational inference was that the appellant tracked the parcel that contained the methylamphetamine in the early hours of the morning of 4 June 2020 using the APCN in Ms John's name?

329. The unchallenged evidence adduced at the appellant's trial demonstrated that there was a clear link between the appellant and Ms John. The evidence also proved that the appellant had previously used Ms John's identity without her permission to make arrangements for Australia Post to effect the delivery of prohibited drugs to him. Standing alone, that evidence overwhelmingly supported an inference that it was the appellant who added the tracking number for the parcel containing the methylamphetamine to a watch list for an APCN in Ms John's name in the early hours of the morning of 4 June 2020.
330. In any event, in his video record of interview the appellant essentially admitted that he had done as much. Towards the end of that interview, the appellant told police that although he had 'no idea what was in the package',[43] he had been given a tracking number and was asked to 'alert somebody where that package was delivered'.[44] The appellant explained that he 'was asked to relay that information ... so the person who was asking could then go and obtain the package',[45] although it had 'nothing to do with [him]'.[46]
331. The appellant later said:[47]

'Cause [sic] I was given a tracking number to look at and then relay the information back as to when it had been delivered... I didn't know where it was going, I didn't know what it was, I didn't know anything like that.

332. In my view, the only rational inference based on the evidence adduced at the appellant's trial was that the appellant was tracking the parcel that contained the methylamphetamine in the early hours of the morning of 4 June 2020, after he added the parcel to the watch list associated with the APCN in Ms John's name.

Was it open to the jury to be satisfied beyond reasonable doubt that either or both acts relied on by the State were more than merely preparatory to an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act ?

333. I agree with what Buss P and David AJA have written at [206] ‑ [219] of the joint reasons about what amounts to an act that is 'more than merely preparatory to the commission of an offence', for the purposes of  moda1981184 /s4.html" class="autolink_findacts">s 4 of the Code. In particular, I respectfully agree with what their Honours have said at [218] ‑ [219] of the joint reasons.
334. Where a person is charged with attempting to commit an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act , the question for the tribunal of fact is whether a specific act (or acts) of the accused relied on by the State as constituting the particular attempt that is alleged is, as a matter of fact, more than merely preparatory to having in the person's possession a prohibited drug with intent to sell or supply it to another.
335. In my view, the appellant's proved act of directly or indirectly providing the address of the Banksia Grove unit to the person who was responsible for sending the methylamphetamine in the mail, was an act that was more than merely preparatory to the commission of an offence contrary to  moda1981184 /s6.html" class="autolink_findacts">s 6(1)(a) of the  Misuse of Drugs Act . In the circumstances of this case, it was open to the jury to conclude that the appellant needed to do little else for the parcel containing the methylamphetamine to have ultimately been delivered into his control.
336. The appellant's act of providing the sender with the address of the Banksia Grove unit was sufficient to have led to the postal officer leaving the parcel outside the unit. Had the parcel been left outside the Banksia Grove unit, the appellant would then either have had the parcel under his control because it had been left in a place to which he had a relatively easy and explicable degree of access, or he would have had the ready ability to exercise control over the parcel and its contents, including but not limited to by taking it into his physical custody.
337. Because the appellant was charged with attempting to commit an offence contrary to  s 6(1)(a) , the presumption in  s 11  of the  Misuse of Drugs Act  regarding intention did not apply.[48] However, 133 g of methylamphetamine was contained in the parcel. Had the parcel been delivered to the Banksia Grove unit, the appellant would then either have exercised control, or been able to readily exercise control, over a relatively significant quantity of a prohibited drug.
338. On that basis, it was open to the jury to conclude that the appellant did not need to do anything further other than simply make the drugs 'available'[49] at the Banksia Grove unit, or for him (or someone on his behalf) to take physical custody of the drugs, for a completed offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act  to have been committed.
339. It was therefore also open to the jury to find that the appellant's act of directly or indirectly providing the sender with the address of the Banksia Grove unit was more than merely preparatory to being in possession of the methylamphetamine in the parcel with intent to sell or supply it to another.
340. When considered in isolation, the other act relied on by the State as constituting an attempt to commit an offence contrary to s 6(1)(a) of the  Misuse of Drugs Act , namely tracking the parcel that contained the methylamphetamine, was not an act that was more than merely preparatory to the commission of that offence. Of itself, adding the parcel to the watch list for the APCN in Ms John's name, and then tracking its movements, could only have provided the appellant with information about the parcel's location. The appellant's purpose for tracking the package at that point would necessarily be to discover its location in order to exercise control over it.
341. However, the act of adding the parcel to the watch list for the APCN in Ms John's name, and then tracking its movements, occurred after the appellant had already done an act which was more than merely preparatory, by providing the address of the Banksia Grove unit to the sender of the methylamphetamine.
342. Having concluded that the appellant's anterior act of directly or indirectly providing the sender with the address of the Banksia Grove unit was more than merely preparatory to committing an offence, it follows that it was open to the jury to find that the appellant's later act of tracking the parcel was, in combination with his earlier act of providing the address of the Banksia Grove unit, more than merely preparatory as well.

Was it open to the jury to be satisfied beyond reasonable doubt that the appellant intended to commit an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act ?

343. Based on my review of the evidence, I am not left with any reasonable doubt that the appellant intended to commit an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act , both at the time he directly or indirectly provided the address of the Banksia Grove unit to the person who sent the methylamphetamine in the mail, and later, when the appellant added the parcel containing that drug to the watch list for the APCN in Ms John's name.
344. In the absence of any direct evidence that the appellant had the requisite intent, the question for the jury was whether the evidence established that this was the only rational inference. In my view, it was well open to the jury to reach that conclusion.
345. The jury were entitled to infer that the appellant had the necessary intent based on findings that were open to the jury to make that the appellant had directly or indirectly provided the address of the Banksia Grove unit to the person who sent the parcel and that he had then taken steps to track the parcel after the failed delivery. It was also open to the jury to think that this logical inference was significantly strengthened on account of the appellant's relevant tendency at the time.
346. The fact that the parcel was addressed to a place the appellant had access to, but which was not his home address, using what the jury were entitled to think was an assumed name, was also strongly supportive of the appellant's intent. The same can be said for the appellant's underhanded use of Ms John's name to track the parcel after the failed delivery. It was open to the jury to conclude that the appellant had taken these steps because he intended to reduce the risk of detection.
347. It was not necessary for the jury to be satisfied that the only rational inference was that the appellant intended to take physical possession, or even sole possession, of a prohibited drug. It was sufficient for the jury to be satisfied that the appellant intended to exercise control or dominion over the drugs, either on his own or jointly with others. It was open to the jury to infer, as the only reasonable inference, that by arranging for the parcel to be delivered to an address to which he had access, the appellant at least intended to exercise control over the prohibited drugs inside that parcel.
348. There was no issue at the trial that if the State established to the requisite standard that the appellant intended to possess a parcel containing a prohibited drug, the jury would then also be satisfied that he intended to sell or supply it to another. In any event, the evidence adduced at the appellant's trial was sufficient in nature and quality to remove any reasonable doubt that the appellant intended to sell or supply the methylamphetamine contained in the parcel that was to have been delivered to the Banksia Grove unit. Having regard to the relatively organised way in which the drugs were sent in the mail (in a manner designed to veil the appellant's involvement) together with the quantity, purity and nature of those drugs, it was open to the jury to conclude that the only rational inference was that the appellant had an intention to sell or supply the drugs at all relevant times.
349. It was not necessary for the State to prove that the appellant had an intention to sell the methylamphetamine. It was enough for the jury to be satisfied that the appellant intended to supply the drugs contained within the parcel simply by making it available for someone else to collect from the Banksia Grove unit. In that regard, while it was open to the jury to reject the appellant's exculpatory statements in his video record of interview, it was also open to the jury to conclude that there was a measure of truth in what the appellant had said, namely, that he had been asked to provide information 'so the person who was asking could then go and obtain the package'.[50]
350. An intention to exercise control over the prohibited drug in the parcel that was to have been delivered to the Banksia Grove unit, and to provide information to someone upon its delivery so that they could then collect the parcel from the unit, amounts to an intention to commit an offence contrary to  s 6(1)(a)  of the  Misuse of Drugs Act .
351. Ms John gave evidence, under cross-examination, that the appellant had previously admitted to her that he was involved in human growth hormones and steroids. However, she also agreed that he had previously denied being involved in selling 'illegal' drugs and said that she was not aware of the appellant using any such drugs during their relationship.
352. Ms John's evidence in this regard does not leave me with any reasonable doubt about the appellant's guilt, based on my review of all of the evidence. The fact that the appellant's previous girlfriend of only a few months was, in effect, unable to say whether the appellant's prohibited drug activities had, on at least one occasion, extended to substances other than human growth hormones and steroids was not an obstacle to a finding of guilt having regard to the combined weight of the whole of the evidence.

Conclusion in relation to ground 2

353. Having carried out my own independent review of the evidence, nothing has given rise to a reasonable doubt in my mind about the appellant's guilt. I am not satisfied that there is a significant possibility that an innocent person has been convicted.
354. It was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the charged offence of attempting to possess the methylamphetamine that was in the parcel addressed to the Banksia Grove unit, with intent to sell or supply it to another.
355. In my view, ground 2 has no reasonable prospects of succeeding. Accordingly, leave to appeal on this ground should also be refused.
356. For these reasons, I agree that the appeal must be dismissed.

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

ET
Associate to the Honourable President Buss

23 DECEMBER 2024

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[1] Chuguna v The State of Western Australia [2024] WASCA 134 [120] ‑ [127] (Buss P & Mazza JA).
[2] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56 [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

[3] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [41] (Kiefel CJ, Bell, Keane & Edelman JJ). See also McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [26] (Kiefel CJ, Bell, Keane & Nettle JJ).
[4] Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644.
[5] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.
[6] Sandy v The State of Western Australia [2024] WASCA 109 [63] - [76] (Buss P, Mazza & Hall JJA).
[7] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [131] ‑ [162] (Buss JA).
[8] See Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 [15] ‑ [18] (Gaudron, Gummow, Kirby & Hayne JJ); Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [1] ‑ [7] (Kiefel CJ, Bell, Keane & Gordon JJ).
[9] Kalbasi v The State of Western Australia [2016] WASCA 144 [92].

[10] Sheriff v The State of Western Australia [2017] WASCA 185 [118] (Mazza & Mitchell JJA & Hall J).
[11] Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [50] ‑ [63] (Buss JA, Owen JA agreeing).
[12] Lia v The State of Western Australia [2020] WASCA 216 [35] (Quinlan CJ, Buss P & Mazza JA).
[13] Weggers v The State of Western Australia [2014] WASCA 57; (2014) 240 A Crim R 205 [145] ‑ [158].
[14] R v English (1993) 10 WAR 355.
[15] R v Cline (1956) 115 CCC 18, 28 (Laidlaw JA, delivering the judgment of the Ontario Court of Appeal).
[16] R v Barker (1924) NZGLR 393.
[17] R v Williams; Ex parte Minister for Justice and Attorney-General [1965] Qd R 86, 101 ‑ 102.
[18] Deutsch v The Queen [1986] 2 SCR 2.

[19] R v Yusuf [2005] VSCA 69; (2005) 11 VR 492 [19] (Winneke P; Charles & Chernov JJA agreeing).
[20] Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 [21] ‑ [22] (Gleeson CJ, McHugh, Gummow, Hayne & Heydon JJ).

[21] Chuguna v The State of Western Australia [2024] WASCA 134 [105] (Buss P & Mazza JA).

[22] Chuguna [119] - [127] (Buss P & Mazza JA).
[23] Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644.
[24] Roder [24].
[25] ts 588.
[26] Roder [24].
[27] Appeal ts 5.
[28] ts 392 - 394.
[29] ts 229.
[30] ts 244 - 245.

[31] Weggers v The State of Western Australia [2014] WASCA 57; (2014) 240 A Crim R 205 [7] (Martin CJ).
[32] Milenkovski v The State of Western Australia [2004] WASCA 85 [22] (Miller J; Murray & Wheeler JJ agreeing).
[33] Weggers [7] ‑ [8] (Martin CJ), [144] (Buss JA).
[34] Lia v The State of Western Australia [2020] WASCA 216 [35].
[35] Lia [36], citing Milenkovski [22] (Miller J; Murray & Wheeler JJ agreeing).
[36] Reid v Director of Public Prosecutions (WA) [2012] WASCA 190; (2012) 224 A Crim R 100.
[37] Reid [14]. Beech J appeared to agree with McLure P at [160].
[38] ts 184.
[39]  Misuse of Drugs Act ,  s 3(1) , meaning of 'to possess'.
[40] Sandy v The State of Western Australia [2024] WASCA 109 [63] - [76].
[41] Appeal ts 13 - 14.
[42] Appeal ts 19 - 22.
[43] Video record of interview ts 73.
[44] Video record of interview ts 73.
[45] Video record of interview ts 73.
[46] Video record of interview ts 73.
[47] Video record of interview ts 74.
[48] Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 [15] - [18].
[49] See the extended definition of 'to supply' in s 3(1) of the  Misuse of Drugs Act , reproduced at [198] of the joint reasons, which includes 'to ... make available'.
[50] Video record of interview ts 73.

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