D'Agostino v Regina [2019] NSWCCA 259 (31 October 2019)

Last Updated: 28 May 2020

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	D’Agostino v Regina
Medium Neutral Citation:	[2019] NSWCCA 259
Hearing Date(s):	17 May 2019
Date of Orders:	31 October 2019
Decision Date:	31 October 2019
Before:	Bathurst CJ at [1] Hamill J at [2] N Adams J at [10]
Decision:	(1) Refuse leave to appeal against conviction on ground 1. (2) Grant leave to appeal against conviction on grounds 2 and 3. (3) Dismiss the appeal.
Catchwords:	CRIMINAL LAW — appeals — conviction appeal — three drug offences and two drug-related offences — whether misdirection on circumstantial evidence — applicant’s knowledge drugs and money in roof cavity — whether Shepherd direction required when not a “links in a chain” case — whether jury’s verdict was unreasonable
Legislation Cited:	Crimes Act 1900 (NSW), s 193B Criminal Appeal Act 1912 (NSW), s 5(1)(b) Criminal Appeal Rules 1952 (NSW), r 4 Drug Misuse and Trafficking Act 1985, s 25(1), s 25(2)
Cases Cited:	Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 ARS v R [2011] NSWCCA 266 Burrell v Regina [2009] NSWCCA 163 Burrell v Regina [2009] NSWCCA 163 Carlton v The Queen [2008] NSWCCA 244 Davidson v R [2009] NSWCCA 150 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 Greenhalgh v R [2017] NSWCCA 94 Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Minniti v R [2006] NSWCCA 30 Picken v R [2007] NSWCCA 319 Quach v Regina [2002] NSWCCA 519; (2002) 137 A Crim R 345 Qualtieri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95 R v Carey (1990) 20 NSWLR 292 R v Davidson [2009] NSWCCA 150; (2009) 75 NSWLR 150 R v Hillier (2007) 228 CLR 618; [2007] HCA 13 R v Keenan [2009] HCA 1; (2009) 83 ALJR 243 R v Merritt [1999] NSWCCA 29 Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 Yacoub v R [2008] NSWCCA 164
Category:	Principal judgment
Parties:	Joseph Rocky D’Agostino (Applicant) Regina (Respondent)
Representation:	Counsel: Ms M Gerace (Applicant) Ms K Jeffreys (Respondent) Solicitors: Mitchell & Co. Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2011/249268
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Date of Decision:	17 June 2015
Before:	Woodburne SC DCJ
File Number(s):	2011/249268

JUDGMENT

1. BATHURST CJ: I agree with the orders proposed by N Adams J and with her Honour’s reasons.
2. HAMILL J: I have read the judgment of N Adams J in draft. I agree with her Honour’s conclusions and substantially with her Honour’s reasons.
3. As to the first ground of appeal, the applicant was represented by Senior Counsel at the trial. No application was made to sever the counts relating to the drugs and money found in the applicant’s unit from the counts relating to the drugs seized from Mr Kyriacou. Nor was there any application to exclude or limit the use of the evidence relating to those counts. I agree with the applicant’s submission that there was some risk of the evidence being used to support tendency or coincidence reasoning and, as a result of that, to be employed in some form of circular reasoning. However, there was substantial discussion at the trial where Senior Counsel and the trial Judge exchanged possible directions to cure any potential misuse of the evidence. The directions given by the trial Judge were clear and direct and accepted by the applicant at trial to be correct. There may have been sound tactical reasons for electing to have the counts heard together. Once that forensic decision was made, and the evidence admitted, the directions given by the trial Judge as to the potential use of the evidence were correct and agreed to by the parties. It is easy at this distance to question whether an application to sever some of the counts should have been made and to contemplate that, if it was made, it stood some chance of success. However, it is inappropriate in the circumstances of this case to second guess the decisions made by experienced counsel on behalf of the applicant at trial.
4. I agree with N Adams J, for the reasons her Honour articulates, that the circumstances did not warrant a direction that any particular aspect of the prosecution’s circumstantial case needed to be proved beyond a reasonable doubt. In particular, insofar as the evidence was relevant to the other counts on the indictment, it was not necessary to give such a direction in relation to the assertion that the applicant possessed the drugs found in his apartment or that he had supplied the drugs seized from Mr Kyriacou. The prosecution case did not rise and fall on that evidence and it could not be said that proof of those matters constituted an indispensable link in the chain of reasoning in relation to any of the counts. There was evidence independent of those matters that gave rise to the inferences that the prosecution invited the jury to draw in respect of each count. The jury was instructed clearly to consider each count separately, received appropriate directions as to circumstantial reasoning and was instructed repeatedly and correctly as to the onus and standard of proof.
5. In relation to the grounds (2 and 3) asserting that the verdicts in relation to counts 1, 2 and 3 were unreasonable and unable to be supported having regard to the evidence, I agree with N Adams J that neither ground can be sustained. I also agree with her Honour’s reasons and analysis of the evidence. I have undertaken an independent assessment of the facts proved against the applicant, most of which were not disputed. N Adams J has identified the relevant authorities to which I would only add reference to Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56, a case concerned specifically with a ground asserting that a verdict was unreasonable when proof was by circumstantial evidence.
6. I agree with the reasons provided by N Adams J for her conclusion that the guilty verdict on count 1 was open on the evidence. For the reasons expressed by N Adams J, ground 2 cannot be sustained.
7. I also agree with her Honour’s reasons and conclusions in relation to counts 2 and 3 and would stress that, in relation to those counts, the jury had the advantage of making an assessment of the evidence of Lisa Marshall and the suggestion that Sarah Bartley had put the drugs and money in the ceiling cavity when the applicant was overseas. The applicant was extremely reliant on that evidence at trial. In the absence of Ms Marshall’s evidence, or upon the jury rejecting it, the prosecution case on counts 2 and 3 was, as N Adams J says, very strong.
8. An independent assessment of the evidence establishes that it was open to the jury in the sense described by the High Court, for example in Knight v The Queen at 503 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [20], to be satisfied of the guilt of the applicant on each charge beyond reasonable doubt.
9. I agree with the orders proposed by N Adams J.
10. N ADAMS J: On 17 June 2015, Joseph Rocky D’Agostino was found guilty of three drug offences and two drug-related offences following a jury trial in the Sydney District Court before Woodburne SC DCJ. The five offences, which were all committed on 2 August 2011, were as follows:
    • (1) Supply of more than the commercial quantity of cocaine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (DMTA) (955g);
    • (2) Supply of more than the commercial quantity of heroin contrary to s 25(2) of the DMTA (612g );
    • (3) Supply of cocaine contrary to s 25(1) of the DMTA (41.6g);
    • (4) Knowingly possess $3,000, being the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900; and
    • (5) Knowingly possess $22,600, being the proceeds of crime contrary to s 193B(2) of the Crimes Act.
11. The applicant was sentenced on 29 November 2016 to a total sentence of imprisonment for 8 years and 9 months commencing on 29 July 2016 and expiring on 28 April 2025 with a non-parole period of 5 years to expire on 28 July 2021. He does not seek leave to appeal against the sentences imposed on him.
12. The following three grounds of appeal are relied upon:

Ground 1: The trial Judge erred in failing to direct that crucial intermediate facts (Mr D’Agostino’s knowledge and possession for supply of the drugs and money in the roof cavity or knowledge and possession and supply of the drugs in the Calibre bag) had to be established beyond reasonable doubt (counts 1-5).

Ground 2: The verdict of the jury in respect of count 1 should be set aside on the grounds that it is unreasonable and cannot be supported on the evidence.

Ground 3: The verdict of the jury in respect of counts 2 and 3 should be set aside on the grounds that they are unreasonable and cannot be supported on the evidence.

The evidence at trial

13. In 2011, the applicant resided in an apartment in the Century Towers residential building at Pitt Street, Sydney. He travelled overseas from 25 March 2011 to 1 May 2011.
14. On Saturday 30 July 2011, the applicant exchanged several text messages with Theo Kyriacou. The exchange was as follows:

“10:36:37 Kyriacou Hey boss are u home
10:40:08 D'Agostino There at 11.30 is that ok
10:42:39 Kyriacou Yes
10:42:59 D'Agostino OK cheers
11.22:58 Kyriacou Can you open up?”

15. A short time after 11:22am, the applicant and Mr Kyriacou entered the car park of the Century Towers building and were observed to go into the lifts. Mr Kyriacou was carrying a black shopping bag. When he was next observed he was no longer carrying the black shopping bag. The Crown case was that it could be inferred that he had left it in the applicant’s apartment. At about 11:45am, both the applicant and Mr Kyriacou were observed to leave the apartment complex in separate cars. This was captured on the Century Towers CCTV footage, as well as by Detective Sergeant Faux. Mr Kyriacou’s vehicle was observed to leave the underground carpark of Century Towers at 11:39am.
16. Three days later, on 2 August 2011, the applicant and Mr Kyriacou again communicated by way of text message:

“12:17:06 D’Agostino Hello mate you coming out
12:17:30 Kyriacou Yes what time u free
12:19:34 D’Agostino Meet at my place at one thirty@
12:27:54 Kyriacou Ok champ
12:28:14 D’Agostino Ok one thirty
12:53:10 D’Agostino Here from now buddy
12:53:39 Kyriacou Ok on my way
15.19:58 D’Agostino Will I see you before you leave buddy”

17. There was evidence that Mr Kyriacou was due to depart for overseas the following day.
18. At around 12.30 to 1pm that day, Detective Sergeant Faux and several other police officers conducted surveillance of the Century Towers. There was also CCTV footage from Century Towers available. At 1:11pm, a man, later identified by police as Nikolas Psaros, was observed to park a silver Barina motor vehicle in Central Street. Mr Kyriacou got out of the vehicle. The CCTV footage depicts the applicant greeting Mr Kyriacou at Century Towers and the two men are then seen to walk to the applicant’s apartment. About five minutes later the two men can be seen exiting the apartment. At this time, Mr Kyriacou is carrying a black bag, the same bag he had taken to the apartment on 30 July 2011.
19. Mr Kyriacou was then observed to return to the silver Barina driven by Mr Psaros. That vehicle was then driven along Central Street towards George Street. Mr Kyriacou was sitting in the front seat and the CCTV footage shows that he had the black bag on his lap. At this time, a highway patrol officer, Detective Senior Constable Renee Anderson, was behind the silver Barina in another vehicle. Detective Robertson observed the silver Barina to stop at traffic lights and then turn left onto George Street. At this point, it was observed to be followed by another motor vehicle driven by the applicant. Detective Robertson and Sergeant Bassett continued to follow the silver Barina as it travelled down Goulburn Street and then turned left into Elizabeth Street. At this time Sergeant Bassett activated the police lights and sirens on his vehicle.
20. Sergeant Bassett gave evidence that he saw Mr Kyriacou in the passenger seat and Mr Psaros in the driver seat both turn inward toward the location of the handbrake or centre console of the car. He could see a sudden movement and a dark object seemed to be raised up in line with the window of the vehicle. He could not see what the object was. In his notebook, Sergeant Bassett noted what he saw as follows: "Both ... Kyriacou passenger's front and Psaros driver immediately look into centre of vehicle. Head down, twisting body, object raised in line with windscreen, wrapping something, repositioning something between driver passenger seat”. In his evidence in court he stated that he did not see the individual wrapping of objects, just the raising up of them. He subsequently saw the item being unwrapped by Detective Senior Constable Robertson.
21. Detective Robertson searched the vehicle. He located the black shopping bag behind the front passenger seat. He described in evidence that there was a scarf inside the bag which was wrapped around an item. Detective Robertson removed the scarf and the item it was wrapped around. He unwrapped the scarf and saw that the item inside was a package that contained 955 grams of cocaine with a purity of 89%, which, at that time, would have cost between $200,000 to $250,000 (count 1).
22. No DNA material was recovered from the scarf. DNA on the shopping bag matched the DNA profile of Mr Kyriacou.
23. Later that same day at about 4pm, the applicant was arrested at the Lord Roberts Hotel. Detective Keegan seized $3,000 in $100 and $50 notes the applicant had on him as well as his mobile phone. The applicant was arrested and taken into custody. This $3,000 was the subject of count 4 on the indictment.
24. At around 4:40pm, police searched the applicant’s apartment and a Harris Farm shopping bag was found in a ceiling cavity in the ensuite bathroom. There was a total amount of 612 grams of heroin. This was comprised of three smaller amounts: 334.7 grams (purity 75%) contained within 12 plastic bags inside a Tupperware container; 227.7 grams (purity 76%) contained within 8 plastic bags inside the same Tupperware container, 54.6 grams (purity 76.5%) contained within a Swisse branded fish oil container. The heroin is the subject of count 2 on the indictment.
25. Also inside this shopping bag was a large envelope which contained two smaller envelopes containing cocaine. In one envelope there was an amount of 20.9 grams (purity 39.5%) and in the other there was an amount of 20.7 grams (purity not tested) making a total of 41.6 grams of cocaine. This cocaine was the subject of count 3 on the indictment.
26. The envelope containing the 20.9 grams of cocaine also contained $1,900 in cash and the envelope containing the 20.7 grams of cocaine also contained $1,700 in cash. A sum of $19,000 in cash was found in a safe in the main bedroom. The total amount of this cash ($22,600) was the subject of count 5.
27. The applicant’s tax records for 2004 to 2010 were tendered in the Crown case. They showed that the applicant’s taxable income during this period ranged between $27,400 and $40,040.
28. A fingerprint analyst gave evidence in relation to one of the envelopes found in the Harris Farm bag in the ceiling cavity of the applicant’s apartment. The fingerprint impressions of the applicant’s left index finger and left middle finger were identified.

The defence case

29. The applicant’s case was that he had no knowledge of any of the drugs found and that although the cash found in his pocket ($3,000) and the safe ($19,000) were his they were not the proceeds of crime. He relied upon the evidence of Ms Lisa Marshall in relation to the Harris Farm bag found in the ceiling cavity of his bathroom.
30. Lisa Marshall gave evidence that she had cleaned the applicant’s apartment when the applicant went overseas between 25 March and 1 May 2011. She was paid $50 each time she cleaned his unit. She would gain access to the applicant’s unit by obtaining a swipe card and keys from her ex-partner David Jones. She would then return the swipe card and keys to him after each time she cleaned the applicant’s unit.
31. On one occasion, Ms Marshall’s friend Sarah Bartley offered to go with her to help. Ms Bartley had been saving money from her pension and from dealing drugs in order to be able to pay for gender reassignment surgery (she had previously been known as Steve Bartley). On the second occasion that Ms Bartley and Ms Marshall went together to the applicant’s unit, Ms Bartley asked Ms Marshall whether she would help her hide her life savings in the applicant’s apartment. She feared they would be stolen from her flat. Ms Marshall gave evidence that, although she was reluctant, Ms Bartley offered her $500 to do so and she agreed. They agreed that the ceiling cavity in the ensuite bathroom would be the “perfect hiding spot”.
32. Ms Marshall gave evidence that a few days later she and Ms Bartley returned to the applicant’s apartment to hide the money. Ms Bartley had a “Harris Farm” bag with her and asked Ms Marshall for some paper. Ms Marshall gave evidence that she found an envelope on the applicant’s desk in the master bedroom and handed it to Ms Bartley. Ms Marshall stated that she saw the Harris Farm bag be placed in the roof cavity by Ms Bartley just as Ms Bartley was closing the manhole. Ms Bartley usually wore platform shoes. She stood on the side of the spa bath to access the manhole.
33. Ms Marshall gave further evidence that she never went to the applicant’s apartment again after this occasion. When the applicant returned from overseas, Ms Marshall no longer had access to the keys and key card as her ex-partner gave them back to the applicant. Ms Bartley requested Ms Marshall many times to go and retrieve the bag, but she told her that they had to wait until the applicant went overseas again. Ms Bartley died of a drug overdose on 14 December 2011.
34. Michael Le was called in the Crown case. He was the concierge at the applicant’s apartment block at the relevant time. He confirmed that Ms Marshall and Ms Bartley had gone to the applicant’s apartment whilst the applicant was overseas.
35. There was also evidence adduced in the Crown case through police that Ms Bartley had a criminal history suggesting she was a user of prohibited drugs. Medical records confirmed that she was experiencing gender dysphoria and had described herself as an “ex-IV drug user” in those notes.

Closing Addresses

36. The Crown Prosecutor made his closing address on 10 June 2015. He explained that the Crown case was circumstantial and that in relation to each count the jury could have regard to all of the evidence in the Crown case. For example, he stated the following at various stages of his closing address:

“And when you are considering whether Mr D'Agostino knew about the Harris Farm bag and knew about its contents, the drugs and the cash, you consider all of the evidence. You don't just consider the mere fact that a Harris Farm bag was found in his apartment. You don't just consider that in isolation, well, there is a Harris Farm bag, it's his apartment, his roof cavity, he'd lived there since March 2001, you don’t just consider that in isolation.
But can I urge you to step back and consider the bigger picture. Consider all of the evidence because, ladies and gentlemen, this is not just a case about a bag being found in the roof cavity of a man's apartment and it is not just a case about a bag being found in the roof cavity of a man's apartment with his fingerprints on one of the envelopes that contains the drugs.
Because you have also the evidence of what occurred on that very day, on 2 August 2011, and you should certainly not ignore that evidence, and I would urge you to pay careful attention to it because you know that on that very day the Calibre bag was removed from the apartment, the Calibre bag that had 955g of cocaine inside it, on the very day that the apartment was searched.
Ladies and gentlemen, what I am suggesting is that you look at the whole sequence of events. Look at all of the evidence and when you put all of that together there is ‑ I beg your pardon, ladies and gentlemen, I am talking now about the drugs in the roof cavity. When you look at the drugs in the roof cavity you will consider both the fact that they are found in the roof cavity, the forensic evidence linking Mr D'Agostino to the very envelope the drugs are found in and you will also consider, and I make no bones about it, ladies and gentlemen, you also consider that on that very day 955 grams of cocaine you might find made its way from his apartment to Mr Kyriacou and then was found by the police.”

37. When the Crown Prosecutor was putting the Crown case in relation to counts 4 and 5 (that the money seized was the proceeds of crime), he described that the Crown case was that the applicant was a “drug dealer” and the money was the proceeds of the crime of drug supply.
38. Following the Crown Prosecutor’s address, senior counsel for the applicant raised concern that the way that the Crown case was put in that address came “perilously close” to “coincidence and tendency reasoning”. The following exchange took place:

“STRICKLAND: Your Honour, in relation to the one matter where, and I haven't to date written out any suggested direction and maybe I should do so, but the one matter that I think requires particular attention is what I have described in shorthand as the non‑tendency non‑coincidence direction, that is, how should the jury "take into account" the relevant evidence on count 1 and to counts 2 and 3 in reverse. Sorry, and vice versa.
My learned friend, with respect, in my submission, went perilously close to coincidence and tendency reasoning, although I acknowledge that he never used the word "coincidence", he never used the word "tendency" or any like words, but there is a real issue as to how the jury actually should use those counts in one another. In my submission, it is very important to carefully direct the jury how they cannot use the evidence to suggest that the accused has a tendency to supply drugs and nor can they engage in coincidence reasoning as per the language of section 98. This is a case where there is a real possibility and a real danger that the jury might use the evidence for a tendency or a coincidence purpose.
They are the only matters I wished to raise in terms of directions, your Honour.
HER HONOUR: All right. So when do you think you might give any suggestion about what I should say to avert the danger you have identified?
STRICKLAND: For expedience, if your Honour permitted it, I could email your Honour, copied to my learned friend, a suggested direction before your Honour gets on the bench. That is one way I could do it, given it is 4 o'clock now. I am content to do that if that assists your Honour. Alternatively, if that is not regarded as suitable then I will turn up at 10am with a suggested direction.
HER HONOUR: I have no objection if that is emailed with consent because it just may give some opportunity to both myself and the Crown to consider what the suggested direction is.”

39. The following day senior counsel for the applicant provided a draft direction as did her Honour. The following exchange took place:

“HER HONOUR: Shall we deal with that particular matter first. If I can just hand down that draft, one each of the parties. I will have one marked for identification.
MFI #14 DRAFT BY MR STRICKLAND
MFI #15 DRAFT BY HER HONOUR
STRICKLAND: In my submission, with respect, they're a superior way of putting it than my formulation.
HER HONOUR: All right. Mr Crown, have you had the opportunity to read that fully?
CROWN PROSECUTOR: I have read your Honour's suggested direction fully and I agree with your Honour's suggested direction.”

40. As for the circumstantial evidence direction the following exchange took place:

“HER HONOUR: Mr Strickland, might we just go to that last matter first. Really the circumstantial evidence direction, do you require that over and above the inference direction?
STRICKLAND: Your Honour, could I answer it this way if I might‑‑
HER HONOUR: Or I can give what I call an extended inference direction.
STRICKLAND: I am not sure what that refers to. Is that the equivalent of a circumstantial direction?
HER HONOUR: Well, it is an inference direction with elements of the circumstantial direction added to it, but, in any event, you tell me what you would like.
STRICKLAND: Your Honour, I think what I would describe as the ordinary circumstantial direction ought to be given.”

41. In his closing address, senior counsel for the applicant dealt with the question of cross-admissibility in this way:

“The last preliminary thing I'd like to say relates to the need to consider each charge separately. I anticipate that her Honour will direct you that you cannot use the fact there are three different counts of supply prohibited drugs to reason that Mr D'Agostino has a tendency to supply prohibited drugs. In other words, it would be wrong for you to say, having considered the evidence, say, in relation to counts 2 and 3, the drugs in the roof, that, look, we'll find him guilty or not guilty of that charge and, therefore, he must be guilty or not guilty of count 1 which is the drugs in the Calibre bag. You can't reason that way. I should say that her Honour is the judge of the law and you take the law from her Honour, and if there's anything that I say or anything the Crown says about the law which her Honour contradicts, forget what we say. Her Honour is supreme about the law. Likewise, by contrast, on the facts: you and you alone are the judges of the facts. If anyone says something about the facts that you disagree with, even if her Honour does and you disagree with it, then you alone decide those facts.
In relation to the issue of separate charges, I would urge you to be careful about what I describe as circular reasoning. An example of this was in the Crown address when he said this, mingling with the different charges: not only were the drugs seized in the roof cavity ‑ that's counts 2 and 3 ‑ but 955 grams of cocaine made its way from the accused apartment to the Holden Barina. That argument assumes that the cocaine for count 1, the 955 grams, did make its way from the accused apartment to the Holden Barina driven by Mr Psaros and Mr Kyriacou. I will suggest to you in a moment that there are very good reasons why you would not be satisfied about that beyond reasonable doubt.
Let's say you accept that argument, well then, the Crown's argument linking the drugs in the roof with the drugs in the bag you might think melts away. Let me now consider each count and I'd ask you to adopt a forensic approach – that is, look at each count separately in detail – it’s fair enough to look at all the evidence together but look at each count separately and then decide each count separately.”

The summing up

42. The trial judge gave a standard direction concerning inferences. Her Honour went on to give a circumstantial evidence direction. There is no complaint made about that direction in its terms either. It included the following direction:

“....before you can convict the accused of the charge you are then considering you must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established.
If there is any other reasonable conclusion arising from those facts that is inconsistent either with the particular element of the charge you are then considering or inconsistent with the guilt of the accused of the charge, the circumstantial case fails because you are not satisfied beyond reasonable doubt of the accused’s guilt.
What you should understand is that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning, so you must not base your conclusion upon mere speculation, conjecture or supposition.”

43. The trial judge indicated to the jury that she was not going to repeat the circumstantial evidence direction each time she was addressing them on the elements of each offence and then stated:

“Ultimately, in respect of each of the charges you are asked to consider, if there is any other reasonable conclusion open on the facts that is inconsistent with the conclusion the Crown asks you to find, then the Crown’s circumstantial case in respect of a particular element of the charge, and the charge itself, will have failed.”

44. Through the course of the summing up her Honour directed the jury that it had to be satisfied of each of the elements of each offence beyond reasonable doubt on 25 occasions.
45. Early in the summing up, her Honour warned the jury against a compromised verdict given that there were multiple counts on the indictment and directed the jury to consider each count separately. She then went on to give an “anti-tendency” direction, as requested by defence counsel, in these terms:

“In this case the evidence is overlapping in some respects and you [are] entitled to look at the totality of the circumstances. In relation to count 1, for example, you may take into account, as just one relevant circumstance, the finding of the drugs together with the money secreted in the ceiling cavity of the accused’s penthouse apartment. You may also take into account as another relevant circumstance the finding of the money in the accused’s safe located in the apartment. Those circumstances are directly relevant to the issue of whether the accused furnished the drugs to Mr Kyriakou by way of sale for money or whether he was just returning the bag with the drugs to Mr Kyriakou, so that is how you are permitted to use that evidence.
As I say, you could not infer from the mere fact that drugs and money were secreted that the accused must be guilty of the actual supply of the drugs the subject of count 1. You are not permitted, as I said, to simply reason that the accused is the type of person likely to engage in the conduct as alleged by the prosecution.
In relation to counts 2 and 3 you are permitted to take into account as a relevant circumstance the evidence concerning the actual supply in count 1, if that is what you find it to be, as evidence relating to the accused’s knowledge of the secreted drugs in the ceiling cavity in the en-suite bathroom to the main bedroom in his apartment.
The fact that the accused met with Mr Kyriakou at the unit and that shortly after Mr Kyriakou emerged he was located with drugs in the bag associated with his visit, is a circumstance relevant to whether or not the accused was aware of the secreted drugs and money. Of course you cannot infer from the mere fact that Mr Kyriakou emerged from the accused’s apartment with the drugs - if that is what you conclude - that the accused must therefore be guilty of counts 2 and 3 relating to drugs secreted in the ceiling cavity of the ensuite bathroom, and you cannot simply infer that the accused is the type of person that must have had the drugs secreted in his unit, in contrast to someone who in fact had the drugs secreted in his unit.
What you are required to do is consider each charge separately, having regard to the evidence that applies to it, and to decide whether, on that evidence, the Crown has satisfied you beyond reasonable doubt that the accused is guilty of the particular charge.”
(Emphasis added.)

46. No complaint was made about this direction at trial.
47. The jury returned with verdicts of guilty on all five counts on 17 June 2015.

Ground 1: misdirection on circumstantial evidence

Appellant’s submissions

48. It was submitted that the trial judge’s circumstantial evidence direction was “erroneous and productive of miscarriage” because no “Shepherd (links in a chain) direction” was given. The jury should have been directed, it was contended, to the effect that, before they could rely on the presence of drugs and money in the roof cavity as part of the circumstantial case to establish the elements on count 1, it needed to be satisfied beyond reasonable doubt by other evidence that the applicant had knowledge and possession of the drugs and money in the roof cavity for the purpose of supply and vice versa the evidence of the Calibre bag for counts 2 and 3.
49. The applicant relied upon the decisions in Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, R v Merritt [1999] NSWCCA 29, Minniti v R [2006] NSWCCA 30, Davidson v R [2009] NSWCCA 150 and Burrell v Regina [2009] NSWCCA 163.
50. It was submitted that the presence of the drugs and money in the roof cavity could only have been relevant to count 1 if the jury was satisfied that there was other evidence that proved he was guilty of those charges and vice versa.
51. It was submitted that, if the applicant did not know that there were drugs in the Calibre shopping bag, then the finding of those drugs could not be probative of counts 2 and 3. Similarly, if the applicant did not know there were drugs and money secreted in the roof cavity of his apartment then the finding of those drugs and money in the roof cavity could not be probative of whether the applicant was guilty on count 1. It was submitted that the applicant’s knowledge, possession and supply were all elements of the offences brought against him and thus needed to be established beyond reasonable doubt.
52. It was further submitted that the error in the direction was likely to have been contributory to the reasoning on proof of all five counts.
53. The applicant submitted that there were gaps in the Crown’s direct evidence to prove knowledge and possession in relation to counts 1, 2 and 3. Thus, the direction to the jury that it did not need to be satisfied of the identified circumstantial facts beyond reasonable doubt was apt to lead to circular reasoning. To illustrate this point, it was submitted that the jury could have found as one of the circumstantial facts that the applicant likely knew of the drugs and money in the roof cavity and could then have considered this with the other circumstantial facts and reasoned they were satisfied beyond reasonable doubt that the applicant possessed and supplied the drugs in the Calibre bag to Mr Kyriacou.
54. In oral submissions, counsel for the applicant submitted that the finding of the prohibited drugs in the roof of the applicant’s unit may have been an indispensable fact in the jury’s consideration of count 1, particularly in circumstances where the Crown case was that the applicant was in the business of drug supply. It was conceded that it would be contrary to the trial judge’s direction if the jury was not satisfied of each element beyond reasonable doubt but there was nonetheless a significant possibility that the finding of the drugs in the ceiling cavity was considered by the jury as an intermediate step towards their reasoning of the applicant’s guilt in relation to count 1.
55. It was submitted that, in circumstances where the evidence of Lisa Marshall and the concierge about Sarah Bartley was before the jury, it was not the presence of the drugs alone that was relevant to the Crown’s circumstantial case on count 1.

Crown submissions

56. The Crown submitted that in a circumstantial case you do not look at the evidence in a piecemeal fashion. This was a “strand in the cable case” and not a “links in a chain” case and therefore a Shepherd direction was not required.
57. Although it was accepted by the Crown that the applicant was described as a “drug dealer” in the Crown closing address (and this was repeated in the summing up), the jury was told not to entertain tendency reasoning and also told repeatedly that they had to exclude all reasonable hypotheses inconsistent with guilt.
58. It was submitted that the fact that the jury convicted on counts 2 and 3 is relevant to the complaint now made in this court.

Consideration ground 1: Shepherd direction required?

59. The Crown case in relation to all five counts was circumstantial and this ground of appeal was directed at all five counts. That is, the Crown case on all counts relied on inferences being drawn from established facts rather than from direct evidence such as from eye witnesses or admissions.
60. As the High Court held in Shepherd v The Queen, the Crown does not need to prove every fact from which it invites the jury to draw inferences beyond reasonable doubt: at 580. Despite this, in some cases there might be one or more facts from which the jury is invited to draw an inference from a fact that is an “intermediate” step in the chain of reasoning that leads to the conclusion of guilt. As Dawson J stated in this well-known passage from his judgment in Shepherd v R at 579:

“...it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.”

61. As noted by his Honour, there are two types of circumstantial case which require different directions to the jury.
62. In a “strands in a cable” circumstantial case none of the facts or circumstances from which the jury is invited to draw inferences need to be established beyond reasonable doubt. This is because none of those facts are “indispensable links in a chain of reasoning towards an inference of guilt”. As the metaphor suggests, if a cable is made of many strands and one or more strands break, the cable may be weakened but it is not broken.
63. The second kind of circumstantial case is a “links in a chain” case. Again, as the metaphor suggests, if a chain is made of links and one link breaks then the chain is broken. Thus it can be seen that in a “links in a chain” case it will be necessary for the trial judge to direct the jury that the particular intermediate fact (or “links in a chain”) must be proved beyond reasonable doubt, even though the other facts do not.
64. There is no settled test for determining what constitutes an indispensable intermediate fact. As Simpson J (as her Honour then was) stated in R v Davidson [2009] NSWCCA 150; (2009) 75 NSWLR 150 at [74]:

“Whether a fact on which the Crown relies as part of a circumstantial case is or is not “indispensable” may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not “indispensable”. Where the answer is in the negative, the fact is “indispensable” and the jury should be directed accordingly.”

65. Justice Simpson also noted in Davidson v R at [61] that:

“.... the task of the jury in a circumstantial case (and the task of this Court) is not to deconstruct each item of evidence and take it in isolation; it is to examine the whole of the evidence (including evidence elicited in cross-examination, and evidence adduced in the defence case) and to determine whether it proves the guilt of the accused person. Individual items of evidence, on their own inadequate to found a conviction, may take strength from other items.”

66. That evidence in a circumstantial case is not to be considered piecemeal was confirmed by the High Court in R v Hillier (2007) 228 CLR 618; [2007] HCA 13 where Gummow, Hayne and Crennan JJ (Gleeson CJ agreeing) stated at [48]:

“Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal."

67. In R v Keenan [2009] HCA 1; (2009) 83 ALJR 243 Kiefel J (as her Honour then was), with whom Hayne, Heydon and Crennan JJ agreed, stated at [128] (footnotes omitted):

“.... The approach taken by his Honour is consistent with what was said in R v Hillier, namely that a circumstantial case is not to be considered piecemeal. It is of critical importance to recognise, in considering such a case, that "all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence."

68. In a circumstantial case the jury must be directed that it cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence. In Shepherd v The Queen, the High Court pointed out that this direction is another way of directing the jury that the Crown must prove its case beyond reasonable doubt. That is, if the evidence relied upon by the Crown gives rise to a reasonable explanation for the facts other than the accused’s guilt he or she must be acquitted: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46], [50].
69. With these principles in mind I turn to consider the complaint made by the applicant under ground 1.
70. The applicant did not suggest that it was not open to the Crown to rely upon all of the circumstances in the case when looking at each count separately. No complaint is made in that regard. This is consistent with the fact that there was no pre-trial application to have the counts on the indictment severed and separate trials ordered.
71. One of the bases upon which it was contended that a Shepherd direction should have been given is the small number of circumstances in the Crown case. This was to be contrasted with the Crown case in Burrell v Regina [2009] NSWCCA 163. Reliance was placed on the following observations of McHugh J in Shepherd v The Queen [1990] HCA 56; (1991) 170 CLR 573 at 593:

“In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard.”

72. Although it is to be accepted that a small number of circumstances in the Crown case may make it more likely that one or more of them needs to be established beyond reasonable doubt, I am not satisfied that the circumstances in the Crown case were so “few in number” that some of them must have been intermediate facts. The evidence summarised above at [13]-[28] suggest the contrary.
73. The applicant also relied upon the observations of the High Court in The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 at [86] where it was held that that juries should not ordinarily be directed that they could not act on evidence of uncharged acts unless they were satisfied those acts were proved beyond reasonable doubt “unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt.” In reliance upon this passage in The Queen v Dennis Bauer, the applicant submitted that in the particular circumstances of the present case there was such a “significant possibility” that the jury would treat the findings of Calibre bag as an indispensable link in their chain of reasoning to guilt on counts 2 and 3 and the Harris Farm bag as an indispensable link in their chain of reasoning to guilt on count 1.
74. The fundamental difficulty with the applicant’s complaint that, consistent with Shepherd v R, the jury was not instructed that they had to be satisfied of any intermediate fact beyond reasonable doubt, is that during the hearing of this appeal, counsel for the applicant conceded that the Crown case on counts 1, 2 and 3 was not a “links in a chain” case.
75. Although on one view this ought to be the end of the matter, after conceding that the Crown case on counts 1, 2 or 3 was not a “links in a chain” case, the following submission was made:

“..But if they were to be looking at the drugs in the roof cavity it’s not the drugs in the roof cavity that are relevant. How could they in and of themselves, without taking the next step to conclude that they were his and/or his use for them, be relevant to a consideration of whether he had put the drugs in the Calibre bag?
Because wouldn’t that be to invite the sort of ‘Because, what, he has drugs in his house he’s the type of person who would supply these drugs’? Or, ‘Because they might have been there he’s the type of person’? How were they probative of the question about whether he put the drugs in the bag, without taking the steps were they even his? Am I satisfied are they were his? And to what threshold should that question be answered?”

76. As this submission reveals, although it was conceded that the Crown case was not a “links in a chain” case, it was submitted that such a circumstantial direction should have been given anyway on two bases: that the evidence of the finding of the bags was otherwise irrelevant and that there was also a risk of tendency/coincidence reasoning. I will address these two submissions in turn.
77. First, it was submitted that neither the finding of drugs in the roof cavity alone nor the finding of the drugs in the Calibre bag alone could pass the threshold test of relevance in s 55 of the Evidence Act. That is, this evidence could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. As the High Court observed in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [40] (French CJ, Kiefel, Bell and Keane JJ), evidence that is of “only some, even slight, probative value will be prima facie admissible” by this standard.
78. One of the difficulties with this submission is that the Harris Farm bag did not just contain drugs; it also contained $3,000 and an envelope with the applicant’s fingerprints on it. It was found in a unit where the applicant resided alone and where a safe containing $19,000 cash was also located. The location of this cash and other aspects of the applicant’s lifestyle (such as overseas travel and the finding of $3,000 cash on him when he was arrested that day) was to be considered by the jury in the context that his income tax returns for the previous six years (2004-2010) revealed that he earned as little as $27,400 a year and no more than $40,040 a year during that time.
79. Although I am satisfied that the finding of “drugs” in the roof cavity alone would have been relevant as just one circumstance in the Crown case, the drugs were not found alone; they were found with an envelope containing the applicant’s fingerprints and money. It is artificial to suggest that the jury would ever have separated the fact that drugs were found in the roof with the fact that there was also the applicant’s fingerprints and money found in the same bag. That is, it was the finding of the Harris Harm bag containing all of those items that was relied upon by the Crown; not just the drugs alone. Similarly, I am persuaded that the finding of the drugs in the black bag last seen being taken from the applicant’s unit was relevant in the Crown’s circumstantial case overall. The fact remains that all of the events on 2 August 2011 were so overlapping that everything that occurred that day was relevant to each count given the nature of the Crown case. I am satisfied that evidence of each of the individual circumstances was a relevant part of the circumstantial case.
80. The next complaint was that there was a danger the jury would engage in tendency/coincidence reasoning (ss 97 and 98 of the Evidence Act) unless a Shepherd direction was given. The difficulty with this submission is that the jury was specifically warned against reasoning in that way. I have set out this warning above at [71]. Such a direction is given when evidence of uncharged acts is before the jury suggesting that an accused person may have a tendency to act in a particular but the Crown does not rely upon the evidence for that purpose.
81. Evidence of uncharged acts is commonly adduced in child sexual assault trials. Consistent with the principles derived from the decisions such as Qualtieri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95, evidence of such uncharged acts is admissible to place the specific allegations in the indictment into context if the context evidence goes to an issue that has either arisen or will arise in the trial. As McClellan CJ at CL, with whom Howie and Latham JJ agreed, observed in Qualtieri v R at [80], in such cases the jury must be told that they cannot use the evidence as tendency evidence. At [80] his Honour went on to approve the then “Supreme Court Bench Book” direction as follows:

“However, I must give you certain important warnings with regard to this evidence of other acts, which we can conveniently refer to as ‘context evidence. You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged, and, therefore, it cannot be used as an element in the chain of proof of the offences charged.”

82. Although such evidence of uncharged acts is most commonly adduced in child sexual assault trials, it is also adduced in drug cases. The High Court held in Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 that evidence of prior drug dealings between the accused and a witness could be used to show that the association between the two was for a guilty rather than an innocent purpose. In Quach v Regina [2002] NSWCCA 519; (2002) 137 A Crim R 345 Spigelman CJ, with whom Sully and James JJ agreed, observed at [24]: “The reasoning in Harriman is consistent with the admissibility of evidence of prior heroin dealings on a basis other than tendency reasoning”. His Honour went on to cite the relevant paragraphs from the decision of Brennan J in Harriman v The Queen at [25]-[26] of Quach v R. Significantly, as Spigelman CJ pointed out a [47], the trial judge in Quach v R gave an express direction to the jury that the evidence should not be used for a tendency purpose.
83. Consistently with this long standing practice, the trial judge in the applicant’s trial directed the jury not to use the circumstantial evidence going to each count when considering the other counts as tendency or coincidence evidence. Her Honour also warned the jury on numerous occasions that they had to be satisfied of each element of each offence beyond reasonable doubt.
84. To the extent that the applicant suggested that there was a risk the jury would use the evidence as tendency or coincidence evidence despite being told not to do so, I note the observations of McHugh J in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [31]:

“The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.”

85. In circumstances where I am satisfied that the individual circumstances were all relevant, that none of the circumstances were intermediate facts and that the anti-tendency direction removed any risk that the jury would impermissibly use tendency reasoning, I am not satisfied that any of the applicant’s arguments under this ground has been made out.
86. As is clear from the portions of the trial transcript I have extracted above at [38]-[46], this argument was not raised before the trial judge. On the contrary, her Honour gave an “anti-tendency” direction with which senior counsel for the applicant was content. This means that the application of Rule 4 of the Criminal Appeal Rules 1952 (NSW) arises for consideration. As Bathurst CJ stated in ARS v R [2011] NSWCCA 266, (at [148]) in order to be granted leave to argue a ground of appeal when no objection was made at trial the applicant must establish “that he or she has lost a real chance (or a chance fairly open) of being acquitted”: Picken v R [2007] NSWCCA 319 at [20]- [21].
87. Not only am I not persuaded that the applicant has lost a real chance (or a chance fairly open) of being acquitted, I am not satisfied that any error is established in the first place. The fact that a Shepherd direction was not sought in this matter is a basis for concluding that senior counsel at trial did not believe, in the atmosphere of the trial, the trial judge’s directions affected the interests of the accused adversely: Greenhalgh v R [2017] NSWCCA 94 at [42] per Basten JA. This position is confirmed by the fact that senior counsel had sought an anti-tendency direction and was satisfied with the direction provided.
88. I would refuse leave to rely upon ground 1 pursuant to Criminal Appeal Rules (NSW), Rule 4.

Ground 2: verdict on count 1 unreasonable

Appellant’s submissions

89. It was submitted that it was not open to the jury to be satisfied beyond reasonable doubt on count 1. It was noted that this was not a matter that depended on the jury’s assessment of any witness.
90. In support of this submission the following defects in the Crown case were identified: there was no forensic evidence linking the applicant to the drugs in the Calibre bag, there was no evidence linking the drug in the Calibre bag with any of the drugs found in the roof cavity, there was no evidence that the drugs were identical, there was no evidence suggesting the drugs came from the same place or source or could be traced to any similar source, the Carey defence (R v Carey (1990) 20 NSWLR 292) was available to the applicant and remained a reasonable hypothesis having regard to all of the evidence, the hypothesis that Mr Kyriacou placed the drugs in the Calibre bag after leaving the applicant’s apartment remained a reasonable hypothesis having regard to all of the evidence and the jury did not need to be satisfied any of the reasonable hypotheses consistent with innocence in fact occurred, only as to their possibility.
91. In oral submissions the applicant’s counsel noted that Detective Anderson’s contemporaneous notes made on 2 August 2011 included an observation of the car driving away at a time when he witnessed the driver or someone “turning twisting appearing to wrap something and put it in a bag”. It was submitted that all of the evidence (which I have summarised above at [13]-35]) was such that a jury reasonably instructed ought to have had a reasonable doubt.

Crown submissions

92. The Crown submitted that it was well open to the jury to be satisfied of the elements of count 1 beyond reasonable doubt in light of all of the evidence in the Crown case.
93. In oral submissions reliance was placed upon the fact that Detective Bassett was following the Barina and there was in car video recording until the point when that car was pulled over. His evidence was it was after a point when the Barina was pulled over, that he saw movement in the vehicle. The reference to “wrapping” was something which was written in his notes but his oral evidence was that he saw an object being raised to the level of the windscreen and he did not see any actual wrapping taking place.

Consideration ground 2

94. This ground of appeal raises a question of fact alone. It has been held that leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) is required to raise a ground of appeal involving a question of fact or of mixed law and fact: Rasic v R [2009] NSWCCA 202 at [12]. See also Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220 at [2]; Yacoub v R [2008] NSWCCA 164 at [2]; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44] and at [68]-[71] and Carlton v The Queen [2008] NSWCCA 244 at [10]- [12]. The Crown did not oppose such leave being granted.
95. The relevant principles to be applied when an applicant contends that his or her conviction is unreasonable and cannot be supported by the evidence are well known: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. As the High Court observed in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]- [66] (footnotes omitted):

“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

96. Consistent with these well-established principles, the question for consideration is whether I am satisfied upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of count 1.
97. The Crown case on count 1 was circumstantial. It is accepted that the applicant was not found with the drugs in his possession. Rather, the Crown case was that it could be inferred that Mr Kyriacou had just obtained the drugs from him. I am satisfied that it was open to the jury to be satisfied of that beyond reasonable doubt.
98. Text messages between the applicant and Mr Kyriacou show that there was an arrangement for the two of them to meet up at the applicant’s unit on 31 July. Surveillance footage shows them subsequently meeting at the applicant’s unit. Mr Kyriacou is seen to be carrying a black bag with him when he walks with the applicant to the applicant’s unit but when he returns from the unit he is empty-handed.
99. On 2 August 2011, the two men meet again in the applicant’s unit. CCTV footage in the lift shows that when they go to the applicant’s apartment neither of them is carrying a bag. Surveillance footage shows that they were in the applicant’s apartment for no more than five minutes. When the two men return to the lift Mr Kyriacou is carrying a black bag. The CCTV images show there is a glimpse of something white inside the Calibre bag. This is consistent with Detective Robinson’s description of finding the drugs neatly wrapped in a white scarf.
100. The silver Barina in which Mr Kyriacou was a passenger was observed after he left the building. Although it is to be accepted that the occupants were not under observation for the entire period, the Crown case relied upon the fact that there were limited opportunities for the packet of cocaine to have been inserted into the Calibre bag from somewhere else in the motor vehicle.
101. The Calibre bag is first seen on Mr Kyriacou’s lap in the silver Barina. When they are pulled over by police, in-car video recording and the observations of Sergeant Bassett are consistent with Mr Kyriacou and his driver, Mr Psaros, moving the Calibre bag to the back seat in an attempt to conceal it. That is where it was located.
102. The high point of the applicant’s complaint under this ground is that it was possible for Mr Kyriacou to have already had the drugs in the car and to have put them in the bag (unobserved by police) once he was in the car. That is, that he went to the applicant’s unit to pick up a scarf in the black bag and not drugs. I am satisfied that it was open to the jury to reject this scenario as inherently unlikely. It was also open to the jury to reject as inherently unlikely that Mr Kyriacou or Mr Psaros had nearly one kilogram of cocaine unsecured in the car in broad daylight in the middle of the Sydney CBD, including while Mr Kyriacou went to meet the applicant (to pick up a scarf in an otherwise empty bag) and then chose a moment whilst driving in traffic to produce those drugs and seek to secure them inside the black bag.
103. In closing submissions senior counsel for the applicant relied upon the fact that the unwrapping of the 955g cocaine and the scarf in the Calibre bag was not video recorded by police and thus the Crown case relied upon the evidence of the police officers who unwrapped it and observed this to be done. Their evidence was that when the Calibre bag was first seen it was wrapped more tightly than it was after it was re-wrapped by police. It was submitted that this police evidence should be rejected as it was not recorded. The significance of this evidence was said to be that when the CCTV stills of the Calibre bag in the lift (with a glimpse of white to be seen) is compared with the photos of the bag after it was re-wrapped by police, the latter looked too bulky compared with the CCTV Stills taken in the lift. This was a quintessential jury issue and I am satisfied it was open to the jury to accept the police evidence on this issue.
104. It is to be accepted that there was a note in Sergeant Bassett’s police notebook that he saw some “unwrapping” but when that officer gave evidence that was not what he described. His evidence was that he saw something raised in the air but could not see what it was. The black bag was subsequently found in the back seat of the car behind the passenger seat.
105. Even putting to one side the finding of the Harris Farm bag in the ceiling cavity, there was other circumstantial evidence in the case relevant to count 1. When the applicant was arrested a few hours later at a hotel, he had a significant amount of cash in his pocket. When police subsequently executed a search warrant at his flat a large amount of money was located in his safe. It could not be said that the verdict on count 1 was unreasonable.
106. The applicant did not give evidence at trial. Nor did he advance a case that he was only minding the drugs in the Calibre bag for Mr Kyracou: Carey v R. Despite this, the trial judge directed the jury that:

“Supply does not include the mere transfer of the physical control of the drugs from a person who has had the drugs deposited with them. So if a person who has had drugs deposited with them, is merely returning those drugs to their owner, then a person is not guilty of the supply of prohibited drugs.
That does not mean that in every instance, where drugs are deposited at a place and then returned or provided to the person who deposited them, that there cannot be a supply of prohibited drugs. It depends on the facts of the case but the mere return of drugs to the person who is the owner of them, does not amount to supply of those drugs.”

107. To the extent that the applicant submitted that the Carey defence was reasonably open on the evidence, it is to be noted that the applicant did not give evidence to suggest this is what occurred
108. Having examined all of the evidence adduced at the trial, I am not persuaded that the jury ought to have entertained a reasonable doubt as to the applicant’s guilt on count 1.
109. I would grant leave to argue this ground but would dismiss it.

Ground 3: verdict on counts 2 and 3 unreasonable

Appellant’s submissions

110. It was submitted that it was not open to the jury to be satisfied beyond reasonable doubt in relation to counts 2 and 3.
111. Reliance was placed on the evidence given by Ms Marshall that Sarah Bartley put the containers and money in the roof cavity in her presence and with her assistance and without the knowledge of the applicant. It was conceded that Ms Marshall’s account of events may have been “unusual”.
112. Reliance was placed on the evidence at trial that the police did not test for fingerprints or DNA on the roof near the cavity. There was also the additional question of why, if there was a safe to keep money in, the applicant put other money in the roof.
113. The applicant conceded in oral submissions that, if the jury rejected the evidence of Lisa Marshall and the concierge, it could not be said that the jury’s verdicts on counts 2 and 3 were unreasonable. Rather, it was submitted that this evidence should not have been rejected because, inter alia, the fact that Sarah Bartley was dealing in drugs was corroborated from Detective Anderson and her presence at the applicant’s unit was confirmed by the concierge. It was noted that there was no significant challenge to this evidence.

Crown submissions

114. The Crown submitted that it was well open for the jury to be satisfied beyond reasonable doubt that the contents of the Harris Farm bag were in the applicant’s possession.
115. As for the applicant’s contention that there was no basis for the jury to have rejected the evidence of Ms Marshall, it was submitted that there was very little corroboration of Ms Marshall’s evidence. There was some evidence that she was potentially a low-level drug dealer but there was no evidence that she was someone dealing to the extent of the quantities found. It was submitted that the jury was entitled to reject this evidence. Further, it was submitted that just because matters are not put to counter evidence does not mean that the evidence has to be accepted. It was submitted that there were inherent implausibilites to the story and the jury would have used its common sense in this regard.

Consideration ground 3

116. The evidence in support of counts 2 and 3 was very strong. A bag containing two types of drugs and money with an envelope with the applicant’s fingerprints were found in his apartment where he resided alone in circumstances where a large quantity of cash was also found his safe. As stated above, during the hearing of this appeal it was conceded by counsel for the applicant that had the jury rejected the evidence of Lisa Marshall then there was sufficient evidence for the Crown to prove its case. Thus it became clear that the nub of this ground was the contention that the jury had no basis to reject the evidence of Lisa Marshall.
117. It is to be noted that the trial judge directed the jury that if they considered there was a reasonable possibility that Ms Marshall was telling the truth about Ms Bartley’s actions then the applicant could not be regarded as being in possession of the drugs found in the Harris Farm bag.
118. I am satisfied that it was open to the jury to reject the evidence of Lisa Marshall on a number of grounds. It is to be accepted that the Crown did not suggest to her that she had never been to the applicant’s apartment and the evidence of the concierge confirmed that she had. But that does not mean that the jury had to accept Ms Marshall’s evidence. Although police did confirm that there were police records to suggest that Ms Bartley was a drug user and low-level dealer, there was no evidence to suggest she was selling at a commercial level consistent with the quantity found in the Harris Farm bag.
119. There was also an inherent implausibility that Ms Bartley, who needed money for gender realignment surgery and was selling drugs to raise these funds, would leave all of her drugs and money in the roof of premises where she had no access to the drugs in order to continue to sell them to raise more funds for her operation. The jury was entitled to have regard to the fact that the roof cavity of the ensuite to the applicant’s bedroom was a location to which the applicant had ready access and that he had lived in the apartment since March 2002.
120. The jury was also entitled to have regard to the fact that Ms Bartley barely knew the applicant, had little knowledge of his movements or who might have access to his apartment but was willing to leave her life savings and a significant quantity of drugs in his apartment. There was also the convenient fact that the person who on the defence case was the real owner of those drugs was deceased by the time of the trial.
121. Once the evidence of Ms Marshall is rejected and even putting to one side the circumstances in support of count 1, the fact is that in addition to the drugs and money in the roof with the applicant’s fingerprints on the envelope, there was also $20,000 found in a safe and the applicant had $3,000 on him when he was arrested. This is all evidence that leads me to conclude that it was well open to the jury to convict the applicant on counts 2 and 3. Having examined all of the evidence adduced at the trial, I am not persuaded that the jury ought to have entertained a reasonable doubt as to the applicant’s guilt on counts 2 and 3.
122. As with ground 2, the Crown did not oppose leave being granted to argue this ground which relies upon a question of fact alone. I would grant leave to argue this ground but would dismiss it.

ORDERS

123. The orders I would propose are as follows:
     • (1) Refuse leave to appeal against conviction on ground 1.
     • (2) Grant leave to appeal against conviction on grounds 2 and 3.
     • (3) Dismiss the appeal.

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Amendments

28 May 2020 - Restriction lifted