R v Orchard

THE COURT: On 27 September 2010 the appellant appeared for trial in the District Court. He was arraigned on an indictment charging him with one offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (DMTA) of supplying not less than a commercial quantity of methylamphetamine, namely an amount which was particularised as not less than a large commercial quantity of methylamphetamine, namely, 1 kilogram. He pleaded not guilty. The commercial quantity of methylamphetamine was 250 grams.

As noted, the particulars to the indictment identified the amount alleged to have been supplied as exceeding a "large commercial quantity" of methylamphetamine, namely 1 kilogram. The significance of that particular is that, if established, it rendered the appellant liable to punishment for a maximum term of life imprisonment (s 33(3)). If it were not established, conviction for the offence under s 25(2) rendered him liable to imprisonment for a maximum term of twenty years or a fine of $3,500 or both.

The appellant's trial proceeded before a judge sitting without a jury in accordance with s 133 of the Criminal Procedure Act 1986. The trial occupied 99 hearing days. On 13 May 2011 the trial judge returned a verdict of guilty. His Honour's reasons were handed down on 20 May 2011 (the 'conviction judgment'). His Honour found the appellant guilty of the charge on the indictment, but was not satisfied beyond reasonable doubt that the amount of methylamphetamine supplied exceeded a large commercial quantity.

On 12 August 2011 the appellant was sentenced to a term of imprisonment of fifteen years and six months, with a minimum term of ten years and five months. His sentence was fixed to commence from 8 May 2008.

The appellant appeals against his conviction and seeks leave to appeal against his sentence. To the extent necessary, the Court has treated the appeal against sentence as both an application for leave to appeal and, if leave were granted, the appeal. The grounds of appeal are: (5A) The conduct and interventions by the trial judge rendered the trial unfair.

For the reasons that follow the appeal against his conviction and sentence is dismissed. Before addressing the individual grounds of appeal it is necessary to summarise the Crown case and his Honour's findings. It is also necessary to summarise the appellant's case and the manner in which it was conducted, as well as aspects of the surveillance evidence that was tendered at the trial. Unless otherwise indicated, paragraph references are to the conviction judgment.

From early 2008 until 9 May 2008 the police conducted an extensive surveillance operation into the activities of the appellant on suspicion that he was a significant dealer in methylamphetamine at the retail level in the Newcastle area. This surveillance operation extended to the activities of a number of other persons, including AA, whom the police believed sourced methylamphetamine for the appellant at the appellant's direction and behest for the purpose of a supply. One of the persons from whom AA was believed to have sourced the amphetamine was a Mr Mark Paxton who was based in Balmain, Sydney.

The investigation reached its denouement on 9 May 2008 when both the appellant and AA were arrested and various homes were searched. AA was arrested standing alongside a motor vehicle. The occupant of the vehicle was Benjamin Watt ("Watt") ([254]). At the time of his arrest AA was found in possession of, inter alia, $1,105 in cash and a small resealable bag containing methylamphetamine ([255]). The vehicle was searched and revealed a plastic bag containing 27.9 grams of methylamphetamine which was 57.5% pure (at [255]). All of these items were consistent with the conclusion that AA had just supplied Watt with 27.9 grams of methylamphetamine.

AA lived with his partner, BB, at an address in Haig Street, Belmont, for most of the relevant period of the surveillance operation ([14]). A police search of those premises yielded a "red Vodafone bag" containing methylamphetamine weighing 413 grams. This was found to be of 58% purity and had been "marginally cut" with epsom salts ([259]). The police also found 10.3 grams of a "brown pasty" substance containing 10% methylamphetamine in a large plastic sandwich bag. They also discovered 118.4 grams of an "off white" crystalline substance which was later analysed to be amphetamine of 18.4% purity in plastic bags which were in turn wrapped in a tea-towel. The tea-towel was found in a safe ([259]). Three other plastic bags containing a total of 140.6 grams of methylamphetamine were found in the safe. Two of the bags contained two ounces each (i.e. approximately 56.7 grams) and one bag contained one ounce (i.e. approximately 24 grams) ([259]).

The appellant was arrested at a house in Tudor Street, Belmont ([52])]. He was found in possession of various items which were consistent with what he ultimately claimed at trial was his occupation, namely a small scale drug dealer ([256]). A search of the appellant's home in Vista Parade, Belmont yielded similar results ([269]).

However, the results of a search of the premises at Tudor Street were more significant. Those premises were occupied by his deceased wife's parents, their daughter and her husband. In a spare room at the house $48,829 in cash was found in a bed. The appellant's children had often used that room when visiting their grandparents ([271]). Also found were records from a term deposit account in the name of the appellant's son which recorded a recent withdrawal of $11,000 ([271]). During the search the appellant's children stated that they had no knowledge of the cash found in the room they used. The appellant's mother-in-law told the police that the appellant had both access to that room and keys to the house. In his evidence at the trial, the appellant claimed that the $48,829 in cash was money he had given to his mother-in-law around a decade previously ([271]). His Honour rejected that evidence ([277]).

The Crown case against the appellant was comprised of six transactions in which it was alleged he had financed for AA to obtain methylamphetamine in a total amount of not less than a large commercial quantity on his behalf. With the first five transactions, the appellant was alleged to have received the methylamphetamine from AA, and thus possessed it for the purposes of supply (to retail customers) within the extended definition of supply in s 3 of the DMTA. With the sixth transaction the appellant was alleged to have financed the purchase of methylamphetamine by AA, which he never physically received, as both he and AA were arrested in the interim. With this transaction, his conduct was said to have constituted "authorising" AA's possession for the purpose of "AA's supply" or "sending, forwarding [or] delivery" the drug to the appellant and in this way to have also satisfied the extended definition of supply in s 3 of the DMTA.

The six transactions relied on by the Crown, and his Honour's finding in respect of them, were as follows.

The first transaction was alleged by the Crown to have taken place on or about 5 February 2008. The appellant was said to have arranged for AA to purchase "ten ounces" (approximately 283 grams) of crystal methylamphetamine. This was said to have involved AA and BB travelling to the Pelican RSL Club near Lake Macquarie and the appellant travelling separately to the same location. AA gave evidence that the appellant gave him $64,000 in his car. AA said he provided $55,000 to a supplier and retained $9,000. AA said he received the drugs, returned to the appellant's car and handed them to him ([18]). The trial judge accepted that AA went to the Pelican RSL on behalf of and at the direction of the appellant ([407]), but was not prepared to find established, beyond reasonable doubt, any further facts concerning that transaction.

With the second transaction the Crown alleged that between 23 February 2008 and 28 February 2008 the appellant received ten ounces of methylamphetamine from AA that AA had purchased on his behalf for $70,000 in cash ([19] to [24]). The Crown alleged that AA purchased the drugs in two tranches from a dealer named Powick, one tranche of two ounces on 23 February 2008 at a cost of $15,000 ([21]), and the other tranche of eight ounces on 23 February at a cost of $55,000 ([24]). AA claimed that he handed both tranches to the appellant on the days he received the drugs except that, with the second tranche, AA said he removed seven grams for himself. He also said that the appellant also gave him seven grams as a payment (along with other drugs) ([24]).

His Honour was satisfied beyond reasonable doubt that AA bought methylamphetamine on behalf of the appellant on both of these occasions. However, his Honour was not satisfied beyond reasonable doubt of the amount of the drug that was purchased ([419]).

With the third transaction, the Crown alleged that between 16 and 17 March 2008 the appellant received ten ounces of crystal methylamphetamine and sixteen ounces of amphetamine from AA which AA had purchased on his behalf. The Crown alleged that on 16 March 2008 the appellant gave AA $110,000 in cash and told him to purchase a "pound" of speed (i.e. sixteen ounces of amphetamine) and spend the rest on "ice" (crystal methamphetamine). AA said he then travelled to Sydney and paid $35,000 for the speed and $75,000 for the methylamphetamine to Paxton. The Crown alleges that AA obtained the drugs from Paxton and then provided them to the appellant the next day ([33-34, 428]). Although his Honour stated that he accepted AA's account "generally", his Honour was not satisfied beyond reasonable doubt of the "precise amount paid" nor the "precise amount bought" ([428]). His Honour was also not satisfied beyond reasonable doubt that the "pound" of drugs that was purchased contained methylamphetamine ([428]).

With the fourth transaction, the Crown alleged that the appellant provided AA with $113,000 in cash on 28 March 2008 to enable him to purchase eighteen ounces of crystal methylamphetamine on his behalf ([37]), but that the purchase from the proposed supplier fell through. Instead AA said that on 6 April 2008 he purchased eighteen ounces of the drug from a family friend of BB, Gallagher (also known as "uncle"), for which he paid $102,000 ([39]). The Crown alleged that AA gave these drugs to the appellant.

It is important to note what the Crown alleges became of this eighteen ounces. It alleged that the appellant tested them and concluded that they were of poor quality. They were referred to in the trial as "Uncle's bad ice" ([39]). The Crown alleges that the appellant complained to AA and AA exchanged five ounces of "Uncle's bad ice" for $25,000 on 10 April 2008 ([443]) and swapped a further five ounces of "Uncle's bad ice" for eight ounces of what was later described as "orangey/red/brown ice" ([39]).

On 10 April 2008 the appellant was charged with one count of supply methylamphetamine which related to a single instance of a retail level supply (unrelated to the charge on indictment) ([440]). At that time a tracking device was placed on his car by police. On 21 April 2008 one of his retail "clients", Tristan Lightfoot, was arrested for possession of methyl-amphetamine after leaving the appellant's premises ([248]). The Crown alleges that from that time the appellant was "far more vigilant", especially as he had been arrested only ten days earlier ([252]). This event is of significance in considering the surveillance material summarised below.

AA gave evidence that after Lightfoot's arrest the appellant came to his house at Haig Street, Belmont on 21 April 2008. AA said that the appellant handed him a "rolled up tea-towel" which contained one bag with approximately one ounce of crystal methylamphetamine, a bag with two ounces of crystal methylamphetamine; and a bag with six to eight ounces of crystal methylamphetamine. According to AA, he was also given a bag containing a small amount of brown methylamphetamine that was the methylamphetamine obtained in exchange for "Uncle's bad ice" and a bag containing the remaining four ounces of "Uncle's bad ice" ([43]).

As stated, during the search of AA's premises on 9 May 2008 the police found one bag containing an "'off white' crystalline substance" which was 118.4 grams of low purity amphetamine wrapped in a tea-towel ([259]). The Crown case was that the contents of that bag were the remnants of "Uncle's bad ice" that the appellant had placed with AA for safe keeping on 21 April 2008 ([446]). His Honour accepted that part of the Crown case ([446] and [491]).

Hence with the fourth transaction his Honour accepted that AA purchased methylamphetamine for the appellant on the dates claimed and accepted that the 118.4 grams of low purity ice found at AA's premises on 9 May 2008 was the remnants of "Uncle's bad ice" that AA had obtained and given to the appellant on 6 April ([491]). Thus his Honour found that the supply by the appellant of at least that amount of methamphetamine was established beyond reasonable doubt.

The fifth transaction alleged by the Crown was said to have taken place between 14 and 15 April 2008. According to the Crown, on 14 April 2008 AA and BB travelled to Paxton's premises in Balmain. AA said he ordered eighteen ounces of methylamphetamine on behalf of the appellant ([39]). On 15 April 2008, AA went to the appellant and told him the purchase had been organised ([41]). Later that day he returned and asked the appellant to give him $117,000, plus $1,000 for travel expenses. Having received the money, AA travelled to Balmain and purchased eighteen ounces of crystal methylamphetamine from Paxton. AA said he took half an ounce of the eighteen ounces and replaced it with epsom salts. He said he delivered it to the appellant, who gave him an ounce as payment ([42]).

The trial judge analysed the evidence concerning this transaction closely, especially the surveillance evidence and telephone intercepts which related to it ([450ff]). In particular, his Honour considered that the evidence from the tracking device on the appellant's car and the video surveillance strongly supported AA's evidence that the appellant had retrieved cash on 15 April 2008 in order to fund AA's purchase of drugs from Paxton ([451]). His Honour also considered that the surveillance evidence suggested that AA did not have the means to finance the purchase at a cost of $115,000 in his own right ([453]). Nevertheless, his Honour's ultimate finding in relation to the fifth transaction was ([453]): "On the other hand, while all circumstances point to a substantial buy from Paxton on 15 April the precise amount is not independently proven or supported."

The sixth transaction was said by the Crown to involve the acquisition by AA on 9 May 2008 of eighteen ounces of methylamphetamine at the direction and behest of the appellant. As discussed below this transaction had a long genesis. For present purposes it is only necessary to note that, according to the Crown, on the evening of 8 May 2008, AA went to the appellant's home and was given $110,000 in cash to purchase half a kilogram of "ice" from Paxton. AA said he travelled to Balmain that night with BB and "Chad" Graham, but was unable to arrange the transaction ([46]). He said that he returned early the next day in the company of Graham ([47]). He said that Paxton gave him ten pounds of cannabis ([47]) and then later "a red Vodafone bag containing a plastic freezer bag containing half a kilogram of crystal methylamphetamine" ([48]). AA said he returned to Newcastle and took the Vodafone bag containing the crystal methylamphetamine into his bedroom at his house in Haig Street. He weighed up two two-ounce bags of methylamphetamine from the drugs he had just purchased, and two one-ounce bags. He placed an ounce of epsom salts into the freezer bag containing the balance of the half a kilogram of crystal methylamphetamine. He said that he placed the two two-ounce bags and one of the one-ounce bags in a safe in his bedroom. He said he placed the red Vodafone bag which contained the balance of the drugs purchased from Paxton, supplemented by the epsom salts, in a white bucket at the back of his house. He said he then took one of the one-ounce bags to supply to Watt ([50]).

On that day AA was arrested for supplying one ounce of methyl-amphetamine to Watt. As has already been stated, the items found at AA's premises included the 118.4 grams of low quality crystal methylamphetamine (i.e. "Uncle's bad ice") referable to the fourth transaction, and 10.3 grams of the brown pasty substance which was exchanged for some of "Uncle's bad ice". The remaining drugs included 413 grams of crystal methylamphetamine which included the epsom salts contained within the red Vodafone bag, as well as the two lots of two ounces and the one lot of one ounce of methylamphetamine found in the safe, all referable, on the Crown case, to the sixth transaction. As stated, a large amount of cash was found at the home of the appellant's deceased wife's parents in Tudor Street.

His Honour accepted AA's evidence in respect of the sixth transaction. His Honour found: "[488] Notwithstanding the many warnings I must give myself about AA, not only relating to his potential unreliability and/or lack of truthfulness arising from the circumstances in which he comes forward to give evidence, but also taking into account his relationship and other matters associated with BB and the fact that he gives evidence about particular events, relating to his personal affairs as well as this relationship with the accused for which there is good reason to doubt his truthfulness and reliability, I accept his truthfulness and reliability in respect of the key matter requiring proof by the Crown beyond reasonable doubt in respect of the last purchase of methylamphetamine. I also accept that he bought methylamphetamines for the accused on other occasions. I am satisfied beyond reasonable doubt that the accused gave him $110,000 on 8 May, for the purchase of the methylamphetamine brought back from Sydney, less the "5 ounces" AA kept for himself. [489] I am satisfied beyond reasonable doubt that the accused knew that AA was purchasing methylamphetamine, in that he authorized AA to purchase the methylamphetamine on his behalf to deliver it back to him, for him to supply." (emphasis added)

These findings identify the quantity of drugs that his Honour found the appellant supplied as part of the sixth transaction as being the amount "brought back from Sydney". His Honour clarified his finding as follows: "491. I have no doubt that AA obtained substantial quantities of methylamphetamine on his behalf before 8/9 May 2008. The reality is that, as was submitted by his counsel, there is absent in relation to the previous supplies clear 'independent' evidence of the quantities of methylamphetamine purchased on his behalf by AA. I can be satisfied beyond reasonable doubt on the totality of the evidence that the balance of the 'bad ice' in AA's possession was that provided by 'Uncle'. But in the absence of any independent evidence to support AA's version in the manner consistent with the warnings I adopt, exercising the caution required, I could not be satisfied beyond reasonable doubt of the precise quantity obtained on behalf of the accused by AA beyond that amount found. I am satisfied beyond reasonable doubt there was 'more' than those amounts relevantly 'supplied' by the accused. But the quantities can only be speculated about and not identified with the precision required to be satisfied beyond reasonable doubt. I am satisfied beyond reasonable doubt that AA purchased methylamphetamine for the accused on each of the other dates claimed by AA. This is not effectively denied by the accused. The precise amounts purchased by AA for the accused, other than those recovered by the police enquiries from 9 May onwards, cannot be determined beyond reasonable doubt. As the accused was dealing in 'ice' through April May, clearly he and AA supplied more methylamphetamine than that found by police. However, the precise quantity cannot be identified. Adding up what is known with precision from what was found by police does not amount to a kilogram or more of the prohibited drug. One cannot fill the 'gap' with speculation as to the quantities obtained by AA and sold by the accused." (emphasis added)

Thus, in considering what quantity of methylamphetamine the appellant supplied, his Honour was only prepared to find beyond reasonable doubt he supplied the quantity that they located in the searches that were conducted on 9 May 2008. This included the remnants of "Uncle's bad ice" from the fourth transaction (118 grams) and the balance of the ice from the sixth transaction found in the Vodafone bag in the white bucket (413 grams) which included 28 grams of epsom salts. As those amounts exceeded 250 grams, but was less than one kilogram, his Honour found that the appellant was guilty of supplying not less than a commercial quantity but was not satisfied beyond reasonable doubt that the amount supplied exceeded a large commercial quantity. In this regard his Honour's findings concerning the sixth transaction were critical since those findings supported the verdict and without them the appellant was entitled to be acquitted.

Although it makes no difference to the verdict, in the sentence proceedings, the Crown submitted that the amount his Honour found (or ought to have found) that the appellant supplied was not less than 612 grams of methamphetamine. This was comprised of the 118.4 grams (being the remnants of "Uncle's bad ice"), 413 grams less 28 grams of epsom salts, the 27.9 grams AA sold to Watt and the 140.6 grams found in the plastic bags in the safe less 59 grams (being the contents of one of the two-ounce bags). The deduction of the 28 grams epsom salts was favourable to the appellant given the admixture provision in s 4 of the DMTA. The inclusion of some of the drugs found in the safe involved a more adverse finding than that set out in the extract from the judgment noted in [29] above. In relation to that, the Crown pointed to evidence from AA that he intended to hold that part of those drugs for the appellant. Nothing turns on this. During the sentencing hearing the appellant's counsel accepted the Crown's approach. In the sentencing judgment his Honour recorded that "the parties conceded that my findings indicated that the quality of methylamphetamine relevantly recovered on 9 May [2008] comprised approximately 612 to 620 grams".

The trial judge's reasons contained a considered and comprehensive summary of the appellant's case ([61]-[86]). It included the following summary of his evidence ([67]-[85]): "In 2006 he was renting a property opposite the '16 Footer's Club' at Belmont, living with his children and his daughter [ ]. He was a low level dealer in Indian hemp or cannabis and prescription drugs such as oxycontin and oxycodone however he had no involvement in the supply of 'ice' (methylamphetamine) until early February 2008. He said he met AA in either early 2006 or 2007 and understood AA was a friend of his daughter. He met him at his home opposite the 16 Footer's Club and bought some ice off him then. AA came to the house from the Club several times to sell ice to [his daughter]. He gave evidence about a number of calls intercepted by the police operation. Whilst he conceded from isolated references, it not being practical to go through every call, that many of the calls were related to the sale of prohibited drugs, he said that no calls related to the sale of ice until after 5 February 2008. Some of the calls before then would have related to the sale of hydroponic marijuana that he obtained from a man called Ricky Lovejoy, who lived at Freemans Waterhole. He first met AA in 2008 at a shopping centre regularly referred to in the evidence as the 'Citi Centre'. He said AA came to his home and asked him if he was interested in buying 'ice' and he said to AA that he was interested in 'a gram'. He said that AA said to him that he had a deal for him whereby the accused could give him $5,000, AA would 'score the drugs' and AA in repayment would give him back the cash plus an 8-ball, three and a half grams of ice. He said he went with AA and BB, in BB's car, to near the Pelican RSL. AA left the car and came back within about an hour and they returned to Orchard's house. He said he was given $2,000 and an 8-ball. He denied giving AA $64,000 to purchase methylamphetamine. From there on he obtained methylamphetamine from AA on a regular basis. He would get '8-balls' for financing AA's puchases, AA continued to borrow money from him, no more than $5,000 at any one time. Ultimately, on 9 May, the accused said he was owed $10,000 by AA. He gave evidence that he did not know the people that AA was associated with although he had heard of Tommy Gallagher. He received approximately 14 or 15 8-balls from AA and three or four 8-balls from Jon Pearman, a friend of his, and several 8-balls from 'Darren', which were all methylamphetamine. After receiving the first 8-ball from AA he started using ice regularly and he also sold it, making money out of it. He said, however, that his ice dependency grew over the months and he was ultimately using more than he was selling, although he referred to many occasions when he sold small amounts of ice to various people recorded in the telephone intercept operation as having called him. Initially he started using about a gram a week but, ultimately, he was using about two gram of ice a week maybe more. He drew a distinction between 'ice', which he understood was methylamphetamine, and 'speed' or 'glug speed' which he described as 'amphetamine'. Generally, he did not dispute in his evidence that the times that AA said that he delivered methylamphetamine to him occurred. However, he disputed the quantities supplied. He denied ever giving AA the sums of money that AA claimed he received in late February, late March, mid April and early May 2008. He denied every receiving large quantities of 'ice' from 'Uncle' and denied leaving drugs at the home of AA after Tristan Lightfoot had been arrested on 21 April 2008. ... He gave evidence about the meaning of communications between AA and him and said amongst other things that the series of communications between himself and AA, when AA went missing in late March early April, were largely prompted by the fact that he, the accused, was badly affected by 'ice'. ... He said of AA that he did not 'particularly' trust him and that after a little while he did not trust him at all. One of the reasons that he was 'concerned' about AA was because AA brought around to his home a machine pistol which later he saw a photograph of in the local newspaper. He said that a particular call on 7 May 2008 where he told BB that he needed AA to bring around 'the rest of the flowers' and to bring round 'the red one', was a reference to marijuana with red hairs on it not the reddish brown 'ice', that was subsequently found by police in their search of AA's home on 9-10 May 2008. He gave evidence as well about the various messages exchanged on 9 May, indicating that he was not that experienced in sending text messages, but he was not showing any form of 'supervisory' interest, in relation to AA's activities. He said in his evidence that he did not know who AA was dealing with in Sydney. In fact, he knew very little about AA's activities when he said he was 'going south'. He was taken to the listening device 'material', being recorded conversations in his motor vehicle between 11 April 2008 and 22 April 2008 concerning dealings he had with various individuals, as well as the recorded conversation between himself and AA of 4 May 2008. Whilst he admitted that a number of these conversations were concerned with selling prohibited drugs, there were no major 'deals'."

It was not suggested that any aspect of this summary of the appellant's evidence was incorrect. Thus the appellant accepted that he used and supplied drugs but claimed that the relationship between himself and AA was, in effect, the opposite of that alleged by the Crown. The Crown contended that AA was acting at the behest of the appellant and was his intermediary in procuring large supplies of ice. Its case accommodated AA selling some drugs on the side whilst asserting that the appellant was the dominant retailer in the area. The appellant contended that AA was the retail supplier and he was one of AA's clients while accepting that he sold drugs on the side.

His Honour comprehensively rejected the appellant's evidence ([277], [278], [320], [356], [399], [408], [455], [485] to [486]). His Honour explained his reasons for doing so. In large part his Honour considered it was inconsistent with the various forms of surveillance evidence and was in other respects internally inconsistent. Aspects of the surveillance evidence are described below. However his Honour also noted that much of the appellant's evidence was in its "detail and in [its] presentation" a "contrivance" ([399]). This was in part the result of an assessment that, as the trial judge, his Honour was able to undertake by considering the manner in which the appellant gave his evidence. This was an advantage his Honour enjoyed that this Court did not.

To this point in describing the appellant's "case" we have summarised his evidence. However in view of the matters raised on his behalf on the appeal it is necessary to refer to aspects of how his case was conducted.

The presentation of the Crown case occupied 81 days of hearing time. In the circumstances explained below, the appellant dismissed his counsel (the "first counsel") on the 77th day of the trial. New counsel assumed the conduct of his case until verdict. That counsel appeared on the appeal.

The 81 days of the Crown case included a significant number of days where evidence was taken on the voir dire and other evidentiary applications were made as well as numerous applications for the trial judge to disqualify himself. None of these rulings were challenged on the appeal. However by far the longest part of the Crown case was the period in which the Crown's principal witness, "AA", was cross-examined. AA gave evidence in chief over seven days from 27 October 2010 to 4 November 2010. He was then cross-examined over 23 hearing days from 15 November 2010 to 4 February 2011. The cross-examination was interrupted by a six-week adjournment of the proceedings from mid-December 2010 to February 2011. In large part the cross-examination consisted of the playing of recordings of various telephone calls in open court and then AA being asked various questions. Sometimes the same subject matter would be returned to days later.

The theme of the cross-examination was the proposition that AA was a substantial drug dealer in his own right and had contacts with a number of persons other than the appellant who might have financed the various purchases the subject of the six transactions relied upon by the Crown. However, what remained elusive throughout this aspect of the cross-examination was the appellant's response to the specific and incriminating aspects of AA's evidence and the surveillance evidence that implicated him.

It was not until 9 February 2011, when the first counsel first put a number of affirmative propositions to AA, occupying slightly over one page of transcript, that it was put to AA that in the period January to May 2008 he sold the appellant no more than 80 grams of "ice" and the largest single quantity was an ounce. It was also put, that on two or three occasions, AA supplied the appellant with marijuana and also supplied him with "gas" (amphetamine). It was put that the appellant never supplied AA with a gun, as AA claimed, and that they did not have a conversation in gaol as AA had claimed. Nothing else was put to contradict AA's evidence.

In an ensuing discussion, the Crown queried the extent of the matters that had been expressly put to AA on behalf of the appellant. The trial judge stated he was not going to direct that any aspect of the defence case be put to AA in the absence of knowing what the defence case was. The first counsel indicated that she wished to consider the matter further.

On the next day, 10 February 2011, she had AA re-called and cross-examined him further. However the only additional matters put to AA were as follows: "Q. I put to you that you also sold him quantities of marijuana, smaller than a pound at times, what do you say to that? A. Never, never. Q. I put to you that Mr Orchard never asked you to go purchase methylamphetamine on his behalf, what do you say about that? A. Always. Q. I put to you that you were a drug supplier and Mr Orchard was one of your many customers, what do you say to that? A. No." (emphasis added)

Thus, although the first counsel put some very broad propositions to AA she did not challenge AA about any conversation or meeting that he claimed he had with the appellant other than a particular conversation in gaol. As the summary of the appellant's evidence set out above (at [32]) makes clear, he claimed there were a number of significant disputes between them, one being their respective versions of what occurred during their meeting on the evening of 8 May 2008 (see [75] to [76] below).

It has been accepted that there is a rule of professional practice, said to be based on the decision in Browne v Dunn (1893) 6 R 67, that, subject to various qualifications, a cross-examiner must put to a witness the matters in respect of which it is intended the witness's evidence will be contradicted (R v Birks (1990) 19 NSWLR 677 at 686D per Gleeson CJ, with whom McInerney J agreed). The continuing application of this rule to criminal trials has been doubted (MWJ v R [2005] HCA 74; 80 ALJR 329 at [40]), however its application was recently assumed by this Court in Lysle v R [2012] NSWCCA 20 at [40]. A potential consequence of a failure by counsel for the accused to put a matter to a prosecution witness about which the accused later testifies is that it can be a basis for the Crown to contend that that aspect of the accused's evidence is a recent invention (see Birks at 690 to 692 per Gleeson CJ; Llewellyn v R [2011] NSWCCA 66 at [137(c)] per Garling J; and Lysle at [35]; although compare Llewellyn at [138(d)] with Lysle at [41] to [45]). As there may be many reasons why a matter was not put to a witness, a process of reasoning that relies on that fact to allow for a finding adverse to an accused must be approached with caution (Llewellyn at [138(b)] per Garling J and cases cited thereat; and R v Giourtalis [2013] NSWCCA 216 at [45] per Bathurst CJ). If counsel for the accused is confronted with the suggestion that their client has recently invented some detail that was not put to a Crown witness, or that is put to an accused in cross-examination, and if the failure to put it was an oversight or mistake on counsel's part, then a number of responses are available (Birks at 683B). They include re-examining the accused on his or her instructions to counsel (Llewellyn at [58]), calling the instructing solicitor to testify as to the accused's instructions, or counsel returning their brief and giving evidence as to their instructions and acknowledging error on their part (Birks at 683C).

While that is not this case, and while it may be that in a particular circumstance Browne v Dunn has little or no place in drawing an inference adverse to an accused, a failure to comply with the rule may nevertheless have an effect on an accused's credit. It may also be relevant in circumstances where an allegation of counsel's incompetence is said to give rise to a miscarriage of justice.

We can conceive of a situation where the matters that were put (or not put) to AA in cross-examination may have raised a potential problem for the appellant if he later gave evidence which contradicted AA's account. However a much larger problem was raised by the positive proposition that was put to AA by the appellant's first counsel that he never asked AA to purchase methylamphetamine on his behalf, since this was directly inconsistent with the evidence that the appellant later gave (and appears to have been inconsistent with what had been put to AA by counsel on the previous day). Thus for example, in his evidence in chief the appellant stated as follows concerning a drug deal he arranged with AA around 5 April 2008: "Q. Had you made an arrangement for him [AA] to supply you with some drugs? A. Yes. Q. What were you getting? A. We'd be getting 8-balls supposedly, my money back, the 5000, and there had been discussion about how he was going to clear up the other money he owed me. Probably going to be a pound of hydro." The reference to "8-balls" was to a quantity of "ice".

Similarly, in reference to a meeting between the appellant and AA on the evening of 8 May 2008 just prior to the sixth transaction being completed, the appellant stated: "Q. What was your understanding, what did you want, what were you going to ask for [from AA]? A.Well I definitely wanted an 8-ball of ice."

A barrister would breach a professional obligation if he or she knowingly asserted a fact to a witness in cross-examination that is directly inconsistent with their instructions. The position the defence is faced with where an accused gives evidence that is wholly inconsistent with a positive assertion that has been put to a Crown witness is potentially more damaging to an accused's case than where the accused's version has not been put to a witness. In that event there is reduced scope for the fact finder to consider the possibility that the discrepancy between what was put to the witness and testified to by the accused was the result of an oversight by counsel, or of the accused, or the result of forgetfulness or lack of attention to detail. It is far more likely to be found to be the consequence of either the client changing their instructions or counsel breaching their ethical obligations.

For present purposes, it is only necessary to note that, following the completion of the cross-examination of AA, the position confronting the appellant was that if he proposed to give evidence at variance with what was put to AA by his counsel, and if he gave evidence contrary to those parts of AA's evidence that were not challenged, then there was the real potential for the Crown to submit that his evidence was a recent invention designed to meet the Crown case that had by that time gathered in weight and import. If such a suggestion were made, his first counsel would have been placed in a difficult ethical position (see above at [43]). In the events that happened, by the time the appellant gave evidence, she had ceased to appear for him and his evidence was not challenged on that basis. However, the potential for such a challenge to have been made is important in considering the possible reasons for the accused withdrawing his instructions, a matter which is at the heart of ground 5A of the appeal, which will be dealt with in detail later in this judgment.

As stated, his Honour considered closely the surveillance material that was tendered concerning the appellant and AA. The critical findings, especially in relation to the sixth transaction, were as follows: "481 The pattern of intercepted calls on the combined telephone intercepts of the accused's telephone services and the telephone services of AA and BB, confirm a special arrangement between AA and the accused. The relationship is consistent with a process of obtaining money for significant drug purchases, reporting to the accused about the progress of those purchases and delivering back to the accused the results of "missions" to purchase significant quantities of methylamphetamine confirmed by the events of 9 May. There is no such consistent pattern of calls from AA to other people of this character. 482 The Crown's submissions regarding the lack of contact between AA and Gallagher between 28 April and 8 May, undercut any reasonable possibility that Gallagher funded the mission to Sydney which resulted in the purchase of the methylamphetamine found by the police after the arrests on 9 May. The telephone call between AA and Gallagher at 7:59 pm on 9 May shows clearly no direct 'interest', by Gallagher in the purchase from Paxton which had already occurred which AA was returning to Belmont. There is no reasonable evidence that any person to whom AA supplied drugs, in the period between 11 April and 9 May, had the capacity and/or did, in fact, finance any particular purchase over that period of time, including Chad Graham."

Given that one of the grounds contends that the verdict cannot be supported by the evidence, it is necessary to consider the surveillance material that supports these findings in some detail, at least so far as it concerns the sixth transaction given that the findings His Honour made in respect of that transaction is the basis for the finding of guilt.

The surveillance material that was tendered at the trial included a large number of discs containing recordings of numerous telephone conversations involving various people involved in, or said by the Crown to be involved in, drug supply or purchase, transcripts of many of those conversations and "sms" messages passing between them and others, transcripts of listening device recordings from the appellant's car and various data obtained from tracking devices placed on the vehicles of AA and the appellant. The Crown prepared a summary, which was a (partial) chronological summary of the various telephone conversations and sms messages.

The defence also tendered various recordings and messages involving AA in an endeavour to demonstrate that he was the principal in the various transactions and otherwise had access to persons, other than the appellant, who could have been the source of the finance for the various drug purchases. The defence also provided its own summary to the trial judge.

The following incorporates the calls and messages relied on by both the Crown and the defence.

In the period from the evening of 7 May 2008 to the middle of 9 May 2008 there was an intense level of communication between AA and Paxton consistent with their attempts to consummate a very sizable purchase of drugs. As noted, the trial judge also considered that there was an absence of any relevant contact between AA and any person other than the appellant who could potentially finance such a purchase.

The negotiations between AA and Paxton, for what became the sixth transaction, commenced on or around 27 April 2008. By 4.14pm on 29 April 2008 they had reached the point that Paxton sent AA a text stating "Hi mate only 1 that good 4 tonight is 120 or 230" (call 2169). The Crown submitted that this was a reference to a price of $120,000 for half a kilogram of ice or $230,000 for a kilogram. AA responded with a text stating "[s]orry bro ill have 2 talk 2 mate 1st cos pretty high there, if 110 yes but have 2 c him 1st ..." (call 2171). The Crown case was that the reference to "mate" was to the appellant and the text involved AA holding out for a price of $110,000 for a half a kilogram.

Paxton and AA continued to exchange SMS messages on a regular basis over the next few days, one topic of which concerned the price of supply. On 30 April 2008 at 10.47pm AA and Paxton had a conversation which was generally unintelligible but included a discussion about price coded as a discussion about AA visiting Paxton (call 2376). It concludes with AA asking Paxton to send him a "house number [and] address". Fifteen minutes later Paxton sent AA a text that read "Unit 110 its [sic] the nice building inside and out" (call 2377). The Crown contended that this revealed AA and Paxton agreeing on a price of $110,000.

Late in the evening on 30 April 2008, AA telephoned Lightfoot and discussed the latter's arrest (call 2383). Lightfoot explained that he was arrested "just up the road from ... old mate". As noted Lightfoot was arrested near the appellant's house.

Having negotiated the terms of the deal, AA then stalled Paxton. Very early on 1 May 2008, he messaged Paxton stating that his "other half [i.e. his partner], he is in hospital" and had a broken leg (call 2389). Later that day AA telephoned the appellant. The appellant said he was at the chemist and "struggling" - a reference to the problem with his leg. AA told him "we need to do something ... we really need to do something but ...".

On 2 May 2008 at 1.43pm AA spoke to Chad Graham. AA told Graham that "[t]he one we have been waiting for - it's here" but that "it depends if the cripple can get his part of the deal". In evidence AA said that the latter statement was a reference to the appellant's "part of the money" and he referred to the appellant as "the cripple" because he had difficulty moving. At 2.30pm the appellant called AA and told him his "legs [were] just about right". At 2.52pm the appellant telephoned AA and asked him to bring "one of them T-shirts" (call 331). In evidence AA stated that this was a reference to an "ounce or bag of ice or gas". Surveillance photographs show AA attending the appellant's home at 3.08pm and leaving at 3.15pm ([468]).

During this period AA was continually texting Paxton and indicating that he would be coming to complete the deal shortly. At 3.37pm on 2 May 2007 Paxton messaged AA stating "so 40 is that right" in an apparent reference to 40 ounces. At 6.20pm AA called Paxton to explain the delay on his side of the deal. He stated, inter alia: "I should [have] already left by now, I know. Um he's not going to be here till seven o'clock with the ... rest of the money". It is noteworthy that from the time this call ended until 8.27pm AA unsuccessfully attempted to call the appellant seven times. At 9.36pm Paxton sent a message to AA asking him to call (call 2683). At 9.38pm AA spoke to another associate, Lee Murnain (also known as Choung). He told Murnain that he had "dramas" and that he "just [had] to sought [sic] something".

At 9.43pm on 2 May 2008 Paxton and AA finally spoke to each other. AA blamed the difficulty in consummating the deal on the person who was "on crutches", adding that he was "travelling through the bush you know what I mean" (call 2686). As stated, the appellant had injured his leg around this time.

During the afternoon until late in the evening on 2 May 2008 AA spoke to BB on a number of occasions. Allowing for the variety of drug codes in play, none of these calls included any reference to the financing of drug purchases or the pending deal with Paxton. AA also exchanged brief texts with a contact, Dale Thrift, during this period. However Thrift was an unlikely source of funds given that he had texted AA at 12.13pm that day stating "I need coin bad". There is nothing in the texts that suggests any attempt by AA to source funds from him or anyone associated with him.

At 5.47pm on 2 May 2008 another associate, Mark Taylor, spoke to AA (call 2629). Taylor advised AA that he had "about a thousand bucks of battery for [him]". In his evidence AA stated that this was a reference to actual batteries obtained from dubious sources and he was seeking to swap them for drugs. AA replied that "I can't do nothing at the moment cause I'm not home" but that "maybe [I can] when I get home or in the morning". Even if the reference to "thousand bucks of battery" was to cash and not batteries, this response is entirely inconsistent with AA seeking to finance any part of the purchase price for the sixth transaction from Taylor. AA needed cash to complete the deal immediately. If Taylor was a source of finance for the deal he would not have put him off until the next day.

AA also exchanged text messages with Steven Haiduk (or "Budge") on the evening of 2 May 2008. It appears they met shortly afterward and AA provided him a "shot" of drugs. We will return to discuss Haiduk. The timing of his meeting with AA appears to have occurred prior to AA's attempts to contact the appellant, suggesting that it was the latter and not anything said during the former as what AA was referring to in his discussion with Choung, and caused him to put off buying the drugs from Paxton. Otherwise it is noteworthy that there were no calls between either AA or BB on the one hand and Gallagher on the other in this period.

By the evening of 5 May 2008 AA was clearly agitated about stalling the completion of the sixth transaction. At 6.17pm he telephoned Chad Graham (call 3063). The transcript of that call records the following exchange: "[AA]: He's a paranoid fuck, fair dinkum. [Graham]: Yeah. It's a worry isn't it? [AA]: Ah mate. All for fucking nothing. [Graham]: Your joking. [AA]: Nah. All because of that Tristan fuck wit mate. [Graham]: Yeah, oh yeah yeah. I know what you mean now. Fucking hell. [AA]: Tell me about it. [Graham]: So what, ah. How long is he going to keep this fucking shit up for? [AA]: Ah fucked if I know. He said another few days or a week maybe. [Graham]: Fuck off. [AA]: So now I'm just going to have to ring the boys and tell them fucking the truth. [Graham]: Yeah. [AA]: That my partner is a paranoid spinner and he is fucking losing the plot. Ah and hopefully in a few days, or a week, we will see you. [Graham]: Fucking, ah. All the cunt has got to do, is to go and get it. [AA]: Yep. But he reckons that that's what they are waiting for." (emphasis added)

In his evidence in chief AA explained that the person referred to as paranoid was the appellant and that the paranoia arose out of the arrest of Lightfoot, a matter that has been discussed above at [20]. He said that the reference to "ring the boys and tell the truth" was a reference to telling Paxton the truth about his difficulty in getting funds from the appellant. He explained that the reference to "what they are waiting for" was to the appellant having told him that if he simply went and collected the money for the transaction he would be arrested.

At 1.10pm on the afternoon of 7 May 2008 the appellant rang AA but the call was unanswered. Four minutes later he sent a text stating "[n]eed 2 c u". AA replied: "On the way back from the bay but will c[ome] straight 2 u". At 3.15pm the appellant rang AA's phone. BB answered. The appellant told her that: "I need him to bring around the rest of them flowers now". He rang back 44 minutes later to see where they were. The appellant told BB to "tell [AA] its [sic] the red one I want to look at" (call 3326). Surveillance photos showed AA arriving at the appellant's house at around 4.23pm and leaving shortly afterwards.

On the evening of 7 May 2013 AA at 6.47pm left a message on Paxton's phone apologising for the delay and stating that his "partner" had been "spinning out". Paxton rang him back immediately. He told AA that he had "missed some good times buddy" but the "ship is sailing" i.e. the deal had been in jeopardy but was still on track. In a reference to his "partner", AA said "he has just been wigging out on me like paranoiding out right". Paxton suggested that AA "go solo" but AA stated that he "[had not] quite got the funds" and "that's where [he was] the last couple of days ... by his [i.e. his partner's] side ... trying to show him ... [e]verything is sweet".

Not surprisingly the surveillance material reveals a heightened intensity in the communications between AA and Paxton from late in the afternoon of 8 May through to 9 May 2008. What is significant is the juxtaposition of those communications with the contact between AA and the appellant.

At 9.16am on 8 May 2008 BB and Graham spoke on the telephone (call 1718). BB told Graham that AA had gone to Gallagher's place. At 9.39am Haiduk called AA (call 3384). Haiduk explained that he was attending court on a charge of drive while disqualified. Haiduk said something to the effect that "he had a go the other morning but it was no good because there were too many people around" and that "he has some stuff in boxes" for AA. AA told Haiduk he was traveling to Maitland, where Gallagher lived. He also said he "love[d] boxes". In cross-examination AA stated that he could not recall what the reference to the boxes was or if he ever received them. He understood them to be the reference to the proceeds of some sort of robbery or theft. A detective gave evidence that Haiduk was charged with various offences concerning stolen tool boxes.

Between 2.43pm and 6.18pm on 8 May 2013 AA spoke to Paxton on the phone four times. In the first conversation AA states that he cannot leave Newcastle "until tea time" and then later "until about five" (call 3442). In the second call AA nominates "eighteen or twenty" ounces as the amount he is seeking. In the next call he confirms that "he can't get the full", i.e. he cannot afford a full kilogram.

At 6.02pm on 8 May 2013 AA received a call from Haiduk's number (call 3475). In his evidence he agreed that he spoke with another associate nicknamed "Buns". AA told the caller that he was "going on a mission" to Sydney. The caller asks when they are leaving and AA replied that they would leave when they dropped off BB's daughter they were going. They then discuss meeting at AA's home, although when is not clear. AA received a call from Haiduk (aka "Budge") eighteen minutes later, in which the caller tells AA that "Marky" cannot come and inquires when another person ("Gnome") can (call 3480). AA explained that this was a reference to "Mark Taylor" coming to his home and not travelling to Sydney with him.

At 6.24pm on 8 May 2008 AA telephoned the appellant's phone but the call was answered by the appellant's son. His son told AA that the appellant was at his grandparents' house, i.e. the house on Tudor Street, and gave him the telephone number. At 6.35pm AA rang that number and spoke to the appellant. They arranged to meet at the appellant's home at Vista Parade. A tracking device on the appellant's car records his car being at his grandparents' house from 6.11pm and returning to Vista Parade at 7.44pm ([473]).

Between 7.38pm and 7.42pm BB made a number of telephone calls to the appellant. At 7.46pm the appellant rang BB and asked if she had been trying to call. She replied that she had. She said that she had been trying to see if he was home and that "we'll see you soon" (i.e. AA and BB).

In his evidence AA recounted attending the appellant's house on Tudor Street on the evening of 8 May 2008 and receiving $110,000 from the appellant, as well as around $800 to $1,000 in "travel money". AA said that Graham was waiting around the corner. He said they then picked up BB. He said that, while Graham drove, he and BB counted the money in the back of the car. BB's evidence was that she went to the house with AA and collected the money.

It is important to note the appellant's evidence about this meeting. He said that, on the evening of 8 May 2008, AA and BB came to his house and he gave AA $5,000. The appellant had stated that on previous occasions he had given AA $5,000 to purchase ice which he was still owed. However he said this occasion was a "bit different from other times". He said that in return he "definitely wanted an 8-ball of ice" and "[to get] the rest of the money back in whatever form, as long as [he] got it back. [AA] told me he was getting ice and pot".

Critically, at 8.47pm AA messaged Paxton telling him "Sorry bro, running bout hr late but we r on our way. Phone b off til we arrive. C u soon". Thus, immediately after attending the appellant's house, AA left for Sydney to complete the purchase from Paxton. At 10.17pm they had still not arrived. Paxton messaged AA complaining about his phone being turned off. At 10.18pm AA replied that "road works" had delayed them but they were "only 10 away now. C u in min". Within seconds they spoke on the phone. AA explained the delay on the road. Paxton explained that his source would not wait. By 10.34pm AA messaged Paxton to the effect that he was at the front of his premises at Balmain.

At 12.39am on 9 May 2008 AA sent the appellant a text stating: "Hey mate, we got here n shop was shut so we r staying the nite. We'll have a rest n b home in morn, k?".

According to AA he made contact with Paxton that night. At some point he, Graham and BB went to a casino. They returned to Paxton's house around 3.00am. AA said they were given a sample of the drugs by Paxton. He said BB wanted to go home so they drove back to Newcastle that morning, arriving at around 5.00am ([46]). He said that he and Graham left Newcastle around 8.00am and drove back to Balmain ([46]). He described collecting the drugs from Paxton and his associates. He received ten pounds of marijuana in the morning. Later in the afternoon Paxton met his contact and returned with the red vodaphone bag and told him that "[t]here were 20 ounces [of methylamphetamine] in there". AA said that he and Graham packed their car and left. We have described AA's evidence as to what they did with the drugs when they returned to Newcastle above at [26].

The surveillance material is all consistent with this account. There are a large number of messages between Paxton and AA in the early hours of 9 May 2008. They refer to AA and others being at the casino and them making arrangements for them to meet. They confirm that BB wanted to return to Newcastle and that AA stated they would return in the morning. They also confirm that AA arrived back at the front of Paxton's premises at 10.27am on 9 May 2008. At 3.19pm Paxton telephoned AA and told him they he would be "half an hour to an hour max". This was a reference to the delay in delivering the methylamphetamine.

The surveillance material tendered by the defence included a message sent by Haiduk to AA at 3.47am on 9 May 2008 asking AA to "ring me very important". AA telephoned Haiduk at 5.34am. Haiduk told him that he had "lost five car loads" to the "dogs". In cross-examination AA agreed that he sounded "disappointed" during the call on hearing this. The nature and timing of the call suggest that, while it involved some nefarious enterprise, it was not the enterprise the subject of this appeal. By the time of this call AA had the funds to purchase the drugs and had already travelled to Sydney (before returning because BB wanted to come home). The sale had only been frustrated because of a difficulty on the supply side.

At 4.47pm on 9 May 2008 the appellant telephoned AA. At this time AA was still at Paxton's house, but was about to leave with the drugs purchased in the sixth transaction. The call included the following exchange: "[Appellant]: Hey mate, yeah, listen I won't be home when you get home. [The Appellant then described how he had to take his son to football] [AA]: ... we're on our way back now. ....... [Appellant]: Righto ah, I got to take him so he can play football, I won't be home when you get there anyway, but I'll be, not too far away, okay."

Between 7.08pm and 7.16pm the appellant and AA exchanged text messages updating the appellant on where AA was on his journey from Balmain to Sydney.

At 7.59pm on 9 May 2008 AA telephoned Gallagher (i.e. "Uncle"). It is notable that this is the first telephone call between AA and Gallagher since he commenced negotiating the sixth transaction. In view of the suggestion raised at the trial that Gallagher was a potential source of the funds for the sixth transaction, it is appropriate to set out the relevant part of this conversation: "[Gallagher]: Would you, did you want to pick up one of them beers for yourself, one of those cases for yourself did ya? [AA]: Yeah I did yeah. [Gallagher]: I can organise me mate. [AA]: Oh yeah yeah. [Gallagher]: Yeah I can organise him for ya. [AA]: Mad. That would be good. Um I got them a couple of things for ya too. [Gallagher]: Oh did ya? [AA]: Yeah, that tool kit. [Gallagher]: Nah, I thought you must not have worried, then with it being so long ... [AA]: ... yeah no, there was a problem with my end, me mate up here, yeah ... [Gallagher]: ... ah yeah ... [AA]: Yeah it's all good now. I went and seen him today, yeah but, one of them slabs for me would be alright. [Gallagher]: Yeah, yeah I don't [have] them now that's all. [AA]: Yeah right. [Gallagher]: But it doesn't matter ... [AA]: ... ah that's not a problem, that's not a problem ... [Gallagher]: No, I'll still take them, I don't want to fuck you around, I thought that it must not have worked out, you know and then ... [AA]: Yeah nah, it was just a bit of a delay. [Gallagher]: Yeah. [AA]: Bit of a delay. Nah it's sorted. But yeah, there's no dramas, no pressure or nothing, yeah. But I wouldn't mind one of them slabs for me. [Gallagher]: Yeah, no, we can organise that, I'd just rather talk to you about the other thing when I get back you know."

The conversation concludes with AA making arrangements to meet with Watt. He did so around 9.00pm but, as noted, was arrested. AA explained that he "never got the chance" to provide the ice he received to the appellant.

In cross-examination AA explained that the reference to a "couple of things for ya too" in the conversation with Gallagher was to a "couple of ounces of ice" and the suggestion by Gallagher that he "pick up one of them beers for yourself" was to an ounce of the "brown" or "bad" ice already noted. AA was not sure if the reference to "him" in "went and seen him today" was to Paxton or the appellant although until that time he had not seen the appellant.

A number of critical points emerge from this material. First it suggests that AA did not have the means to finance the purchase in his own right. The appellant submitted that AA was a "substantial intermediate level drug dealer". There is no doubt that he undertook some dealing, but this evidence reveals he could not finance the purchase from Paxton. AA had settled the terms with Paxton at a relatively early point and from then on stalled Paxton. This was not a tactic designed to obtain a better deal. AA did not attempt to renegotiate. His stalling of Paxton was clearly causing him considerable stress which he expressed to Graham and Choung (see [59], [60] and [65] above). Ultimately, on the evening of 7 May 2008, he told Paxton he needed funds from his "partner" (see [68] above).

Second, AA described himself as having a "partner" and otherwise consistently alluded to the role of someone else as the financier of the purchase (see [58], [59], [61], [65] and [68] above). His description and references to the partner were clearly a reference to the appellant. It was the appellant who was experiencing the difficulties with his leg. It was the appellant who was concerned for his position after Lightfoot was arrested in possession of drugs after leaving his premises.

Third, the juxtaposition of the messages between the appellant and AA on the evening of 8 May 2008, the visit of AA to the appellant's house and then AA's immediate departure to purchase the drugs that night is compelling. On 2 May 2008 AA had told Paxton that he would be departing from Balmain. He then made seven unanswered calls to the appellant. Having been unsuccessful in contacting the appellant, he called off the journey to Sydney to complete the purchase. On the evening of 8 May 2008 he successfully contacted the appellant, visited his home and then immediately left for Sydney.

As noted, ultimately there was no dispute at the trial that the appellant gave AA money during that visit to purchase drugs. The only real dispute was over the amount of money handed over. The amount suggested by the appellant, $5,000, was an insignificant proportion of a purchase price of $110,000, bearing in mind the latter amount is consistent with the amount of drugs found at AA's premises on the day of his arrest. The proposition that AA stalled the entire deal because he had access to $105,000 but was just waiting on the last $5,000 before immediately driving to Balmain is simply not credible. To the contrary the circumstances overwhelmingly point to AA obtaining the funds from the appellant.

Fourth, the events immediately after AA allegedly obtained funds from the appellant also serve to identify him as the financier. AA sent him a message when he arrived in Sydney updating him ("shop was shut"; see [78] above). AA's immediate response on returning to Newcastle with the drugs the next afternoon was to contact the appellant and arrange to meet him later that night (see [82] above).

Fifth, consistent with the trial judge's observation, the surveillance material confirms the absence of any person with whom AA was in contact, other than the appellant, as a potential source of finance for the sixth transaction.

It is true that a number of people were in contact with AA throughout the period. Leaving aside BB, AA's communications with them clearly concerned the supply of small amounts of drugs and the parlaying of various stolen items. Exactly who was supplying whom with what is not clear but, as stated, there is no doubt that at some point AA was engaged in the retail supply of drugs. However, with two possible exceptions, none of these exchanges comes close to suggesting that the persons with whom AA was dealing were the financiers of the purchase from Paxton.

The two possible alternative financiers that were repeatedly hinted at during the trial were Gallagher (or "Uncle") and Haiduk. However there are numerous difficulties in regarding either or both of them as full or partial financiers of the sixth transaction in contrast to the appellant.

It has already been noted, at [65] above, that AA vented to Graham about the conduct of his "partner". This was clearly a reference to the appellant and not Gallagher or Haiduk. There was no obvious reason for AA to lay some false trail about his identity at that point.

Further, there was an absence of any substantial contact with Gallagher at the critical stages of the deal. For example it was clear that AA was hoping to complete the purchase on the evening of 2 May 2008. There was no contact at all with Gallagher around that time. However AA made seven unsuccessful attempts to contact the appellant. Even allowing for the use of coded discussions, the interactions with Gallagher on 8 and 9 May 2008 are qualitatively different to those involving the appellant. The appellant closely monitored AA's journey. Gallagher did not.

Similarly, although Haiduk had regular contact with AA during the relevant period, the nature and timing of the contact was significantly different to that between the appellant and AA. The call made by Haiduk in the early hours of 9 May 2008 about the loss of "five car loads" suggests a concern about a completely different transaction to the pending purchase from Paxton. We have already referred to the strong coincidence in timing about the visit of AA to the appellant's house on the evening of 8 May 2008 and then his departure for Sydney. There is nothing similar for either Gallagher or Haiduk.

Finally, neither Gallagher nor Haiduk appears to have exercised the control over AA the appellant exercised. As the occasion noted at [67] above suggests, AA contacted the appellant when the appellant required him. AA reported to the appellant when he arrived in Sydney on the night of 8 May 2008, and then again after the drugs were purchased.

In his submissions on the appeal the appellant submitted that Owen Keely was a potential source of finance for the sixth transaction. There were some brief conversations and an exchange of sms messages between AA and Keeley in the period 5 to 9 May 2008. None of these conversations or messages appears to have any relevance to the sixth transaction, nor does their timing appear to suggest that Keeley had any role in that deal.

Overall, a review of the communications supports the assessment of the trial judge in that part of his Honour's judgment extracted at [49] above.

Ground 1 of the appeal contends that the trial judge erred in finding that there was independent evidence supporting the evidence of AA. Ground 2 contends that the trial judge erred in failing to instruct himself that corroboration of the evidence of AA was required before it could be acted upon. These grounds appear to raise questions of law alone. Leave to raise them is not required (Criminal Appeal Act 1912, s 5(1)(a)). They can be dealt with together.

Sub-section 133(2) of the Criminal Procedure Act 1986 (the "CPA") required his Honour to include in his judgment the "principles of law" that his Honour applied and the "findings of fact" upon which his Honour relied. This required not just a bare statement of principles and findings but also a statement of the reasoning process that connected them and justified the findings and the verdict (Fleming v R [1998] HCA 68; 197 CLR 250 at [28]). Sub-section 133(3) provides that if a warning were required to be given to a jury then his Honour was required to "take the warning into account". In this case, that required inclusion of a warning concerning the evidence of AA as one of the principles of law to be applied by his Honour sitting without a jury (Fleming at [32]). It also meant that his Honour had to provide reasons why, despite the warning, a particular verdict was reached (Fleming at [33]). We note that a failure to comply with ss 133(2) and 133(3) amounts to a wrong decision on a question of law for the purposes of s 6(1) of the Criminal Appeal Act (Fleming at [27]).

A review of the conviction judgment reveals that the trial judge was fully aware of his obligations as a judge sitting without a jury and the mandatory requirements in s 133 of the Criminal Procedure Act. Paragraphs 87 to 126 of the conviction judgment are entitled "Legal Principles to be Applied". They consist of an extensive discussion of the relevant principles appropriately crafted to the circumstances of this case. In relation to AA and (to a lesser extent) BB his Honour noted that they were both experienced in drug trafficking and were heavily drug dependent (at [112]). His Honour directed himself that he "would need to scrutinise their evidence with great care to see if there is any evidence independent of both witnesses that supports their version of events" (at [113]). His Honour also noted that care needed to be exercised "before relying upon one such witness to support the other's account" (at [114]), and listed a number of matters concerning AA and BB that warranted caution before using their evidence to "cross support" each other (at [115] to [117]).

Ultimately his Honour stated (at [121]): "For the above reasons, and for others more specifically dealt with in the treatment of the evidence of these witnesses, I must scrutinise [AA and BB's] evidence with the greatest care and could only be satisfied of the respective witnesses' truthfulness and reliability, bearing in mind the matters above, where there was evidence independent of them, or 'directly' available from contemporaneously recorded events, such as telephone intercepts, listening device material, surveillance evidence and the like that supports their respective accounts. In so far as the Crown case is particularly reliant upon AA to prove particular transactions, it would be dangerous to convict the accused on his evidence unless it was clearly supported by evidence, other than that of BB." (emphasis added)

On the appeal the Crown contended, citing Kanaan v R [2006] NSWCCA 109, that this direction was far more favourable to the appellant than his entitlement to the warnings provided for in s 165 of the Evidence Act 1995. It is unnecessary to consider that submission further in circumstances where we are satisfied that the terms of the direction are free of error and in conformity with the warning his Honour was required to take into account under s 133(3) when considering AA and BB's evidence. That his Honour applied the direction is borne out by the approach he adopted in making factual findings concerning the first five transactions relied upon by the Crown in proof of guilt. The appellant's real complaint was the manner in which his Honour accepted that part of AA's evidence concerning the sixth transaction, notwithstanding this direction. Perhaps unsurprisingly, the appellant focused on the sixth transaction because, as we have observed, had his Honour not found that the appellant supplied 413 grams of methylamphetamine in that transaction, he was entitled to an acquittal.

The appellant's complaint about the findings concerning the sixth transaction is twofold. First, he contended that his Honour either failed to comply with his own direction and did not rely on independent evidence to corroborate or confirm AA's evidence or, if his Honour did rely on evidence within that category, the reasoning process was not properly identified in the judgment. Second, it was contended that the trial judge committed various 'factual errors' which materially affected the matters he did identify as confirmatory or corroborative of AA's evidence.

In relation to the first matter, the trial judge did not collate in a single paragraph or discrete section of the judgment all the confirmatory evidence he relied upon to support his findings relating to the sixth transaction. However, his Honour's obligation to make patent his reasoning process as required by Fleming did not require him to do so. We are satisfied that the evidence confirmatory of AA's evidence emerges from a consideration of the last part of the judgment in which his Honour made findings concerning all six transactions.

The starting point is that it was not in issue that, by the time of the sixth transaction, the appellant was retailing methylamphetamine and that AA purchased some of the drug on the appellant's behalf. In particular we have already referred to the competing evidence concerning the visit of AA to the appellant's house on the evening of 8 May 2008. As stated, the real dispute concerned how much money the appellant gave AA on the evening of 8 May 2008 and whether it was for the specific purpose of purchasing a large quantity of methylamphetamine. If the amount were that nominated by AA (i.e. $110,000), or if there were no reasonable possibility to the contrary, then it would inevitably follow that it was for that specific purpose.

We have already set out the two critical paragraphs in from the conviction judgment in relation to the sixth transaction at [28] and [29] above. As noted in [488] of the conviction judgment, his Honour accepted AA's evidence that the appellant gave him $110,000 on the evening of 8 May 2008 "[n]otwithstanding the many warnings" he had given himself about AA's evidence. At [491] of the conviction judgment his Honour found that the amount obtained by AA on behalf of the appellant was at least the amount found by the police at AA's premises during the raid on 9 May 2008.

Thus one corroborative aspect of the findings in relation to the sixth transaction was the actual amount of drugs found at AA's premises on 9 May 2008. This needs to be considered with two further matters. The first was his Honour's earlier findings noted above at [49] concerning the surveillance evidence and the relationship between AA and the appellant which we have already addressed. They effectively exclude either AA or any person associated with AA (other than the appellant) as having funded the purchase of that amount of methylamphetamine. The second was the evidence of the finding of a large sum at the home of the appellant's parents in law which his Honour found was the appellant's, and which supported the Crown case that the appellant had the means to fund the purchase of the drugs that were found.

Further at [473] of the conviction judgment his Honour reasoned as follows: "Significantly, at 6:24 pm on 8 May AA called the accused's landline and Denny Orchard told AA that his father was at his grandparent's place giving their phone number. AA called and spoke to Jean Bigelow and then spoke to the accused who said he would be half an hour "As he had to pick his bloke up from football". The vehicle tracking device records shows that the accused's car was at Tudor Street for fifty one minutes from 6:11 pm, arriving back at Vista Parade at 7:44 pm. The accused rang BB's number trying to contact AA. There were a number of unanswered calls made by BB to AA's mobile phone number and then the accused rang back (call 7.08 to 7.46 pm). Eventually, according to AA, he went to the accused's house, not with BB, and he was taken out into the backyard and the accused grabbed some bags out of the guttering. The accused gave evidence that AA was there with BB, the time he and AA went 'out the back'. The bags were taken inside and there were bundles of notes in $1,000 'lots'. They were not loose but not in bundles of 10 lots of $1,000 each. They were bundled similarly to the cash found at the Bigelows on 9 May by police. AA took the $110,000 back to his home, he claimed in his pockets. [His Honour then described BB's evidence of this meeting and continued ...] AA's inconsistency with BB and the accused I note, but it is not significant, in context. I have closely considered BB's accounts of being present in the car counting the money. Notwithstanding her inconstancies, noting her explanations and notwithstanding her general unreliability on detail, I accept she did count the cash with AA. Her evidence on this matter was adamant, unlike other aspects. Even if I was to reject her, and AA's account on this aspect, the totality of the other evidence establishes the accused as the financier of this trip." (emphasis added)

Although it is not clear from this paragraph, it was common ground on the appeal that the emphasised portion of this paragraph was intended by his Honour to be a reference to evidence given by AA about collecting money from the appellant at his house for the sixth transaction. The appellant complains that this erroneously describes the evidence given by AA on that topic, a matter to be addressed shortly. Leaving that aside, this passage reveals that his Honour also drew support for his acceptance of AA's evidence in relation to the sixth transaction from AA's statement that he was paid money from the appellant's stash of funds which was maintained in a similar manner to the stash that his Honour found the appellant maintained at the home of his parents in law in Tudor Street.

Contrary to the appellant's submissions on this ground of appeal, it is clear that his Honour approached each transaction by considering not just whether there was objective evidence confirmatory or corroborative of AA's evidence generally, but whether there was evidence confirmatory of that part of AA's evidence which was to the effect that the appellant received or procured a particular quantity of methylamphetamine for the purposes of supply. With four of the transactions, his Honour was not satisfied beyond reasonable doubt that any particular quantity was received by the appellant. With two of the transactions his Honour was satisfied beyond reasonable doubt that methamphetamines were supplied, but only to the extent of the amount of drug seized on 9 May 2008. With the sixth transaction, the confirmatory material has been identified at [110] to [112] above. We cannot discern any error in his Honour's approach. It was not inconsistent with the direction that his Honour scrutinise the evidence of AA with appropriate care and caution.

The remaining complaint of the appellant under this ground concerns the emphasised portion of the passage from [473] of the conviction judgment noted above at [111]. This passage is said to erroneously characterise AA's description of the manner in which the appellant stored his stash of funds. AA's evidence was that when he saw the money at the appellant's home most of it was bundled up in thousand dollar lots in groups of ten, but about a third of the money was loose in sandwich bags. AA stated that he and the appellant bundled up most of the remainder. In our view the only error (or potential error) in his Honour's characterisation at [473] is that the reference to the notes being "not loose but not in bundles of 10 lots of $1000 each" contains an additional "not". However, it is clear as we see it that his Honour intended to state the money was "not loose but ... in bundles of 10 lots of $1000 each", this being either a reference to the state of two thirds of the stash prior to AA rendering the appellant assistance, or all of it after he did. The critical point was that his Honour was entitled to draw support for his ultimate, albeit partial, acceptance of AA's evidence in relation to the sixth transaction from the similarity between the state of the stash observed by AA when he collected the funds from the appellant at his house, and the state of the appellant's stash of funds that was located at the home of his parents in law.

We reject grounds 1 and 2.

Ground 3 alleges that his Honour erred in failing to direct himself in accordance with R v Markuleski ([2001] NSWCCA 290; 52 NSWLR 82) to the effect that, if he had a reasonable doubt about the evidence of AA in relation to one particular transaction, he should have been reluctant to accept the evidence of AA in relation to the other transactions. The appellant's written submissions did not expand upon the bare assertion of error in those terms.

Markuleski was an appeal against a conviction on an indictment charging multiple counts in circumstances where the appellant was acquitted of all but one count. The Court was required to address an issue which had arisen in a number of cases where different verdicts were returned on an indictment alleging multiple counts, but where the verdicts depended upon the evidence of one complainant. Spigelman CJ discussed the circumstances in which a direction should or might be given to a jury to the effect that if they entertained a doubt about a complainant's evidence in relation to one count, that doubt must be taken into account in assessing the complainant's evidence generally. Thus Spigelman CJ stated at [186] to [191]: "[186] In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count. [187] Some form of direction assisting the jury in this respect should be given, to employ the terminology found in Kilby and Davies 'as a general rule'. Its absence is not necessarily fatal (as it was not in Davies itself). Furthermore, as the joint judgment in Crofts affirmed, the 'general rule' does not apply 'where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness' (at 451). [188] It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally. [189] On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count. [190] Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts. [191] The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."

In Hajje v R [2006] NSWCCA 23 at [100] Simpson J observed that the principles for which Markuleski is authority are not confined to cases of inconsistent verdicts, but are capable of general application in that, in an appropriate case, a jury should be directed that where they have a doubt about one aspect of a witness's evidence it ought to be taken into account when assessing that witness's evidence on other matters. Thus in Hajje at [101] her Honour concluded that there is "no reason why a ... principal Crown witness should be treated any differently in this respect from a person who falls into the category of complainant in a sexual misconduct case". Importantly, however, her Honour added that in such circumstances a Markuleski direction is not mandated and, even if it were, the failure to give it is not necessarily fatal (Hajje at [101]).

In our view, it is unnecessary to consider in this case whether a Markuleski direction was required. The trial judge applied a far higher level of scrutiny to AA's evidence than that which was required by a conventional Markuleski direction by giving himself the accomplice warning that has been extracted above at [104]. A direction in accordance with Markuleski would have meant that, if his Honour were to have entertained a reasonable doubt concerning one aspect of AA's evidence, his Honour should have taken that doubt into account in assessing the truthfulness of his evidence generally. It is clear beyond question that his Honour started from the proposition that there was a reason to doubt every aspect of AA's evidence, and that he was only prepared to accept his evidence on critical matters where it was either not in dispute or where it was confirmed or corroborated by other evidence.

The Crown submitted that rule 4 applied to this ground, the trial judge having invited submissions from counsel as to the directions by which he should be bound. The appellant's counsel did not submit that a Markuleski direction was required. We accept the Crown's submission. Having regard to the lack of substance in this ground as argued, we would refuse leave to raise it.

Ground 5 of the appeal contends that the trial judge failed to expose the reasoning that led to a finding of guilt "adequately or at all". The appellant's written submissions did not address this ground. The trial judge's reasoning process, in support of the finding of guilt, has in any event been addressed above. Other than the matter addressed and rejected at [107] above, nothing was raised in argument to suggest that his Honour's reasons did not comply with s 133 of the Criminal Procedure Act or were otherwise inadequate.

We reject this ground.

The precise complaint raised by the ground is the following: "The trial judge excessively intervened in the cross-examination of [AA]. He criticised and disparaged counsel. Counsel was ultimately dismissed and withdrew from the proceedings. The conduct by the judge was such that the appellant lost confidence in his counsel. The conduct of the trial judge was such that the appellant did not appear to receive a fair trial."

The written submissions identify what are said to be "instances" of the conduct of the trial judge which rendered the trial unfair. Each of those instances is addressed below. The Court was not invited to consider any other exchanges between the trial judge and counsel.

As formulated, this ground of appeal seeks only to invoke the third limb of s 6(1) of the Criminal Appeal Act, namely whether "on any other ground whatsoever there was a miscarriage of justice". In Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68 at [34] Basten JA (Hall and Beech-Jones JJ agreeing) summarised the position concerning this ground as follows: "The words 'on any other ground' have been said not to postulate demonstrable error, but 'simply require that 'something occurred or did not occur' in the trial': TKWJ at [30] (Gaudron J). The internal quotation in that passage comes from the judgment of Doyle CJ in R v Scott (1996) 131 FLR 137 at 152 where, with the agreement of Cox and Matheson JJ, the Chief Justice noted that the third condition was engaged 'where something occurred or did not occur such that the trial became unfair'. Generally, the act or omission will have occurred 'in the trial': TKWJ at [30]. Nevertheless, as Doyle CJ recognised, it is the effect of the act or omission on the trial, rather than the circumstances of its occurrence which is critical. A trial may be rendered unfair by extraneous factors, such as delay in bringing a prosecution - Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23 - or the inability of an accused to obtain legal representation: Dietrich v The Queen [1992] HCA 57; 177 CLR 292." (emphasis added)

In circumstances where the event or conduct in question did not of itself constitute a fundamental defect in the trial then, as the emphasised portion of this passage from Lee indicates, it is necessary to consider the effect of the event or conduct on the trial (Nudd v R [2006] HCA 9; 80 ALJR 614 at 622 [24] per Gummow and Hayne JJ, TKWJ v R [2002] HCA 46, 212 CLR 124 at [31] and [33] per Gaudron J, [79] per McHugh J, [101] per Gummow J, and [104] per Hayne J, Cesan v R [2008] HCA 52; 236 CLR 358 at [112] per Hayne, Crennan and Kiefel JJ).

Since this was a judge alone trial no question arises as to the possible impact on the jury of the conduct of the trial judge (cf Kho v R [2012] NSWCCA 71 at [45] to [55], and see Cesan v R at [46] per French CJ, [105] per Gummow J, and [119] per Haynes, Crennan and Kiefel JJ). Further, and despite ample opportunity to do so, it was not submitted on behalf of the appellant that the conduct of the trial judge demonstrated actual bias, or gave rise to a reasonable apprehension by a fair minded lay observer that the trial judge might not bring an impartial mind to the resolution of the case (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337).

Instead only two ways in which the judge's conduct impacted on the trial process were identified, or at least implied, by this ground of appeal and the appellant's submissions. The first is the dismissal of the first counsel and her withdrawal from the proceedings allegedly because the appellant lost confidence in her. The second was the apprehension on the part of the appellant that his trial was not fair. This latter complaint travels nowhere. A subjective belief on the part of an accused person that they did not receive a fair trial does not amount to a miscarriage of justice. The imputation of such a belief on the part of the hypothetical and reasonable lay observer is a different matter but, as we have emphasised, no allegation of apprehended bias was advanced on the appeal.

Accepting (without determining) that the first counsel was dismissed because the accused lost confidence in her (and accepting without deciding that a substantial cause for that lack of confidence was the judge's comments during the trial) counsel on the appeal did not seek to explore or outline how that circumstance might have led to a miscarriage of justice. We have already adverted to the possibility that, in other situations, such conduct might give rise to actual bias or an apprehension of bias or otherwise to have so detrimentally impacted upon a jury as to have rendered the trial unfair. However, such possibilities have no application here. It also may be that such conduct could result in a denial of the accused's right to procedural fairness, in that the accused might have been effectively denied the right to have counsel represent their interests, although that would, in part, depend on whether adequate alternative representation were obtained. This consideration also does not arise on the appeal.

Again, it is unnecessary to explore this further because the contention that the first counsel withdrew because the appellant's lack of confidence in her was engendered by the trial judge's disparagement or criticism of her has not been established on the material before this Court. It was not supported by any affidavit from either the first counsel or the appellant. As further explained below, the material before this Court suggests that the more likely explanation for her dismissal was that it was a tactical decision made by the appellant, conscious of the need to avoid, or at least minimise, the adverse view his Honour might ultimately form from the discrepancy that was about to become apparent between the matters put to AA in cross-examination (and those that were not put), and what the appellant was intending to advance as his case in evidence.

The dismissal of the first counsel occurred on the 77th day of the trial. By that time all of the Crown witnesses had been called. On that day his Honour delivered reasons for refusing (another) disqualification application. His Honour then dealt with various objections to parts of the evidence and the tender of exhibits prior to the Crown closing its case. At some point there was a pointed exchange between the trial judge and the first counsel about whether the indictment disclosed latent duplicity.

Immediately after the resumption following the mid-morning adjournment the first counsel announced that her instructions had been withdrawn but that her solicitor was still instructed. There was then a discussion about whether she required leave to withdraw, in the course of which counsel stated "I assure your Honour this is not a question of me withdrawing on the basis of any ethical reason, it's simply the fact that my instructions have been withdrawn".

The trial judge made an inquiry of the appellant's solicitor. He told his Honour that he had written instructions from his client concerning counsel, a copy of which were handed to his Honour (and marked MFI 92). The document recorded the appellant as having withdrawn his instructions from his counsel and continued: "The judge has spoken today, and previously to my Counsel like a schoolgirl. It is my belief that the judge does not respect what my counsel says; legally as for other issues in the trial. I hereby instruct [my solicitor] to instruct new Counsel. I believe this will then allow my new counsel a fresh start to complete my trial ie (a) legal arguments; (b) submissions; (c) address and any other issues raised by my new counsel."

The Court adjourned for lunch to enable the Crown to consider its position. After the resumption at 2.00pm, the solicitor advised the Court that he had spoken to the Legal Aid Commission, who advised his Honour that: "Mr Orchard has just signed a document reinstructing [his first counsel], the reason being is that the Commission has given two options that Mr Orchard reinstructs [his first counsel] or he can have a fresh counsel, though no preparation would be paid to that counsel."

A further document was produced to the Court recording that the appellant had reinstructed counsel. At this point the first counsel stated that she wished to obtain a ruling from a professional conduct committee before she accepted the brief. His Honour allowed her an adjournment to do so. Later that afternoon she returned to Court and stated: "Your Honour, I have received advice. Thank you for that time. As your Honour knows, my instructions were withdrawn and I have been asked to re-accept the brief in this matter. However, because of what your Honour has said in the past in relation to my conduct and the fact that there is a real possibility that my conduct may be the subject of criticism by your Honour, there are reasonable grounds to believe that my professional conduct may be attacked in this case and given I no longer hold the brief but rather I am being re-offered the brief, I must refuse it."

This statement appears to reflect advice the barrister had received concerning sub-rule 95(f) of the New South Wales Barristers' Rules. This rule obliges a barrister to "refuse to accept or retain a brief" in circumstances where "the barrister has reasonable grounds to believe that the barrister's own personal or professional conduct may be attacked in the case". While it does not fall to us to review the correctness of the advice, the invocation of sub-rule 95(f) in this case seems curious for two reasons. First, the barrister had previously advised the Court that she was not withdrawing for "ethical reasons" (see [132] above). However if sub-rule 95(f) were applicable and prevented her from accepting fresh instructions, it would also have obliged her to return the brief, assuming of course that she was aware of its operation.

Second, the assertion that she believed that her professional conduct may be attacked in this case was unparticularised. As we see it, sub-rule 95(f) is not readily able to be invoked simply because it is anticipated that there is or may be tension, even antipathy, between a barrister and a judge. The rule is directed to concerns being raised about the barrister's personal or professional conduct, and seeks to minimise the disruption to proceedings that can occur when the conduct of counsel who is appearing has become (or may become) material to the determination of the proceedings. In some cases it may be difficult, almost impossible, for counsel to continue to appear because, for example, they may become a witness. The course of action suggested by Gleeson CJ in Birks at 683C and noted above at [43], namely counsel returning the brief and giving evidence as to their instructions, is an example of this rule in operation. At this point of the appellant's trial, and as best as we can ascertain, the most likely matter that warranted a belief on counsel's part that her professional conduct would be attacked, are the questions she should have expected would be asked if she continued to appear and elicited evidence from the appellant that, on one view, either directly contradicted the case she had put to AA or, arguably at least, should have been but were not put to AA for his comment.

Upon being apprised that the first counsel would decline to accept the fresh instructions from the appellant, his Honour adjourned the proceedings to the next day when new counsel appeared. Not surprisingly the second counsel sought an adjournment. The proceedings were adjourned to the following day and then for a further day while new counsel familiarised himself with those aspects of the proceedings that needed to be addressed before the Crown case closed. Argument on those matters resumed on 18 and 21 March 2011 when the Crown case closed. There was then a break of nine days before the appellant's case opened on 30 March 2011. The appellant commenced giving evidence on that day.

We have already discussed how the appellant's evidence was in significant respects inconsistent with what had been put to AA on his behalf and how the details of his various dealings with AA had not been put to AA for comment. We have also discussed the potential conflict between the appellant and his instructions to counsel that was likely to become obvious had she continued to act for the appellant and adduce evidence from him.

Ordinarily there is no occasion to inquire into the reasons why counsel may have withdrawn from a trial or, as in this case, declined to (re)accept a brief. However, this ground of appeal invited an inquiry into the impact of the alleged instances of interference by the trial judge on the fairness of the trial, the effect said by the appellant to have caused him to lose confidence in his counsel and ultimately to withdraw his instructions. However, as the records bears out and a matter which was left unexplained, the appellant sought to re-instruct her but she declined to accept for an unparticularised ethical reason.

As we have observed, the preponderance of the material relied upon in support of this ground of appeal suggests that the likely reason counsel refused to (re)accept the brief was because the evidence the appellant proposed to give was inconsistent with what had been put on his behalf. In addition there were large parts of his evidence that had not been put to AA at all, with the obvious potential for the Crown Prosecutor to have relied upon those matters to attack the appellant's credibility. Were that to have occurred, the conduct of the first counsel was likely to have been scrutinised, and her ability to continue acting for the appellant being in doubt.

In any event, in the result the appellant retained alternative counsel who adduced evidence on his behalf and addressed the trial judge in final submissions to ultimate effect given the doubts his Honour entertained as to the sufficiency of critical parts of the Crown case. It follows that this ground of appeal must fail, there being no allegation of apprehended bias on the part of the trial judge, and where no adverse impact on the fairness of the trial has been demonstrated.

Despite the Court resolving to that view, given the nature of the complaint concerning the trial judge's conduct, the instances of what was said to be the trial judge's misconduct should be addressed.

The first instance identified by the appellant is said to be an occasion when the trial judge was said to be "unsympathetic towards the accused regarding his lack of sleep". This refers to an incident on the 37th day of the trial (26 November 2010) when the trial judge observed that the appellant was unconscious in the dock. His Honour expressed concern for the appellant's health ("is he breathing") and was advised that the appellant was asleep. His Honour inquired further and was told that the appellant was only returned to his cell at half past one that morning. The appellant explained that another inmate had apparently abused a prison officer and along with the other inmates from his cell he was punished by being returned to his cell late. His Honour stated: "Well firstly you'd better have a chat to your colleagues about abusing prison officers I guess. I've got no control over disciplinary action at the gaol, but it's undesirable that you be taken back to your cell at 1.30."

We are not persuaded that these comments display a lack of "sympathy" as alleged. These same comments then formed the basis for an application for the trial judge to disqualify himself because it was said they implied that the judge considered the appellant to be someone with "considerable power in the prison". His Honour understandably (and rightly in our view) refused the application. The implication was groundless.

The second matter complained of is said to have involved "trial counsel [taking] issue with the judge over an allegation of inappropriate smiling at the appellant". The third instance is a related allegation that counsel claimed to be in tears as a result of his Honour's comments. The "smiling dispute" began on the 44th day of the trial (8 December 2010). By this time AA was in his 17th day of cross-examination. The trial judge reminded counsel of the need to introduce some element of efficiency into her cross-examination. In the exchange that followed the trial judge took exception to what he described as counsel's habit of responding to questions by "constantly turn[ing] to [her] client to seek his approval [w]ith a big smile on [her] face, as if [she thought she was] making some point in defiance". This led to a pantomime style exchange in which counsel denied acting in that way. On 9 December 2010 the first counsel returned to the topic of alleged inappropriate smiling. She denied engaging in conduct of that kind, describing the allegations as "incredibly offensive and very serious".

The next day of the trial, 10 December 2010, was the last day of the trial in that calendar year. During the course of that day there was a further exchange when the trial judge queried why counsel was returning to a matter concerning the credit of AA on the 19th day of his cross-examination that she had already taken up with AA on the fifth day of his cross-examination. The trial judge insisted that counsel get to the point and continued: "HIS HONOUR: Because thus far you haven't made a point in relation to the matter. You've got other calls you say you want to play and you smile to yourself. Self-satisfaction obviously in your job, but I'm telling you, you just take time that is far to [sic] long to get to the real issues that you want to address and this is a very good example of it. [FIRST COUNSEL]: Your Honour I don't know what your Honour is associating with a smile. There have been times here where I have been practically in tears. Your Honour is obviously misrepresenting the facial expressions I am making. I did not just smile in self-satisfaction, I dispute that your Honour. HIS HONOUR: Right, well you dispute it. You weren't smiling in self satisfaction. But the point is you must get to the point ..."

The trial resumed on 1 February 2011. The opening submission of the first counsel was that the trial judge should disqualify himself on the basis of apprehended bias, a matter we reiterate that was not re-agitated before this Court. The submissions concerning that application continued over two days. On the appeal, counsel pointed to one part of the exchange in which the "smiling matter" resurfaced. However, we note it was the first counsel who raised it as part of the disqualification application, after which she attempted to link it to another statement made by his Honour as conveying a suggestion by the trial judge of an inappropriate relationship between her and her client. There was nothing in his Honour's comments that warranted that construction.

His Honour rejected the application. Ultimately the cross-examination continued to the 54th day of the trial (10 February 2011), being 27 hearing days and almost three months since it commenced.

The last incident complained of occurred on the 74th day of the trial (10 March 2011) and in part involved a re-agitation of the "smiling matter" and otherwise the trial judge expressing his annoyance with counsel generally. It appears to have taken place in the context of an inquiry by the trial judge as to what recordings counsel wanted to play during her cross-examination of a police officer and argument over a motion filed by the accused for the production of further documents by the Crown. The relevant exchange was as follows: "HIS HONOUR: Yeah it may be but the - we're talking about the Crown case, I'm not talking about what the Crown has proven, I'm not talking about what the evidence has established, do you know the difference between the Crown case as opposed to what is actually established in the evidence? [FIRST COUNSEL]: Of course I do your Honour. HIS HONOUR: You do, do you? Well then if you understood that you'd understand precisely what I was saying yesterday. [FIRST COUNSEL]: Well, your Honour that's another unjustified insult in my respectful opinion. HIS HONOUR: Well with respect to you, the facts of the matter are you just don't listen to what's said and it's clear to me - [FIRST COUNSEL]: Well that's your Honour's - HIS HONOUR: It's clear to me that you don't read what's in the transcript and you can smile to yourself about it but it's just demonstrated time and time and time again. [FIRST COUNSEL]: And your Honour, with respect, this is my place of work. HIS HONOUR: Beg your pardon? [FIRST COUNSEL]: This is my place of work your Honour, your Honour continually - HIS HONOUR: Yes thank you and I expect you to act professionally and to say things that represent what is in fact the case - [FIRST COUNSEL]: And your Honour - HIS HONOUR: - not to make some allegations against me as you did just this morning which don't represent what the transcript reveals - [FIRST COUNSEL]: Well your Honour I - HIS HONOUR: - and that's why I've specifically gone to the transcript. [FIRST COUNSEL]: I should be allowed to come into my place of work without being embarrassed, humiliated and insulted throughout the course of the day with respect. HIS HONOUR: You're not being embarrassed, humiliated or insulted, you're just being brought to account for the things that you've said on occasions which are untrue and I think I've got an obligation to do that. [FIRST COUNSEL]: Well respectfully - HIS HONOUR: And with respect to you, on a number of occasions I've brought to your attention where you have been in error and I have not received one apology in relation to material matters, that's the fact of the matter. [FIRST COUNSEL]: As the Court pleases."

There is no doubt that, by the time of this exchange, relations between counsel and the Bench were extremely strained. However, tension between a Judge and counsel, whatever the cause, does not of itself render the trial unfair. Critically, this being in a trial without a jury the appellant has failed to identify what is said to be the impact of the exchange on the trial's fairness. This Court has no independent function to police judicial manners or enforce standards by which counsel are expected to behave in their exchanges with the presiding judicial officer. A consideration of such matters can only occur as part of the exercise of the Court's function to determine whether there was a miscarriage of justice. It was incumbent on the appellant to establish that the strained relations between his Honour and counsel so undermined the right of the accused to a fair trial that a miscarriage of justice resulted, yet he did not do so.

At the risk of repetition, there is no submission that these exchanges demonstrated that the trial judge was biased, or that a reasonable observer might apprehend bias. Neither are we satisfied that these exchanges motivated the appellant to withdraw his instructions. Again, at the risk of repetition, in the result, the appellant was represented by alternative counsel about whom there is no complaint. In a different context, for example of a jury trial, a display of antipathy between a trial judge and counsel for the accused might lead to a miscarriage of justice. Even in that context, some connection between that antipathy and an unfair trial needs to be identified and demonstrated. In this case, the only suggested effects of these exchanges were not established. They do not indicate that the trial was unfair.

The appellant's written submissions included a separate complaint under this ground to the effect that the trial was "unfair and unmanageable as a result of the prosecution not transcribing intercepted telephone calls on telephones used by 'AA' and 'BB'". This appears to be a reference to the telephone calls between AA, BB and persons other than the appellant or Paxton who it was suggested that AA may have sold drugs to or obtained finance from for the transactions with Paxton. (A further contention that this Court could not properly review the evidence at the trial without listening to each call that was played during the trial was withdrawn.)

This complaint bears no relationship to the fifth ground of appeal. It also has no substance. Recordings of the calls were made available to the appellant and they were played to AA and BB during their cross-examination. As stated, the defence tendered an exhibit which contained a chronological list of all of the telephone calls (and messages) that it relied on. This exhibit included a summary of what was said that included verbatim extracts. Otherwise there is nothing to suggest that a request was made of the prosecution to transcribe any calls in advance of the trial.

As formulated, ground 5A of the appeal involves a mixed question of fact and law such that leave is required under s 5(1) of the Criminal Appeal Act. Given the lack of any substance in the ground as argued, leave to appeal is refused.

Ground 4 of the appeal contends that the jury's verdict of guilty was "unreasonable, or cannot be supported having regard to the evidence" (Criminal Appeal Act, s 6(1)). In raising this ground the appellant implicitly seeks a grant of leave under s 5(1)(b) as this ground involves questions of fact or questions of mixed law and fact (Rasic v R [2009] NSWCCA 202 at [12]). Leave is granted.

The wording of this ground of appeal substantially derives from a passage in M v The Queen [1994] HCA 63; (1994) 181 CLR 487. The High Court (Mason CJ, Deane, Dawson and Toohey JJ), at 493, said: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." Then, at 494-5, the High Court said: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."

The term "open to the jury" in the foregoing passage ought not distract this Court from the need to examine whether, as a matter of law, there is evidence to establish each element of the offence, directly or by inference, but whether the jury ought to have experienced a reasonable doubt: The Queen v Nguyen [2010] HCA 38; (2010) 242 CLR 491; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400.

Unlike trials before a jury, when this Court hears an appeal from a judge sitting alone it has the benefit of the trial judge's reasons. That said, what the Court is concerned with is the evidence before the trial judge rather than the contents of their reasons. Thus in Fleming at [26] the High Court stated: "Thirdly, the first limb of s.6(1), which deals with the unsatisfactory quality of 'the verdict of the jury', must now be seen through the prism of s.33(1). The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding 'unreasonable' or one which 'cannot be supported'?" (emphasis added)

Three further points should be noted. First, the trial judge's reasons will ordinarily include, or should include, such findings as have been made in relation to the credibility of the witnesses at the trial. These findings will have often been informed by the advantages the trial judge enjoyed in making that assessment by observing the witnesses give their evidence. The role these advantages play in the exercise of this Court's function when considering whether the verdict is unreasonable or cannot be supported by the evidence was explained in SKA v R [2011] HCA 13; 243 CLR 400 at [13] per French CJ, Gummow and Kiefel JJ (citing M v R [1994] HCA 63; 181 CLR 487 at 494): "The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M v The Queen [at 494] went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.'"

In Lee at [207] Basten JA (Hall and Beech-Jones JJ agreeing) noted that the passage from M v R approved in SKA suggested that "only in a minority of cases will the jury obtain a significant advantage from seeing and hearing the evidence". Nevertheless some allowance for the same advantage enjoyed by a judge sitting without a jury is warranted, at least in cases where the reasons of the trial judge reveal that it has been deployed.

Secondly, it may be that in a particular case the reasoning of the trial judge is sufficiently persuasive that it provides this Court with assistance in forming a conclusion that the verdict was not unreasonable or unsupported having regard to the evidence. Thus in Fleming at [44] to [46] the High Court did not discern any error of approach by this Court in examining the "the evidence and the reasoning of the trial judge" in that case. Nevertheless the task imposed by this ground of appeal requires the Court to undertake its own "independent assessment of the evidence both as to its sufficiency and its quality" (Morris v R [1987] HCA 50; 163 CLR 454 at 473) and then to consider the evidence presented by the Crown and weigh the conflicting evidence (SKA v R at [24] per French CJ, Gummow and Kiefel JJ).

Thirdly, in Lee [2013] NSWCCA 68 at [210], Basten JA (Hall and Beech-Jones JJ agreeing) commented on the role of counsel on appeal and stressed the need to identify the particular aspects of the verdict ("the complaints") that were unsafe and the alleged basis for doubt. In an appeal from a judge alone trial, these comments are even more apposite.

The appellant's written submissions did not identify his "complaints" with any clarity. Instead the submissions simply identified the grounds of the appeal at the outset and then addressed various aspects of the evidence with the occasional criticism of the trial judge's reasons referable to that evidence. There was no attempt to identify any particular matter that warranted the characterisation of the trial judge's verdict as unreasonable or unsupported by the evidence. As best as can be ascertained the matters said by the appellant to warrant that characterisation are those that have already been addressed, namely the absence of material corroborative of AA's evidence, AA's own drug dealing, the alleged lies and inconsistencies in AA's evidence, similar difficulties with BB's evidence, and surveillance material that was said to at least raise a reasonable possibility that persons other than the appellant financed the various drug purchases. Despite the lack of assistance, we have undertaken the task of assessing the sufficiency and quality of all of the evidence independently in order to determine whether doubt exists.

The starting point in this case is the identification of the "verdict" that is said to be unsupportable. The appellant was found guilty of a charge of supplying not less than the commercial quantity of methylamphetamine, namely 250 grams. It follows that this ground of appeal will fail if it were open to his Honour to have been satisfied beyond reasonable doubt that the appellant supplied at least that amount. It follows that, if it were open to his Honour to have concluded beyond reasonable doubt that the appellant financed the purchase of the 413 grams of methylamphetamine that was found at AA's premises on 9 May 2008, then this ground of appeal must fail.

The evidence concerning that 413 grams included the evidence of AA which directly identified the appellant as the financier of that purchase. The various criticisms of AA's general credibility and the inconsistencies in his versions of events pointed to by the appellant are well enough founded and obvious. Although the inconsistencies between BB's evidence and that of AA in relation to receiving the funds on the evening of 8 May 2008 warrants the exercise of considerable caution before accepting her account as does her generally poor character, BB's evidence provided some support for AA's evidence. Of particular significance, the evidence connecting the appellant to the cash that was found at the house in Tudor Street was, in our view, overwhelming. It supported the conclusion that the appellant had the means to finance the purchase of 413 grams of methylamphetamine. In addition, the manner in which the cash kept at Tudor Street was bundled is consistent with AA's description of the cash he collected from the appellant at his home on the evening of 8 May 2008.

As we see it, however, the most significant evidence confirming the accuracy and reliability of AA's evidence that the appellant financed the purchase of the 413 grams found at his house on 9 May 2008 was the surveillance evidence that has been set out at length at [54] to [100] above. In our view, that evidence overwhelmingly pointed to the appellant, and excluded AA and others, as the financier of the purchase. Critically, when considered in context, the fact that AA immediately departed for Sydney to complete the purchase from Paxton after meeting the appellant on the evening of 8 May 2008 provides very considerable support for AA's version of the amount of cash he received from appellant to purchase methylamphetamine at that time. For the sake of completeness, we record that a consideration of the surveillance material for the first five transactions does not undermine our assessment of its significance in proof of the sixth transaction. To the contrary, we regard it as consistent with it.

The appellant denied that he financed the sixth transaction and the trial judge rejected his evidence. His Honour enjoyed an advantage over this Court in making that assessment, an advantage that was deployed (see [34] above) and is of relevance to the disposition of this ground of appeal (see [160] above). Leaving that advantage aside, the appellant's evidence was inconsistent with the surveillance evidence. It was open to a trier of fact, acting reasonably, to reject the appellant's evidence by reference to it.

Our assessment of the evidence leads us to conclude that there is no reasonable doubt as to the guilt of the appellant and it was open to the trial judge to have been satisfied beyond reasonable doubt of his guilt of the charge of which he was convicted.

This ground is rejected.

Leave to raise grounds 3 and 5A is refused. Leave to raise ground 4 is granted, but the ground is rejected. The remaining grounds are rejected and the appeal against the conviction is dismissed.

Mr Orchard relies on three grounds of appeal against sentence, although the written submissions lodged on his behalf only appear to address two of them. Before considering those grounds, it is necessary to briefly summarise the relevant findings of his Honour on sentence. Nevertheless, it is convenient to reiterate that grounds 6, 7 and 8, recited above, are relevant to the appeal on sentence.

First, as stated there was an agreed basis before his Honour as to the quantity of drugs that the appellant was found to have supplied, namely "approximately 612 to 620" grams of methylamphetamine. His Honour also stated that he was satisfied that AA had provided methylamphetamine to the appellant on other occasions, but the precise quantities purchased could not be proved beyond reasonable doubt.

Second, his Honour made a number of further findings placing the supply in context. In particular his Honour found that the offence had been committed by the appellant "as a business run by him to a network of regular clients" with many of those clients purchasing drugs for the purpose of on-supply to others as well for their own personal use. His Honour described this business as involving the sourcing of methylamphetamine, not only from AA but from other unknown persons. His Honour stated: "I was required to listen to many hundreds of telephone intercepts and other recordings of private conversations involving the prisoner where the prisoner was clearly directing his drug supply operation with singular purpose and what he believed to be singular cunning. As the case proceeded, sometimes shadowing the events of 2008 in real time, a disturbing picture emerged of a man prepared to use his friends, his children, his parents-in-law and others for his own purposes; a person who clearly was not prepared to brook any interference and quite prepared when his interests were threatened to foreshadow significant violence as I discussed in the judgment. He was locally known as 'Brother' an expression I am quite satisfied that reflected, at least amongst the drug using and other criminal milieu of the Belmont and nearby areas, considerable respect."

Third, his Honour addressed the appellant's personal and family circumstances. His Honour noted that at the time he committed the offence the appellant was aged fifty. He was fifty-four at the time of sentencing. His parents were still alive and he had an older brother and young sister. He had four children. His two sons were aged twenty-seven and eighteen respectively at the time of sentencing. One of his sons had a serious mental illness. His two daughters were aged twenty-three and sixteen. Their mother died in May 2007. She had been addicted to heroin. His Honour accepted that the appellant was concerned about the welfare of his children and noted that there was "much to be concerned about". His Honour also stated that, knowing their difficulties, he "continued with his lawless lifestyle" and had involved his daughter in his "drug supply activities".

The appellant had left school at the age of fifteen. His Honour noted that his criminal history, which we will describe, suggested that he had been committed to a juvenile justice institution some time before his fourteenth birthday. His Honour recorded the appellant telling a psychiatrist that he had used drugs since his teenage years and had become addicted to heroin at the age of seventeen. His Honour accepted that history.

His Honour noted that at some point the appellant and his deceased wife had opened up a bakery in Cessnock which had two retail outlets and appeared to be successful. Ultimately it failed. The appellant claimed that this was principally due to his wife and sister-in-law taking money from the business to feed their drug habit, although his Honour did not consider it necessary to resolve the truth of that assertion. Since that time the appellant had supported himself by welfare benefits (and presumably the proceeds of drug dealing).

Fourth, his Honour addressed the appellant's criminal history. His Honour noted that there was an absence of "significant convictions for drug supply", but concluded that this did not "entitle him to any particular leniency" and that the instances of non-custodial sentences being imposed revealed that the appellant had "plenty of 'chances'". A review of that record reveals that from when he was fourteen the appellant has been convicted of various small scale offences of dishonesty, common assaults and possession of offensive weapons, driving offences and possession of prohibited drugs. Prior to this matter, he has only served one previous custodial sentence in 1977 for possession of heroin.

Fifth, his Honour dealt at some length with various reports that were put before him indicating that the appellant suffered from a mental illness. These reports and his Honour's treatment of them are addressed further below in relation to ground 7. For present purposes it need only be noted that his Honour appeared to accept that he had suffered from a significant psychiatric illness.

Sixth, his Honour noted that the appellant was arrested on 9 May 2008 and had been in custody since that date. Accordingly, his Honour considered that any sentence should date from that time. His Honour also considered the delay between the time that he was arrested and the time at which he was sentenced. His Honour concluded that it could be taken in to account but only "to a limited extent" and that it was "not a significant issue in the sentencing exercise". There is no challenge to that aspect of his Honour's reasoning.

Seventh, his Honour considered questions of parity between the position of the offender and the sentences imposed on AA. AA had pleaded guilty to two charges of supply. The first charge alleged that between 1 February 2008 and 10 May 2008 he supplied not less than a commercial quantity of methylamphetamine. The second charge alleged that on 9 May 2008 he supplied cannabis. After allowing for a discount for his plea and his offer of assistance, which manifested itself in him giving evidence at the appellant's trial, AA received a head sentence of seven years on the first charge with a non-parole period of four years. On the second charge he was sentenced to a fixed term of imprisonment of two years which was concurrent with the sentence for the first charge.

His Honour noted a number of differentiating factors between the appellant and AA, including the appellant's dominant role, and the absence of a number of mitigating factors that were relevant to AA, such as remorse, contrition and prospects of rehabilitation. His Honour also noted that the conviction of the appellant following a trial gave rise to a need for a "direct consideration" of the standard non-parole period in the appellant's case (Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act") Part 4, Division 1A. The appellant does not take any issue with his Honour's consideration of parity between him and AA although he does challenge the manner in which his Honour had regard to the standard non-parole period.

Eighth, his Honour addressed the relevance of the prescription of a standard non-parole period for this offence of ten years in accordance with Division 1A of Part 4 of the Sentencing Act. His Honour also stated: "This brings me to Pt 4 Div 1A of the [Sentencing Act]. This is directly relevant here because the prisoner has been sentenced for an offence carrying a standard non-parole period after trial. I am required to ask myself the question are there reasons for not imposing the standard non-parole period? I am required to have regard to that question, noting the objective seriousness of the offence considered in the light of the facts which relate directly to its commission, including those which may explain why it is committed, so as to determine whether it answers the description of one that falls within the mid-range of seriousness of an offence of a relevant kind and also the circumstances of aggravation and mitigation which are present in the subject case (see R v Way [2004] NSWCCA 131 ...)."

Consistent with this approach, his Honour concluded that the appellant's offence was "one of greater seriousness than an offence in the middle range of seriousness" and that it was "substantially above the mid-range, although it is not the worst offence committed by the worst offender". His Honour described it as a "very serious offence of its type concerned with multiple deliberate and well planned acts by the prisoner, designed to maintain his business of the supply of drugs to others for profit for his own financial need and greed".

Ground 6 contends that, in light of the decision in Muldrock v R [2011] HCA 39; 244 CLR 120, this aspect of the sentencing process involved error.

Ninth, his Honour identified the relevant mitigating and aggravating circumstances having regard to s 21A of the Sentencing Act, while noting that the Court was not to have additional regard to any such aggravating factor in circumstances where it was an element of the offence (s 21A(2)). His Honour placed no additional weight on the fact that the offence had a planned character or that the appellant's clients were vulnerable considering that they were necessary aspects of the offence of which he was convicted. In relation to mitigating factors, his Honour identified the appellant's age, his relationship with his children, his medical conditions and its effect on him in custody and "some aspects of [the] delay" he had experienced.

Tenth, his Honour noted that there were three offences on a Form 1 that the appellant had asked him to consider, namely two charges of possessing methylamphetamine and one of dealing with property suspected of being the proceeds of crime, being the cash found on 9 May 2008. His Honour noted the requirement to deal with those offences in accordance with Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146. His Honour found that this was "not a case where matters on a Form 1 may have significant salience in sentencing".

Eleventh, his Honour made a finding of "special circumstances" for the purposes of s 44(2) of the Sentencing Act because of the appellant's need for "mental health and drug dependency treatment and counselling", and for professional assistance to "adjust to community living after an extended period of custody".

Ground 6 contends that his Honour erred in sentencing the appellant by applying the standard non-parole period in the manner advanced in R v Way [2004] NSWCCA 131; 60 NSWLR 168 (and not in accordance with Muldrock v R [2011] HCA 39; 244 CLR 120).

Muldrock was decided after his Honour sentenced the appellant. Accordingly, at the time of the sentencing hearing his Honour was bound to apply Division 1A in accordance with the decision of this Court in Way. The passage that is extracted above at [183] above reflects the approach propounded in Way. However, in Muldrock the High Court found, inter alia, that the analysis of Division 1A in Way was wrong: "[25] ... It follows from that acceptance that Way was wrongly decided. As will appear, it was an error to characterise s 54B(2) as framed in mandatory terms. The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness. ... [28] Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.

Thus the appellant contends that his Honour committed the same error that this Court was found in Muldrock to have wrongly sanctioned in Way. The Crown conceded that this error was established, but submitted that this Court should conclude that no lesser sentence was warranted in law (Criminal Appeal Act, s 6(3)). The Crown's concession was well founded. We address the balance of its submission below.

Ground 7 contends that his Honour "failed to take into account, or give sufficient weight to, the appellant's mental health issues and other health issues". We have already noted briefly his Honour's consideration of the medical evidence concerning the appellant. In fact, his Honour addressed the medical evidence in great detail. His consideration of the material and its relevance to sentencing occupies over seventeen pages of the sentencing judgment. In those circumstances the suggestion that that his Honour failed to take into account these matters is not only entirely without substance, it is a submission that should not have been made.

The contention that his Honour failed to give "sufficient weight" to the appellant's mental health and other medical issues does not of itself raise any matter justifying intervention by this Court (Bugmy v R [2013] HCA 37 at [24] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, and at [53] per Gageler J). However, it may be called in aid of an argument that the sentence was too severe (or manifestly inadequate) (Bugmy at [53]). As that contention is raised as part of ground 8 and as it will be necessary to address the Crown's submission that no lesser sentence is warranted we will address it at this point.

The substance of the complaint is that his Honour erred in some way in his consideration of the evidence concerning the appellant's schizophrenia. Tendered before his Honour was a report from a psychiatrist, Dr White, dated 1 February 1999 which had apparently been prepared in relation to some proceedings concerning either the custody or welfare of his children. Also tendered was a report from a psychologist, Mr Watson-Munro, dated 1 August 2011, and the appellant's general practitioner, Dr Outridge, dated 4 August 2011.

In his report Dr White concluded that: "I can say with reasonable medical certainty that Mr Orchard suffers from Chronic Paranoid Schizophrenia with delusions that he and members of his family suffer from a fungus infection which comes from gum trees but he himself believes that he contracted it by injecting himself with Methadone mixed with water which was infected by aquatic worm which had a member of the Protoza family in its gullet."

His Honour noted that Dr White's report was "careful to isolate the extent of the delusional thinking" to fungus and worms.

Mr Watson-Munro's report stated, inter alia: "I note from the extensive documentation that [the appellant] has been diagnosed with Chronic Paranoid Schizophrenia as far back as 1 February 1999 and that he has been essentially a non-compliant patient in terms of recommended treatments since then. My own assessment failed to reveal any signs of psychosis at both times of examination, although appropriate psychometric testing confirms high levels of depression, anxiety and low self esteem."

His Honour noted that Mr Watson-Munro stated that the appellant gave a "reasonable, coherent account of himself" and denied experiencing "any delusions of reference or hallucinations in recent times".

Dr Outridge stated that he was the appellant's "GP and methadone prescriber between 2001 and May 2008". He stated that the appellant's medical conditions were chronic opioid dependence, chronic amphetamine dependence, chronic psychotic disorder, antisocial personality and hepatitis B and C.

Ultimately his Honour's finding was expressed in the following passage: "I accept that there is evidence that the prisoner had suffered from delusions about his serious skin condition and that a psychiatrist in 1999 diagnosed this as a symptom of chronic paranoid schizophrenia. However, as I have said both in that report and in the commentary of Mr Watson-Munro, there is no evidence of other delusional thinking that affects his day to day functioning and his capacity to reason or anything of the like."

His Honour then identified the various ways that this evidence was relevant to the sentencing process. Thus his Honour noted that incarceration may be harder for a prisoner with a medical condition. As noted, his Honour later gave some weight to this factor, although his Honour was not satisfied that the appellant could not receive adequate treatment in custody.

Critically his Honour noted and addressed a submission that relied on R v Fahda [1999] NSWCCA 267 and contended that the appellant's mental illness meant that "lesser weight should be given to general deterrence because the prisoner was at the time of the commission of the offence suffering from a 'mental abnormality' or 'disability'". His Honour's response is encompassed by the two findings recorded at [196] and [200], namely that medical evidence was that the appellant's delusional thinking was isolated (to fungus and worms) and that otherwise his mental illness did not affect or induce his offending behaviour (other than perhaps give rise to some anxiety). His Honour stated that there was "absolutely nothing in the many many calls that I listened to ... that suggests that the [appellant's] planning and scheming and drug dealing over three months was delusional, driven by delusion or impacted upon by his mental illness directly". His Honour concluded that the appellant's conduct was "methodical", "practical", "calculat[ed]" and undertaken with a full appreciation of "what he was doing".

These findings meant that the position so far as the appellant was concerned was addressed by the observations of Sperling J in R v Hemsley [2004] NSWCCA 228 at [33] to [36]. His Honour referred to Hemsley and stated: "[W]hilst there could be an indirect relationship between his mental illness, as it might be described, and the offending, it could not in any way be categorised as contributing to the commission of the offence 'in a material way'. Clearly the condition does not reduce the prisoner's moral culpability given the various aspects of the matter I have referred to, including the calculated way in which the prisoner committed the relevant offence and the period of time over which it was committed. This is not an offence committed fleetingly, but over many days. Neither the character of the mental illness nor its relationship with the offending renders the offender an inappropriate vehicle for general deterrence, or moderates that consideration. And even if it could be argued that it could be moderated in some way, in this case the prisoner's mental illness, if it could explain in part his offending behaviour left untreated as the prisoner allowed it to be, increases the level of 'danger' in the general sense which the prisoner presents to the community. Particularly as one must acknowledge the danger of the use of methylamphetamine presents to the wider community, both users and those who have to deal with them. Of course ironically the prisoner argues he is such a person." (emphasis added)

Save for one possible matter, the written submissions of the appellant about this aspect of the sentencing judgment make no attempt to engage with his Honour's findings or reasoning. Instead they merely restate what he contends was the effect of the medical evidence before his Honour and how it should affect the sentencing discretion. The one possible matter of exception is that some of the submissions appear to challenge his Honour's finding(s) about the lack of connection between his mental illness and offending. We will put to one aside that this ground of appeal is not framed as a challenge to any finding of fact on sentence. Otherwise, the submissions did not even attempt to address the principles respecting such a challenge (R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at [61] per Wood CJ at CL, Tobias JA and Hidden J agreeing).

Thus it was contended that his mental illness meant that he "became enmeshed in the drug world as a 'user dealer', unable to live an ordinary working life" and this established a causal connection between his mental illness and the offence. While the material before his Honour suggested that people with schizophrenia are prone to use drugs, this flourish attempts to blur the distinction between those who use drugs and his Honour's findings about what type of dealer the appellant was found to be. He was not the Jean Valjean of the ice trade, driven to that position by fate and circumstance. He was a powerful, calculating and significant dealer who dominated those around him.

The appellant's written submissions also refer to parts of the surveillance evidence in which AA referred to the appellant as "paranoid" and his "paranoia" about police surveillance as somehow suggesting a causal connection between his mental illness and offending. Notwithstanding the length of the time that AA occupied the witness box, one matter that was not explored with him was his qualification to make psychiatric assessments of his associates in the drug trade. In any event a drug dealer such as AA who expresses concern about being the subject of police surveillance, especially when they are, is not being "paranoid" in the relevant sense, only sensible. The same submission was made to his Honour who described the appellant's beliefs about surveillance as proper concerns derived from his need for "self preservation and his [own] interests".

All of his Honour's findings of fact on this topic were open to him. There is no basis for concluding that his Honour misdirected himself in making them (Merritt at [61]). We reject ground 7.

Ground 8 of the appeal complains that the sentence imposed was "too severe", which we take to be an assertion that it was manifestly excessive in the sense of being unreasonable or plainly unjust (Markarian v R [2005] HCA 25; 228 CLR 357 at [25]).

The appellant's written submissions did not address this ground at all. As noted, the complaint made in ground 7 that his Honour did not attribute sufficient weight to his mental illness is capable of informing this ground. That matter has already been addressed.

In addressing this ground and its own submission that, irrespective of the error disclosed by ground 6, no lesser sentence in law was warranted, the Crown pointed to the passage from the sentencing judgment extracted above at [174] above.

The analysis of the relative seriousness of the appellant's offending by reference to the "middle of the range of objective seriousness" for offences under s 25(2) of the DMTA is no longer necessary, or perhaps even appropriate, after Muldrock. Nevertheless the findings made by his Honour still warrant the characterisation of this offence as a very serious example of supplying more than the commercial quantity of methylamphetamine. The two guideposts for the offence are the maximum penalty of twenty years imprisonment and the standard non-parole period of ten years imprisonment (Muldrock at [27]). The appellant engaged in supplying the drug over a sustained period and did so to facilitate his retail supply business. The manner in which he exercised control over his contacts and utilised his family is exposed by his Honour's findings. Although much was put forward on his behalf during sentencing, his Honour's findings and analysis reveal that the appellant's subjective circumstances were not particularly compelling and there was no basis for giving any lesser weight to either general or specific deterrence. To the contrary, this case was an appropriate case for the full application of both sentencing principles.

We are not persuaded that the sentence was manifestly excessive. To the contrary, we are satisfied that no lesser sentence was warranted in law (s 6(3)). Accordingly we reject ground 8.

We grant leave to appeal against sentence, but dismiss the appeal.

This conclusion renders it unnecessary to consider a psychiatrist's report from Dr Richard Furst dated 2 March 2013 tendered on behalf of the appellant on the "usual basis".

Accordingly the orders of the Court are: