Salafia v R

1. [1]

   MITCHELMORE JA: On 3 December 2024, following a trial in the District Court at Goulburn before Judge Baly SC sitting with a jury, the applicant, Michael Salafia, was found guilty of two counts of supplying a large commercial quantity of a prohibited drug, namely methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He was also found guilty of one count of participating in a criminal group and knowing or being reckless as to whether that participation contributed to the occurrence of any criminal activity, contrary to s 93T(1A) of the Crimes Act 1900 (NSW).

2. [2]

   The trial was conducted with efficiency. On 26 November 2024, the trial judge empanelled the jury and the Crown opened and commenced calling its evidence. On 29 November 2024, which was a Friday, the Crown closed its case and the applicant gave evidence and then closed his case. On Monday, 2 December 2024, counsel delivered their closing addresses, the trial judge gave her summing up, and the jury retired to consider its verdict. The jury returned the verdicts on 3 December 2024.

3. [3]

   On 28 February 2025, the applicant was sentenced to an aggregate term of imprisonment of 5 years, expiring 23 April 2029, with a non-parole period of 2 years and 6 months expiring 23 October 2026. The applicant has not appealed against the sentence.

4. [4]

   The applicant seeks leave to appeal against his convictions on two grounds, both of which raise mixed questions of law and fact (see s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)):

   1. (1)

      The jury’s verdicts on counts 1, 2, and 3 were unreasonable because it was not open on the evidence for the jury to be satisfied of the applicant’s guilt beyond reasonable doubt.

   2. (2)

      The trial miscarried because the trial judge left to the jury a basis for conviction that represented a change in the Crown case and denied the applicant procedural fairness in meeting the changed case.

5. [5]

   For the reasons set out below, I would grant leave to appeal on both grounds and dismiss the appeal.

Overview of the case at trial and the grounds of appeal

1. [6]

   On 1 June 2020, an undercover police officer, who gave evidence and was referred to throughout the trial as UCO 662, commenced exchanging encrypted messages with another person in relation to the supply of methylamphetamine in exchange for boxes of cigarettes. The messages were sent using a Ciphr device. Evidence was led in the trial describing Ciphr as a dedicated encrypted communication device, known for its security and inability to be intercepted by law enforcement and third parties. UCO 662 used the handle “squidex”, and the person with whom UCO 662 communicated used the handle “Don’t Look Twice” (“DLT”) and, subsequently, “DE0B2862” (“DE0B”).

2. [7]

   On 2 June 2020, UCO 662 met with Geoffrey Johnson and Nathan Simpson, both of whom are cousins of the applicant, at a location in Holbrook. Mr Simpson gave UCO 662 a package which was represented to contain methylamphetamine, and UCO 662 provided the agreed number of boxes of cigarettes. On 14 August 2020, UCO 662 met with Mr Simpson in Goulburn, at which time Mr Simpson supplied a further package of purported drugs in exchange for boxes of cigarettes.

3. [8]

   Although the applicant was not present on either of those occasions, the Crown alleged that he was the author of the Ciphr messages to UCO 662 negotiating the two supplies and making the associated arrangements using the handles “DLT” and “DE0B” (counts 1 and 2). The Crown relied on the same conduct in relation to the Ciphr messages as forming part of the factual basis for alleging that the applicant participated in a criminal group by directing its activities (count 3).

4. [9]

   The applicant denied any involvement in the conduct the subject of the three counts on the indictment. He denied that he had ever had a Ciphr device, and he denied sending any of the messages on which the Crown relied.

5. [10]

   By proposed ground 1 of his appeal, the applicant contended that the circumstantial evidence on which the Crown relied failed to exclude an inference that was reasonably open and consistent with his innocence, namely, that someone else sent the Ciphr messages to UCO 662 negotiating the two drug supplies.

6. [11]

   By proposed ground 2, the applicant contended that the trial judge, over objection, left to the jury a basis for conviction that represented a “fundamental change” in the Crown case between its opening and closing submissions, which resulted in a miscarriage of justice. The applicant submitted that in opening the Crown had suggested that the applicant was the only person to send messages using the Ciphr handles “DLT” and “DE0B”, whereas in closing it submitted that the applicant sent the messages relating to the negotiation of and arrangements for the supplies. The applicant submitted that the Crown never provided particulars of which messages the applicant was alleged to have sent, and thereby denied him procedural fairness.

The Crown case against the applicant

1. [12]

   Central to the applicant’s contention on ground 2 was that the Crown alleged in opening that he had exclusive possession and use of the Ciphr device and was responsible for sending all of the Ciphr messages. Accordingly, it is necessary to examine the Crown’s opening in some detail.

2. [13]

   In opening the Crown case, the Crown Prosecutor alleged that on 1 June 2020, UCO 662 received an encrypted message on Ciphr which the Crown alleged “was from the accused, Mr Salafia”. The Crown Prosecutor submitted that the applicant “had a username of ‘Don’t Look Twice’”, and alleged “that Mr Salafia used this application and this username of ‘Don’t Look Twice’ … to avoid scrutiny, to avoid disclosing his identity and detection by the police”. The Crown Prosecutor referred specifically to the first of the messages that UCO 662 received from DLT on 1 June 2020, which was as follows:

3. [14]

   The Crown Prosecutor foreshadowed the evidence ultimately led from a police officer with expertise in drug operations, Detective Sergeant Latham, that “one eye” was a reference to 1 kg of methylamphetamine, and “boxes” was consistent with a reference to boxes of cigarettes. He referred to there being “messaging back and forth between UCO 662 and the other person alleged to be the accused, Mr Salafia”, including about “prices, locations, and timing of this exchange, on the Crown case, to minimise detection by police”.

4. [15]

   The Crown Prosecutor outlined a meeting on 2 June 2020, at about 2:45 pm, between UCO 662 and Geoffrey Johnson and Nathan Simpson in Bardwell Street at Holbrook. During the meeting, Mr Simpson gave UCO 662 a yellow plastic bag containing 999.8 grams of a white crystalline substance which was later tested and determined not to be methylamphetamine. Mr Johnson and Mr Simpson then unloaded boxes of cigarettes from UCO 662’s vehicle into their own vehicle. In relation to the applicant’s involvement in this transaction, the Crown Prosecutor submitted the following in opening:

5. [16]

   The Crown Prosecutor moved to the period between 5 June 2020 and 26 June 2020, during which UCO 662 “and again, another person the Crown alleges to be Mr Salafia”, exchanged further messages on Ciphr to arrange a replacement for what had been supplied to UCO 662 on 2 June 2020 (the police by this time having determined that the substance supplied was not methylamphetamine). Following an agreement reached over the messaging platform to replace what had been supplied with a better quality of drug, an arrangement was made to meet on 26 June 2020 at the same location as the previous meeting, in order for UCO 662 to return what was initially supplied to him.

6. [17]

   The Crown Prosecutor alleged that on the morning of 26 June 2020, UCO 662 met with Mr Johnson and the applicant, who arrived in a Mercedes C200 driven by Mr Johnson. UCO 662 sent a Ciphr message “to a person the Crown says is Mr Salafia, saying that he had arrived”, and “[t]he person the Crown says is Mr Salafia sent a message saying he had arrived in a white Mercedes”. In the course of this meeting, the applicant told UCO 662 that further supplies could be arranged using Ciphr, but that he was not the person with whom UCO 662 had been messaging. The Crown Prosecutor submitted in opening that this statement was untrue, and was inconsistent with previous messages as well as the message concerning the applicant’s arrival.

7. [18]

   The Crown Prosecutor alleged that around 29 and 30 June 2020, “UCO 662 and Mr Salafia, on the Crown case, sen[t] and receive[d] [Ciphr] messages to arrange a further supply”. He submitted that “even though Mr Salafia is not present at any further meeting, the Crown case is that through his planning and negotiation with UCO 662, that’s how he is liable for the allegation that he supplied”.

8. [19]

   The Crown Prosecutor alleged that at some point in early July 2020, the applicant had to go to hospital due to an infection on his finger. Ultimately, the agreed facts documented that the applicant was bitten by Mr Simpson on 5 July 2020 when the latter was having a seizure, the applicant having put his finger in Mr Simpson’s mouth to try and clear his airway. On 7 July 2020, the applicant consulted a general practitioner, and on 8 July 2020 he was admitted to hospital. The applicant underwent treatment and minor surgery and was discharged on 13 July 2020.

9. [20]

   The Crown Prosecutor submitted that on 8 July 2020, UCO 662 sent a Ciphr message to “the person the Crown says is the accused” to confirm a supply to take place on 9 July 2020. On 13 July 2020, “DLT” sent a message to UCO 662 stating that he had been uncontactable because he had recently had surgery on his finger. The Crown Prosecutor submitted that “this is a combination of circumstances that clearly establish that Mr Salafia is the person who has been utilising this [Ciphr] App to conduct these negotiations with UCO 662”.

10. [21]

    The Crown Prosecutor referred to UCO 662 receiving a message on 17 July 2020 from a Ciphr account from the “DE0B” username, which read, “Just got my new cipher [sic] subscription ran out”. The Crown Prosecutor submitted to the jury that having regard to the context of the conversations, “the same person as before using the previous user name, ‘Don’t Look Twice’ alleged to be the person Salafia, the accused, is still the person using this new user name”.

11. [22]

    The Crown Prosecutor outlined that “DE0B” and UCO 662 exchanged further messages negotiating a replacement of the initial supply as well as a further supply. On 27 July 2020, “DE0B” sent UCO 662 a message saying “I will send driver to you sorry I was rude before”. The Crown alleged that this was consistent with the applicant sending the person who ultimately attended the next meeting when a further supply occurred, and “with Mr Salafia arranging, organising, negotiating the supply” but not attending in person.

12. [23]

    The Crown Prosecutor submitted that following further Ciphr messages between 6 and 13 August 2020, on 14 August 2020 UCO 662 met with Mr Simpson in Goulburn. Mr Simpson showed UCO 662 two vacuum-sealed packages of a white crystalline substance in the footwell of his van. UCO 662 returned to his car and drove to a nearby storage facility, followed by Mr Simpson, and showed Mr Simpson 60 boxes of cigarettes in a storage unit. Mr Simpson loaded the boxes into his van and UCO 662 took possession of the two bags of white crystalline substance. The substance in the bags was subsequently weighed and examined and was found to be 2,010.7 grams of non-prohibited substances.

13. [24]

    The Crown Prosecutor submitted:

14. [25]

    The Crown Prosecutor submitted that in relation to counts 1 and 2, although the applicant was not present for the supplies of substances represented to be prohibited drugs, the Crown alleged the existence of a joint criminal enterprise between the applicant, Mr Simpson, and Mr Johnson, to supply prohibited drugs on the two occasions, as well as being participants in a criminal group. In relation to the latter, the Crown relied on the same transactions and alleged that the applicant directed the activities of the group and knew it was a criminal group:

15. [26]

    At no stage in his opening did the Crown Prosecutor expressly submit that the two handles “DLT” and “DE0B” were exclusively used by the applicant over the course of the period of alleged offending. In oral submissions on the appeal, counsel for the applicant fairly accepted as much. Nonetheless, he submitted that what was significant was that at no stage in the opening did the Crown Prosecutor submit that other persons positively used or might have used the Ciphr device.

16. [27]

    The applicant’s focus on what the Crown Prosecutor did not say in opening came at the expense of appreciating the substance of what the Crown Prosecutor submitted. It is apparent from the above that what was central to the Crown case was the applicant’s use of the Ciphr device, as “DLT” and “DE0B”, to send messages to UCO 662 negotiating and making the arrangements for the two supplies that were the subject of counts 1 and 2. It was only on the basis that the applicant sent those messages that he could be held criminally responsible for the two supplies, given he was not present on either of the occasions when the supplies took place.

17. [28]

    That the applicant was not, on the Crown case, present on either of 2 June 2020 or 14 August 2020, raised for consideration the authorship of the Ciphr messages that UCO 662 exchanged with “DLT” and “DE0B” on those days. Ultimately, the Crown closed on the evidence, including the messages, submitting that the Ciphr device was likely in the possession of either Mr Johnson or Mr Simpson on the first occasion, and in the possession of Mr Simpson on the second occasion. That submission did not represent a departure from the Crown case as it was opened. It is apparent from the above that what was central to the Crown opening was the applicant’s role in sending the messages between the meetings, negotiating and arranging for the supplies.

18. [29]

    The evidence that the Crown led was consistent with its opening. The focus of the case against the applicant was the evidence of UCO 662 and the Ciphr messages between UCO 662 and “DLT” and “DE0B”. The messages, in the form of photographs of UCO 662’s Ciphr device, were tendered in three tranches. The first tranche contained messages exchanged on 1 and 2 June 2020 (Ex A), the second tranche contained messages sent between 5 June 2020 and 26 June 2020 (Ex G), and the third tranche contained messages sent between 29 June 2020 and 14 August 2020 (Ex L).

19. [30]

    I have set out in [13] above the first of the Ciphr messages from “DLT” to “squidex” (UCO 662) on 1 June 2020. UCO 662 replied that the price (60 boxes of cigarettes) was “a bit high” and counter-offered 50 boxes. “DLT” replied that the prices were “very high on my side if you are happy after the first one prepare to do every week for now the prices are two and too hard to find”, sending a subsequent message that corrected “prices are two” to “Prices are too High”. UCO 662 and “DLT” then had the following exchange:

20. [31]

    When UCO 662 replied to the effect that he could not do that evening, “DLT” sent an image of map that included Bardwell St, Holbrook and messaged “meet Hartwell [sic] street 12pm tomorrow”. In a subsequent message the same evening, “DLT” wrote:

21. [32]

    In cross-examination, UCO 662 was asked what his understanding was of the reference in this message to “driver will have this with him tomorrow”. His evidence was that he understood it to mean that the driver would have the drugs tomorrow, and “it possibly also meant that the driver would have the phone with him tomorrow”, being the Ciphr phone.

22. [33]

    UCO 662 expressed a preference for Holbrook. “DLT” agreed and specified 12pm as the meeting time. On the morning of 2 June 2020, UCO 662 sent a message to “DLT” asking “We still on track for 12?” and received a response, “No we should be there by 230…couldn’t pick the truck up till 8,30 this morning”. UCO 662 requested a message to let him know when they were 30 minutes away, to which “DLT” replied “Ok”. The next message from “DLT”, at 1.56pm was “30min away”, followed, at 2.15pm, by the message “Here bro…at end of bardwell”.

23. [34]

    UCO 662 gave evidence in chief that the meeting on 2 June 2020 was video recorded from a distance. The recording, which did not have sound, was tendered (Ex D) and played to the jury, with the Crown Prosecutor stopping the recording at various points to ask UCO 662 questions. UCO 662 accepted that the video showed Mr Simpson placing a package in the vehicle of UCO 662 and UCO 662 checking the package, before the cigarettes were unloaded from UCO 662’s vehicle and placed in the other truck. Photographs were also taken and were tendered (Exs B and C). The conversations during the meeting were also recorded and played to the jury, with the recording tendered (Ex F) and a transcript provided as an aide.

24. [35]

    Later that same evening, “DLT” sent “squidex” a message that said, “Got back safe bra”, to which UCO 662 replied “Sweet bro…likewise I’m all good…chat soon”. “DLT” replied “Mad”.

25. [36]

    The white crystals, which weighed 999.8 grams, did not contain any prohibited drug. Dr Shuang Fu, a forensic toxicologist employed by NSW Police, gave evidence that the substance was analysed as N-isopropylbenzylamine, a chemical precursor that possesses a similar appearance and physical properties to methylamphetamine. Forensic testing of the package revealed a number of mixed DNA profiles and fingerprints, none of which belonged to the applicant.

26. [37]

    Virginia Friedman, a scientist with the NSW Health Pathology, Forensic and Analytical Science Service, gave evidence that the major contributor to a mixed DNA profile taken from the seal of the zip-lock bag was an unknown female, while for a mixed DNA profile taken from a Chux cloth inside the package, three known individuals could not be excluded as contributors. The officer in charge gave evidence that the possible contributors had prior convictions for drug supply offences and were not in custody at the time of the offences. Senior Constable Miroslav Mlinaric, a fingerprint expert, gave evidence that of the nine fingerprint impressions identified, four belonged to Mr Simpson, while the other five were unknown.

27. [38]

    On 5 June 2020, UCO 662 sent “DLT” a message which read:

28. [39]

    “DLT” replied on 8 June 2020, stating:

29. [40]

    UCO 662 said he would need to speak to his boss. When “DLT” followed up half an hour later stating “So no good”, UCO 662 replied that he was still waiting on his boss and that “tomoz unlikely”, and indicated “Maybe later in week”. “DLT” replied, “Cool thank you I will try to have that problem fixed for tomorrow that would be good as I don’t want my buyers to go cold”. On 9 June 2020, UCO 662 reverted, “Spoke to boss bro…exchange?”, then asked if “DLT” was right “to take this back”, referring to the initial supply, and asking if he would have “new stuff” by then. On 10 June 2020, “DLT” replied that it would take a little time to fix and asked if “can we pay cash then get last one back bye then everything will be fixed”. Subsequently, when UCO 662 asked if something other than “eye” could be swapped, “DLT” explained that he could pay cash “for more” (inferentially, boxes of cigarettes) but that the cash was not his and that by next week the people who sold him the drugs were going to fix it up. “DLT” wrote, “so it’s up to you .if we can continue .or wait till this is fixed. But my word I will fix up problem”.

30. [41]

    In messages exchanged on 17 June 2020, “DLT” asked how he could get back “that stuff” so he could return it and get it exchanged. UCO 662 suggested “next Friday” (being 26 June). On 24 June 2020, “DLT” replied:

31. [42]

    On 25 June 2020, UCO 662 sent “DLT” a message, “Bro are we on for tomoz?” to which “DLT” replied “Yes 12pm same place”. On 26 June 2020, “DLT” sent UCO 662 a message stating “On track for 12pm today”. At 11.50 am, UCO 662 sent “DLT” a message, “I’m here bro…how far r u?” to which “DLT” replied, “I’m here now”.

32. [43]

    It was not disputed that the applicant attended the meeting on 26 June 2020, together with Mr Johnson in a white Mercedes. The officer in charge gave evidence in cross-examination that the Mercedes was hired by Gustabo Araya on 24 June 2020 and returned on 12 July 2020. As was the case with the meeting on 2 June 2020, the meeting on 26 June 2020 was the subject of surveillance. The meeting was visually recorded, which was played to the jury (Ex H) and photographs were also taken (Ex K). Additionally, the conversations were recorded, with the recording tendered and played to the jury (Ex J) and a transcript supplied. The applicant introduced himself as “Mick”. UCO 662 said, “Nice to meet you man”, to which the applicant replied, “Cheers bro”.

33. [44]

    In the course of the conversation, there was a discussion about the next meeting, in the course of which, as had been canvassed in the Ciphr messages, UCO 662 was to receive a replacement for what he was returning that day. The following exchange was recorded:

34. [45]

    UCO 662 gave evidence that the applicant directed him to put the package he was returning in the Mercedes, under the passenger seat. UCO 662 and the applicant again confirmed Monday lunchtime. Several hours later UCO 662 sent further messages to “DLT”:

35. [46]

    The request for the “photo” was for a photo of the “eye”, which had been the subject of earlier messages. When “DLT” replied just under an hour later, writing, “just got back now”, UCO 662 sent him a message in which he said he would “see u Monday 1pm at that spot bro”, to which “DLT” replied, “Mad bra that will be good”.

36. [47]

    Notwithstanding the arrangement for Monday, 29 June 2020, “DLT” messaged UCO 662 early that day asking to postpone the meeting to 12pm on 1 July. “DLT” subsequently requested to move the date to 3 July 2020, which UCO 662 could not do, and then suggested 6 July 2020. UCO 662 messaged that he could not do that date either, but said he could move things around to meet on Thursday 9 July 2020. When asked by “DLT” to “Please lock that in”, UCO 662 messaged saying, “Ok Thurs…please don’t let me down bro” to which “DLT” replied, “From here on here bra it’ll be smooth sailing”.

37. [48]

    On 8 July 2020, UCO 662 sent a message to confirm that the meeting planned for following day was to go ahead, to which he received no response. He sent a further message on 9 July 2020, asking what was happening, to which he also received no response.

38. [49]

    I referred above to the agreed facts in relation to the applicant’s hospital admission between 8 July 2020 and 13 July 2020 following the injury to his finger on 5 July 2020 (Ex X). On 13 July 2020, “DLT” sent the following message:

39. [50]

    UCO 662 replied, asking if they could do 14 July 2020 but said he did not have access to “smokes” due to border closures and asked if he could “grab both off you tomoz and get the smokes to you later when I can work out how to get the smokes across border”. “DLT” replied that he needed to do a straight swap, and that he “could.not get hold of the other guy because I was in hospital”.

40. [51]

    On 17 July 2020, UCO 662 received a series of messages from “DE0B”, which said, “Just got my new cipher subscription ran out”, “Want to get rid of these this weekend can we swap for 180 smoke?” and “Sorry for all the delay my finger was infected to the bone had to have surgery and beenin (sic) so much pain”. When UCO 662 reiterated, on 24 July 2020, that he did not have smokes available and would “just be picking up the 1 owed” (having returned the previous package on 26 June 2020), “DE0B” messaged that he would have to organise cash. When UCO 662 queried this, “DE0B” messaged on 26 July 2020 that all he could organise at the moment in terms of the drugs was a swap. “DE0B” became suspicious about cigarettes not being available and wanted to know “who the fuck you guys are” which led to UCO 662 writing the following message:

41. [52]

    On 27 July 2020, “DE0B” replied, apologising for the delay and that he was ready to swap if “squidex” was ready and if not as soon as he had the cash he would send a driver. “DE0B” also wrote “sorry I was rude before also much going on”.

42. [53]

    Ultimately, on 10 August 2020, UCO 662 messaged and suggested Friday, 14 August 2020 for an exchange. “DE0B” replied, “Bro have to go away end of week can we do earlier”, to which UCO 662 replied that he could not. “DE0B” replied, “I will have to make it work for Friday” and asked what time and where. UCO 662 asked for confirmation that he would have “th e 1 that’s owed plus another 1”, to which “DE0B” replied, “Yeah bro”. The parties arranged to meet in the morning of 14 August 2020 at the McDonald’s just south of Goulburn.

43. [54]

    On 14 August 2020, UCO 662 sent a message to “DE0B” asking if he was running on time for 10:00 am, to which “DE0B” replied, “Yeah bra I’m here at maccas now”. UCO 662 gave evidence that he met on that occasion with Mr Simpson, who was in a hired vehicle, initially in the carpark of McDonald’s. UCO 662 entered the passenger side of Mr Simpson’s vehicle, and Mr Simpson showed him two vacuum-sealed bags containing off-white crystals. UCO 662 then returned to his vehicle, and drove to a storage facility where the boxes of cigarettes were stored, with Mr Simpson following in his vehicle. This part of the meeting was sound recorded and played to the jury (Ex N) with a transcript supplied. UCO 662 assisted Mr Simpson to load boxes of cigarettes into Mr Simpson’s van and took possession of the packages containing the white crystals.

44. [55]

    The white crystals were analysed and found to weigh 2,010.7 grams. As with the substance supplied on 2 June 2020, they did not contain any prohibited drug. Dr Fu gave evidence that the crystals contained phenethylamine and were also indicated to contain dimethyl sulfone, both of which are frequently used as cutting agents in methylamphetamine products. There was also a forensic examination of the second lot of packaging, which found no DNA of the applicant. A DNA profile was recovered on the inner seal of the heat-sealed bag, the evidence of Ms Friedman as to which was that it was more than 100 billion times more likely to obtain this profile if it originated from Luke Galia rather than originating from an unknown, unrelated, individual in the Australian population. The officer in charge gave evidence that Mr Galia had a previous conviction for supplying a commercial quantity of a prohibited drug, the sentence for which had expired before the date of this offence.

45. [56]

    The applicant’s case at trial was that he never had a Ciphr phone, had never paid for a Ciphr subscription and had never used Ciphr. The applicant also denied having, or sending messages from, either of the Ciphr accounts “DLT” or “DE0B”.

46. [57]

    The applicant accepted in his evidence in chief that he was present at the meeting with UCO 662 on 26 June 2020 but said he was there at the request of Mr Araya, whom he had met about 12 months previously. He gave evidence that he knew Mr Araya was involved in the supply of illegal cigarettes and “chop chop” (tobacco), and that he had obtained chop chop from Mr Araya to sell to his community in Narrandera. According to the applicant, Mr Araya had asked him to drive from Canberra to Holbrook to collect chop chop, offering him $1,000 and giving him directions over Signal, another encrypted messaging platform. He and Mr Simpson drove to Holbrook in the Mercedes. In cross-examination, the applicant gave evidence that Mr Araya had offered to hire a car for the applicant on 24 June 2020 because his ute had broken down and needed repairs. The applicant’s evidence was that he never looked in the bag, which he returned to Mr Araya, following which the applicant and Mr Johnson drove to Nowra, where the applicant was staying at the time.

47. [58]

    In his evidence in chief, the applicant’s trial counsel put a number of the Ciphr messages to him, in particular the message on 13 July 2020 explaining the absence of contact, the first messages from “DE0B”, and the message which said sorry for being rude. The applicant denied that these messages reflected the way he spoke or wrote, his style of language, and his expression.

48. [59]

    The applicant accepted that he had been in hospital on the relevant dates. He gave evidence that Mr Araya visited him every day, and that Mr Johnson and Mr Simpson also knew he was in hospital.

49. [60]

    In cross-examination, the applicant denied that he was the negotiator who arranged for the supply of the first kilogram of fake drugs on 2 June 2020 and arranged the second meeting. He denied that he sent any of the messages sent by “DLT”, including those that referred to hospitalisation and those from 29 June 2020, being the date he met with UCO 662, including the message “I’m here now” and the later messages about a further meeting. When asked about aspects of the conversation on that date, including that he had “brand new stuff ready to go” and, “I don’t want to fuck you around”, and the making of arrangements for a meeting on the following Monday, the applicant said that he was “talking rubbish”. The only part of the conversation that the applicant said was not rubbish was when he told UCO 662 that he was just a driver and that he was not the person who had been sending UCO 662 messages on Ciphr.

50. [61]

    The Crown Prosecutor submitted to the jury in closing:

51. [62]

    The Crown Prosecutor acknowledged that the Crown had to prove beyond reasonable doubt that the applicant was using the Ciphr device “at the relevant times; that is during these negotiations”. He submitted that the Crown did not have to prove that the applicant was the owner “or the sole user” of the Ciphr device at any specific time, noting that “[t]here may very well have been a number of other people who used the device, including Mr Johnson and Mr Simpson”. Rather, the Crown had to prove that the applicant was the user of the device “at those times that the Crown says make him liable for these matters”.

52. [63]

    The Crown Prosecutor accepted there was no evidence in the trial that anyone saw the applicant with a Ciphr device or packaging or handing over any drugs, and no evidence that the applicant admitted supplying any drugs or possessing a Ciphr device. Nonetheless, he submitted to the jury that when they looked at things in totality and in context, there was a strong Crown case in identifying the applicant as the one who was arranging, organising and negotiating the sale of the fake methylamphetamine.

53. [64]

    The Crown placed particular reliance on the Ciphr messages that UCO 662 sent “DLT” on 8 and 9 July 2020, and “DLT”’s responses which cited the finger surgery and continued the earlier discussions about the swap. Working backwards from those messages, the Crown relied on the narrative consistency of the messages in terms of the problem with the earlier supply, agreed dates and locations, and the outstanding obligation to supply a kilogram of methylamphetamine.

54. [65]

    The Crown Prosecutor also pointed to the meeting that the applicant personally attended on 29 June 2020, and the recorded conversation between the applicant and UCO 662 that day. The Crown Prosecutor submitted that aspects of that conversation were consistent with the applicant having knowledge of the circumstances, in particular his reference to there being “brand new stuff ready to swap” and the offer for UCO 662 to bring someone with him to test it. The applicant also confirmed the swap for Monday, consistently with earlier Ciphr messages which referred to the replacement drug being available a few days later than the meeting to return the earlier substance. The applicant did not indicate any confusion about this in the course of the discussion. In so far as the applicant told UCO 662 in the course of that meeting that he was just the driver, the Crown submitted that the jury would reject that as inconsistent with the other objective evidence.

55. [66]

    In relation to the first set of messages on 1 and 2 June 2020, the Crown Prosecutor submitted that the messages on 2 June provided an example of where it “might reasonably be [contemplated] that either Mr Johnson or Mr Simpson, as of 30 minutes before the delivery, had the Ciphr device”. The Crown Prosecutor reminded the jury that the Crown alleged the three men were in a joint criminal enterprise together and were close, and submitted that “consistent with what the Crown said before perhaps that from time to time, other people, other parties to this joint criminal enterprise, to the whole enterprise, from time to time, use this particular Ciphr device”. The Crown Prosecutor reiterated in this context that the Crown did not have to prove exclusive use or possession of the device by the applicant, “just at the relevant time”.

56. [67]

    In the final part of his address, the Crown Prosecutor submitted that the Crown had proved each element of the three charges beyond reasonable doubt, focusing on what the Crown had to prove, namely, “it’s the use of the Ciphr device at the time of the negotiations”:

57. [68]

    The applicant’s counsel put the applicant’s case as follows in closing:

58. [69]

    The applicant’s counsel put to the jury that reasonable doubt arose on this point because of the content and varying style of the messages. The applicant emphasised that some messages were written in complete sentences with largely correct grammar, whilst others were written more casually and employed slang terms such as “mad” and “brah”. Moreover, some messages written in the first person appeared to describe actions which were undertaken by Mr Simpson or Mr Johnson. The applicant’s counsel suggested to the jury that the principal person sending messages as “Don’t Look Twice” and “DE0B” was in fact Mr Simpson.

59. [70]

    In respect of the Ciphr message in which “Don’t Look Twice” described having been hospitalised over his finger, the applicant’s counsel put to the jury that Mr Simpson had also recently been admitted to hospital. He also submitted that the language of the message, “I was in hospital” (emphasis added) suggested that the message was sent after the sender had left the hospital, whereas it was sent at 11:23 am and Mr Salafia was not discharged until 1:35 pm and gave evidence he did not leave the hospital until later in the afternoon.

60. [71]

    Based in part on the evidence of Detective Latham concerning “compartmentalisation” in organised criminal networks, the applicant submitted that the applicant’s involvement was “compartmentalised” in the sense that he was paid to perform discrete tasks without knowing their true criminal nature.

61. [72]

    For the purposes of the appeal, the only relevant part of the trial judge’s summing up related to the direction her Honour gave about the essential intermediate fact that the Crown accepted it needed to prove in order to establish that the applicant was guilty on each of the three charges. Her Honour provided the jury with the following document in that regard (MFI 16):

62. [73]

    Her Honour initially gave the following oral direction:

63. [74]

    When the trial judge gave this direction, her Honour mistakenly provided the jury with MFI 15, which was a longer document titled “Essential Elements” and which her Honour also intended the jury to have, albeit later in the summing up. When her Honour realised the error, her Honour provided MFI 16 to the jury and gave the following direction, which was in similar albeit not identical terms:

64. [75]

    As I will address below, the terms of this direction, and the circumstances surrounding its formulation, was the subject of the applicant’s second ground of appeal.

The grounds of appeal

1. [76]

   There was no real dispute as to the proper principles to apply to an appeal on the ground of an unsafe or unreasonable verdict. The applicant and the respondent relied on the decision of Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 for its statement of the function of a court of criminal appeal in determining an appeal on the unreasonable verdict ground, by reference to the earlier decision of M v The Queen (1994) 181 CLR 487; [1994] HCA 63. In Dansie, the Court said:

2. [77]

   At [9] of Dansie, the Court extracted what it described as the “carefully crafted” passage in M v The Queen (at 494-495) regarding the role of the jury as “the body entrusted with the primary responsibility of determining guilt or innocence”:

3. [78]

   When the question is whether a verdict in a circumstantial case is unreasonable, the evidence is not to be considered in a “piecemeal” fashion: R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]; R v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [128]. Rather, an appellate court must consider “the accumulation of evidence” and “the weight that is to be given to the united force of all of the circumstances put together”: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535; [1984] HCA 7.

4. [79]

   As noted above, in order to find the charges proved beyond reasonable doubt, the jury needed to find, as an essential intermediate fact, that the applicant sent the Ciphr messages to UCO 662 negotiating the drug supplies that occurred on 2 June 2020 and 14 August 2020. The applicant submitted that the circumstantial evidence in support of that essential fact was limited to the following:

   1. (1)

      The three Ciphr messages (two on 13 July 2020 and one on 17 July 2020) in which the sender expressly referred to having been admitted to hospital for finger surgery, together with the applicant’s admission that he had been in hospital between 8 and 13 July 2020 after Mr Simpson bit his finger, on which, the applicant submitted, the Crown relied to prove that the applicant sent “all of the previous and subsequent Ciphr messages negotiating the drug supplies”.

   2. (2)

      The absence of any Ciphr messages from “DLT” between 30 June 2020 and 13 July 2020, a period substantially coinciding with that during which the applicant underwent treatment for his finger injury.

   3. (3)

      The photo that was sent from “DLT” to UCO 662 on 26 June 2020, which the Crown alleged was of a rest stop at Holbrook and was taken from the passenger side of the Mercedes at about the time UCO 622 met the applicant and Mr Johnson, and the applicant was sitting in the passenger side of the vehicle.

   4. (4)

      Certain aspects of the applicant’s statements and conduct in the course of his meeting with UCO 662 on 26 June 2020. The applicant described the Crown’s reliance on this evidence as “brief” and referred only to the Crown’s submission that the applicant knew what was being discussed and was careful not to touch the item that UCO 662 returned.

5. [80]

   The applicant submitted that this evidence was insufficient to exclude the inference that either Mr Johnson or Mr Simpson, or another person, sent the Ciphr messages negotiating the two supplies, particularly having regard to what he described as a number of “fundamental weaknesses” (which I have set out below albeit out of the order in the written submissions):

   1. (1)

      The Ciphr device in question was never seized and there was no direct evidence that the applicant ever possessed such a device, subscribed to Ciphr or sent any of the messages. There was also no evidence that the applicant ever handed any fake drugs to UCO 662, or physical evidence connecting him to the fake drugs (in contrast to Mr Simpson), or evidence that he was involved in hiring any of the vehicles (again in contrast to Mr Simpson), or that he ever possessed any of the cigarettes which UCO 662 provided in exchange for the drugs or that he had unexplained wealth. Additionally, even though the applicant’s Apple phone was lawfully intercepted between 11 May 2020 and 15 October 2020, no incriminating evidence was adduced from that interception.

   2. (2)

      The evidence suggested that the Ciphr phone was used by either Mr Johnson or Mr Simpson on at least the days on which they met UCO 662 without the applicant being present, given messages were sent on those dates in the first person voice, suggesting that the sender was in attendance.

   3. (3)

      The Ciphr messages implied that the same person was using the account throughout the whole period of the offending, including by identifying themselves only once (as “Jack”). This was significant in circumstances where the evidence demonstrated that Mr Simpson or Mr Johnson used the Ciphr device.

   4. (4)

      The Ciphr messages sent to UCO 662 when Mr Johnson and the applicant met him on 26 June 2020 included distinctive expressions that were consistent with those used in messages sent on 2 June 2020 and 14 August 2020 when the applicant was absent, namely “mad”, “bra” and “bro”.

   5. (5)

      There was no evidence that the photo of the rest area sent to UCO 662 around the time Mr Johnson and the applicant met with him on 26 June 2020 was taken from the passenger side of the vehicle.

   6. (6)

      Evidence of the applicant’s conduct and statements on 26 June 2020 did not demonstrate any greater knowledge of the criminal enterprise than those of Mr Johnson and Mr Simpson on the other two occasions.

   7. (7)

      The applicant made no effort to conceal his identity when he met UCO 662 on 26 June 2020, which was inconsistent with him being a principal of a criminal organisation and was more consistent with his statement to UCO 662 that he was just a driver.

   8. (8)

      There was a “real and not fanciful” possibility that a person other than the applicant could have impersonated the applicant when sending messages relating to the “finger surgery”, which would have been known to at least Mr Simpson and Mr Johnson, and anyone else involved in the criminal enterprise.

6. [81]

   The applicant’s description of the evidence on which the Crown relied as “very limited”, and his summary of that evidence, did not reflect the manner in which the Crown put its case. True it is, as the applicant submitted, that the Crown placed significant reliance on the three Ciphr messages sent by “DLT” in which he referred to a finger injury and being in hospital. However, far from being of limited significance, those messages, which came after a period of several days during which UCO 662 had received no responses to inquiries about a supply that was to have occurred on 9 July 2020, constituted powerful evidence that the applicant was the author of those messages.

7. [82]

   First, the content of the messages closely reflected the agreed facts regarding the dates and circumstances of the applicant’s hospital admission. As the respondent submitted, it was inherently improbable that any other person would have claimed to have had finger surgery, where the sequence and content of the messages alluding to the finger surgery, in particular the description of the pain experienced, were consistent with the author actually experiencing the injury. That told against someone such as Mr Simpson or Mr Johnson, who were the applicant’s cousins, or a third party such as Mr Araya, sending the messages, which as the respondent also noted would have involved an unusually elaborate deception in order to implicate the applicant for no discernible reason.

8. [83]

   Secondly, it was not just the content of those messages but their timing that was significant, being sent after “DLT” had failed to respond to messages from UCO 662 on 8 and 9 July 2020. That gap was consistent with the applicant’s inability to send messages while hospitalised. As the respondent submitted, it was unlikely that other members of the enterprise would intentionally allow a planned meeting to fall through in order falsely to implicate the applicant.

9. [84]

   Thirdly, while referring to hospitalisation for an injury consistent with what the applicant had sustained, the messages also picked up and continued the thread of the previous discussion about the anticipated supply to replace the bad drugs UCO 622 had received on 2 June 2020 and had returned on 26 June 2020. The discussion about that supply had been commenced in the Ciphr chat before 26 June 2020, when the applicant personally met with UCO 662, and continued, both in the course of that meeting and in the subsequent messages before “DLT” became unresponsive for a period of days.

10. [85]

    Contrary to the applicant’s submission that the Crown placed marginal reliance on what occurred at the meeting on 26 June 2020, the meeting was significant to the Crown case, in terms of the consistency of the discussion that day with the earlier and subsequent messages. It is the case, as the applicant emphasised both at trial and on the appeal, that he introduced himself on that day using his first name. That he did so was consistent with how he sought to portray himself at least at some points in the meeting, telling UCO 662 that he was just a driver and was not the author of the Ciphr messages. At other times, however, the applicant demonstrated knowledge of the purpose for which UCO 662 was returning the product. As was put to him in cross-examination, when UCO 662 said to him, “Yeah, yeah, what do you reckon? On Monday?”, the applicant’s response was not to ask UCO 662 what he was talking about, but instead to confirm Monday. Further, although the applicant told UCO 662 that he was just a driver when asked whether other complaints had been made about the product, he subsequently said “They got brand new stuff ready to go, just got to take this back to swap it”, followed by, “And then we’ll bring it straight back”. The messages sent after the meeting confirmed the following Monday, although that did not ultimately occur.

11. [86]

    That the author of the Ciphr messages would likely be present at the meeting on 26 June 2020, rather than sending others, was also reflected in the Ciphr messages about the three occasions when UCO 662 met with persons involved in the enterprise. In arranging the meeting to retrieve the first supply, there were no messages suggesting that the author of the messages arranging the retrieval and its subsequent swap would not be at that meeting. By contrast:

    1. (1)

       The messages negotiating the first supply on 1 June 2020 expressly stated that a driver would deliver the drugs, and that the driver “will have this with him tomorrow”. That “this” referred to the Ciphr device was clear from the balance of the message, that if the meeting spot did not suit UCO 662, he and “my [that is, “DLT’s”] driver” could work out a different location. As the Crown submitted both at trial and on the appeal, the messages sent on that day were consistent with the applicant being the author of the negotiation messages and then providing the phone to Mr Simpson or Mr Johnson.

    2. (2)

       In relation to the second supply, when UCO 662 messaged to ask if the next exchange could take place on Friday, 14 August 2020, “DE0B” replied that he had to go away at the end of the week and asked “can we do earlier”. When UCO 662 said that Friday was the earliest, “DE0B” replied, “I will have to make it work for Friday”. The inference from those messages was, as with the first supply, that the author of the messages negotiating the arrangements would not be present.

12. [87]

    In so far as the applicant submitted that his attendance on 26 June 2020, undisguised and using his real name, was inconsistent with him being a principal on the evidence of Detective Latham, the respondent submitted on the appeal, correctly, that the applicant was not alleged to be a “principal” or “Mr Big” of an operation. Rather, the Crown case was that he was part of a resale criminal group and that he organised and negotiated the supplies.

13. [88]

    As the Crown Prosecutor submitted at trial, the photograph that “DLT” sent UCO 662 on 26 June 2020 was not conclusive in terms of establishing one way or the other who authored the messages. Nonetheless, as the respondent submitted on appeal, the time stamp of the photograph in fact placed its being sent shortly after the meeting. In the extract from the conversation that day that I have set out at [44] above, the applicant was recorded as saying that for the meeting on Monday they “should pick, find somewhere else”, later saying “up there somewhere. Probably turn left or something”. He also said, “We’ll have a look down there now”. The timing of the sending of the photograph of a rest stop, together with the message, “The first rest area past the town it’s a good spot”, subsequently clarifying that it was to the north of the town, was consistent with what the applicant had said at the meeting.

14. [89]

    As I noted above, the applicant relied, both at trial and on appeal, on the use of the terms “bro”, “mad” and “bra”/“brah” in messages on 26 June 2020, which terms also appeared in the messages on 2 June 2020 and 14 August 2020 when the applicant was not present, to suggest that either Mr Simpson or Mr Johnson sent the messages negotiating the supplies. The submission did not provide much in the way of assistance on this ground of appeal. The word “bro”, which UCO 662 used frequently in his messages, was used once by the applicant in course of the conversation with UCO 622 on 26 June 2020, and was used by “DE0B” in messages on 6, 10 and 13 August 2020, in the context of organising the next supply on 14 August 2020. “DLT” also used the word “bra” on one occasion outside of the supply dates, On 30 June 2020, when responding to UCO 662’s message, “Ok Thurs…please don’t let me down bro”, “DLT” wrote “From here on bra It’ll be smooth sailing”.

15. [90]

    As the respondent pointed out in oral submissions, the applicant also used “bro” and “bra” in the course of a lawfully intercepted telephone conversation between him and a friend on 11 July 2020, which the Crown tendered in evidence (Ex Y, MFI 14). The use of the words on which the applicant relied were not sufficiently distinctive as to cast doubt on the Crown case that it was the applicant who authored the messages regarding the terms of supply and the associated arrangements.

16. [91]

    The strength of the Crown case would doubtless have been improved if it had direct evidence of the nature the applicant identified in his submissions, such as physical evidence connecting him to the supplied drugs or the boxes of cigarettes that UCO 662 gave in exchange, or evidence connecting him to a Ciphr device or subscription and the particular accounts. Evidence of the applicant having unexplained wealth, had it been present, might also have lent more weight to the Crown case, as would, obviously, incriminating conversations or messages lawfully intercepted on his Apple phone. It did not follow, however, from the absence of such evidence that the jury verdicts were unreasonable in the requisite sense. Contrary to the applicant’s submissions, the present case was not strikingly similar to R v Filippetti (1978) 13 A Crim R 335. In that case, Street CJ stated at 338-9 (Slattery and Maxwell JJ agreeing):

17. [92]

    For the reasons I have set out above, the nature and quality of the evidence in the present case supporting the Crown case that it was the applicant who authored the messages negotiating and arranging the two drug supplies, was a different character to that in Filippetti. Having considered the arguments that the applicant advanced in support of this ground individually and collectively, and made my own independent assessment of the evidence, I have concluded that the evidence led in the trial was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of each of the offences that the jury found proved. Accordingly, although I would grant leave to raise ground 1, I would dismiss the ground.

18. [93]

    As it was formulated, the second ground of appeal alleged error on the part of the trial judge in leaving to the jury the Crown case as it was put in closing, on the basis that it represented a change in that case from the way the Crown opened its case.

19. [94]

    The applicant relied on Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 (“Robinson”), in which Johnson J addressed, at [137]-[149], the applicable principles where a miscarriage of justice is alleged by reason of the trial judge leaving to the jury a possible basis of conviction on which the Crown did not rely. Those principles are not wholly apposite to the present case, in which the trial judge gave the jury a direction on a matter of law which, as the applicant accepted, reflected the way the Crown put its case, at least in closing. That said, parts of Johnson J’s reasoning in Robinson (Spigelman CJ and Simpson J agreeing) were of some relevance, in particular the following passage which the applicant emphasised in his written submissions:

20. [95]

    In the passage of Tangye v R (1997) 92 A Crim R 545 at 556 that Johnson J cited in Robinson, Hunt CJ at CL stated (McInerney and Sully JJ agreeing):

21. [96]

    In the present case, the Crown case as left to the jury alleged that the applicant had sent the Ciphr messages to UCO 662 negotiating and arranging the supplies that occurred on 2 June 2020 and 14 August 2020. Although the applicant submitted that this was “in stark contrast” to the Crown’s opening submissions, for the reasons I have given above at [27]-[28] I consider that submission to overstate the position. Consistently with the elements of the supply offence that it had to prove, the Crown case throughout the trial was that the applicant was responsible for negotiating and arranging the supplies. The Crown did not expressly refer in opening to the possibility that persons other than the applicant were in possession of the Ciphr device at any time, but such messages as the Crown ultimately posited that those persons may have sent were limited to the dates of the physical supplies, all negotiations and other arrangements having already been made. The “conceptual terms” of the Crown’s opening made it sufficiently clear that the relevance of the Ciphr messages was to connect the applicant to the two drug supplies for which he was not physically present; this aspect of the case did not depend on the applicant having sent all of the messages.

22. [97]

    It is the case, as the applicant emphasised in both the written and oral submissions on the appeal, that the trial judge had formed the view that the Crown case as opened put that the applicant sent all of the Ciphr messages. That impression may well have been gained from exchanges such as the following in the course of the trial, on which the applicant also relied:

23. [98]

    And subsequently:

24. [99]

    Any ambiguity the Crown case in that regard was dispelled before the parties made their closing addresses. At 8:39 am on the morning of the fifth day of the trial, on which day closing submissions were made, the trial judge’s associate emailed the parties a document containing the essential fact to be provided to the jury (MFI 16). At 8:46 am, the Crown Prosecutor replied, copying the applicant’s solicitor and counsel, stating:

25. [100]

    At 8:55 am, her Honour’s Associate emailed the parties requesting that any issues be raised with her Honour at 9:30 am, when proceedings were to start that day. When the trial resumed at 9:30 am, before the Crown Prosecutor commenced his address, the applicant’s counsel sought to hand up a document raising some directions, which the trial judge had expected over the weekend. The trial judge then explained she had “essentially put the essential fact in writing”, clarifying it was in a fresh document. There was then the following exchange, commencing with the applicant’s counsel, Mr Vasic:

26. [101]

    The Crown’s qualification was clearly a reference to the email sent before court. It subsequently became clear that the applicant’s counsel had not seen that email. However, at the time of this particular exchange there was no intervention from the applicant’s counsel seeking to understand what was meant by the “relevant messages”.

27. [102]

    Nor was there any intervention from the applicant’s counsel following the Crown’s closing address. As I have noted above, close to the outset of that address the Crown Prosecutor referred to the “relevant messages to UCO 662 relating to the arranging, then negotiations, and then organising to some degree the delivery”. The Crown Prosecutor submitted more than once that the Crown was only required to prove beyond reasonable doubt that the applicant had sent those messages relating to the negotiation and supply of drugs, and was not required to prove that the applicant was the owner or sole user of the Ciphr device. The Crown Prosecutor also referred to the prospect that other people used the device.

28. [103]

    The applicant’s counsel only rose to his feet on this issue after the trial judge gave the Shepherd direction in the terms I have set out above. He submitted that he had only just read the email correspondence from the Crown that morning, and that there had been a material change from the direction in writing that he had seen and the direction her Honour gave. Her Honour agreed that the Crown case had changed between opening and closing, but considered that the change was correct:

29. [104]

    When the trial judge asked counsel what he wanted her to do, in circumstances where the Crown had (in her Honour’s view) changed its position but found it had done so correctly, the applicant’s counsel asked her Honour to redirect the jury as to what the Crown case was by referring to its opening. The trial judge declined to do so. After the jury retired to consider its verdict, the Crown Prosecutor submitted that he had been taken by surprise by what had been said about a change in the Crown case, and sought to clarify, by reference to passages in his opening, that what he had there submitted was consistent with the position he had taken in closing.

30. [105]

    The essence of the applicant’s submission on ground 2 was that the trial miscarried because the combination of the change in the Crown case and the fact that it never particularised which messages the jury needed to find he had sent disadvantaged the applicant at a late stage. As he put it in writing:

31. [106]

    None of these submissions were directed at the error that the proposed ground advanced, which was articulated as an error on the part of the trial judge. As the respondent submitted, the identification of the indispensable intermediate fact, being a fact without which the jury cannot be satisfied, as a matter of law, of the accused’s guilt, was for her Honour to determine. Her Honour’s conclusion, that the direction she gave the jury on the indispensable intermediate fact correctly reflected what the Crown had to prove, is unimpeachable. By contrast with Robinson, the trial judge did not expand the conceptual basis for conviction, instead identifying the relevant matter of which the jury needed to be satisfied, consistently with the Crown case.

32. [107]

    As to the applicant’s other contentions, I have addressed above the underlying premise that there was a fundamental change between the Crown’s opening and closing. In so far as the Crown’s closing was more precise as to the “relevant messages”, the Crown had made this clear in the email it sent to the trial judge’s associate before court on the day the Crown Prosecutor made his closing submissions. While it may have been preferable that the Crown Prosecutor state the issue in open court in fuller terms, he nonetheless reiterated the qualification to the direction that he was seeking, in a manner that was sufficient to alert the applicant’s counsel to a change to that direction, which her Honour, by her answer, was accepting.

33. [108]

    Further, as the respondent submitted, the submissions the applicant’s trial counsel made were addressed to the Crown case as run and put in closing. This included the core submission, as summarised by the trial judge, that “if the Crown cannot reasonably exclude that other people were using the Ciphr application and sending messages, then it cannot exclude the reasonable possibility that someone other than the accused sent the messages negotiating the supplies and directing criminal activities”. The applicant encountered no forensic disadvantage from the Crown’s purported narrowing of its case, as it only strengthened the submission that the applicant in fact made, namely, that if others used the Ciphr device the Crown could not exclude the possibility that others sent the messages on which the Crown relied.

34. [109]

    As to the question of particularising which messages, I accept the Crown’s submission that there was a distinction in the messages between those relating to negotiation and organisation and those relating to logistics (e.g. “30 mins away”) such that further particularising the messages that related to negotiation and arrangement was not necessary. As to the applicant’s contention that he should have been cross-examined as to whether he sent particular messages, in circumstances where he expressly denied any use of the Ciphr application or any involvement in the supply of the purported drugs, it was sufficient for the Crown’s central contention on the messages be put to him, as it was, that he was the person using the Ciphr device to negotiate the supplies.

35. [110]

    As with ground 1, I would grant leave to raise ground 2 and I would dismiss this ground.

Conclusion

1. [111]

   I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal against his convictions.

   2. (2)

      Dismiss the appeal.

2. [112]

   IERACE J: I agree with Mitchelmore JA. My agreement in respect of ground 1 is based on my independent assessment of the trial record.

3. [113]

   MCNAUGHTON J: I have had the advantage of reading the draft judgment of Mitchelmore JA. I have made my own independent assessment of the trial record. For the reasons set out by her Honour, I am not satisfied that the verdicts were unreasonable, nor that the trial miscarried. I agree with the orders proposed by her Honour.