Beatson v Regina [2009] NSWCCA 288 | Case summary

These principles have been repeated in numerous cases, one of the latest being that of this Court in Rasic v Regina [2009] NSWCCA 202 at [25] and [26]. 4 As both the appellant and the Crown acknowledged, the key issue with respect to the charge against the appellant was whether the Crown could establish beyond reasonable doubt the element of possession. No complaint is made with respect to the relevant part of the summing up of the trial judge in which he correctly identified the obligation of the Crown to prove beyond reasonable doubt that each of the accused intentionally had the relevant drugs in their physical custody or control to the exclusion of all others except themselves. 5 The case against the appellant was entirely circumstantial whereas that against her co-accused was only partly so. The relevant drugs were found in a vehicle which had been hired by the co-accused on 15 June 2007. The relevant facts are as follows. 6 On 16 June 2007 at approximately 6pm police officers attended Rose Street, Chippendale after a report that a blue Commodore had been in a collision. They found the appellant in the front passenger seat and her co-accused in the driver's seat. Both appeared to be asleep. 7 A search of the vehicle both on that occasion and on the following day, 17 June, revealed a number of items including a packet of Horizon cigarettes within which was a small resealable bag containing 0.29gms of ecstasy; a large bag on the floor behind the driver's seat containing 102.1gms of ecstasy and a large bag underneath the driver's seat which contained 107.3gms of the drug. No fingerprints or DNA were found on the first of the bags, but the co-accused's DNA was found on the second bag. Also found in the boot of the vehicle was three 4 litre cans of acetone which can be used as a cutting agent for amphetamines. Although a fingerprint was found on one of the cans it did not match either of the accused. Nonetheless, a black motorcycle jacket belonging to the co-accused was found in the boot. 8 In the rear footwell behind the front passenger seat was found a blue/black backpack containing paraphernalia capable of being used for drug use or supply. On the floor behind the front passenger seat, a green shopping bag contained similar paraphernalia was found. 9 At the time the police officers approached the appellant's co-accused, he reached behind the front passenger seat and attempted to take something from the green shopping bag, which he was prevented from doing by a police officer. He was breath tested for alcohol and returned a negative result. However, a blood test was later conducted upon the co-accused in hospital which revealed ecstasy and a mixture of other drugs present in his blood. No such test was conducted with respect to the appellant. 10 It was common ground that the vehicle had been involved in a minor accident. At the time the police arrived both the co-accused and the appellant were apparently asleep. According to Leading Senior Constable Wynne (at T 108), the appellant was slumped over the dashboard and appeared to be asleep. The appellant was removed from the vehicle and taken across the road. At T177-178 LSC Wynne agreed that the highest he was able to say was that she was or appeared to be intoxicated or affected by something, but he was unable to identify that something. 11 As I have indicated, the appellant was not tested for drugs: nor was she breathalysed. 12 Relatively little evidence was led by the Crown in connection with the appellant. Most of the evidence of the Crown witnesses was directed to the co-accused as was their cross-examination. I have carefully read that part of the evidence relating to the appellant and what follows is the essential parts of that evidence. 13 The only evidentiary connection which could possibly be so described between the appellant and the drugs related to a sewing kit or white plastic container which held a large number of resealable plastic bags which, according to LSC Wynne, were used in the drug trade: see T114. 14 However, the evidence with respect to the so-called sewing kit was somewhat ambiguous. Evidence with respect to this issue was given both by Senior Constable Bushell and Constable Quinn. The evidence of the former (at T193-194) was as follows: "Q. Did you see the accused, Miss Beatson, walk back to the vehicle, sit in the front passenger seat and take some ID out of a wallet? A. Yes, I did. Q. About that time did you see her drop the wallet and a plastic sewing kit into the gutter between her feet? A. Yes, I did. Q. Did you then see Miss Beatson get up and walk back over to where Constable Quinn was standing? A. Yes. Q. Did you then walk over to where the wallet and sewing kit were in the gutter, did you pick them up and put them on the front passenger seat of the vehicle? A. Yes, I did." 15 A slightly different version was given by Constable Quinn (at T229) in the following terms: "Q. Did you ask Ms Beatson if she had any identification on her? A. Yes. Q. She said it was in the vehicle? A. Yes. Q. Was she taken back to the vehicle and did she sit in the front passenger side of the vehicle and did she start to get her identification out of her bag? A. Yes. Q As you watched her did you see her fiddle around for a whitle and did you notice that she knocked a clear white plastic container out of the vehicle as she was getting her identification? A. Yes. Q. Did you take the identification from her and then walk her back to the wall and did she then sit down? A. Yes." 16 It will be apparent from the foregoing extracts from the evidence that on one version, when extracting her ID from her wallet the appellant not only dropped her wallet but also a plastic sewing kit into the gutter between her feet whereas on the other version it was while she was fiddling around in an attempt to extract her ID from her wallet that she knocked a clear white plastic container out of the vehicle into the gutter. 17 How precisely the sewing kit/container came to be dropped or not, intentionally or otherwise, by the appellant was left up in the air. 18 The appellant was placed under arrest for being in possession of a prohibited drug. The following exchange took place between her and Constable Quinn relevant to this issue: "Q. Did Senior Constable Bushell come over to the caged truck and say, 'Catherine, do you understand why you are under arrest?' and did Ms Beatson reply 'No'? A. Yes. Q. Did Constable Bushell say 'For the possession of a prohibited drug, you do not have to say or do anything if you do not want to, do you under stand that?'. A. yes. Q. Did Ms Beatson reply 'Yeah, but I didn't have any drugs on me'? A. Yes. Q. Did Constable Bushell say 'Anything you say or do I will record and I may use this recording in court, do you understand that?' A. Yes. Q. And did Ms Beatson reply 'Yeah, but I didn't have any drugs on me'? A. Yes. 19 The appellant's foregoing response when cautioned was, to say the least, ambiguous. I accept that it was not a direct denial of any knowledge of the drugs in the vehicle, but being ambiguous it was hardly a firm foundation, whether taken alone or in conjunction with the other evidence, for a finding beyond reasonable doubt that she was intentionally in possession of 209gms of ecstasy for the purpose of supply. In any event, it could legitimately be said that the appellant's reply to Constable Bushell was indeed responsive to his informing her that she was under arrest for "the possession of a prohibited drug". In other words, the appellant could be forgiven for understanding that she was being charged with the possession of drugs on her person. This would explain her response. 20 In its written submissions the Crown accepted that the overwhelming weight of evidence inculpated the appellant's co-accused rather than the appellant. It submitted that a scenario could not have rationally developed whereby the co-accused was acquitted and the appellant alone convicted. On the other hand in my view a scenario could have rationally developed whereby the co-accused was convicted and the appellant acquitted. There would have been nothing irrational about that. 21 The Crown also accepted that in the case against the co-accused there was direct evidence that physically connected him to the prohibited drugs. The exercise of comparing the respective cases of the two accused was capable of illustrating the relative strengths of those cases namely, and I interpolate this, that one was strong and the other was not. It was acknowledged that to an advocate, the relative strengths of the case against the appellant's co-accused as distinct of that against the appellant herself provided a forensic means to persuade the jury to use the comparison as itself a reason why the Crown case against the appellant should be rejected as insufficient. I agree and such a case was made to the jury and ought, in my view, to have been sufficiently persuasive to at least have raised a reasonable doubt as to her guilt. 22 The Crown nevertheless submitted that the motor vehicle itself was a travelling store of prohibited drugs for sale. As both the appellant and her co-accused were discovered asleep in the vehicle, the clear available inference was that they were both intoxicated by drugs. This was certainly the case in relation to the co-accused - there was no direct evidence in support of that proposition in the case of the appellant, although it may have been an available inference. 23 The Crown also submitted that the appellant's shared interest in drugs with her co-accused implied, at the very least, comity with him insofar as the illicit possession and purchase of prohibited drugs was concerned. Drawing the necessary inferences, the circumstances favoured the hypothesis that the appellant was acting jointly with her co-accused rather than simply being his passenger, or indeed his customer. They remained in company with each other after the consumption of drugs. 24 I do not accept this last submission as being the only hypothesis that was open to the jury to find. In my view a position to the contrary was an equally open hypothesis. At the very least, a hypothesis of equal strength was that the appellant was in the company of her co-accused simply because she was indeed his passenger and may have been his customer and he her supplier. The factors relied upon by the Crown could not, in my view, have led the jury to be satisfied beyond reasonable doubt that the only hypothesis open was that the appellant was in possession of the drugs in the relevant legal sense. 25 As I have observed above, the Crown recognised that the essential issue for the jury's determination was whether the appellant could properly be found beyond reasonable doubt to have intentionally exercised physical custody and control, in a joint sense, over the prohibited substance found in the vehicle. It was submitted that it was open to the jury to draw inferences from the circumstances in which the appellant and her co-accused were located in the vehicle and the nature of their discovery and apparent association at that time to find that she was in a position whereby she could exercise dominion over the items in the car to the exclusion of anyone except herself and her co-accused. 26 It was submitted that it was open to the jury to reason from the evidence that the appellant's direct proximity to the paraphernalia contained in the car (including that in the boot of the car) when considered in combination with the other items found therein, operated to support the proposition of joint possession of the drugs which were destined to be repackaged and supplied. 27 In my view the Crown's contentions should be rejected. The circumstances proved by the Crown did not establish beyond reasonable doubt that the only rational inference to be drawn from the evidence by the jury was that the appellant was, to her knowledge, in possession of the drugs in that she intentionally exercised custody or control over them to the exclusion of all others except herself and her co-accused for the purpose of their supply. 28 As I have said, an equally rational inference to that contended for by the Crown was that the appellant was no more than a user of drugs and that she had used some of the drug on this occasion: in other words, although she may have used the drug with the concurrence of her co-accused, her relationship to the drugs was no more than a recipient of them from her co-accused as her supplier. At least that was a hypothesis equally open to the jury and thus one consistent with her innocence of the offence with which she was charged. 29 The difficulty faced by the Crown is that there was no evidence as to first, how or when or for how long the appellant came to be in the subject vehicle or as to the nature of her relationship, such as it might be, with her co-accused; second, whether she was party to the placing of the drugs and the other paraphernalia in the vehicle; third, whether she was involved in their purchase or acquisition; fourth, whether she knew that the drugs and other paraphernalia were even in the vehicle; and fifth, whether she in fact was intoxicated as a consequence of using drugs prior to her arrest. 30 In contrast, as the appellant submitted, the evidence with respect to the appellant's co-accused was that first, he had arranged for the hire of the vehicle; second, that he was slumped forward over the steering wheel in the driver's seat; third, that he tested positive for drugs in a blood test; fourth, that he attempted to reach for the green shopping bag which contained drug type paraphernalia; fifth, that he was in close proximity to the Horizon cigarette packet that contained drugs; sixth, that the black leather jacket belonging to him was found in the boot in which there was also three 4 litre cans of acetone; seventh, and most importantly, the co-accused's DNA was found on the second bag of drugs found on 17 June. 31 Furthermore, there was no evidence that the appellant had ever had anything to do with the green shopping bag; that she had anything to do with the blue and black backpack which contained prescriptions issued by a Dr Sheridan in the name of the co-accused as well as motorcycle gloves which could be clearly linked to his motorcycle jacket found in the boot of the vehicle which contained the three 4 litre cans of acetone. In fact the only evidence of any real probative value which may have linked the appellant to the contents of the vehicle was the sewing kit, but there was nothing to suggest that the appellant had anything to do with this item which fell into the gutter outside the vehicle as the appellant attempted to obtain her ID card from her wallet. 32 At the end of the day the only connection between the appellant and the vehicle was the fact that she was in the front passenger seat at the time that the police arrived on the scene. She was unconnected with the hiring and driving of the vehicle by her co-accused and, as I have indicated, there is nothing to establish when, for what purpose and for how long she had been in the vehicle. 33 It is thus apparent that the Crown's case was based on no more than the contents of the vehicle and the fact that the appellant was found in it with the ambiguous evidence of the sewing kit. In my view the evidence led against the appellant not only displayed inadequacies but also lacked probative force and gave rise to a significant possibility that an innocent person had been convicted. Critically, in my view, a jury could not have been satisfied beyond reasonable doubt that the only rational inference from the evidence was that the appellant was in possession of the drugs found in the vehicle for the purpose of supply in that she intentionally exercised custody or control over them to the exclusion of all others except her co-accused. I would experience such a doubt and, therefore, so ought have the jury. 34 I repeat that in my view, an equally rational inference open on the evidence was that the appellant was an innocent passenger in the vehicle. Even if her intoxication had been due to the ingestion of drugs, there was no evidence that would necessarily support an inference that it was the drugs in the vehicle she had ingested. But even if that was an available inference, it did not follow that a jury could find beyond reasonable doubt that she was in possession of the totality of the drugs the subject of the charge for the purpose of supply. 35 For the foregoing reasons in my opinion Ground 1 has been established with the consequence that it is unnecessary to consider the other grounds of appeal relied upon. The appeal should be allowed, the appellant's conviction should be quashed and a verdict of acquittal entered. 36 HIDDEN J: I agree with Tobias JA. 37 HOWIE J: I agree with Tobias JA. **********

Beatson v Regina

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