3 In the present case, the heroin was found by police during a search by warrant of a home unit at North Gosford that was conducted at about 6:30pm on Sunday 8 January 2005. The summing up indicates that it was common ground at the trial that the sole occupier (in the legal sense) of the unit at the time was Lorraine Studeman, the appellant's aunt. She had given evidence that she alone lived at the unit. Other persons, including the appellant, came to the unit at various times (often to obtain drugs) but it was not shown that they did so otherwise than as Ms Studeman's invitees.
4 The heroin was discovered in a locked blue box found in a wardrobe in Ms Studeman's locked bedroom. Ms Studeman gave the police access to the bedroom by using a key on a chain around her neck to open the bedroom door. She told the police at the time that, as far as she knew, the box belonged to "Marie", ie the appellant. This probably explains why the box was not opened until it was brought back to the police station later in the evening in question.
5 The contents of the box included 9.4g of heroin, $9,875.50 in cash, two cheques in favour of the appellant, four receipts from a jeweller in the appellant's name, and other items (including jewellery) that could not be sourced to anyone's ownership or possession.
6 The Crown established to the satisfaction of the jury a circumstantial case that the appellant possessed the contents of the box, the heroin in particular. In doing so, the jury rejected the primary defence case which was that Ms Studeman owned and/or possessed the heroin. In framing the issues of this way, I am of course not overlooking the onus that lay upon the Crown throughout.
7 Among the Crown witnesses were Ms Studeman and the appellant's son, Gary Smale. Each witness was declared unfavourable and permitted to be cross-examined by the Crown prosecutor. The Crown invited the jury to disregard aspects of their evidence that were exculpatory of the appellant and inconsistent with statements each had previously made to the police.
8 The appellant was arrested on 27 March 2005. Upon arrest she exercised her right of silence and she did not give evidence at the trial.
9 The nub of the Crown case linking the appellant with the blue box and its contents may be summarised in four points.
10 First, the appellant had ready access to the unit including her aunt's bedroom. There was a dispute as to whether the appellant was sleeping at the unit at the relevant time, but she was shown to have come there at various times shortly prior to the police raid. She had been seen at the unit by an estate agent during an inspection some time in the recent past. Ms Studeman said that she had stayed at the unit on occasions. Some of the clothing and other belongings in the aunt's bedroom belonged to her. These included two bottles of methadone in her name issued on 2 January 2004 for use on 3 and 4 January 2004 that were found there during the raid. Diclocil Capsules sold by a chemist to the appellant on 30 December 2004 were found on the kitchen shelf at the unit.
11 The premises had been under police surveillance since late 2004 and the appellant had been seen near the unit on 6 January 2005. She was also seen by a police officer on 8 January 2005 as a passenger in a car driven out of the underground car park at the unit within about half an hour of the police arriving to execute the warrant.
12 Second, the two cheques found in the box were made out to the appellant (in the name "M Davies"). They had been issued by the Central Coast Leagues Club on 7 January 2005, the day before the raid, in the amounts of $1500 and $1400 respectively. They were still attached to A4 size documents containing details as to time and source. The appellant was further linked to those cheques by evidence that she had gone to the Leagues Club on in 11 January 2005 seeking to have the Club issue replacement cheques, presumably on the basis that the originals had been lost and that payment was to be stopped at her request.
13 Third, there were the jeweller's receipts in the box. These had been issued to the appellant (in her married name "Marie Smale") by a Tuggerah jeweller. One receipt is dated 27/11/04 in respect of the repair of an item of jewellery. Another is dated 27/11/04 in respect of a layby sale of jewellery. Two are dated 1/12/04 apparently in respect of other sales. Two further receipts from the same jeweller were found in the appellant's possession when she drove out of the unit shortly after the raid.
14 Fourth, there was evidence of Ms Studeman that would have decreased the likelihood of her being the owner of the box and increased the likelihood that it was the appellant. Ms Studeman said in her evidence at the trial that she did not know who owned the blue cash tin although she had seen it at various times at the unit. After she had been declared an unfavourable witness, she was cross-examined about what she had told the police during the search. The videotape of the search was put to her and it was tendered into evidence. A police officer asked her who owned the box. Her answer was "As far as I know, Marie". She also told the police that she did not have a key to the box.
15 This portion of the videotape was put to her in cross-examination. She did not squarely admit it but was not really able to deny it. She said that the words "As far as I know, Marie" were directed to ownership of the methadone. It was open to the jury to reject this part of her sworn testimony.
16 Another part of Ms Studeman's evidence exculpatory of the appellant was shown to be highly questionable. This in turn would have impacted adversely upon that witness's credibility as a whole. Ms Studeman gave evidence that the Leagues Club cheques found in the blue box had been handed to her by the appellant late in the afternoon between 5.30pm and 6.30pm on the Wednesday, Thursday or Friday prior to the raid. She said that her niece told her she had won the cheques and asked her to hang onto them. Ms Studeman said that the cheques were normal size and she folded them in three before placing them in her wallet. She did not say how it came about that they were found in the box. There were two discrepancies in this evidence: The second cheque was proved not to have been issued until 8.04pm on the eve of the raid. And both cheques in the box were attached to an A4 size document.
17 The jury must also have rejected most of the evidence of the appellant's son, Gary Smale. He said that he put his property into the second bedroom at the unit. He had seen the tin in the kitchen, in the loungeroom and in the dining room and being taken into the main bedroom by Karen Pegg, the woman from whom he claimed to have hired the room. He thought that the tin could have belonged to Karen Pegg or her son, Jason Pegg. He had seen the tin opened and that it contained heroin, money and some paper work. People used to go to the unit to score heroin.
18 Mr Smale was later declared to be an unfavourable witness. He was asked about the statement he provided to Constable Myers on 17 May 2006 in which he said he knew nothing of the tin or its contents and that he had never seen it in his life. He agreed that he had said those things and that he did not know at the time that his mother had been charged.
19 In subsequent cross-examination by defence counsel he said that he had frequently gone to the unit to obtain heroin. On some of the occasions he had seen the blue tin opened in the kitchen by Karen Pegg. Other persons had also been supplied heroin by that person in return for cash, jewellery and hock shop tickets. Mr Smale said that he had never had access to the tin except through Karen Pegg. Nevertheless, he agreed with the suggestion in cross-examination by defence counsel that it was "not impossible" that the heroin in the tin on 8 January 2005 was his (Tr 03/10/06, p10).
20 Later, having been given a certificate under s128 of the Evidence Act, Mr Smale said that he used to buy large quantities of heroin from Karen Pegg some of which he left in safe keeping in the tin that she controlled. He also said that he gave Karen Pegg some cheques of his mother's winnings as well as some lay-by dockets.
21 Mr Smale was asked: (Tr 3/10/06 p23:47-52)