Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Cumming (1995) 86 A Crim R 156

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Filippetti (1978) 13 A Crim R 335

Jones v The State of Western Australia [2006] WASCA 79

Lai v The Queen [1990] WAR 151

Papaluca v The Queen [2001] WASCA 193; (2001) 123 A Crim R 322

Davis v The Queen (1990) 5 WAR 269

Solway v The Queen [1984] 2 Qd R 75

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

1 This is an appeal from the appellant's conviction for possession of methylamphetamine with intent to sell or supply. The methylamphetamine was found in close proximity to a house which the appellant occupied as co-occupier with his de facto, a Ms Prior. The evidence at the trial was as follows. The summary set out below is taken from [35] - [46] of the reasons of Roberts-Smith JA on the appellant's application for bail (Jones v The State of Western Australia [2006] WASCA 79), slightly altered by me so as to include additional material referred to during the course of the hearing before us.

2 The evidence was that police searched the appellant's premises on 13 July 2004. In the kitchen they found a small clip-seal bag containing a quantity of cannabis leaf material, in a bowl on the kitchen bench. The appellant admitted that the cannabis was his. Also in the bowl were three separate bundles of empty, small clip-seal bags. The appellant had $170 cash in his shorts' pocket. The police found a set of white electronic scales in a drawer in the kitchen. The scales were approximately 10 to 12 centimetres long and were small enough to fit in the pocket of a pair of jeans. An open packet of Glucodin powder was found in the pantry area, together with an open packet of easy-lock resealable clip-seal bags, described as "sandwich type" bags. The appellant admitted that the Glucodin was his. He said he put it on his cereal.

3 On a shelf in the laundry area, they found a plastic smoking implement. In the wardrobe of the main bedroom, the officers found a jacket belonging to Ms Prior. In one pocket there was $2500 cash, with $5600 cash all made up of $50 notes in a different pocket of that jacket. The appellant admitted that the money was his.

4 Other relevant items found included a small clip-seal bag containing cannabis. That was found in a jeans' pocket in the wardrobe area of the main bedroom. Various ladies' rings were found - they did not belong to Ms Prior.

5 A plastic shopping bag containing a large clip-seal bag which in turn contained cannabis leaf and head material was found hanging between the side fence of the appellant's property and a rear garden shed of the neighbouring property. On a garden table in the area, there was a long piece of wire which appeared to be a hook for a hanging basket, but which had one end straightened.

6 Between the fence and the neighbour's rear shed, police found a clip-seal bag. That could be seen on the ground. It had to be retrieved by smashing a hole at the bottom of the fence and pulling it through. The clip-seal bag which contained the cannabis, appeared to be identical to the bags found earlier in the pantry.

7 Further along the fence towards the appellant's house, there was, on the neighbour's property, an outdoor enclosed patio area. The fence was a normal suburban type of corrugated fence approximately 1.6 to 1.8 metres high. On the appellant's side of the fence there was a garden shed about 2 metres or so high. On the neighbour's side of the fence the pergola area was an enclosed structure made out of corrugated iron. The gap between the fence and the corrugated iron of the pergola was about 10 centimetres or less.

8 Approximately 8 feet off the ground there was a horizontal beam to which the corrugated iron was fixed. Slightly to one side of the appellant's shed and above the roof of it, the police found hidden between the beam and one of the corrugations in the pergola sheeting, a small clip-seal bag containing a brown powder paste substance. The police officers stood on a milk crate or chair to reach the package. Detective Sergeant Hutchison's evidence was that the package was definitely not accessible from the neighbour's side of the property. This was the substance which was later shown to be methylamphetamine.

9 Amongst other items found were small clip-seal bags which had visible traces of an unknown substance. Traces of methylamphetamine were later detected on the interior surface of one of the bags. The other two bags were not analysed.

10 In cross-examination, asked about access to the package of methylamphetamine from the appellant's premises, Detective Sergeant Hutchison said he recalled seeing the forensic officer actually on top of the shed accessing that area and it was quite easy to jump on top of the appellant's garden shed to do that. He described it as just a normal metal garden shed and quite stable. He agreed that when Detective Tower retrieved the package whilst standing on the chair or box, he was at full stretch, and that the appellant could be a "good foot" shorter than Detective Tower.

11 Oscar Agudero was the appellant's neighbour. He lived at the neighbouring property with his wife and two daughters, one of whom was a teenager at high school. Mr Agudero gave evidence to the effect that he knew nothing of the drugs and was unaware of their presence. He accepted that his teenage daughter was home alone on occasions. He said the police told him where the drugs had been found but did not show him, other than near the barbecue area. Asked about saying in his statement to the police that each of the drugs would have been accessible from his side of the property if one used an extended tool or apparatus to reach them, he agreed that was in his statement but said that was what the police had said to him. Asked whether he accepted as true that he would have been able to access those locations from his side of the fence using a tool, he said "possibly, yes".

12 The State did not call anyone else from Mr Agudero's premises, nor did they call Ms Prior.

13 The appellant made no admissions to the police regarding the methylamphetamine and denied any knowledge of it. He did not give evidence at his trial.

14 Other matters relied upon by the prosecution included a lie told by the appellant regarding the origin of the $8100 found in Ms Prior's jacket. He had told police that money was given to him by his uncle, Derrick Smith. Mr Smith was called at trial and his uncontested evidence was that he had not loaned the appellant any money at that time.

15 The search of the premises was videotaped, and the jury was able to see the appellant's demeanour during the search, which lasted approximately one and a half hours. The jury would have been able to see how the lies concerning the money in the jacket developed (the appellant had denied that there was any other money until it was found, but then he knew how much was there, before it was counted). The video also, of course, showed the location of the drugs beside the fence.

"1.2 The verdict of the jury was unsafe in that no reasonable jury could have found the requisite elements proved beyond a reasonable doubt.

a. The [Appellant] was the co-occupant of a residential house, at 130 Kenwick Road, Kenwick, with his defacto [sic] partner, Carmen Prior.

b. The illicit substance, the subject of the Indictment being 16.9 grams of methylamphetamine ('the methylamphetamine') was found on the neighbours [sic] property; at 128 Kenwick Road, Kenwick ('the neighbours property'). The methylamphetamine was found in a location accessible from the [Appellant's] property.

c. The Respondent lead no evidence to negative possession by the co-occupier of the [Appellant's] residence, Carmen Prior. The Respondent was required in such a case to negative possession by co-occupiers.

d. The methylamphetamine was accessible from the neighbours property although with some difficulty.

e. The Respondent only lead evidence from one of the residents of the neighbours property where the methylamphetamine was found to the effect that he (Oscar Agudero) had no knowledge of the illicit substances. The Respondent lead no other evidence from the other residents of the neighbours property to negative possession on their behalf. The prosecution are required in such a case to negative possession by co-occupiers: Filippetti v R (1984) 13 Crim R 335 [sic] & Lai v R (1989) 42 A Crim R 460.

2. The learned trial judge erred in law in refusing to direct the jury that the Respondent was under an obligation to negative possession by the co-occupiers of the [Appellant's] residence and of the neighbours property where the illicit substance was found.

a. The learned trial judge directed the jury as to the meaning of 'possession' and went on to direct the jury that the accused must have knowledge of the item in question and know that the substance was a prohibited item.

b. At no stage did the learned trial judge direct the jury that the State was under an obligation to negative possession by the co-occupier or the other neighbours that were not called at the trial."

17 The appellant's grounds are both really directed to the same proposition. That proposition is that the prosecution is required "in such a case" (which I understand to be a case in which some of the evidence is capable of pointing to possession of a drug by more than one person) to negative possession by all persons who may have had access to the drug. As I understood it, without abandoning the proposition that the methylamphetamine could have been in the possession of someone from the neighbour's property, the appellant was particularly concerned with the proposition that it was necessary to negative possession by Ms Prior.

18 The appellant relies upon the cases of Filippetti (1978) 13 A Crim R 335 and Lai v The Queen [1990] WAR 151, referred to in ground 1.2(e). Both of those were cases in which an illicit drug was found in a place to which potentially a number of persons may have had access. In each case, the appellant was one of the persons who could have had access to the drug. In each case, there were indications that particularly linked the appellant with the drug, but those indications were either subjective (in Filippetti the appellant was described as becoming "very agitated", while in Lai the appellant was said to have "gone a bit paler and to have become fidgety" as the police approached closer to where the drugs were located), or equivocal (eg, in Fileppetti the appellant said, "I would like to find out who the bastard was that put me in."). In each of those cases, the convictions were quashed.

19 The reasoning in each of those cases was broadly as follows. It may be inferred, as a general rule, that a person who is in control of premises has knowledge of and dominion over items located there. However, that is not an inference that can be drawn in every case. Where the item is concealed, and there is no evidence to suggest by whom it is concealed, and where a number of persons are capable of having concealed the item, there is no reason to draw the inference that any particular person concealed the item. This is not because there is some proposition of law that it is necessary, in cases where items are concealed, to negative knowledge and control by all others. It is because in cases such as the two I have described there is a reasonable hypothesis consistent with innocence, that hypothesis being that the items were placed where they were by some other person without the knowledge or consent of the appellant, and that the appellant remained unaware of them. Whether there is such an hypothesis, so as to prevent an inference adverse to a particular appellant from being drawn, is simply a question of fact.

20 As a matter of law, as was conceded by the appellant's counsel, more than one person can be convicted of having possession of the same drug. Even where evidence of possession is circumstantial, it is open to a jury to draw an adverse inference, in respect of more than one person, that those persons were jointly in possession of a drug.

21 For example, in Papaluca v The Queen [2001] WASCA 193; (2001) 123 A Crim R 322, the appellant was charged, with her husband, with having in possession methylamphetamine, which methylamphetamine was found in a chicken noodle soup tin in the pantry of the house occupied by both the appellant and her husband. There were some similarities between that case and this, in that there was a search which was recorded on videotape, the kitchen was searched, and the search revealed in the kitchen pantry a set of electronic scales and a bowl containing an open packet of Glucodin. At one stage during the search, Mr Papaluca entered the pantry and moved some items on a pantry shelf, which caused the investigating officers to pay particular attention to that shelf. The soup tin was found on that shelf. In her videotaped record of interview, the appellant said that she did the shopping, that she often purchased soup, and that she did not purchase chicken noodle soup because she did not like it. She did not give evidence at trial, but her husband did. He said both he and his wife did the shopping. He said that they "never" ate tinned soup, chicken noodle or any other kind. The "hypothesis consistent with innocence" advanced in that case was to be that the appellant could well have had no knowledge of the existence of the fake can of soup within the pantry in her house. Because the can was clearly visible on a shelf within the kitchen pantry of the house in which the appellant lived, and because of the evidence relating to her access to and use of the pantry, the Court was of the view that it was open to a jury to reach the conclusion that that hypothesis had been excluded. Cumming (1995) 86 A Crim R 156, was a similar case concerning joint potential joint possession of methylamphetamine contained in transparent plastic

containers in the refrigerator in a house which the appellant shared with her partner.

22 In the present case, the methylamphetamine was, of course, concealed, but the principles are the same. The question is always whether there is a reasonable hypothesis consistent with innocence, and, if so, whether that hypothesis has been negatived by the State.

23 The location of the methylamphetamine in this case plainly narrowed down the number of persons who could be capable of having knowledge and control of it. Its location as described, together with the evidence of methylamphetamine-related items in the house occupied by the appellant, narrowed that group down to the appellant and his de facto. In addition, there was a significant quantity of cash about which the appellant had told an "Edwards" lie, (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193) in circumstances where the jury had the considerable advantage of seeing how that lie developed and what his demeanour was at the time that he lied.

24 In those circumstances, in my view, it was open to a jury to draw the inference that, whether jointly with his de facto or not, the appellant was in possession of the methylamphetamine. His Honour correctly directed the jury about that issue; that is, he directed the jury as to the meaning of "possession", and that they had to find that proved beyond reasonable doubt against the appellant before he could be convicted. It was not necessary for his Honour to give any separate direction in relation to negativing possession by Ms Prior or by any other person. I would dismiss the appeal.

26 PULLIN JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.

• Introduction
• The evidence
• The grounds of appeal