Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Possession of prohibited drugs with intent to sell or supply them to another - Adequacy of trial judge's directions as to possession - Whether a miscarriage of justice was occasioned by the discovery by the jury of a SIM card in a tendered exhibit, the SIM card not having been referred to in the evidence or when the exhibit was tendered

Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1

Lawless v Turner [2007] WASCA 127

Maric v The Queen (1978) 52 ALJR 631

R v Fraser [2001] QCA 187

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

2 BUSS JA: The appellant was charged with five counts in an indictment.

(1) On 3 August 2007 at Champion Lakes, John Ricciardo had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another

(2) On the same date and at the same place as in Count (1), John Ricciardo was in possession of a firearm, namely a Glock 19, 9 mm semi-automatic handgun while not being the holder of a licence or permit under the Firearms Act 1973 entitling him to do so

And that the firearm was a handgun

And that a number or identification mark on the firearm had been removed

(3) On the same date and at the same place as in Count (1), John Ricciardo was in possession of Luger 9 mm full metal jacket ammunition while not being the holder of a licence or permit under the Firearms Act 1973 entitling him to do so

(4) On 14 July 2008 at Maddington, John Ricciardo had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another

(5) On the same date and at the same place as in Count (4), John Ricciardo had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

4 The counts were dealt with in the District Court. The appellant pleaded guilty to count 2. After a trial before McCann DCJ and a jury, he was found guilty on counts 1, 3 and 4 and not guilty on count 5. The verdict on count 1 was by a 10:2 majority. The other verdicts were unanimous. Counts 1, 4 and 5 alleged contraventions of s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), count 2 a contravention of s 19(1)(c) of the Firearms Act 1973 (WA) and count 3 a contravention of s 19(1) of the Firearms Act.

5 The appellant was sentenced to a total effective sentence of 6 years' immediate imprisonment. A parole eligibility order was made.

6 The appellant appeals to this court against his conviction.

7 There are two grounds of appeal. Ground 1 alleges that the trial judge erred in law and fact, and there was a miscarriage of justice, when, in relation to count 1, he misdirected the jury concerning possession. Ground 2 alleges that the appellant did not receive a fair trial in that his Honour failed to discharge the jury after it became apparent that an item that was not an exhibit had been located in the jury room.

8 On 10 December 2009, Wheeler JA refused leave to appeal on ground 1 but granted leave on ground 2.

9 On 16 December 2009, the appellant made application for review of Wheeler JA's decision to refuse leave on ground 1.

10 The application for review and the appeal were heard together.

11 On Friday 3 August 2007, police attended at the residential premises of the appellant at 56 Clarence Way, Champion Lakes. They had a warrant authorising them to search the premises. When they entered the premises at about 6.45 am, the appellant, a woman named Natalie Schulz, and her young child were at home. The premises were a three bedroom house. Only one room, namely the main bedroom, was being used for sleeping. In the main bedroom, the police located a safe. It was locked. The appellant provided the police with the key to the safe. The police opened and searched it. They found a fully-loaded Glock 19, 9 mm semi-automatic handgun. The appellant's plea of guilty on count 2 related to this weapon.

12 The police located on a dressing table in the main bedroom an additional 28, 9 mm bullets in a clipseal bag. These bullets were the subject of count 3.

13 Also, in the dressing table where the bullets were found, the police located several other items including electronic scales, a container of MSM, different-sized clipseal bags and a handwritten note with numerous names, figures and other annotations on it.

14 The police then found in the second bedroom, where the appellant stored tools and other objects, a clipseal bag similar to those found in the dressing table. This clipseal bag was in a cardboard box for an electric planner. The clipseal bag contained a little in excess of 28 g of methylamphetamine with a purity of 39%. This drug was the subject of count 1 on the indictment.

15 Almost a year later, on Monday 14 July 2008, the appellant parked his motor vehicle at the Maddington Village shopping centre at about 10.30 pm. None of the shops was open, and the appellant's vehicle was the only motor vehicle in the vicinity. Police approached the appellant's vehicle. In the vehicle were the appellant and a female passenger, named Shandi Dillon.

16 A police officer carried out a 'pat search' of the appellant and felt a syringe and a package in the inside pocket of his jacket. The officer asked the appellant why he was carrying the syringe. The appellant responded by attempting to run away. He was apprehended, handcuffed and placed in a police van. At that point, the police removed the syringe from the inside pocket of the appellant's jacket and discovered that the package was no longer present. The police returned to the area where they had apprehended the appellant and found on the ground a small black pouch. Inside the pouch was a clipseal bag containing 20.1 g of methylamphetamine with a purity of 20%. This drug was the subject of count 4.

17 The police officers then searched the appellant's motor vehicle. On the driver's seat of the vehicle was a small camera case, about the size of a lunchbox. The camera case was open and the officers could see that it contained a number of syringes. They then searched the bag and underneath the syringes found $10,000 in cash, comprising $50 and $100 notes. Also, underneath the cash, they found a small plastic canister containing 5.62 g of methylamphetamine with a purity of 11%, another clipseal bag in a different part of the camera bag containing 3.14 g of methylamphetamine with a purity of 28%, electronic scales and a metal spoon. Accordingly, the camera bag contained, in total, 8.76 g of methylamphetamine. This drug was the subject of count 5.

18 On the next day, 15 July 2008, at 4.40 am, the police again searched the appellant's premises at 56 Clarence Way, Champion Lakes. This was the house that had been searched by the police about a year previously. On 15 July 2008, the police noticed that security cameras had been set up outside the premises and that vision from these cameras was relayed to television screens in the lounge room and the main bedroom. They searched the main bedroom and found, in almost the exact location as the previous year, another set of electronic scales, more clipseal bags of various sizes and a handwritten note with names, figures and other annotations on it.

19 The police took video footage of the searches of the appellant's premises on 3 August 2007 and 15 July 2008.

Ground 1 and the application for review: the trial judge's summing up

20 As I have mentioned, ground 1 relates to the appellant's conviction on count 1 in the indictment. The ground alleges that the trial judge misdirected the jury concerning possession.

21 The appellant's case at trial in relation to count 1 was that other persons than the appellant had access to the box in which the clipseal bag containing the methylamphetamine was found.

22 The trial judge instructed the jury, in his summing up, that it was possible, as a matter of law, 'for more than one person to be in possession of the same drugs at the same time' (ts 792). His Honour then added that this was 'joint possession', but the State did not allege joint possession in its case against the appellant (ts 792).

23 The prosecutor did not accept the trial judge's statement that the State's case on count 1 was based on 'sole possession' to the exclusion of 'joint possession'. During an adjournment, in the course of his Honour's summing up, the prosecutor made submissions to his Honour on this point. She argued that, contrary to directions which his Honour had already given to the jury, the State did not have to prove possession by the appellant to the exclusion of anyone else (ts 798 - 799).

24 The trial judge rejected the prosecutor's submissions concerning 'sole possession' to the exclusion of 'joint possession' (ts 799 - 802). His Honour told her that he was 'not going to change [his] direction' (ts 801).

25 At about 4.27 pm on 11 June 2009, after the jury had been considering their verdicts for about four and a half hours, they submitted a question to the trial judge. The question sought advice on the law relating to count 1 (ts 844). At the request of his Honour, the jury reformulated their question in more precise and detailed terms, as follows:

Can you please clarify the law regarding possession in regards to these points: what constitutes dominion and control. An example, if possible. Areas such as the below should be covered: sole control, knowledge and control. Is this mandatory? (ts 845).

26 The trial judge then debated with counsel, in the absence of the jury, the manner in which he should answer the question.

27 The prosecutor reiterated her complaint about the trial judge having directed the jury that the State's case on the drug charges was based on 'sole possession' to the exclusion of 'joint possession' (ts 846 - 850).

28 Senior counsel for the appellant submitted that it would be 'totally wrong' for his Honour to direct the jury, in the course of answering their question, that even if they were not satisfied to the requisite standard that the appellant had 'sole possession', they may nevertheless convict if they were satisfied beyond reasonable doubt that he and another person or other persons had 'joint possession'. Senior counsel said, relevantly:

[W]e have since I think the third day of the case, maybe even the second day, have raised this issue whether the prosecution is putting this case on the basis of sole possession or joint possession. You'll recall we've been inviting the Crown very early in the peace [sic] to decide whether the goal posts were being shifted or not. And it was open[ed] on the basis of sole possession, it remained on the basis of sole possession, and was still on the basis of sole possession by the time my friend finished addressing the jury. There is no evidence here, no one's explored the possibility, of other people being involved with this drug paraphernalia to tie them in with the drugs (ts 851).

29 His Honour decided to 'leave matters as they stand' (ts 852). He provided these reasons:

McCANN DCJ: Okay. I'm going to leave matters as they stand, for two main reasons. First of all - well, three. The State opened on sole possession; secondly, there was no cross-examination on joint possession, and this would have - in fairness, this would have need to have been gone into. And thirdly, it would just add to the confusion. One simply has to, in my case, if I've made my bed, I have to lie in it. So for those reasons, it would - matters have to remain as they are. On that last point, it would just be too confusing. I've tried to scribble out something that would be said to the jury and it would just lead this trial off into, as I think I said before, a - off into quicksand (ts 852).

30 After the jury returned, the trial judge stated their question and then answered it as follows:

I'll deal with the last question last. Yes, knowledge and control must - you must have knowledge to have control. You can't control something that you don't know anything about. Now, dealing with the rest of your questions, I'll try to roll this all up into one. To have sole control, is to have the knowledge and the sole dominion and control. So more than one person might have the knowledge, but the person in possession is the person who has the dominion or control. So to have sole control is to not only have the knowledge, but have the sole dominion or control. Now, having dominion or control over something, means that you intend to do as you want with that thing and nobody else has your permission to do so, and also that you have means to give effect to your purpose of doing what you want with it.

McCANN DCJ: Okay. So having dominion or control means that you intend to do as you want with something, and nobody else has your permission to do so, and you have the means to give effect to your purpose of doing what you want with it. Now, you've asked for an example I'll give you one. Let's suppose I have a beautiful - this is a pencil, let's suppose you have a beautiful fountain pen. Or let's suppose I have a beautiful fountain pen, and if it's in my hand, it's in my custody, it's a possession, no problem at all. If I was to give it to my usher to refill, it would remain in my possession, even though she has temporary custody of it, because I know she has it and I intend that it will come straight back to me so I can continue writing. So my intention is to control where that pen goes, and she's not allowed to take it off and use it herself. What about if I decided it was too nice a pen to use here in court and I left it in my chambers upstairs? It would still be in my sole possession, if my intention was that I could do whatever I like with that fountain pen, but nobody else had permission to do so, and I had the means to do what I want with that pen. So it's sitting up there and I can go back up there and write with it if I want to, or take it home, or sell it, or do whatever I want with it, but no one else is allowed to go in there and use my pen, okay. So what we have there, just to relate it to this concept of possession, is first of all my knowledge that the pen is in my chambers; secondly, my intention that I'm going to do something with it; thirdly, no one else has permission to deal with my valuable pen at all, has to stay where it is in my office; and fourthly, I have the means if I want to, to do what I want with my pen. If I left the pen at the bus stop tonight thinking, 'Oh, look, I'll go back and get that tomorrow', I've probably put it beyond my means to do anything about that pen because it won't be there tomorrow. But if I leave it in my chambers and it's a beautiful pen, and no one else has permission to use it, except me, then it's in my possession even though it's not here with me at the moment (ts 854 - 855).

31 On the application for leave to appeal before Wheeler JA, and on the application for review before this court, counsel for the appellant submitted that the State's case at trial in relation to count 1 was not based on sole possession. Counsel complained that the trial judge's direction to the jury that they had to be satisfied that the appellant had sole control of the drugs in question 'effectively removed from the jury's consideration the inference as to possession by another'. Further, it was submitted that confining the State's case to sole possession would have confused the jury about the relevance of others having access to the box where the drugs were found. It was then submitted that his Honour's direction on count 1 prejudiced the appellant in relation to counts 3 and 4, as follows:

(a) as count 3 involved offending at the same time and place as count 1, it could not safely be said, despite the 'separate consideration direction' given, that the error concerning count 1 did not 'infect' the verdict returned on count 3; and

(b) although count 4 occurred at a time and place different from count 1, it involved a similar offence and, despite the 'separate consideration direction' given, there was a 'genuine risk' that the error concerning count 1 'infected' the verdict returned on count 4.

32 Wheeler JA rejected the submissions of counsel for the appellant. Her Honour gave these reasons, relevantly:

His Honour's assessment was that the State case had been put on the basis of sole possession by the appellant. The State endeavoured to persuade his Honour to the contrary at the time at which his Honour came to direct the jury and senior counsel, very experienced senior counsel then representing the appellant, contended that the State case was as his Honour had assessed it.

It seems to me that the State case probably was as his Honour had assessed it but in any event, even if his Honour had been in error in that respect, it seems to me that there is nothing which his Honour said to the jury which could conceivably have left them with the impression complained of, which is the impression that if the planer [sic] box and the house were the appellant's, then the drugs were the appellant's.

Indeed, it is plain that the thrust of the appellant's case at trial was that the box was a box to which others had access, indeed that there were others who were also known to be associated with drugs who had access to the box, and that it was a reasonable possibility that one of those persons had placed the drugs in the box without his knowledge. That was a defence which was left to the jury by his Honour, so I would not grant leave in relation to ground 1 (ts 11).

33 The appellant's application to review Wheeler JA's decision is not a hearing de novo. It is an appeal by way of re-hearing, and the appellant must satisfy this court that her Honour made an error in refusing leave to appeal. If this court assesses ground 1 of the appeal differently from her Honour and finds that the ground has a reasonable prospect of success, implied error may be found, and this court may set aside or vary her decision. See Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [21], [23]; Lawless v Turner [2007] WASCA 127 [4].

34 In my respectful opinion, Wheeler JA was correct, generally for the reasons she gave, in deciding that ground 1 did not have a reasonable prospect of success and that, in consequence, leave to appeal on that ground should be refused. I merely add that the trial judge's direction in relation to 'sole possession' was more favourable to the appellant than a direction based on 'joint possession'. It was more difficult for the State to prove sole possession than joint possession. No doubt, it was for this reason that senior counsel for the appellant urged his Honour to direct on the basis that the State case was based on sole possession. I am satisfied that the appellant did not suffer any prejudice as a result of the direction which was supported on his behalf at trial.

35 I also add, in relation to counts 3 and 4, that the trial judge repeatedly directed the jury to consider separately the evidence on each count (ts 764). For example, his Honour specifically directed them that the evidence on count 1 had no bearing on counts 4 and 5 (ts 830). The jury returned a verdict of not guilty on count 5. No miscarriage of justice can possibly have arisen in relation to count 3 or count 4.

37 Counsel for the appellant submitted to this court that at trial the State alleged, in essence, that the appellant was a drug dealer. Paraphernalia found at his home and in his motor vehicle was said to be indicative of drug dealing. After the jury had retired to deliberate on its verdicts, a SIM card from a mobile telephone, which had not been adverted to in the course of the trial, was found by the jury in the camera bag located by the police in the appellant's vehicle. The bag had been tendered as an exhibit. Counsel for the appellant argued that 'in light of the State case, the presence of the card in the jury room was a material irregularity' and, as a result, the jury should have been discharged.

38 At 6.35 pm on 11 June 2009, after the jury had been deliberating for about six and a half hours, they sent this note to the trial judge:

Dear Judge.

The jury is having difficulty reaching unanimous decision on count 1. We are, however, able to return verdicts on counts 3, 4 and 5.

PS, we found a third SIM card in the camera bag.

From the jury (ts 857).

39 The jury gave the camera bag and its contents to the clerk of arraigns together with their note.

40 The camera bag had been tendered in evidence by the appellant. It became exhibit 17.1. The State tendered two Vodafone SIM cards which became exhibits 17.2 and 17.3. It was common cause at the trial that when the camera bag was seized by the police from the appellant's motor vehicle on 14 July 2008, the bag contained, amongst other things, those two SIM cards.

41 Exhibits 17.1, 17.2 and 17.3 were tendered in the course of the cross-examination of a police officer, Sergeant Mark Fleskens. The evidence relating to the tender reads:

HELIOTIS, MR: Look, before I leave that bag, it hasn't been tendered yet, now I don't mind if we tender it, your Honour, or the prosecution intends to tender it later but I do want to show it to the sergeant, if I may.

McCANN DCJ: Certainly, yes.

HELIOTIS, MR: Just satisfy yourself, is that the bag that we're looking at---It appears to be the same colour and shape.

...

HELIOTIS, MR: I see, all right, we'll ask Mr Caruso when he comes but the one thing I wanted to ask you is this, did you - just open that bag. Did you notice that in the bag - there should be in a plastic bag a couple of SIM cards. Are they still there? No, they've been taken out. There were a couple - I think the prosecution will admit that there were two SIM cards that the learned prosecutor's showing me now. These came from the bag and I just seek an admission from the Crown to that effect.

McCANN DCJ: Is there any dispute about that, Ms Beggs?

BEGGS, MS: No, there's not, your Honour.

McCANN DCJ: All right, so what we've got two SIM cards then.

HELIOTIS, MR: The two SIM cards, Vodafone SIM cards. Did you happen to notice they were in the bag---I didn't search the bag, no.

...

HELIOTIS, MR: I wonder, your Honour, if the jury could be shown that bag very quickly? I just want those needles to be seen.

McCANN DCJ: I'd like to have a look first, thanks.

HELIOTIS, MR: And could we keep those somewhere. Well, I'll give these two Vodafone - we'd better tender---

McCANN DCJ: Do we have a clip-seal bag, do we?

HELIOTIS, MR: We'd better tender them just to be safe. So can we put them back in the bag and then we'll tender the whole thing together.

BEGGS, MS: I don't think we should be using the exhibits, your Honour.

McCANN DCJ: No. That was a facetious remark and I instantly regretted it. Yes. Well, no, first of all, is it going to be tendered?

HELIOTIS, MR: Yes, your Honour. I don't mind - I'm happy to tender it, your Honour.

McCANN DCJ: All right. So we'll deal with that first and then the jury can have a look.

...

McCANN DCJ: So it will be - black camera case will be exhibit 17. And we will now show that to the jury.

HELIOTIS, MR: Yes, thank you.

McCANN DCJ: All right. So everyone's had a look at that. Now, what these SIM-cards? Do we mark those for identification?

BEGGS, MS: Your Honour, there's no difficulty that they were - came as part of the exhibit 17 so I'm happy for them to be included in that exhibit.

McCANN DCJ: So we'll make them---

HELIOTIS, MR: Back to the digital system, your Honour.

McCANN DCJ: Yes. Just for the avoidance of doubt we'll make the case exhibit 17.1 and 17.2 will be - we might just differentiate between these SIM-cards, I think. I'm just going to take the last line of this serial number so 17.3 will be Vodafone SIM-card number G0058 - that's 17.2, and exhibit 17.3 will be Vodafone SIM-card number G0025.

EXH Exhibit (17.1) Tendered by Accused on - Description: Black camera case

EXHIBIT 17.1 Accused

Black camera case

EXH Exhibit (17.2) Tendered by State on - Description: Vodafone SIM card number G0058

EXHIBIT 17.2 State

Vodafone SIM card number G0058

EXH Exhibit (17.3) Tendered by State on - Description: Vodafone SIM card number G0025

EXHIBIT 17.3 State

Vodafone SIM card number G0025

McCANN DCJ: And we might put those in separate bags because of that. Yes, please continue (ts 180 - 184).

42 The trial judge read to counsel, in the absence of the jury, the jury's note (ts 857).

43 Senior counsel for the appellant made this submission to his Honour:

I'm not sure that there's much we can do with the SIM card other than your Honour saying, well, if it's in the bag it's in the bag, and there's no evidence about it, and that's what should happen (ts 857).

44 After the jury returned, the trial judge directed them in relation to their note, relevantly, as follows:

First of all, return the exhibit 17 [that is, the camera bag and its contents] to you, with our thanks. Neither counsel has any submissions to make about that, so that will just be returned to you. And I'm going to take a majority decision on count 1 (ts 859).

45 When a trial judge refuses an application to discharge a jury and the accused is convicted, an appeal by the accused is against the conviction and not against the exercise of the trial judge's discretion not to discharge the jury. See Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs J, Mason & Jacobs JJ agreeing); Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 90 (Toohey J); R v Fraser [2001] QCA 187 [37] (White J, McMurdo P & Dutney J agreeing).

46 In the present case, senior counsel for the appellant did not make an application to the trial judge for the jury to be discharged. His Honour therefore did not make a wrong decision on a question of law, within

s 30(3)(b) of the Criminal Appeals Act 2004 (WA). It is therefore necessary for the appellant to demonstrate that a miscarriage of justice occurred.

47 In my opinion, the appellant has not established that the trial judge should have discharged the jury or that a miscarriage of justice arose in consequence of the jury not being discharged. My reasons for this opinion are as follows.

48 First, the appellant tendered the camera bag and, in the circumstances, the tender encompassed the bag and its contents at the time of tender. The tender therefore included the third SIM card. Secondly, the appellant adduced into evidence the fact that the two SIM cards, which became exhibits 17.2 and 17.3, had been found by the police in the camera bag on 14 July 2008. Thirdly, although Detective Sergeant Steven Smith gave expert evidence in relation to equipment commonly associated with drug dealing, no mention was made of mobile telephones or SIM cards (ts 552 - 556). Fourthly, the appellant was acquitted of the count in the indictment, being count 5, which related to the quantities of methylamphetamine found in the camera bag. Fifthly, as I have mentioned, the trial judge repeatedly directed the jury to consider separately the evidence on each count. Sixthly, the jury informed the trial judge in the note they sent him that they were able to return verdicts on counts 3, 4 and 5. It is apparent that they had already decided upon a verdict of not guilty on count 5. The jury merely referred incidentally to having found the third SIM card in the course of seeking assistance in relation to the resolution of their verdict on count 1. Seventhly, senior counsel for the appellant at trial did not make an application for the jury to be discharged. Also, he did not request the trial judge to give any direction to the jury about the third SIM card.

49 I am satisfied that the appellant was not prejudiced in any respect or to any degree as a result of the jury having found the third SIM card. Ground 2 is hopeless.

50 I would dismiss both the application for review and the appeal.