Li v R [2019] NSWCCA 228 | Case summary

Court of Criminal Appeal (NSW)|2019-08-28|Before: Gleeson JA, Johnson J, Fagan J

Solicitors: Bannisters Lawyers (Applicant) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2014/197409 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 19 May 2017 Before: Herbert DCJ File Number(s): 2014/197409

Judgment

GLEESON JA: Following a 32-day trial in the District Court at Parramatta before Herbert DCJ and a jury of twelve, the applicant, Mrs Yu Hai Li, was found guilty of the following charges: 1. On 3 July 2014, at Parramatta in the State of New South Wales, did supply a prohibited drug, namely, 3,784.9g of methylamphetamine, being an amount not less than a large commercial quantity applicable to that drug. Section 25(2), Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA Act). 2. On 3 July 2014 at Parramatta in the State of New South Wales, did possess a prohibited weapon, namely, a hand-held device that is designed to administer an electric shock on contact without being authorised to do so by permit. Section 7(1) of the Weapons Prohibition Act 1998 (NSW). 3. On 3 July 2014 at Parramatta in the State of New South Wales, did possess a prohibited weapon, namely, a hand-held device that is designed to administer an electric shock on contact without being authorised to do so by permit. Section 7(1) of the Weapons Prohibition Act 1998 (NSW).
The maximum penalty for the large commercial quantity offence in count 1 is life imprisonment (Drug Misuse and Trafficking Act (DMTA), s 33(3)(a)) with a standard non-parole period of 15 years. The maximum penalty for the offences in counts 2 and 3 is 14 years imprisonment (Weapons Prohibition Act 1998 (NSW) s 7) with a standard non-parole period, at the relevant time, of 3 years.
On 19 May 2017, the trial judge sentenced the applicant to an effective sentence of 14 years with a non-parole period of 10 years, commencing on 3 July 2014, comprising the following individual sentences:

Count 1: 12 years imprisonment with a non-parole period of 8 years to date from 3 July 2016;
Count 2: 2 years and 6 months imprisonment with a non-parole period of 1 year and 8 months to date from 3 July 2015;
Count 3: 3 years imprisonment with a non-parole period of 2 years to date from 3 July 2015.

The trial judge also sentenced the applicant, following a guilty plea, for an offence of ongoing supply of methylamphetamine, contrary to s 25A of the DMTA. After a 25 per cent discount for the applicant's guilty plea to that offence, the sentence imposed was 4 years and 6 months imprisonment with a non-parole period of 3 years and 1 month to date from 3 July 2014.

Leave to appeal against conviction

The applicant seeks leave to appeal against her conviction only. She requires an extension of time up to 29 March 2019 when her application was filed. The Crown did not oppose an extension of time.
The applicant initially relied on three grounds of appeal. On the hearing, senior counsel for the applicant did not press ground 1. The remaining grounds contend: 2. A miscarriage of justice has arisen on account of the trial judge confining the applicant's exculpatory account on the issue of exclusive possession as relevant to a Carey defence. 3. A miscarriage of justice has arisen on account of the trial judge's directions as to what constituted possession in the circumstances of this case.
The essential contention raised by grounds 2 and 3 is that a miscarriage of justice has resulted from the directions given by the trial judge in respect of the element of the offences involving "possession" of the drugs and the tasers.
The applicant requires leave to appeal on two bases. First, grounds 2 and 3 raise questions of mixed law and fact: Criminal Appeal Act 1912 (NSW), s 5(1)(b). Second, these grounds also involve challenges to directions or omissions to direct on the part of the trial judge in circumstances where no objection was taken at trial: Criminal Appeal Rules (NSW), r 4.

Background and issues at trial

In November 2013, police established Operation Strike Force Lombard to investigate the drug supply activities of Peter Ghibely (Ghibely). Between January 2014 and May 2014, two undercover operatives known as "Sam" and "Sonny" participated in a number of controlled operations, where they purchased quantities of methylamphetamine from Ghibely and later the applicant.
Ghibely had known the applicant since at least 2011 when he worked as a receptionist at a brothel run by the applicant in Sutherland Street, Clyde. He gave evidence that his duties at the brothel included selling methylamphetamine for the applicant. He said he had an "on-off" romantic relationship with the applicant. The applicant said she had known Ghibely for about ten years. She said they had been in a personal relationship since around April 2013 which ended in March 2014.
During the course of a controlled operation on 2 April 2014, the applicant and Ghibely met with an undercover operative (UCO), Sonny, and supplied him with 27.96g of methylamphetamine for $8,000. The applicant subsequently met with UCO Sonny alone and supplied further quantities of methylamphetamine. On 11 April 2014, she supplied 27.92g for $8,000; on 29 April 2014, she supplied 83.67g for $24,000; and on 8 May 2014, she supplied 83.7g for $24,000.
The Crown case relied upon recordings of meetings between UCO Sonny and the applicant. At the 2 April 2014 meeting, after Ghibely had explained to UCO Sonny that he had been "done three times with the Cops", and that if anything happened to him, the applicant would take over, the applicant confirmed that the drugs were her "stuff"; that all of Ghibely's "good stuff comes from me … his good stuff's only family only" and that "it's going to be long term quality guaranteed". The applicant gave UCO Sonny her phone number in case Ghibely got "picked up". She also gave UCO Sonny a code to send her messages to arrange for further supplies.
In early April 2014, Ghibely was arrested and charged with other offences. At the 11 April 2014 meeting, the applicant referred to Ghibely as her "child" and that she was worried that Ghibely might become a "dog". The applicant told UCO Sonny that she normally supplied lump sums and that she did "kilo" only.
At a further meeting on 20 May 2014 where no drug supply took place, the applicant told UCO Sonny that she was expecting an 11 kg shipment of drugs from Afghanistan.
On 3 July 2014, the applicant was arrested at approximately 6 pm at Westfield Shopping Centre in Parramatta in relation to her ongoing supply of a prohibited drug to UCO Sonny. Ghibely was also arrested on that day and subsequently charged with two offences of ongoing supply of methylamphetamine to undercover operatives, contrary to s 25A of the DMTA, to which he later pleaded guilty.
Following her arrest, the applicant was handcuffed and cautioned. Police asked the applicant where her car was located and she took them to an underground carpark in an apartment building in Church Street, Parramatta where her Audi was parked. They were met there by other police officers. A search of the applicant's handbag located a set of keys to an apartment. The applicant declined to tell the officers which apartment she occupied. Using the keys to check the letterboxes, officers found envelopes addressed to the applicant in a letterbox for Unit 2601. The officers went to that apartment and knocked on the door but there was no answer.
Police then applied for and were subsequently granted an after-hours search warrant. Execution of the search warrant commenced at approximately 8:30 pm. The apartment comprised two bedrooms, a living room, and two bathrooms, one of which was an ensuite attached to the applicant's bedroom, which was locked. The applicant's son, Yukio Saito (Saito), occupied the other bedroom. When the police entered the apartment, they found the applicant's son asleep in the second bedroom.
In the course of the search, the police located the various items in the applicant's bedroom and ensuite bathroom, including: (1) A white silver "Felicidades" plastic bag containing a large amount of clear resealable bags, white gloves, measuring spoon and scales, a marriage certificate, divorce certificate, copy of passport, driver licence and other identity documents in the name of the applicant (found in the ensuite of the main bedroom on the floor near the shower). (2) A white Marc Jacobs handbag containing an Australia Post envelope, five resealable bags containing a crystalline substance (found in the ensuite of the main bedroom on floor inside door). (3) A plastic shopping bag with a Jolly logo containing a pencil case with a courier receipt, $11,165 cash, the applicant's passport photograph, four large bags of a crystalline substance and five packages of a crystalline substance in packets labelled "sesame" (found in the ensuite of the main bedroom on the floor to the left of the toilet). (4) Various papers in the applicant's name including receipts for payments to real estate agents, which were found in the kitchen cupboard; paperwork relating to the brothels operated by the applicant, which was found in a cabinet on the balcony; the applicant's driver's licences and passport and expired passports and bank cards in the name of the applicant (which were found in the applicant's bedroom). (5) A box package addressed to the applicant at 7/1 Sutherland Street, Clyde, containing a plastic bag heat sealer (which was found in the hallway outside the main bedroom). (6) A grey plastic shopping bag containing a white powder substance (which was found in the ensuite to the main bedroom, on the floor inside the doorway next to the shower). (7) A grey plastic shopping bag containing two bags of a crystalline substance (which was found in the ensuite to the main bedroom, on the floor inside the doorway next to the shower). (8) A small plastic box containing small resealable bags and a crystalline substance (which was found in the ensuite to main bedroom, on the floor inside the doorway next to the shower). (9) A pink plastic bag containing 275 small resealable bags of a crystalline substance (which was found on the floor of the main bedroom). (10) $50,000 in Australian currency (found in the wardrobe of the main bedroom). (11) A two-pronged taser in a black case in the ensuite of the main bedroom, on the floor near the shower (inside plastic bag referred to at (1) above [Count 2]. (13) A taser that looked like a mobile phone (which was found in the ensuite of the main bedroom, on the floor near the shower) [Count 3].
Subsequent analysis of the crystalline substances that were located in the applicant's bedroom and ensuite found a total of 3,784.9g of methylamphetamine. These drugs were variously packaged as follows: 3 x resealable bags containing 1,496.6g; 2 x large plastic bags containing 901.4g; 5 x resealable bags containing 74g; 5 foil-wrapped packages containing packets labelled "sesame" containing 300.2g; a Tupperware container containing 156.6g; 150 x clear resealable bags containing 27.5g; 2 separate bags containing a total of 809.3g; and 275 x resealable bags containing 19g.
Following her arrest, the applicant took part in an electronically recorded interview of a suspected person (ERISP) on 3 July 2014. She later provided a handwritten statement to the police on 27 April 2015.
The primary issue at trial was whether the Crown had proved beyond reasonable doubt that the applicant had "possession" of the drugs and the tasers.
The Crown case was that the applicant alone possessed the drugs and the tasers and that she had exclusive possession of them.
The defence case in relation to the drugs was that (1) the state of the applicant's bedroom and ensuite bathroom at the time of the execution of the search warrant was not as she had left it on 3 July 2014, (2) the drugs which were found by the police must have been a product of the contents of a plastic Duty Free bag which had been left in her bedroom by Ghibely on 31 March 2014, but the applicant did not know exactly what was contained in that bag, and in particular, did not know or believe that it was drugs, and (3) the Duty Free bag was not in the applicant's custody or control as Ghibely never relinquished control, given that he had told the applicant not to disturb the bag or do anything with it and he had retained a set of keys to the apartment. The defence case in relation to the prohibited weapons was that the tasers were not the applicant's, whilst asserting that Ghibely used to carry such items.
Various police officers gave evidence concerning the execution of the search warrant. Their evidence was that the drugs found at the apartment were not in a Duty Free bag and police did not find any such bag in the search. Undercover operatives, Sonny and Sam, also gave evidence concerning the controlled operations and conversations with the applicant in April and May 2014.
Ghibely gave evidence in the Crown case. He said he never possessed keys to the applicant's apartment at Parramatta but that he accessed the premises for a fortnight when the applicant moved in for the purpose of building some shelving and installing a curtain on the balcony. He denied living with the applicant. Ghibely denied storing drugs at the applicant's apartment, giving drugs to her, or leaving the tasers at the applicant's apartment. He also denied ever assaulting the applicant.
Given the grounds of appeal, it is necessary to say a little more about the various accounts given by the applicant, and the evidence in the defence case given by Saito and by Paul Hallwell (Hallwell).

ERISP - 3 July 2014

In her recorded interview commencing at 9.51 pm on the night of her arrest, the applicant initially said that she lived at Concord with her boyfriend, Paul, referring to Hallwell, but later admitted that she lived at the apartment in Church Street, Parramatta with her son. She denied any involvement in the supply of drugs. She said that Ghibely owed her money and that Sonny was returning the money for Ghibely. When told that Sonny was an undercover police officer, the applicant replied, "Yeah, but I, I know that". She said that she was "joking" when she offered him half a kilogram of methylamphetamine. In answer to a question whether police would find anything in the unit that was illegal, the applicant responded, "I think so, maybe". She said that she was keeping something that was "not nice" for her "friends". She said that she did not know "the detail" of what was in "the plastic bag" or "something". She said that the plastic bag was in her bedroom. She could not say where it was in her bedroom.
The applicant said that she did not know what was in the bag. She said that "Peter" had given her "lots of shit". She said that she had had the "stuff" for months. She denied receiving anything for storing the "stuff". She said that she stored it for friendship. She said that she "touched them all from inside, outside, everything, I touched them all". She said that she looked at it, but didn't weigh it. She said, "I think it's about like, I think he said like this plastic bag is half and I think have four of them or something". When asked what was meant by "half" the applicant responded, "and half kilo of the pack maybe have four or something". When asked whether she thought there should be two kilos there, the applicant replied: "There, and have some other small funny packages, you know, those small packages and I don't know how many it is".

Handwritten statement - 27 April 2015

On 27 April 2015, the applicant provided police with an eight-page handwritten statement, which was marked Exhibit OO. This was after service of the prosecution evidence upon the applicant.
In her statement the applicant said that the "stuff" the police took from Unit 2601 on 3 July 2014 was "put there by Ghibely on 31 March 2014". She said Ghibely told her that she "must look after those for him". Ghibely brought it in a "big box" and "chucked them on the floor of the centre of my bed room bath floor". Ghibely said that it was "something very expensive that I can't afford to pay back if it get lost, and it's something not good". According to the applicant, Ghibely had arranged for a friend to cut him a master key to the apartment. The applicant said that she was very angry and screamed at Ghibely and he assaulted her with a wine bottle. The applicant said that Ghibely refused to get rid of the "stuff". She said soon after that, her car was smashed.
Referring to her recorded interview with police on 3 July 2014, the applicant stated that she agreed to speak with police against legal advice because she was worried about her son. She said that she told police that she "touched them inside out outside in", but that she "still can't tell right details about the name of stuff, the weight, the anything. And it don't have my fingerprint".
The applicant's statement contained various allegations against UCO Sonny, including that she had given him $20,000 in a fake Louis Vuitton bag in May 2014. The applicant said she was lonely and gave him the money "only because I like him". The applicant said that she dated UCO Sonny "many times", "once in a bright blue new police car". She said that UCO Sonny told her that he was an officer and that he could protect her for $100,000 cash.
The applicant acknowledged that she was guilty of supply to UCO Sonny on 11 and 29 April and 8 May 2014, but said that Ghibely had directed her in respect of each of those supplies. Her letter concluded with the statement, "I wish this statement goes to DPP and court".

The applicant's evidence at trial

The applicant gave evidence at trial that she moved into the apartment in Church Street, Parramatta with her son in February 2014. She said that Ghibely had previously moved into the apartment in December 2013. Her explanation for the presence of her signature on the lease was that she had signed the lease for Ghibely because he was unable to get the lease in his own name.
The applicant said that Ghibely moved out of the apartment in March/April 2014. At that time, their relationship had finished, but she still regarded him as a friend. She said that when Ghibely left, he returned the fob key which provided access to the elevators of the unit block, but did not return the main key. The applicant said that Ghibely told her that he had lost the key. Ghibely gave evidence denying that he ever possessed any of the keys.
The applicant gave evidence that shortly after Ghibely moved out of the apartment he brought over a box containing a plastic Duty Free bag in which he said were jewels. On that occasion, to enter the unit, Ghibely had buzzed the lift and the applicant opened the door for him. He took the plastic bag out of the box and placed it on the bedroom floor, near the white bedside table next to the bed. The bag had Marlboro cigarette print on one side. Inside were four packages and some other packages on top. The applicant claimed that Ghibely told her that the bag belonged to "Jun" and she could not lose it or throw it out. She said that Ghibely assaulted her when she tried to throw the bag out.
The applicant said that Ghibely did not show her what was inside the plastic bag when he left it in her bedroom, but she did try and work out what it was by touching it. She said she touched "the outside bag, the inside, the individual packaging" and that there were four individual packages at the bottom and there were "some other items on the top, irregular shape"; they were wrapped in clear plastic on the outside and had brown paper inside. She said she then returned the bag to the spot where Ghibely placed it originally, "at the centre of the bedroom, next to the bedside table". The applicant said that she was not sure what was in the Duty Free bag, but was "guessing it was from Jun's weapons and stuff".
The applicant said that on the day of her arrest, she left her apartment at Parramatta around 1-2 pm and met Hallwell who was waiting downstairs in his car. When they were at Auburn, she received a call from UCO Sonny at about 5 pm asking her to meet. They went to Hallwell's house in Concord, where she retrieved a pink folder containing financial documents that she had previously placed in Hallwell's safe. She then "rushed back to Sonny in Westfield Parramatta".
The applicant said that her bedroom and bathroom were not in the state seen on the search warrant video when she left the apartment. She gave evidence that the drugs and the tasers were not in her apartment as shown on the search warrant video, when she had left the apartment earlier on 3 July 2014. She also denied that she owned the scales, scoops and plastic resealable bags found in the apartment. She said that she used her son's bathroom to shower after Ghibely had left in March/April 2014.
The applicant denied having possession of what was described as a "Jolly" branded shopping bag that had been found by the police in the search which contained some of the drugs that were seized: see [18(3)] above. She said that Ghibely would bring "hundreds" of those bags to the apartment for the use of the ladies working in the brothel. She agreed that the pencil case and the money found in the Jolly bag were hers. She said that she did not put the pencil case and the money in the Jolly bag.
The applicant said that the keys in the door of her apartment pictured in the photograph in Exhibit 1 which was taken from the search warrant video were not hers. She said that the "D" on the keyring pictured was a present that she gave to Ghibely.
The applicant said that she agreed to supply drugs to UCO Sonny so that she could use him as protection from Jun and security for her business. She said that she was also sexually attracted to him.
The applicant said that she knew that UCO Sonny was a police officer. She said that she suspected that he was a police officer from 11 April 2014, but knew that he was a police officer when he drove a new police vehicle with lights and sirens to meet her on 27 June 2014. This was denied by UCO Sonny and other officers. The applicant said that UCO Sonny told her he was a police officer on 20 May 2014. This was also denied by UCO Sonny.
The applicant said that on 29 April 2014 she made an arrangement with UCO Sonny to give him 500g of drugs to remove the Duty Free bag. She alleged she provided $20,000 to UCO Sonny in the Louis Vuitton bag and that UCO Sonny told her that if she gave him $100,000 he would help her by destroying evidence. This was denied by UCO Sonny, and by the officers who monitored the controlled operations.

The applicant's son

The applicant's son denied ever having entered his mother's bedroom or ensuite bathroom prior to the police search. He said that he did not have access to his mother's room because he was never given the keys and it was always locked.
Saito gave evidence that Ghibely had keys to the apartment and had been living there before he and his mother moved there in February 2014. He said Ghibely lived at the apartment until the beginning of April 2014. In May 2014, the applicant informed Saito that it was not safe to live in Parramatta and she and the applicant went to live with Hallwell for about a week. Saito said he felt uncomfortable with Halwell and moved back to Parramatta.
It was not suggested by the applicant or the Crown that Saito had any knowledge of the drugs found in the apartment.

Hallwell's evidence

Hallwell gave evidence that the applicant asked to live with him around May 2014 and lived in his spare room at Concord on and off until her arrest, but Saito only stayed around a week. He said the applicant told him "there was a problem at the unit and she did not know what it was and that it was associated with Mr Ghibely".
Hallwell said that the applicant was highly stressed in relation to an issue with Ghibely which he described as "there was some issue in 2601 in relation to some product, a box or something, whatever it was. A couple of boxes. I don't really know, because she - yeah". Hallwell had seen a cut on the back of the applicant's head around Christmas time.

The applicable statutory provisions and the elements of the offences

Section 25(2) of the DMTA provides: … (2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
The definition of the word "supply" includes sell and distribute, and also includes, other things, agreeing to supply, offering to supply, or keeping or having in possession for supply: s 3, DMTA.
The evidentiary provision in s 29 of the DMTA provides, relevantly: A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purpose of this Division, be deemed to have the prohibited drug in his or her possession for supply unless: (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or … A "traffickable quantity" of methylamphetamine is 3g: DMTA, column 1 of Sch 1.
The accused bears the onus of proof of the defence to deemed supply in s 29(a) on the balance of probabilities: R v Carey (1990) 20 NSWLR 292 (Carey) at 294. In Carey, the sister of an accused woman had given her some packages of a drug asking her to mind them overnight and stating that she would return to retrieve them the following day. The Court (Hunt J, Wood and Finlay JJ agreeing) held at 297 that a person is not "in possession for supply" where the person has possession of the drug but merely intends to transfer the physical control of it to its owner or the person reasonably believed to be such.

Count 1

The elements of the offence contrary to s 25(2) of the DMTA which the Crown must prove beyond reasonable doubt are: 1. the relevant substance is a "prohibited drug", which includes methylamphetamine: DMTA, Sch 1; 2. the accused was in possession of a prohibited drug; 3. the accused possessed a prohibited drug for the purpose of supply; 4. the amount of the prohibited drug supplied was not less than the quantity prescribed by law for the particular prohibited drug; and 5. the accused knew or believed at the time she supplied the prohibited drug that it was in an amount that was not less than a large commercial quantity.
There was no dispute as to elements (1) and (4). The amount of methylamphetamine of 3.784kg was well in excess of the prescribed large commercial quantity of methylamphetamine of 1kg.
As to the other elements of the s 25(2) offence, it is of assistance to summarise the competing cases of the Crown and of the defence.

Possession of a prohibited drug

The Crown case was that it was the applicant alone who possessed the drugs. The Crown relied upon: 1. the lease of the Parramatta apartment was in the applicant's name and the receipts for rent were also in her name; 2. when the applicant was first interviewed by police, she told the police that she was residing in the unit with her son for about half a year; 3. the keys to the Parramatta apartment were found in the applicant's handbag; 4. the drugs were contained in small bags and located in the applicant's bedroom and ensuite bathroom, and both the bags and the rooms generally contained a number of personal items belonging to the applicant, including jewellery, clothing, wigs and personal papers; 5. the applicant's recorded statements to UCO Sonny, including that "all [of Ghibely's] good stuff comes from me" and that she supplied in "kilo only"; 6. a submission that the jury should reject the applicant's suggestion that the drugs found at the Parramatta apartment were inside the Duty Free bag and that the applicant was not aware of the contents of the bag.
The applicant's case on this issue relied upon: 1. the applicant's evidence that the drugs were not in her bedroom and ensuite bathroom when she left the apartment on 3 July 2014; 2. a submission that the Crown had not excluded the reasonable possibility that "someone else" had access to the apartment; 3. a submission that Ghibely had keys to the apartment at the time of the search by police and that the police had opened the apartment with a set of keys that did not belong to the applicant; 4. the applicant's evidence that the packages in the Duty Free bag were wrapped and she could not see what was in them, although she examined the outside of them and guessed that they might be weapons; 5. a submission that the Crown had not excluded the possibility that someone else, such as Ghibely, was exercising possession or control over the items found in the apartment; 6. a submission that Ghibely's evidence should not be accepted unless corroborated by the applicant's evidence or some other piece of information; 7. a submission that it was open to the jury to find that the police "altered the state of the [applicant's] room", while expressly disavowing any submission that the "police put the items" in the applicant's apartment.

Possession for the purpose of supply

For this element, the Crown relied upon: 1. the presumption in the DMTA, s 29 that possession of a prohibited drug is for the purpose of supply where the quantity of prohibited drug is a traffickable amount (for methylamphetamine - 3g); 2. other items located during the execution of the search warrant in close proximity to the drugs, specifically, quantities of resealable plastic bags, scales, scoops and gloves; 3. evidence of the applicant's capacity to supply the prohibited drugs to UCO Sonny; 4. evidence of the applicant's conversations with UCO Sonny on 2 and 11 April 2014, and on 20 May 2014; 5. evidence of Ghibely in relation to the applicant supplying him with drugs at the brothel and continuing to supply him after he left the brothel and until he was placed in custody on other charges in early April 2014.
The applicant's case on this issue relied upon: 1. the applicant's evidence that she had no knowledge or belief that the packages in the Duty Free bag contained drugs; 2. a submission that the applicant had supplied drugs to UCO Sonny to form a relationship with him so that he could protect her, notwithstanding that some aspects of this motive might seem to be "illogical" and "bizarre".
In relation to the defence to the presumption of supply in s 29 of the DMTA, the Crown relied upon: 1. the applicant's account in her interview with police that Ghibely had given her "lots of shit" because she was a "very safe person"; 2. the applicant's handwritten statement (in 2015) did not make any reference to the person referred to in the applicant's evidence as "Jun"; 3. the phone and SMS messages between the applicant and Ghibely in the period following 31 March 2014 did not make any reference to the assault that the applicant said Ghibely committed upon her at the time he delivered the Duty Free bag to the Parramatta apartment; 4. a submission that the jury should reject the allegations made by the applicant against Ghibely and UCO Sonny.
Whilst the applicant's trial counsel did not squarely address the facts that might relate to a Carey defence, counsel submitted in his closing address: … so bear in mind the fact that [the applicant gave evidence] does not shift any onus to her. The only time she has some onus, is as the Crown, … says in terms of that issue of the deeming provisions, and whether [the applicant] had possession for some other purpose.

The accused knew or believed that the amount was not less than a large commercial quantity

The Crown relied upon: 1. the evidence in the search warrant video and photographic exhibits which showed the bags containing the drugs in locations where they were found in the applicant's bedroom and ensuite bathroom; 2. photos of the drugs taken by police on 3 July 2014; 3. the size and weight of the drugs and that at the relevant time, a "large commercial quantity" of methylamphetamine was 1 kg: DMTA, s 33(4) and column 5 of Sch 1; 4. a submission that an inference should be drawn that the accused actually knew or believed that the methylamphetamine was in an amount which was not less than 1kg or that she was aware that there was a significant or a real chance that it was; 5. evidence of what the applicant told UCO Sonny on 11 April 2014 about her doing "kilos" only.
The applicant's case on this issue relied upon: 1. the applicant's evidence that she did not know or believe that the Duty Free bag which Ghibely left in her bedroom contained prohibited drugs; 2. the applicant's evidence denying knowledge of the drugs which were found during the search by police on 3 July 2014. .

Counts 2 and 3

Section 7 of the Weapons Prohibition Act provides that a person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit. Section 4 of the Weapons Prohibition Act defines "possession" as follows: possession of a prohibited weapon includes any case in which a person knowingly: (a) has custody of the weapon, or (b) has the weapon in the custody of another person, or (c) has the weapon in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.
A "prohibited weapon" is defined to include any hand-held defence or anti-personnel device that is designed to administer an electric shock on contact: Weapons Prohibition Act, Sch 1, cl 2(18).
The elements of the offence contrary to s 7(1) of the Weapons Prohibition Act which the Crown must prove beyond reasonable doubt are: 1. that the accused possessed a prohibited weapon; and 2. that the accused was not authorised to do so by permit.
There was no dispute that the tasers found in the ensuite bathroom were each a prohibited weapon and that the applicant was not authorised by permit to possess them.

Possession

As to the element of possession, the Crown relied upon: 1. evidence that the black taser was found in the applicant's ensuite bathroom in a plastic shopping bag which also contained a white glove, scales and resealable plastic bags; 2. evidence that the mobile phone-like taser was found in the applicant's ensuite bathroom on the floor near the shower; 3. evidence of Ghibely that he saw a black taser at the applicant's home, that the applicant had asked him if he wanted it and that he could take it, but he had refused; 4. evidence of Detective Sergeant Mackay that the silver taser found in Ghibely's car in 2013 was a different model but looked similar to the mobile phone taser found in the applicant's home;
The applicant's case on this issue relied upon: 1. the applicant's evidence that she had not seen either taser found by police in her apartment prior to these being tendered as evidence in the trial; 2. the applicant's evidence that she had observed that Ghibely always carried a taser with him that looked like a torch.
Generally, for all three counts, reference should be made to the following submission on the element of possession in the closing address of the applicant's trial counsel: The issue is, [the applicant] has said, I had no possession because I did not know these things were there. I could not exercise any control in terms of physical or custody of these things because I did not know they were there and in my submission, when you look at all the evidence presented to you, all you would safely conclude is that they were found on that day, and that's about it. You would have serious doubts given the state of the way the brief was first served and the way the brief unfolded in your very eyes, and the fact that things are missing or cut short, that would create so much doubt in your mind, in my submission. You would have grave reservations in proceeding to convict [the applicant] and I'd ask you to return a verdict of not guilty in respect of each of the three counts.

The nature of the appeal

Grounds 2 and 3 rely upon the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), namely that "on any other ground whatsoever there was a miscarriage of justice". The third limb covers cases where, by reason of irregularity or otherwise, an accused person has not received a trial according to law or has not received a fair trial: Filippou v The Queen (2105) 256 CLR 47; [2015] HCA 29 at 14 (French CJ, Bell, Keane and Nettle JJ).
In this case, the applicant's complaint is that as a consequence of the asserted inadequate directions on possession, she did not receive a fair trial. Although in dissent in Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59, Gageler J uncontroversially observed at [54] that it is necessary for the appellant to establish a causal connection between the irregularity and the conviction in the sense that, but for the irregularity, the result might have been different and the appellant might have been acquitted.

Rule 4 considerations

Rule 4 of the Criminal Appeal Rules (NSW) provides that no direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. The criterion for the exercise of r 4 has been the subject of discussion in this Court.
In Roach v R [2019] NSWCCA 160, the joint reasons of Bathurst CJ, Bell P and Johnson J referred at [40] to the remarks of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72], where his Honour said with respect to r 4: There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant.
In Roos v R [2019] NSWCCA 67, Gleeson JA (Harrison and Davies JJ agreeing) said at [72] - [74]: [72] … In Picken v R [2007] NSWCCA 319, where Mason P (Hidden and Harrison JJ agreeing) noted at [20] that there have been varying formulations of the test for identifying a miscarriage of justice in this context, referring to Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; and R v Wilson (2005) 62 NSWLR 346 at 352 [20]. The test proposed by McHugh J in Papakosmas v The Queen, which is a negative constraint, was doubted in Greenhalgh v R [2017] NSWCCA 94 at [8] (Basten JA, Button J agreeing), where the view was expressed at [16] that this Court should be cautious in laying down principles to be applied when exercising a broad discretionary power under r 4. [73] Nonetheless, it is generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R at [20] - [21]; ARS v R [2011] NSWCCA 266 at [147] (Bathurst CJ, James and Johnson JJ agreeing); Greenhalgh v R at [47]-[48] (N Adams J) cf [7]-[21] (Basten JA, Button J agreeing). [74] It is also to be kept in mind, as Mason P said in Picken v R at [22], that: The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge.

Ground 2 - A miscarriage of justice has arisen on account of the trial judge confining the applicant's exculpatory account on the issue of exclusive possession as relevant to a Carey defence

Ground 2 asserts misdirection by the trial judge in relation to the element of possession on count 1, the drug offence.

Submissions

The applicant submitted that the trial judge erroneously summarised the applicant's evidence going to possession as relevant only to the issue of whether the applicant had discharged her onus of reversing the presumption of supply in DMTA, s 29.
The submission continued that the facts referred to by the trial judge in the context of the directions on supply should have been identified as relevant to the issue of possession, but were not. The essential complaint made was that in structuring the directions on possession and supply, the trial judge failed to put the case for the accused on the issue of possession, on which the Crown bore the onus of proof.
The Crown submitted that when the summing-up is read as a whole, the trial judge did not confine the applicant's exculpatory account as only being relevant to a Carey defence. The Crown drew attention to a number of passages in the summing-up, which are referred to below.

The summing-up

It is necessary to extract, in some detail, the relevant portions of the summing-up, before considering the argument advanced by the applicant that there was a serious fundamental defect with the directions given on issue of "possession".
On count 1, the drug offence, the trial judge gave the following direction on the element of "possession": Element 2 is possession. Dealing with the question of possession, the Crown must prove that the accused intentionally had the substance in her physical custody or control to the exclusion of any other person. The Crown must prove that the accused intentionally had the substance in some place to which she had access and might go to obtain physical custody of it to the exclusion of any other person. The Crown must also prove that, in intentionally having such custody or control of the substance, the accused knew or believed at the time that the substance was a prohibited drug. (Emphasis added.)
As to the element of "supply", after directing the jury that the law gives an extended meaning to the word "supply" which includes having a substance, which is a prohibited drug, for the purpose of giving it or providing it to another person, the trial judge explained that the Crown relied on the quantity of drugs the applicant had in her possession, the things that she said to UCO Sonny about supplying drugs, the applicant's possession of weighing scales, new and used resealable bags, and the way the drugs were packaged.
The trial judge then explained the presumption (in s 29 of the DMTA) that, if a person is in possession of 3g or more of methylamphetamine, the law deems the person to have the drug in his or her possession for the purposes of "supply".
It should be observed at this point that in the pre summing-up discussion with counsel, the trial judge raised whether a Carey defence should be left to the jury. The response of the applicant's trial counsel, "She had possession of something. The issue is did she know what she had possession of?" was not entirely responsive to the question asked. Nevertheless, there was no opposition by trial counsel to her Honour giving such a direction to the jury.
The trial judge directed the jury that if they were satisfied that the Crown had proved beyond reasonable doubt that the applicant "was in possession of" the prohibited drug, which included proof that the applicant knew or believed at the time that the substance was a prohibited drug and that the amount of the drug was at least 3g, then the Crown would have demonstrated supply, subject to one exception as to which the trial judge gave the following direction: The exception is this. If you are satisfied that the Crown has proved beyond reasonable doubt each of these three essential facts or ingredients, then it is a defence to this charge if the accused proves that she had the drug in her possession otherwise than for the purpose of supply so this is where the accused gets an onus and it is only here and it is only in this circumstance. "Supply" here has its ordinary meaning, that is, to give or provide the drug to somebody else, either by way of sale or otherwise. So what the accused needs to prove is that she had the drug in her possession for some purpose other than to give it or provide it to somebody else.
Having emphasised that this was the only circumstance in which the onus lay on the applicant, the trial judge continued: Ladies and gentlemen, this consideration only arises if you believe that the drugs that the police found could have come from the Duty Free bag. That is the sort of factual matrix for this situation. The accused has given evidence that on 31 March 2014, Peter Ghibely brought a Duty Free bag to her home. She described the contents as being four boxes and a couple of irregularly shaped packages. She never unwrapped any of these items. The accused said that she was told by Peter Ghibely that they belonged to Jun. When the accused tried to tell Peter Ghibely not to leave them there, she said he hit her in the head with a wine bottle. The accused's evidence was that she never wanted these items in her home and she asked Peter Ghibely to take them away. The items were only in the accused's home because they had not been removed by Peter Ghibely. It was her case that she had the items, being the drugs, for the sole purpose of returning them to their owner. That is where the onus is in relation to the accused to prove that she had it in her possession for a purpose other than supply. While the onus of proving this fact rests on the accused, she does not have to prove it beyond reasonable doubt. That standard of proof is only placed on the Crown. It is sufficient if the accused proves this matter on the balance of probabilities, and that means that it is more likely than not or more probable than not, and I remind you that the essential facts or ingredients that the Crown is required to prove must be proved beyond reasonable doubt. (Emphasis added.)
After again summarising the first three elements of the drug offence, the trial judge reminded the jury that "proof of the accused being in possession of the drug includes proof that she knew or believed at the time of the possession that it was a prohibited drug".
As to the fifth element of the drug offence, the trial judge directed the jury as follows: … [T]he Crown must prove beyond reasonable doubt … that the accused knew or believed at the time she supplied the drug that was in an amount which is not less than the large commercial quantity. The Crown does not have to prove that the accused knew the amount of the drug, the 3.7 plus kilos, but does have to prove that the accused actually knew or believed that the drug was being supplied in an amount that was not less than the large commercial quantity or that the accused was aware that there was a real or significant chance that it was. So the Crown has to prove that she knew she had more than a kilo or that she was aware that there was a significant or real chance that it was more than a kilogram.
The trial judge emphasised that it was the "accused's actual knowledge or belief that must be proved" and this may be inferred from a consideration of surrounding circumstances, providing such inference or conclusion is a rational one and not based on speculation or suspicion.
The trial judge then referred to particular evidence given in the trial. On count 1, the trial judge summarised the applicant's evidence denying possession of the drugs stating: She did not place the prohibited drugs in her unit. She had never seen those drugs before. She did not know that there were drugs in her unit. So she has denied being in possession of the drugs that the police claim to have found.
The trial judge also referred to the applicant's evidence that she believed at the time of her record of interview on the night of her arrest that the police must have been asking about the items found in the Duty Free bag; that she said that she did not know what was in the Duty Free bag; that she had shaken the packages and thought that there was some kind of weapon in the bag; and that she formed the opinion that there were weapons in the bag which came from Jun.
On counts 2 and 3, the trial judge summarised the applicant's evidence denying possession of the tasers stating: She did not have a taser in her ensuite. She did not put them there. She did not know anything about any taser being there. So she denied that she was in possession of the two tasers. After reminding the jury that the applicant's evidence was much longer and more detailed, the trial judge stated: … just going to the essence of it, she did not possess the drugs. She did not know that they were there. What she said in her interview was to do with what she thought must have been found in the Duty Free bag. It did not amount to an admission that she did know that she had drugs.
The trial judge reminded the jury that, notwithstanding the evidence given by the applicant, the Crown bore the onus of proof, stating: Ladies and gentlemen, if, having considered that evidence and the submissions of counsel in relation to it, you accept it then, of course, you must acquit the accused and bring in a verdict of not guilty, because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter that it must prove. However, as I have told you, there is no obligation on the accused to persuade you to accept that evidence. It is the Crown that must satisfy you beyond reasonable doubt that you should reject it as a reasonably possible version of the facts.
The trial judge emphasised that if the evidence left the jury with a reasonable doubt as to whether the Crown had made out its case in respect of any element of the offence or any essential fact that it must prove, the jury was "bound in law to bring a verdict of not guilty" and continued: In other words, you do not have to believe that the accused is telling you the truth before she is entitled to be acquitted. If, at the end of deliberations, you find that the Crown has failed to eliminate a reasonable possibility that the version presented by the defence is true, then the Crown has failed in its obligation to persuade you of the accused's guilt beyond reasonable doubt.
The trial judge then summarised the addresses of counsel and drew attention on count 1 to the defence case that the issue in the trial is "knowledge" and that on the element of possession: The accused has said, "I did not put them there. I did not know that they were there. They were not there when I left the apartment that day". … … [T]he critical issue that you need to be satisfied of beyond reasonable doubt is whether Ms Li knew that there were drugs in those premises when she left her apartment on 3 July, when she left with Paul Hallwell as you have heard evidence of.
The trial judge reminded the jury of the defence submissions that you "cannot possess something unless you know what you have", that you "cannot control it unless you know what you have got", and that counsel submitted that the accused did not know what was in the Duty Free bag, she had held it, felt it and rattled the packages, and she had formed the belief without seeing what was inside that it was weapons, and that the Crown cannot exclude, as a reasonable possibility, that some other person put the drugs in the applicant's apartment.
A little later, the trial judge told the jury: The submission was that the Crown Prosecutor had to exclude any reasonable possibility that any other person was exercising control of the drugs, that the Crown had to exclude that anyone else was in possession of the drugs. It was submitted that the accused, through her interview with the police and through her document at [Exhibit] OO, put in issue that it was Peter Ghibely or Sonny through Peter Ghibely who actually had possession of those drugs, and it was submitted that the only other person who had access to the unit was Peter Ghibely.
The trial judge also reminded the jury that the accused gave evidence that she said her bedroom was locked when she left her apartment that day and that her counsel submitted, in relation to the location of the drugs: … that you really would have to be mad to put your scales, your drugs and your things with your personal papers. It was submitted to you that the scene almost looks staged. … It was submitted that whatever could have been in that Duty Free bag, it could have been drugs and that, by the time the search took place, the state of the Duty Free bag had been altered, that it was now positioned in a way that it would have you believe that it must have been possessed by Ms Li because it was shifted into positions where it was put around the room and with items that belonged to her. It was put that you could not be satisfied in relation to the element of knowledge because you could not find this to be reliable evidence. … So Ms Li is not in a position to say it was altered by anyone in particular. All that can be (sic) is these are the opportunities to do that.
In summarising the defence address on the issue of possession, the trial judge said: For the drugs, the issue is said to be that, as Ms Li has said, "I had no possession because I did not know these things were there. I could not exercise control in terms of physical control or custody of these items because I did not know they were there".
Following a question from the jury, the trial judge supplied the jury with written directions on the elements of the offences, which were, relevantly, the same terms as the oral directions. The trial judge also took the jury through the written directions.
At the end of the summing-up the trial judge invited both counsel to indicate if there were anything further they wished her to raise; neither sought any further direction.

Consideration

A trial judge is obliged to identify the issues in the case and relate the law to the issues, and to fairly put before the jury the defence case that the accused makes. That obligation extends to explaining any basis for which the jury might properly return a verdict in the accused's favour: Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 at [59], citing the joint reasons in RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [41]-[43] (Gaudron ACJ, Gummow, Kirby and Hayne JJ). The case which the defence makes that the jury must be given to understand encompasses any challenge to the prosecution evidence and submissions: Dixon v R [2017] NSWCCA 299 at [14] (Basten JA).
In this case, the applicant's trial counsel left the defence case to the jury essentially on the basis that the applicant did not have exclusive possession of the drugs and the tasers. The applicant relied upon two lines of challenge to contest possession of the drugs. First, that she did not know exactly what was contained in the Duty Free bag which Ghibely left in her bedroom, and in particular did not know or believe that it was drugs. Second, that the Duty Free bag was not in her custody or control as Ghibely never relinquished control, given that he had told the applicant not to disturb the bag or do anything with it and he had retained a set of keys to the apartment.
However, without conceding that the applicant was in possession of the drugs, the applicant's trial counsel also left the defence case to the jury on the basis that if the Crown proved beyond reasonable doubt that the applicant was in possession of a traffickable quantity of prohibited drugs, here 3g of methylamphetamine, then the applicant had the onus of rebutting the presumption of supply, namely that that she had possession of the drugs for some other purpose, relevantly, to return to Ghibely: see [62] above.
On the issue of supply it was open to the jury to reject the applicant's evidence that she did not know or believe that the Duty Free bag contained drugs and to find that she was exercising control of that bag but was saying, on one view of her evidence, particularly in her out-of-court statements, that she was holding the Duty Free bag for the purpose of return to Ghibely and this gave rise to the application of the Carey principle on the issue of supply. So much was accepted in this Court by senior counsel for the applicant.
The applicant's complaint is confined to the "structuring" of the directions on the elements of "possession" and "supply" on count 1. The applicant's complaint that the trial judge did not relate the facts of the defence case to the issue of possession, because the directions on the issue of supply extracted at [88] above confined the applicant's exculpatory account as only being relevant to a Carey defence, assumes that the summing-up must be structured in a particular way. There is, however, no fixed way in which the summing-up must be structured. As the High Court (Kiefel, Bell, Keane and Nettle JJ) said in Castle v The Queen at [59]: … How the judge structures the summing-up and the extent to which the judge reminds the jury of the evidence is a matter for individual judgment and will reflect the complexity of the issues, and the length and conduct of the case. The essential requirements of the summing-up in a criminal trial were stated in RPS v The Queen and do not need to be restated. Needless to say, they include that the judge must fairly put the accused's case, an obligation which extends to explaining any basis upon which the jury might properly return a verdict in the accused's favour. Where, as here, the jury is supplied with a transcript of the evidence the judge may consider that reference to those parts of the evidence that bear on the determination of particular issues does not require reading passages from the transcript or summarising it. (Citations omitted.)
The ultimate question is whether the trial judge has put the case for the accused in such a way as to allow the jury to properly consider the issues raised on the accused's behalf: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [109]. In Odisho v R [2018] NSWCCA 19; (2018) 271 A Crim R 325, Bellew J (Price J agreeing) said at [104]: … in determining whether a complaint that a summing-up was unbalanced is made out, it is necessary to view the summing-up as a whole, and not in a piecemeal way. The ultimate question is whether the trial judge put the case for the appellant in such a way as to allow the jury to properly consider the issues raised on his behalf. This statement was referred to with approval in A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 at [1169] (Hoeben CJ at CL, Ward JA and Adams J).
That the trial judge gave the jury in one part of the summing-up a direction on law on the element of supply, including the defence to the presumption of supply, and also related the facts relevant to the defence case to the presumption of supply, did not make the summing-up unfair or unbalanced because the trial judge related the facts relevant to the issue of possession, at a later point in the summing-up after giving directions on law on the element of possession of the drugs.
Contextually, it was convenient for the trial judge to give an integrated direction on the issue of supply, including the defence to the presumption of supply, being the sole issue on which the accused bore the onus of proof. On the other hand, the defence case on the issue of possession involved greater detail and relating the facts to this issue was appropriately dealt with by the trial judge when summarising the defence case on the issue of possession and the closing address of trial counsel.
When the summing-up is read as a whole, and not in a piecemeal way, it is apparent that the trial judge fairly put before the jury the defence case on the issue of possession of the drugs. The trial judge appropriately directed the jury that the Crown needed to prove beyond reasonable doubt that the applicant had exclusive possession of the drugs, that is, the applicant intentionally had the drugs in her physical custody or control to the exclusion of any other person: see [83], [87], [89], [95] and [97] above.
Contrary to the applicant's submissions, the trial judge put before the jury the defence case on the issue of possession that Ghibely, or UCO Sonny through Ghibely, actually had possession of the drugs found in the applicant's bedroom and ensuite bathroom, which were the product of the Duty Free bag which Ghibely had left in her bedroom: see [99] above.
The trial judge appropriately related the facts relevant to the defence case on the issue of possession, as is plain from the passages of the summing-up extracted at [92], [93], [94], [97], [98], [99], [100] and [101] above. In particular, the trial judge drew attention to the essential features of the defence case which have been outlined at [23] above. And it bears repeating that the trial judge directed the jury that, whilst the applicant gave evidence, she did not have any onus of proof on the issue of possession of the drugs.
Given the clear and unequivocal directions that the Crown had to prove beyond reasonable doubt that the applicant had exclusive possession of the drugs, that is, the applicant intentionally had control of the drugs to the exclusion of any other person, and the detailed manner in which the trial judge put the defence case to the jury, it is readily understandable that trial counsel did not seek any further directions on the issue of possession.
As the applicant's trial counsel did not object to the directions given by the trial judge, leave to argue ground 2 is required by r 4. The absence of any complaint at trial ordinarily provides a reasonable basis for concluding that there was nothing unfair or misleading about the relevant direction: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [90]; AP v R [2013] NSWCCA 189 at [29]. I am not persuaded that a different conclusion should be reached in this case. There is no legitimate complaint about the adequacy of the directions given by the trial judge. Leave under r 4 should be refused.

Ground 3 - A miscarriage of justice has arisen on account of the trial judge's directions as to what constituted possession in the circumstances of this case

Ground 3 asserts misdirection by the trial judge in relation to the element of possession on counts 2 and 3, which is said to have also affected the directions on the element of possession on count 1, the drug offence.

Submissions

The applicant submitted that the directions concerning possession of the tasers found in the ensuite bathroom, whilst consistent with the standard directions extracted from the Bench Book, were misleading in the context of the applicant's case. The complaint made was that the directions included reference to joint possession, but that was not part of the Crown case or the defence case and this direction is likely to have misled the jury on count 1.
The applicant submitted that this direction gave rise to a miscarriage of justice because the direction tended to suggest for all counts that the mere presence of the items in the applicant's home was, subject to proof of knowledge, sufficient in the circumstances of this case. The applicant submitted that the directions completely undermined the defence case in respect of the critical element of possession and were inadequate.
In response, the Crown submitted that there was no error and that the trial judge gave clear and unequivocal directions that the Crown was required to prove exclusive possession of the drugs and the tasers.

The summing-up

In addition to the matters referred to at [94]-[96] above, the trial judge directed the jury on the element of possession of the tasers as follows: In relation to possession, the dictionary would tell you that to possess something means you have the thing. I need to clarify that concept of possession as it is recognised by the law in the present context. The essence of the concept of possession in law is that, at the relevant time, you intentionally have control of the object in question. You must have the right to exclude other people from it. If these conditions are fulfilled then you may be said to have possession of the object. It is not necessary for you to have something in your hand or your pocket, your wallet, your purse before the law says you have possession of it. Further, you do not need to own something in order to possess it. You can possess something temporarily, or for some limited purpose. You can possess something jointly with one or more other persons. I will give you some examples. Most of you have probably got a television set in your home. Even though you are not there, you are physically here in this courtroom, and the television set is back at your home, the law would regard you as being in possession of it. You and a spouse, partner, flatmate might have jointly bought a television. You might, accordingly, both own it but the law would regard you and the other person as being in possession of it. You might not have purchased the set; you might be renting it. You do not own it but the law still says that you possess it, not the rental company, because it is at your home. You might not have bought it; you might not have rented it. You might be looking after it for a friend while they are away on holiday but for the time being you are in possession of it and your friend is not. In defining possession earlier, I used the phrase 'intentionally have control'. This is to make clear that if something has been, for example, slipped into a suitcase unknown to you, you are not regarded as having possession of it in law, even though that is your suitcase and you are carrying the suitcase. You cannot have control of an item unless you know you have the item. So it is not in your possession because it is not in your control. (Emphasis added.)

Consideration

In the context of the Crown case that the applicant alone possessed the tasers, the directions extracted at [94], [95] and [96] above, read together with the direction extracted at [121] above, made plain to the jury that the defence case contesting possession of the tasers was that the applicant did not know or believe that the tasers found during the execution of the search warrant were in her ensuite bathroom.
Whilst the illustration given by the trial judge of joint possession, such as joint ownership of a television, was strictly unnecessary, it did not detract from the summing-up which clearly related the facts relevant to the defence case on the issue of possession of the tasers. Those facts were straightforward. The trial judge fairly put before the jury the defence case denying possession of the tasers.
Contrary to the applicant's submissions, I do not agree that this illustration might have misled the jury on the issue of possession that mere presence of either the tasers or the drugs in the applicant's bedroom or ensuite bathroom, subject to proof of knowledge, was sufficient to prove possession. The trial judge appropriately directed the jury that the Crown had to prove beyond reasonable doubt that the applicant had exclusive possession of the tasers, that is, the applicant intentionally had control of the tasers to the exclusion of other people.
Again as no complaint was made by the applicant's trial counsel, leave to argue ground 3 is required by r 4. Given the clear and unequivocal directions on the issue of possession of the tasers, it is readily understandable that trial counsel did not seek any further directions. I am not persuaded that there is any legitimate complaint about the adequacy of the directions given by the trial judge. Leave under r 4 should be refused.

Orders

I propose the following orders: 1. Extend the time for filing of the notice of application for leave to appeal to 29 March 2019. 2. Refuse leave to appeal against conviction.
JOHNSON J: I agree with the reasons and proposed orders of Gleeson JA.
FAGAN J: I agree with the orders proposed by Gleeson JA and with his Honour's reasons.
With respect to count 1 the Crown relied upon the extended definition of "supply" in the Drug Misuse and Trafficking Act and sought to prove that the applicant (a) had possession a commercial quantity of the prohibited drug methyl amphetamine and (b) had it for the purpose of supply.
The defence case on the element of possession was that the 3,784.9 g of methyl amphetamine distributed in various quantities around a number of locations in the applicant's bedroom and ensuite had not been in those locations when she was last in the apartment, that she had not known of the drug being in the apartment and that she had not intentionally or knowingly had it in her physical custody. In her evidence the applicant went beyond mere denial and propounded a possible way in which the drug might have been introduced into the apartment, namely, in a duty free bag that Ghibely had brought in and left there at about the beginning of April 2014. She said that she had never ascertained the contents of the duty free bag and that Ghibely had instructed her not to disturb it. There was no such bag amongst the items said by police to have been located during their search of the apartment.
The applicant's evidence about the deposit of the duty free bag by Ghibely had the effect of putting in issue the element of her having the drug for supply. It raised the possibility, on the defence case, that the drug entered the apartment in the duty free bag and that if, contrary to her denials, the applicant was in possession of the drug then this was not for supply but only for return to Ghibely.
On the element of possession the learned trial judge's direction, quoted by Gleeson JA at [83], was correct in law. It was read by her Honour from a document, copies of which were later distributed to the jury. The document placed this direction under a heading "Count 1" and a subheading "2 Possession". At a number of places throughout the oral summing up her Honour reminded the jury that the applicant disputed that she was in possession of the drug according to the legal test. This was done in summarising the applicant's evidence; in referring to the applicant's answers under police questioning; in referring to her evidence explaining those answers; in summarising counsel's addresses and in quoting defence counsel's statement of the issues.
The following are examples of how her Honour reminded the jury that the applicant, in her evidence, had disputed that she was in possession of the drug: [She said] she did not place the prohibited drugs in her unit. She had never seen those drugs before. She did not know that there were drugs in her unit. So she has denied being in possession of the drugs that the police claim to have found. [She said that when questioned by police] she believed that they must have been asking about the items from the duty free bag, that she had never known that what was in the bag was prohibited drugs. [J]ust going to the essence of [her evidence], she did not possess the drugs. She did not know they were there.
In summarising defence counsel's submissions her Honour reminded the jury repeatedly that in her evidence the applicant disputed possession of the drug. The following are some examples: [Y]ou were told [by defence counsel] that the issue in the trial is knowledge. There was no dispute that 2601 was her apartment, that the room was her bedroom. The items were prohibited drugs. The accused said "I did not put them there. I did not know that they were there. They were not there when I left the apartment that day". You were reminded that the onus is on the Crown to satisfy you beyond reasonable doubt of five elements concerning the supply of prohibited drugs and that the critical issue that you need to be satisfied of beyond reasonable doubt is whether [the applicant] knew that there were drugs in those premises when she left the apartment on 3 July … Counsel then focused on the element of possession. You cannot possess something unless you know what you have. You cannot control it unless you know what you have got. Counsel submitted that [the applicant] did not know what was in the duty free bag. … It was submitted that the Crown cannot exclude, as a real possibility, that some other person put the drugs in her apartment. Peter Ghibely had keys. In relation to the drugs, counsel referred to the duty free bag. It was [the applicant's] evidence that the duty free bag was brought there by Peter Ghibely. She never opened the packages [inside the duty free bag]. She thought that they were weapons and she did so by looking at the packages still in the wrapping and feeling them. She made no enquiry about the duty free bag. Counsel suggested that the scene [in the apartment, as photographed by police] looked artificial, that it looked staged and that you would accept the evidence of [the applicant] that she did not leave her room or her bathroom in that state. It was submitted that you cannot exclude some member of the police force or someone else altered the state of the room for a purpose and that the purpose was to attribute knowledge to [the applicant] by putting drugs with her possessions and making them all obvious and easy to find. You were reminded that the Crown bears the onus of proof and the onus is to the requisite standard of beyond reasonable doubt, and what [the applicant] has put in issue is the following: "When I left my unit there was a duty free bag there. I did not know what was in it but it certainly wasn't the items that I saw on the footage [of a video recording of execution of the search warrant], or at least I don't know if it was because the state that the duty free bag was in was not the way I saw it in the footage taken at the time of the search … [T]he issue is said to be that, as [the applicant] has said, "I had no possession because I did not know these things with there. I could not exercise control in terms of physical control or custody of these items because I did not know they were there".
By these reminders in the summing up it was made plain that the accused's evidence and submissions were directed to the proposition that the Crown had not proved beyond reasonable doubt that the applicant had the drug in her exclusive physical custody, intentionally and with knowledge that the substance was a quantity of prohibited drug. Her Honour related the defence evidence and submissions to the issue of whether the element of possession, as correctly expounded in her Honour's directions of law, had been proved beyond reasonable doubt.
The applicant's submission on the leave application is that her Honour's further direction quoted by Gleeson JA at [87] and [88] somehow subverted the ample directions on the Crown's burden of proving possession beyond reasonable doubt. The impugned direction was introduced in clear terms as arising only if the jury were satisfied that the Crown had proved beyond reasonable doubt that the applicant was in possession of the prohibited drug and that the quantity of it was at least 3 g. The direction conveyed that if those matters were proved, the applicant could rebut the statutory deeming of a purpose of supply by proving on the balance of probabilities that her possession was only for the purpose of return to Ghibely.
The applicant submitted to this Court that: [her Honour] adverted to the appellant's evidence in short compass and confined its relevance to the appellant's onus to establish possession for the purposes of return to the owner and: to the extent the appellant's account at trial was identified as being relevant, the jury were directed that the appellant had an onus to establish the factual scenario on the balance of probabilities.
Those submissions are unsustainable in the face of the extensive passages of the summing up in which her Honour summarised the applicant's evidence and reminded the jury of how her counsel relied upon it to argue that the Crown had not proved possession. The jury were informed consistently and repeatedly, both in her Honour's oral and written directions of law and in her recitation, without criticism, of defence counsel's framing of the issue, that the Crown had to prove beyond reasonable doubt the applicant's intentional exclusive physical custody of the drug. It is unrealistic to suggest that this clear repeated message was negated or obscured by her Honour's additional direction that if the jury were satisfied of the applicant's knowing possession they would have to consider whether the applicant had satisfied them on the balance of probabilities that she held the drug only for return to Ghibely and not for supply.
The applicant's evidence that Ghibely had left a duty free bag with her and told her not to disturb it implicitly raised the question whether, if the drug was originally in the duty free bag and the applicant was in possession of it, that possession was solely for the purpose of return. As Gleeson JA has observed at [86], defence counsel did not oppose a direction being given about this in accordance with Carey v R and did not seek any redirection. The summing up would not have been misleading to the jury in the respect that has been submitted. The lack of a request by counsel for redirection confirms the assessment that her Honour's directions taken as a whole left the issues and the burden of proof properly before the jury, with a correct understanding that the applicant's evidence had been directed to disputing intentional and knowing possession.
The applicant also argued that when her Honour directed the jury on the element of possession as it related to the two tasers (counts 2 and 3) she "erroneously introduced into the case the subject of joint possession". The applicant's counsel submitted: [N]either side was saying joint possession, neither side was saying joint possession on any of the counts. […] those directions are directions on joint possession. So now the jury are thinking about joint possession and joint possession if it's brought into the picture is impermissible because neither side is asserting it [...] . So that in the context of this case is a misdirection as well. So it does introduce an idea, as it were, of [the applicant] and Mr [Ghibely] possessing these things together and nobody was putting that.
The passage of the summing up to which these submissions were addressed was expressly a direction of law with respect to counts 2 and 3. It was read by her Honour from the directions document that was later distributed to the jury. In the document the impugned passage appeared under a prominent heading "Count 2 and Count 3". Although this passage made reference to more of the law concerning possession of the tasers than was necessary for the jury's consideration of counts 2 and 3, it was not incorrect. Nor was it misleading, either with respect to the two counts to which it was directed or with respect to count 1. It could not have undermined or obscured her Honour's clear presentation of the legal and factual issues on possession of the prohibited drug in count 1, to which reference has been made at [132]-[135] above.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2019

(Weapons Prohibition Act 1998(NSW)s 7)

Li v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (24)

Cited By (2)