R v G.N.N. No. SCCRM-00-208 [2000] SASC 447

Court of Criminal Appeal: Doyle CJ, Prior and Olsson JJ

1 DOYLE CJ. Ms GNN was tried before a jury on two counts of possessing heroin for sale, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA). The jury found her not guilty on the first count, but found her guilty on the second count. She appeals against that conviction.

2 Ms GNN was the occupier of a house at Kilburn in Adelaide. Her young son and daughter lived there with her. On 26 June 1999 the police had the house under observation. The police suspected that a consignment of heroin was being brought from Sydney to the house. They suspected that Ms GNN was involved in dealing with heroin.

3 At about 7.15pm on 26 June a man, who could not be confidently identified, came out of the house and drove a Nissan motor car from the driveway of the house into the street. The man returned to the house.

4 At about 7.47pm a Toyota Corolla motor car drove into the driveway of the house. Two men were in the car.

5 At about 8.00pm Ms GNN and a man, Mr SN, left the house and went towards the Nissan parked in the street. They were stopped by the police.

6 The police then entered the house. They found Van Diep Pham and Mr THN in the lounge. A third man, Phong Thanh Nguyen, was showering himself in the bathroom of the house. The evidence established that these men had come from Sydney. They were not normally residents at the house. Nor was Mr SN, who lived at another address in Adelaide.

7 The evidence was that Mr THN had arrived from Sydney at the house the previous day. The evidence indicated that he and Ms GNN were in a relationship. They were sharing the bedroom at the house, and various belongings of Mr THN were found in the bedroom. Mr SN and Mr THN were brothers.

8 The evidence suggested that Phong Thanh Nguyen had driven the Toyota from Sydney, departing from there on Friday 24 June or Saturday 25 June.

10 They found heroin in the kitchen. This heroin was the subject of Count 2. In a flower pot on top of the fridge they found two small packages wrapped in plastic and secured with rubber bands. The two small packages were wrapped up as one. One of the packages was wrapped in advertising material that related to a business that operated only in South Australia. There was nothing of note about the other wrapping. Each package contained a block of compressed powder. One package weighed 6.95 grams, of which 4.91 grams was heroin. The other weighed 2.49 grams, of which 1.48 grams was heroin. Numerous rubber bands were found in the kitchen and in the bedroom.

11 Also in the kitchen, and also the subject of Count 2, was some heroin found in a video tape box. In the video box were found two blocks of compressed powder. One weighed 351.9 grams, of which 250 grams was heroin. The other weighed 327.7 grams, of which 231 grams was heroin. These packages were wrapped in plastic and brown masking tape. No such masking tape was found in the house. The plastic was a plastic bag with writing on it indicating that it came from a Vietnamese supermarket in Cabramatta in New South Wales. Chemical analysis of the heroin showed that it might have been from the same batch as one (but only one) of the blocks found in the flower pot.

12 In the bedroom used by Ms GNN, and temporarily shared by Mr THN, the police found heroin between the mattress and the base of the bed. This heroin was the subject of Count 1, on which the jury returned a verdict of not guilty. The heroin was found inside a plastic bag sealed with one rubber band. Chemical analysis of this heroin indicated that it was not related to any other heroin found in the house.

13 The police also found heroin concealed in the Toyota motor car. Phong Thanh Nguyen and Van Diep Pham were charged on Count 3 in respect of this heroin. Van Diep Pham had absconded, and only Phong Thanh Nguyen was tried. In the Toyota the police found two blocks in two balloons inside a plastic bag. Chemical analysis indicated that this heroin was not related to any of the heroin found in the house.

14 Nothing was found in the house that could be linked to the wrapping around the various blocks of heroin. Although clingwrap and alfoil were found in the house, neither was linked to the wrapping. The police found a box containing Glad plastic sandwich bags, and in this were hidden electronic scales. There is no evidence linking either item to Ms GNN, other than the fact that they were found in the house. There is no evidence of traces of heroin found on the scales. The police found $2,700 in cash in Ms GNN's handbag. Ms GNN was conducting a restaurant business. It does not appear to have been disputed that the cash found in her handbag might have come from that business.

15 As against Phong Thanh Nguyen the prosecutor pointed to the fact that he had hired the Toyota in Sydney the day before he arrived in Adelaide with the Toyota; to the finding of the heroin in the Toyota (it was worth about $10,000), and to the fact that he had come to a house in Adelaide in which a substantial quantity of heroin had been found. The prosecutor invited the jury to reject his claim that he knew nothing of the heroin. The jury found him not guilty.

16 As to Ms GNN, the prosecutor relied on her occupancy of the house, and the fact that the only other regular occupants of the house were her young son and daughter. The heroin found in the house was estimated to be worth between $170,000 and $270,000, depending upon how it was sold. The prosecutor said it was unlikely that the heroin had been moved from the Toyota to the house in the roughly 13 minutes that elapsed between the arrival of the Toyota and the police entering the house. The prosecutor pointed to the cash found in the handbag, to the fact that quite a few rubber bands were found in the house, and to the finding of the electronic scales. The prosecutor relied on translations of intercepted phone calls in which a person, said to have been Ms GNN, was heard speaking. Reference was made to Son Nguyen in one of the phone calls. Evidence given about terms used in the phone calls suggests, to my mind quite strongly, that the conversation recorded Ms GNN negotiating with another person over the sale of heroin.

17 The case for Ms GNN was that there was simply not enough evidence to prove that she was in possession of the heroin found in the house. She denied any knowledge of it. Obviously, it might have been put there by one of the three men. Counsel for Ms GNN pointed to the absence of any evidence linking her to any of the packages. It was submitted that the recorded conversations related to films. Expert evidence led for the prosecution was to the effect that "film" was a common slang term for a quantity of heroin. As I have said, having read the transcripts I find the explanation for the conversation quite unconvincing.

18 It was necessary for the Judge to give careful directions to the jury about the basis upon which they might conclude that Ms GNN was in possession of the heroin the subject of the charge. The fact that it was found in a house occupied by her was not, of itself, enough to establish possession.

19 Apart from giving appropriate general directions, there are several matters of significance that had to be dealt with in the direction given to the jury in this case.

20 First, it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury's part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who were at the house that night. Thirdly, it was necessary to emphasise the requirement to prove physical control over the heroin and an intention to exercise control over it. It was necessary to relate these matters to the facts, in a practical way, to avoid the risk of the jury convicting on an unreliable basis. It was necessary to give directions that dealt adequately with the possibility that the heroin was in the possession of one of the men found in the house.

21 Possession is a notoriously elusive legal concept. It is difficult to explain. The Judge began with what is, in my respectful opinion, an adequate general statement of the concept of possession. I think it is best that I set out what the Judge said. He said:

"Thirdly, it must be proved that the substance was in the possession of the accused in each case. A person has possession of an object if he or she knowingly has physical custody or control of it. Control includes the power to dispose of the object. The person may have the object in his or her immediate possession; for example, as you might say, you have a watch that you are wearing or handbag or purse you are carrying in your immediate possession now. Alternatively, a person may have it in a place where, although they don't have immediate possession, they would say they have the exclusive right or power to place their hands on it; for example, you may say that whilst you don't have immediate control of the television at home or your household belongings, you can still properly claim you have it in your exclusive right or power to place your hands, if you like, on the furniture. It is yours.

Possession may, of course, be jointly with another. You and your partner may both possess the furniture. But possession is something different from ownership; it can include ownership but it is something different, because it's not necessary to own something to possess it. If I lend my lawnmower to the neighbour, my neighbour may well be in possession of my lawnmower for some time.

You may also keep in mind that I used the word 'knowingly'. A person is not to be in possession of a substance for the purposes of this offence unless she or he knows of the existence of it. If someone were to slip a set of keys into your pocket or handbag whilst you were not watching, then you would not be in possession of that object because you did not know or you weren't knowingly in possession of it. So, in other words, there must be both physical control and the intent to exercise control over the object.

In the present case, it is alleged that the female accused, [GNN], was in possession of the heroin found in her bedroom and her kitchen and that the accused, Phong, was, jointly with Van Diep Pham, in possession of the heroin found in the car.

Now, ladies and gentlemen of the jury, as you know, Van Diep Pham is not before the court, and I must warn you that you must not speculate as to the reasons why or, indeed, what has happened to Van Diep Pham. Here, the particulars allege that Phong and Van Diep Pham possessed the heroin found in the car. If you think they both knowingly had physical control of the heroin in the car, then the male accused here, Phong, will be in possession of it for the purposes of this element of the charge, or even if you think the male accused, Phong, alone knowingly had physical custody or control of the heroin in the car, then he will be in possession of it for the purposes of this element of the charge. However, if all you are prepared to find is that the heroin was in the car, but you were not satisfied that, in the circumstances, the male accused had physical custody or control of it, and I'm talking about Phong, even though he might even have known it was there, then you will not find this element proved. That is the third element."

22 Later in his summing up the Judge dealt with the submissions made by counsel to the jury. Although he repeated various arguments put to the jury, including a submission that there was not enough evidence for them to be satisfied that Ms GNN was in possession of any of the heroin, he did not elaborate on the directions set out above, nor did he apply the relevant legal concepts to the circumstances of this particular case.

23 In my opinion, bearing in mind the importance of the issue of possession in this case, the direction given was inadequate.

24 As I have said, the Judge adequately identified and explained the basic legal concepts involved - possession, knowledge, custody and control. But, in my respectful opinion, his directions did not give the jury the assistance that they needed in applying those concepts to the facts of the case.

25 It was particularly important to identify the circumstances which, if proved to the jury's satisfaction, would establish that the heroin was in the possession of Ms GNN as distinct from being in the possession of one or other of the men found in the house. The Judge's direction does not really grapple with that issue. It is an issue which cannot be resolved solely by reference to the knowledge of Ms GNN. It required some further explanation of the practical application of the concept of control. It was not a case that required further general discussion of the nature of the relevant concepts, but rather an explanation of how they were to be applied. The jury needed further guidance on the issue of control because, in this case, it was quite possible that the heroin had been brought into the house by one of the men, but with the knowledge and acquiescence of Ms GNN. The Judge's directions gave no assistance on that issue, other than by referring to the concept of custody or control. As well, in my opinion the directions that the Judge gave might have misled the jury in two respects. First, the Judge referred to a person possessing an object which was in a place such as a person's home, and said that in that situation although the person did not have immediate control of the object, the person could still claim an exclusive right or power over it. There is a risk of the jury interpreting this as meaning that their satisfaction that Ms GNN knew the heroin was hidden in her kitchen was sufficient to constitute possession. As well, in the circumstances of this case I consider that the emphasis on knowledge might have caused that to assume undue importance in the jury's mind. Of course, knowledge was a critical issue, but in the circumstances of this case so was control, and so was the issue of whether the jury were satisfied that Ms GNN, and not some other person was exercising the relevant control or had an intention to assert control. In particular, the Judge did not tell the jury that to convict Ms GNN they would have to exclude the possibility that she had merely acquiesced in one of the men hiding the heroin in the kitchen, in the sense of merely permitting him to conceal his heroin in her house.

26 I understand the difficulty in crafting appropriate directions, and the need to avoid confusing the jury by the elaboration of legal concepts, or by multiplying examples. But the facts of this case required that the jury be told specifically that proof that GNN knew that the heroin was hidden in her kitchen did not establish that she was in possession of it. The jury should have been told that they would also need to be satisfied either that she had hidden the heroin there herself, and was intending to exercise or assert control over it, or that the heroin had been hidden there by one of the men at her request, she intending thereafter to assert control over it. In that context it would be appropriate to warn the jury that possession by Ms GNN was not established by proving that she allowed one of the men to hide his heroin in her house.

27 For that reason, in my opinion, the conviction cannot safely stand.

28 Mr Peek QC, counsel for Ms GNN submitted that Count 2 was bad for latent duplicity and for uncertainty. The evidence disclosed that Count 2 related to two separate packages of heroin - one hidden in the flower pot, the other in the video box. He submitted that this necessarily means that Count 2 alleges two separate offences - possession for sale of the heroin in the flower pot and possession for sale of the heroin in the video box. He submitted that it was impossible to say whether the jury had convicted Ms GNN on the basis that she was in possession of one or other of the packages or of both. Accordingly, the conviction should be quashed.

29 I propose to deal with this point quite briefly. The appeal must in any event be allowed on the basis already indicated by me. Mr Peek's submission raises some important points of principle, but it is not necessary to resolve them here, and they should be left until they have to be resolved.

30 The rule against duplicity, both patent and latent is a fundamental and important rule. I respectfully agree with what Kirby J said about the origin and importance of the rule in Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 104 - 105. I accept Mr Peek's submission that a complaint of latent duplicity or uncertainty as to the acts charged may be made on appeal, even though, as here, the point was not taken at trial.

31 Count 2 could have been split into two separate counts, each relating to one package of heroin. It does not follow that that had to be done. There is a respectable argument, which was put by Ms Kelly, for the conclusion that Count 2 is permissible in its present form. In brief, the argument rests on the so called "practical approach" to questions of latent duplicity or uncertainty, being the approach approved by Lord Diplock in DPP v Merriman [1973] AC 584 at 607. The argument is that the matter of duplicity or uncertainty must be approached on a practical basis. In the present case the circumstance that two packages were found in the same room of Ms GNN's house, and at the same time, and in circumstances indicating that she was in possession of all of it or none, are said to provide a sufficient basis for treating the possession of both packages as a single act or event or offence. The argument is that while two separate counts could have been laid, there is no inconvenience or injustice in using a single count, if a practical assessment of the facts suggests that in the circumstances the possession is what might be called composite possession, for want of a better word. There is an underlying element of truth in that submission. In certain circumstances a person would readily and naturally be regarded as in possession of a number of items in a particular room, and in certain circumstances it might be quite artificial to treat the person as separately in possession of each item in the room. Assuming that Lord Diplock's approach is acceptable in Australia, it requires a consideration of the nature of the possession alleged, the circumstances in which it is alleged, and of all surrounding circumstances.

32 The High Court has not settled the law of Australia on this point. Conflicting views were expressed in Walsh v Tattersall. My view, for what it is worth, is that at a certain level the rule against duplicity or uncertainty has to be applied in a practical way. There are situations in which a practical judgment leads inevitably to the conclusion that an allegation of possession cannot meaningfully or sensibly be expressed in relation to separate items. A simple example is a man found with two or three items in his wallet which is in turn in his pocket. There are other situations in which a practical judgment leads to the opposite conclusion. Then there will be cases in between these extremes, in which the High Court has yet to determine whether Australian Courts should take a practical approach or what might be called a more analytical approach. In coming to a conclusion on the matter, I consider that it is appropriate to bear carefully in mind the purpose of the exercise and the context in which it arises. The purpose of the rule is, I consider, to avoid unfairness at trial, to enable decisions as to admissibility of evidence to be made on a sound basis, to enable a jury to be correctly directed, and to avoid uncertainty as to the basis upon which a person has been convicted and is to be sentenced. Having said that, I leave the matter there.

33 In the present case I consider that the answer to the complaint made by Mr Peek is that to the extent that latent duplicity or uncertainty emerged, from the fact that Count 2 relates to two packages of heroin, there is no possible risk of a miscarriage of justice having occurred here. The case was opened to the jury, presented to them and summed up on the basis that Count 2 related to all of the heroin found in the kitchen. There was never any suggestion to the jury that they might distinguish between the two packages of heroin found in the kitchen. It would have been better if the judge had told the jury in terms that they should convict Ms GNN only if satisfied that she was in possession of both packages. I think that the explanation for the failure of the judge to do so is that it occurred to no-one at trial that any distinction might be drawn between the two packages. The case went forward on the basis that Count 2 related to both packages. Being satisfied that there is no possibility of a miscarriage of justice, I need say no more on the question of duplicity or uncertainty. However, for what it is worth, my view is that it would have been preferable if Count 2 had been split into two separate counts. Despite what I have said, the charges laid introduced an unnecessary difficulty into the case, a difficulty that would be better avoided.

34 It is submitted that the direction to the jury about the use of the evidence of the intercepted telephone conversations was erroneous.

35 The evidence, if interpreted by the jury as the prosecution suggested, established that Ms GNN was familiar with drugs and was involved in dealing in drugs. It was circumstantial evidence, relevant to the proof of possession. It was not, of course, direct evidence of possession. Its use required some care. The jury had to be warned not to reason that because Ms GNN was involved in dealings with drugs, she was likely to be in possession of these particular packages. The evidence established no more than that she was familiar with drugs and involved in dealing with them, and was no more than a piece of evidence which might help the jury conclude that the heroin in the house was hers.

36 At one point in the summing up the judge did refer rather generally to the telephone evidence. But overall his direction was favourable to Ms GNN. He specifically warned the jury not to reason from a conclusion that she was involved in dealing with drugs to the conclusion that she guilty of the offence charged. He told the jury that the evidence could do no more than establish that she was familiar with drugs and that it might help them in deciding how much they could rely on explanations that she had given to the police. In my opinion, no complaint can be made of this aspect of the summing up.

37 Mr Peek also submits that the evidence before the jury was not capable of satisfying the jury of guilt beyond reasonable doubt. I do not agree. In my opinion there was evidence before the jury which was capable of leading to a conclusion of guilt beyond reasonable doubt. The difficulty confronting the prosecution lay in the presence of the men in the house, and the obvious possibility that they had brought the heroin to the house, and might have been in possession of the heroin, rather than Ms GNN. The presence of the heroin in the house did not, of itself, advance the prosecution case very far. But there was other evidence which, when taken together, was capable of producing the required state of satisfaction on the part of the jury. For example, the fact that some of the heroin might have been from the same batch, the fact that the heroin was found in the kitchen rather than in rooms used by the men or among their belongings, the finding of the box with the scales in it and the large number of rubber bands in the house. There is also the circumstantial evidence provided by the telephone conversations.

38 In my opinion, this ground of appeal is not made out.

39 For those reasons I consider that the conviction should be set aside. There should be an order for a re-trial on Count 2.

40 PRIOR J: I agree with the orders proposed by the Chief Justice for the reasons he has given.

41 OLSSON J: I agree with the reasoning of the Chief Justice and the orders which he proposes.