[His Honour then gave an illustration of a circumstance in which a person might have custody or control of an object, but not possession in the legal sense because of ignorance of that custody or control.]
"Members of the jury, the significant thing is knowledge and, unless knowledge is established in this case with regard to the material in the trailer, you could not be satisfied beyond reasonable doubt of the supply in the circumstances in which I have read it out to you because, unless you are satisfied that they had possession of that material, that is that they had custody or control of it to the exclusion of others but also that they had knowledge that it was there."
53 These directions were described on behalf of the appellants as largely unexceptional. Nevertheless the point that was taken was that the directions failed adequately to advert to the issue of joint possession. In particular, it was argued, inadequate attention was paid to various possible scenarios. One of these concerned the position of Williams. The evidence showed that she was not employed by Lewis Magro to drive the vehicle, and, even though she did drive from time to time, her role was as a companion to Matthews. From this, it was argued, it could be seen that she was not authorised to maintain control over the load in the trailer.
54 A second possible scenario, on the submission, was that one appellant, but not the other, was responsible for the loading and transporting of the cannabis and that the other was quite innocent (presumably meaning "ignorant of the presence of the cannabis"). A third was that while one appellant was criminally responsible for the cannabis, the other, although having knowledge of that fact, played no active role in the criminal enterprise. A fourth is that one appellant was responsible, and that the other, while having knowledge of that fact, "merely acquiesced" in the other's criminal participation. (Quite how this fourth scenario differs from the third is not apparent to me.)
55 The argument was that the directions should have been more expansive to bring these various possible scenarios to the attention of the jury.
56 Should it be correct that these scenarios were, or any of them was, in reality as distinct from in theory, a reasonably possible version of the facts, a significant consequence arises. On the evidence, if it were reasonably possible to conclude that one appellant but not the other was criminally involved, it would not be possible, beyond reasonable doubt, to identify which of the appellants was guilty and which was not. Each would therefore be entitled to an acquittal. However, this ground, as pleaded and argued, concerns directions which it was on appeal (although not at trial) contended should have been given. It was conceded that no such directions were sought and the appellants need leave if they are to be permitted to argue the ground.
57 In my opinion the first of the scenarios can be dismissed readily. The evidence established that both appellants had driven the semi-trailer on part of the journey prior to its interception. In those circumstances, at least during the time he or she was driving, each appellant had, in a physical sense, custody of and control over the contents of the trailer. In saying this I do not mean to imply that the appellant who happened to be a passenger at any particular time could not also be held to have had custody or control at that time; but it is unnecessary to reach a conclusion about that, because, during the time of driving at least, each appellant had the relevant custody or control. I am unimpressed with the proposition that there is a reasonable possibility that Williams "was not authorised to maintain control of the load in the trailer". The summing up accorded with the way the defence was conducted. In counsel's address to the jury it was submitted, as the appellants had asserted to the police and as they asserted in their evidence, that the appellants had no knowledge of the cannabis. No suggestion was made in counsel's address to the jury that the jury might be satisfied that one of the appellants was knowingly in possession of the cannabis but that the jury would not be satisfied that it was either one of them in particular. Yet the directions which it is now submitted should have been given to the jury by the trail judge are variants of that theme.
58 No direction of the kind now sought was sought at the trial. To have done so would have been inconsistent with the way the appellants' case was conducted, in that it would have raised for consideration by the jury the possibility that one of the appellants was knowingly in possession of the cannabis whereas the appellants' case at the trial was that neither was knowingly in possession of it. It was a tactical decision to conduct the appellants' case in this way, carrying with it the implication that both appellants were the innocent victims of wrongful conduct by others.
59 The third and fourth proposed possibilities, even if they are accepted as such, do not assist the appellants. That is because, on the scenarios posited, and for the reasons given above, at least by the time each appellant had taken the controls of the prime mover, that appellant knowingly had custody and control of the cannabis. (The scenario, in each case, postulates knowledge or acquiescence, but with a lower level of actual involvement of one participant vis-a-vis the other.) This question was explored during the course of oral argument. Senior counsel for the appellant argued that, if one driver were given instructions that precluded any interference by that driver with the contents of the trailer, then that driver would not be in control of the contents of the truck. That proposition, to me, has rather more than an air of unreality about it. It is based upon a premise which is almost metaphysical. The premise is that the criminally complicit participant may surrender to the knowing but otherwise uninvolved participant, control of the truck and trailer, but not of the contents of the trailer; and could do so merely by exerting some form of authority or by giving some form of instruction or direction. It assumes a level of authority on the part of a person who, ex hypothesi, is guilty of a criminal offence. More, it assumes some kind of legitimate authority on the part of that person to give directions to the other. It may well be that, as a matter of fact and practicality, the second driver would have complied with any such instruction or direction. But, as was suggested during the course of argument, that is a question of fact, to which, in this case, no evidence was directed. It was not for the Crown to exclude such a remote hypothetical possibility.
60 Senior counsel then postulated a circumstance closer to the facts of this case to support his argument. He proposed a truck travelling from Adelaide to Sydney, the official driver of which was knowingly and intentionally in possession of contraband in the trailer; a passenger who was aware of but indifferent to that possession; and a temporary pause during which the driver asked the passenger to take over the wheel for five minutes. In those circumstances, senior counsel argued, the alternative driver would not become seized of possession of the contraband in the trailer because that driver would not have had exclusive or joint control of that contraband.
61 This argument also fails for essentially the same reasons as the earlier arguments fail. Senior counsel accepted that the scenario postulated raises a question of fact. That issue of fact theoretically could determine the issue of control. But where no evidence was adduced to establish even the possibility of the scenario, it was not something about which directions needed to be given. It is not to be forgotten that this ground is concerned with directions that were, and directions it was contended should have been, given.
62 To support his proposition senior counsel relied upon the decision of the Full Court of the Supreme Court of South Australia in The Queen v Myall (1986) 43 SASR 258. That case, although it bears a superficial resemblance to the present, is, in material respects, quite different. A husband and wife were apprehended in a motor vehicle driven by the husband and in which the wife was a passenger and which contained recently stolen goods. Each was charged with having received goods knowing them to have been stolen. Although police officers had observed part of the operation during which the stolen goods were loaded into the vehicle, there was no suggestion that the appellant (the wife) had taken any active part in that operation. She had been observed, while in the passenger seat of the van, to adjust one of the items to prevent it from moving during transit.
63 Matheson J, with whom Jacobs J agreed, held that there had been no case to go to the jury and that the trial judge should have acceded to an application for a verdict by direction. Olsson J considered that the trial judge was "plainly correct" in rejecting the submission that there was no case to answer, but that, nevertheless, the jury ought to have had a reasonable doubt about the appellant's guilt and acquitted. Pursuant to the principles now stated in, inter alia, M v The Queen (1994) 181 CLR 487, his Honour agreed that the appeal should be allowed and the conviction quashed.
64 A number of passages in the two judgments are relevant to the issues raised in the present appeal. Matheson J, after considering a number of relevant authorities, held that:
"The evidence fell short of establishing that she had joint control, still less exclusive control. Her handling, such as it was, was equivocal, and, in all the circumstances, pointed at best, from the Crown point of view merely to acquiescence in her husband's possession."
65 Olsson J wrote:
"When one considers the state of the evidence as it stood at the close of the defence case there were a number of aspects which necessarily gave grounds for some disquiet.
The first is that there was no real evidence to connect the appellant with any guilty transaction (assuming that there was one) between her husband and the man Nash. She gave an explanation which was not only plausible and not overturned on cross-examination, but which, it is true to say, was not ever strongly attacked by the Crown. It is clear that the jury disbelieved her husband's story and was patently entitled to do so, but one is left with the uneasy impression that the jury may well have found her guilty merely by association with him.
It has been pointed out on several occasions that the mere fact that a person happens to be a passenger in a motor vehicle by no means, of itself, implies that such a person is in possession of it (Reg v Fien [[1962] NSWR 134], nor does the fact of mere manual contact with stolen goods necessarily imply possession of them (Hobson v Impett [(1957) 41 Cr.App.R. 138]). The fact that the appellant was the wife of the person found to have received stolen goods also does not necessarily imply joint possession on her part. On the contrary it affords a very reasonable explanation - entirely consistent with the innocence of any receiving - of an innocent presence in the vehicle. This is the more so when her explanatory story was not successfully impeached in cross-examination. Alternatively, at best, (assuming that the appellant had knowledge of the fact that the goods had been stolen) there is simply no substantial basis of evidence for inferring that she was other than an acquiescent wife who was literally 'going along for the ride'."
66 These passages, in my opinion, make it quite clear that Myall was very much decided upon its own facts. The prosecution evidence was simply insufficient to establish to the requisite criminal standard that the appellant was complicit with her undoubtedly guilty husband in the possession of stolen goods.
67 In my opinion, the decision in Myall does not advance the appellants' case.
68 In this case, the trial judge gave directions that were appropriate having regard to the issues that had been raised by the evidence. At no point was it ever suggested, as a matter of fact as distinct from theoretical possibility, that one of the appellants might have had possession of the cannabis with the other, at most, merely acquiescing. Had that been raised as a possibility, joint representation would not have been possible.
69 In any event, the ground represents a departure from the position taken by the appellants at trial. There, it was stated at the outset, knowledge was the issue and the only issue. It was accepted that, if knowledge were proved on the part of either appellant, that appellant was guilty. No issue was ever raised about acquiescence as distinct from participation, nor awareness as distinct from indifference. The ground seeks to make a case different from that made at trial.
70 I would refuse leave to argue the third ground of appeal, but, if leave were granted, I would reject it.