Grounds 1, 2 and 3
10 Each of these grounds relate to the sufficiency of the directions given, in relation to the element of possession. In this regard his Honour instructed the jury:
"The law says this, that possession does not necessarily mean ownership. Possession involves these two concepts: first that whatever the Crown is alleging is possessed must knowingly be in the accused's physical custody or be at some place under his physical control and the second component of this word possession is that the accused must have the intention and ability to exercise control and ownership over the particular property in question, to the exclusion of all other people if he wants to."
11 His Honour gave examples of two situations in which a person might be found to be in control of, and hence in possession of property, although it was not in his immediate presence and then repeated what it was that the Crown had to prove in relation to the appellant's knowledge. These directions were clear and succinct and they complied with the law as declared in He Kaw Te (1985) 157 CLR 523 and Saad (1987) 61 ALJR 243.
12 They were followed by the direction that one of the essential elements the Crown had to prove beyond reasonable doubt, in this case, was that the appellant was in possession of the beige powder. When dealing with the defence case his Honour explained that no onus of proof rested upon the appellant, and that he was neither required to prove or to disprove anything.
13 Having regard to the form which the summing up took, and the absence of any complaint by trial Counsel, there is no reason to suspect that the jury were left with any understanding other than that the Crown had to prove that the accused had possession of the methylamphetamine in accordance with the principles that were explained in the passages earlier cited.
14 Not only was there no objection taken at the trial to these directions, it is evident from an exchange that occurred at the end of the summing up, that the direction on possession was formulated with the assistance of defence Counsel.
15 The first complaint made, upon appeal, is to the effect that his Honour should have identified as an issue for the jury, whether the appellant had hidden the methylamphetamine under the pot plant. In advancing this submission, reliance was placed upon an observation in Williams v Douglas (1949) 78 CLR 523 at 526/7, that while the expression "possession" did not extend to constructive possession, it was:
"wide enough to include any case where the person alleged to be in possession, has hidden the thing effectively so that he can take it into his physical custody when he wishes and where others are unlikely to discover it except by accident."
16 That statement was made in the context of the observation that the de facto possession, of which the relevant section spoke, was a concept "much more extensive than that of physical custody". It was not intended as a definitive statement of what is required for de facto possession; it was merely an example of it that was relevant for the case under appeal.
17 In Douglas it was alleged that the accused had hidden a quantity of gold in the bathroom of a hotel which was some distance from his room, and which was shared by other patrons. When first spoken to about the gold, the appellant denied knowledge of it. Later he said "It's no use beating about the bush, it's my gold". The issue that arose for consideration was whether it was necessary for the prosecution to prove that had actual possession of the gold or exclusive possession or control of the place where it was found.
18 The Full Court of the Supreme Court of Western Australia remitted the matter to the Local Court with a direction that possession or control had been sufficiently established. Special leave to appeal was refused by the High Court. In those circumstances, the decision does not stand as authority for the proposition sought to be advanced. The observation relied upon is taken out of context. It cannot be elevated to a statement of principle. It is plain that in reaching the conclusion it reached the Full Court was of the view that the magistrate drew the wrong deductions from the facts, and that the admission made was important in deciding the factual issue.
19 The present case was not one where the Crown sought to rely on joint possession. For the reasons discussed in Filipetti (1978) 13 A Crim R 335, Bazeley (Court of Criminal Appeal New South Wales 23 March 1989) and Sobolewski (Court of Criminal Appeal New South Wales 21 April 1998), it was necessary for the Crown to exclude, as a reasonable possibility, possession by some other occupant of the flat.
20 In this regard his Honour had made it clear, in the direction noted earlier, that the Crown had to prove that the appellant had the intention and ability to exercise control and ownership over the methylamphetamine "to the exclusion of all other people" if he wanted to. In support of that element it had available the immediate admission by the appellant that he knew what the substance was, and that it was his; additionally it had evidence that it found was in the room where he normally slept. The case was not one, however, where there was evidence from Ms Knopp or "Steve", of the kind available in Burns (Court of Criminal Appeal New South Wales 19 August 1998), negativing possession by them.
21 For his Honour to have directed the jury that they had to be satisfied, in this case that the appellant had hidden the methylamphetamine under the pot plant, so that the other occupants of the flat were unlikely to discover it except by accident, would have been to raise an immaterial issue, and to have imposed upon the Crown a burden that it did not have to accept. It was not necessary for the Crown case that the drug had been hidden. Moreover, knowledge by the other occupants of its existence or of its location would not have been inconsistent with possession by the appellant.
22 The case was effectively conducted as a single issue case, namely whether the admission made by the appellant was true. If the jury were satisfied beyond reasonable doubt of that, then possession was proved. As no objection was taken to the directions at the trial, and as the relevant issue was appropriately raised, I would refuse to grant leave under rule 4 Criminal Appeal Rules, to argue these grounds of appeal.
Grounds 4 and 6
23 These grounds relate to the sufficiency of the directions given concerning the evidence of the appellant. They can be conveniently dealt with together.
24 First it was submitted that his Honour should have directed the jury that the appellant's explanation for his admission had to be negatived beyond reasonable doubt. There is no requirement at law for such a direction to be given. The appropriate direction was the conventional direction requiring proof of the essential elements of the offence charged beyond reasonable doubt . That direction was given more than once and in clear and unequivocal terms.
25 Next it was submitted that his Honour erred in law when directing the jury that they should treat the evidence of the appellant in the same manner as that of the other witnesses. Further, it was submitted that when referring to the appellant's evidence, his Honour did so in terms which invited the view that an onus rested upon him to make good the explanation he had offered for the admission.
26 Neither submission has merit. No complaint was made at the trial. His Honour said, relevantly for the matters now sought to be raised:
"Now the accused, as Mr. West said to you, was under no obligation even to go into the witness box. He could have sat over there in the dock. In fact he did not even have to bring Mr. West into court to appear for him. He could have said right, the Crown will never be able to prove this, let them go their hardest, to use the everyday expression. But, in addition to saying well the Crown has to prove its case, the accused has said I want you, the jury, to hear my version of the events, so he has come along and he has given evidence in the case too and what you do is you assess his evidence, just exactly the same way as you assess every other witness' evidence in the case.
You will remember at all times that he is not required to discharge any onus of proof. He is not required to prove anything. He is not required to disprove anything. But he said I want a chance to give you my version of events and he has given you his version of events. Mr. West has said to you when you take into account his version of events could you be satisfied beyond reasonable doubt that the Crown has made out its case?"
27 This was an entirely correct direction. The suggested direction, implicit in the first leg of this submission, that the evidence of an accused person should be placed in a special category, and subject to less critical assessment by the jury than that of the other witnesses, would be erroneous in law.
28 The second leg of the submission draws upon an observation made by his Honour, following reference to the evidence of the appellant, and of the police witnesses concerning the finding of the drugs, and the entry into the room of Ms Knopp and the children:
"..you take these matters into account in determining whether or not to accept the accused entirely or in part only, to dismiss his evidence right out of hand, or you might say to yourself well, some of this evidence at least ties in with some of the Crown evidence."
29 Read in the context of the summing up, as a whole, this passage cannot fairly be understood as suggesting any reversal of the onus of proof. I would again refuse leave to argue these grounds.
Ground 5
30 It was next submitted that his Honour erred in the directions given concerning the indirect or inferential evidence relating to the possession by the appellant of a sum of money that it was unlikely that he as a pensioner and heroin user could have accumulated by way of savings from a pension, and his possession of the accoutrements or indicia of the supply of drugs. No objection was taken at the trial to evidence being led in relation to these matters, a tactical decision having been made by defence Counsel that the full circumstances of the incident should be placed before the jury in order to lend credence to the explanation offered by the appellant.
31 In relation to the extent to which the Crown could rely on inferences in its case, his Honour said, early in the summing up:
"So that when you are asked to draw an inference in a criminal trial you have got to be very certain that the inference should be drawn and you also have to be certain that there is no other contrary inference that can reasonably be drawn from those circumstances."
And
"I have given you a variety of examples about the way you have got to be careful when the Crown prosecutor invites you to draw inferences. You can only draw them if you are certain that it is the proper inference to draw and if you are certain that there is no other reasonably available competing inference to be drawn from those facts."
32 When dealing with the particular matters that were identified as indirect or inferential items adding to the Crown case his Honour said:
"Remember what I said to you yesterday, I will not go back over it again. When the Crown asks you to draw inferences you have to be very careful and you have to be satisfied that it is the only rational, reasonable inference that is able to be drawn."
33 It was submitted that those directions risked leaving the jury confused as to what matters they needed to be certain about, and as to whether the essential elements of the offence charged had to be proven beyond reasonable doubt. To my mind the directions were adequate, and did not invite any gloss on the requirement of proof beyond reasonable doubt, or suggest that any lesser onus rested upon the Crown. Counsel at the trial saw no fault with them. I would refuse leave to argue this ground.
34 Additionally, it was submitted that it was inappropriate, in a case opened as one of deemed supply, for his Honour to have permitted the Crown to rely upon the finding of the money and the other items as indirect proof, and for him to have summed up accordingly. In broad terms, it was submitted they were incapable of proving possession.
35 The weight of authority is against the appellant on this point. Moreover, the argument overlooks the existence of the exception to the deeming provision contained in S 29(a) of the drug Misuse and Trafficking Act, where the accused:
"proves that he or she had the prohibited drug in his or her possession otherwise than for supply."
Although, ultimately no case was advanced by the appellant relying on this provision, the Crown was not to know, in advance of calling the evidence, whether he would or would not change his tack once again, and similarly to the heroin, claim it was for his personal use.
36 In any event, evidence of this kind has been regarded as relevant and admissible on charges of deemed supply, eg Ellis (Court of Criminal Appeal New South Wales 27 February 1987) and Donohoe (Court of Criminal Appeal New South Wales 2 August 1993). In each of these decisions McMahon (Court of Criminal Appeal New South Wales 23 June 1978) was distinguished, on a factual basis referrable to the physical separation of the items in Ellis ; and upon that basis and also upon the basis that the defence had raised a S29 issue in Donohoe .
37 It has, additionally, been held that the Crown is not required to elect whether to rely upon the statutory presumption of possession for the purpose of supply or upon evidence tending positively to establish that purpose: Hughes & Curtis (1982) 10 A Crim R 125. The Crown may rely upon the presumption and upon actual evidence tending to establish the fact to be proved. As the Full Federal Court observed, at 132, this kind of case is:
"not an averment case. It is a case where there is a statutory presumption intended to facilitate proof of the relevant purpose. We know of no case in which it has been held that a party bearing the onus of proof may not rely on a presumption and upon actual evidence tending to establish the fact to be proved."
38 In the present case I am of the view that proof that the appellant, a pensioner and regular heroin user, had in his possession a considerable sum of money along with the indicia of supply, were relevant and capable of supporting the admission. In this regard, there was no rational occasion for him to retain a quantity of plastic bags, or to have a set of electronic scales plugged into a power point, in connection with his use of heroin. As he said that he did not personally use "speed", the presence of these items in close proximity to the methylamphetamine was capable of supporting the Crown case, and was properly left on that basis.
39 Although I would grant leave to argue this ground of appeal, it has not, in my view, been made good.