Regina v Thompson

IN THE COURT OF CRIMINAL APPEAL 060487/99 MASON P JAMES J WHEALY J Wednesday 5 July 2000 REGINA v GRAHAM ALLAN THOMPSON JUDGMENT

1 JAMES J: Graham Allan Thompson has appealed against his conviction after a trial in the District Court, before her Honour Judge Morgan and a jury, on one count of supplying a prohibited drug, namely methylenedioxymethylamphetamine, an offence under s 25 of the Drug Misuse and Trafficking Act. Judge Morgan sentenced the appellant by imposing an order that he perform 350 hours of community service. 2 The Crown case at the trial was that the appellant was guilty of the offence of supplying a prohibited drug, by virtue of having been in possession of a quantity of the prohibited drug being not less than the trafficable quantity. At the trial the appellant disputed that he had been in possession of any amount of the drug. 3 The evidence in the Crown case can be briefly summarised as follows. 4 On the evening of 10 June 1997 a number of police officers began surveillance of a house property at 1 Renwick Street, Drummoyne. At about 7 o'clock police observed a motor vehicle enter Renwick Street and stop outside the premises. The appellant got out of the vehicle. Police officers approached the appellant and told him that they had a warrant to search the premises. Police then entered the premises, using keys obtained from the appellant. A man named Jack Anslow, who lived at the premises, was not at the premises that evening. 5 1 Renwick Street Drummoyne was a small terrace house. In the front of the house facing the street were two bedrooms, separated by a hallway, which led into a lounge room. Alongside the lounge room there was a dining room. Entry from the lounge room into the dining room was gained through an open archway. There was a table inside the dining room. At the rear of the premises there were a bathroom, verandah and kitchen and some small hallways. 6 A number of police officers entered the premises on the evening of 10 June 1997. These officers, identifying them simply by their surnames, were Walker, Arahill, Rawson, Keegan, Iorfino, Sinadinovic, who made a video recording of part of the search, Scholtes, who was the exhibits officer having the responsibility of recording in the exhibits log objects found during the search, and Whittaker, who was an independent officer not himself participating in the search. Of these police officers, Keegan, Iorfino, Sinadinovic, Scholtes and Whittaker gave evidence for the Crown at the trial. Walker, Arahill and Rawson did not give evidence. 7 Evidence was adduced in the Crown case to explain why Arahill and Rawson had not been called as witnesses. According to this evidence, Arahill was suffering from a post traumatic stress disorder and was unlikely to return to duty as a police officer and Rawson had resigned from the Police Service and was living in the United Kingdom. There was no cross-examination of the police officer who gave this evidence concerning Arahill and Rawson. No attention seems to have been paid at the trial by either side to Walker not giving evidence. 8 The search of the premises commenced at about quarter past 7. Sinadinovic began filming at about 7.24. At about 7.25 and again at 7.31 he filmed the table in the dining room, on which a number of objects had been laid out in an apparently orderly fashion. These objects included a glass case belonging to the appellant. There is a fairly strong inference that these objects had already been found by the police and had been laid out by the police on the dining room table. 9 The drugs which were the subject of the charge were found by a female officer, Detective Sergeant Keegan. She gave evidence at the trial that, while searching the dining room, she located on the dining room table a glass case, with the appellant's name written on it. It is clear that this was the same glass case as had been on the dining room table earlier. She opened the glass case. Inside the case she found 18 tablets in a plastic resealable bag and $950 in cash. On later analysis, these tablets were found to contain more than the trafficable quantity of methylenedioxymethylamphetamine. 10 In cross-examination Detective Sergeant Keegan said that, after entering the premises, she had searched first the bedroom at the front of the house to the left, which was the appellant's bedroom, then the bedroom at the front of the house to the right, then the lounge room, then the kitchen and then two small hallways at the back of the premises. By that stage she considered that she had completed her functions as a searching officer. However, she then went into the dining room, "just in case something had been missed". The glass case was on the dining room table. She opened up the glass case to see what was in it and discovered the tablets in the plastic bag and the cash. 11 Evidence from other witnesses established that Detective Sergeant Keegan found the tablets inside the glass case at about 8.17, that is about one hour after the search of the premises had commenced. 12 Detective Sergeant Keegan was asked in cross-examination, "You didn't think to yourself, did you, that this had been set-up for you to find?" to which she replied, "No". In re-examination she said that she had no knowledge or belief whether any other police officer had opened the glass case before her. 13 Evidence was given that during the search other objects had been found on the dining room table. One document found on the dining room table was a short personal note from a woman named Aleisha addressed "Dear Graham and John", saying, "Thanks so much for having me to stay. It's been great and I really appreciate it". It was common ground at the trial that the reference to Graham was a reference to the appellant and that the reference to John, was a reference to John, or Jack, Anslow. 14 Another document found on the dining room table was a business card of Jack Anslow, who conducted a plumbing business. Another document found on the table was a Telstra account for a mobile telephone service, which was leased from Telstra to Mr Anslow at 1 Renwick Street, Drummoyne. 15 After the tablets had been found, the appellant was arrested and taken to Balmain Police Station. At the police station he was cautioned. The appellant said, "I'm not trying to be awkward but I don't want to say anything at the moment. If you give me your phone number, I will get the person who owns the drugs to contact you and he will tell you they are his.". The appellant reiterated that he did not want to be interviewed. 16 The plastic bag in which the tablets had been found and the cash were submitted for fingerprinting but no identifiable fingerprints were found. 17 At the trial the appellant gave evidence in his own case. He said that the house at 1 Renwick Street Drummoyne had been owned by his grandparents. From January 1997 the house had been occupied, on a full-time basis, by Jack Anslow, who had been a friend of the appellant's since childhood. Jack Anslow occupied the bedroom on the right hand side at the front of the house. 18 The appellant said that he himself stayed at the house only one or two nights a week, although later in his evidence he said that he stayed at the house on an average of two nights a week. When he was staying at the house he occupied the bedroom on the left hand side. He said that he lived most of the time at his parents' house at Roselands, which was close to where his children by his former wife lived with their mother. 19 The appellant said that during the search he had sat with the independent officer, Whittaker, on a chair in the hallway and from that position he had observed that police officers had simultaneously searched the lounge room and the dining room, before Detective Sergeant Keegan had found the tablets in the glass case. 20 The appellant admitted that the glass case was his and that the glasses inside the case were his. However, he said that the glasses were old, broken glasses, which he no longer wore. 21 The appellant gave evidence that the next morning, after he had been released on bail, he found the keys to Anslow's motor vehicle, packed all Anslow's belongings in the vehicle, drove the vehicle to the place where Anslow was, told Anslow what had happened and added, "You better sort it out". The appellant assumed that it was Anslow who was responsible for the drugs. 22 With regard to the note from the woman named Aleisha, which had been found on the dining room table, the appellant said that the woman Aleisha was a friend of Anslow's, who on occasions stayed at the house. 23 The appellant sought to explain the presence of a number of his personal documents at the house by saying that he did not leave documents at his parents' house, because his mother was a "sticky beak". 24 The appellant was cross-examined about a number of the personal documents of his, which according to the police evidence had been found by police, either on the table in the dining room or in his bedroom. In cross-examination the appellant accepted that some of his clothes were at the house, that all his furniture was at the house and that he had sometimes taken his children to the house. 25 In cross-examination the appellant asserted that the glass case had been kept by him in his bedroom at the house. He was asked, "You say that the glass case was really there, that is, in the bedroom and that the police took it out and put it on the dining room table?" This question was objected to by counsel for the appellant at the trial and the following question, a very similar question, was also objected to. Neither question was sought to be pressed. 26 In cross-examination the appellant said that he had seen Jack Anslow on numerous occasions since 10 June 1997 and had pleaded with him "to do the right thing" and that Jack Anslow had always been going to do "it", that is "the right thing," but had never done so. 27 The appellant had concluded that Jack Anslow was responsible for the drugs, because the appellant knew that the drugs were not his, Jack Anslow was a full-time occupier of the house and Jack Anslow smoked cannabis. 28 Jack Anslow did not give evidence at the trial for either the Crown or the defence and his whereabouts were unknown. 29 The only ground of appeal against conviction is that the verdict of guilty was unreasonable. This ground of appeal is the ground which was formerly expressed as being that a verdict of guilty was unsafe and unsatisfactory and is the ground which was discussed by the High Court in such cases as M v The Queen (1994) 181 CLR 487 especially at 492-4 and Jones v The Queen (1997) 191 CLR 439 especially at 450-1. There is no need in this judgment to repeat the principles which are set out in such authorities. 30 The present case is a case in which the Crown case was wholly circumstantial. There was no direct evidence of the appellant exercising control over the tablets, the appellant made no admissions and there was no fingerprint evidence incriminating the appellant. The Crown case depended upon the jury inferring beyond reasonable doubt that the appellant had been in possession of the tablets, from the circumstances connecting the appellant with the house and from the finding of the tablets in the appellant's glass case on the table in the dining room of the house. 31 As the Crown case was a circumstantial one, it was submitted by counsel for the appellant, and I would accept, that this Court has to inquire whether it was open to the jury to exclude as a hypothesis or inference reasonably open on the evidence that the appellant had not been in possession of the tablets (Knight v The Queen (1992) 175 CLR 495). The hypothesis or inference which, it was submitted, was reasonably open on the evidence was that the tablets had been in the possession of Jack Anslow at some location elsewhere in the house and that during the search the tablets had been discovered by an unknown police officer, who had placed the tablets in the appellant's glass case and put the glass case on the dining room table, in order to incriminate the appellant. 32 It was not put forward, as being a reasonable hypothesis open on the evidence, that it was Jack Anslow who had placed the tablets in the appellant's glass case or that Detective Sergeant Keegan had not discovered the tablets in the way in which she alleged that she had or that any of the police officers who gave evidence at the trial, none of whom had been cross-examined so as to suggest corrupt conduct, had been responsible for placing the tablets in the appellant's glass case in order to incriminate him. 33 It was, however, submitted that the jury ought to have found that the Crown had not succeeded in eliminating, as a reasonable hypothesis consistent with the innocence of the appellant, that one or other of the police officers who had not given evidence at the trial had been responsible for dishonestly placing the tablets in the appellant's glass case. 34 This submission was available to be put on behalf of the appellant, notwithstanding that during cross-examination of the appellant at the trial his counsel had objected, apparently successfully, to a question asked by the Crown Prosecutor, whether the appellant said that the glass case had been in his bedroom and that during the search police had taken the glass case and put it on the dining room table. The appellant did not claim that he had himself observed any police officer engage in this conduct and the cross-examination of the appellant was properly to be confined to matters of fact which would be within his personal knowledge. Hence, the question put by the Crown Prosecutor could properly be objected to by counsel for the appellant at the trial, without prejudicing the making of the submission which was made at the trial and has now been made on this appeal. 35 In support of the general submission made on behalf of the appellant it could be argued that, apart from the appellant's own evidence, which was in fact not relied on by counsel for the appellant, there was evidence that Anslow had been living in the house and had used the dining room of the house, there was evidence that Keegan had not found the tablets and the cash until about an hour after the search had commenced, by which time the dining room had probably already been searched by other police without any drugs being found, and the fact that Anslow himself did not give evidence. 36 I do not consider that counsel for the appellant's submission should be accepted. 37 If the tablets and the cash had not been found in a container or receptacle being the personal property of the appellant, the jury clearly would have had to have had a reasonable doubt about the guilt of the appellant. However, the tablets and the cash were found in a glass case belonging to the appellant. 38 Except possibly for evidence about the late stage in the search at which the tablets were found, there was no actual evidence supporting the hypothesis advanced by counsel for the appellant that some unidentified police officer had found the tablets elsewhere in the premises and then put them in the appellant's glass case. 39 There was no evidence that anyone had prompted Detective Sergeant Keegan to make a further search in the dining room, after she had, in her own view, completed her functions as a searcher. There was no evidence to suggest that her spontaneous decision to make a further search in the dining room could have been anticipated by any other police officer. 40 As far as the police officers Arahill and Rawson are concerned, as I have already noted, evidence which was not challenged was given at the trial explaining the absence of each of these witnesses and the trial judge did not give the jury a Jones v Dunkel direction. On the hearing of the appeal the Court was referred to evidence which, in my opinion, the jury could have considered excluded any reasonable possibility that either of those officers had acted as alleged. The appellant himself gave evidence that, before Detective Sergeant Keegan found the tablets, the search had "basically ended" and - "I think it was Detective Rawson was satisfied the search was over and he actually wrote his name on the back of the search warrant and his phone number to get my mate to give him a call." 41 The appellant also gave evidence that, after Detective Sergeant Keegan had found the drugs, Detective Arahill had called out to the appellant, "Thommo, come here a minute", and the appellant gave other evidence that he had been on friendly terms with Arahill through an association at a football club. 42 Counsel for the appellant said that his submission did not depend on the evidence of the appellant. However, it seems to me that the jury could properly have taken the view that the evidence of the appellant had some relevance. It seems to me from my reading of the cross-examination of the appellant that it would have been well open to the jury to find that the appellant was at the premises more often than he was prepared to admit and for the jury to have formed an unfavourable view of the appellant's credibility generally. 43 I have reached the conclusion that it was open to the jury to exclude as a hypothesis or inference which was reasonably open on the evidence that one or other of the police officers who had not given evidence at the trial had located the drugs in a place in the house, such as did not incriminate the appellant, and had then dishonestly placed the drugs in the appellant's glass case so as to incriminate the appellant. I have reached the conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. 44 I would accordingly propose that the appeal against conviction be dismissed. 45 MASON P: I agree. 46 WHEALY J: I agree also. 47 MASON P: The appeal against conviction is dismissed. **********

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