REGINA v WAN

Court of Criminal Appeal (NSW)|2003-08-04|Before: Wood CJ, Simpson J, Adams J

CITATION : REGINA v WAN [2003] NSWCCA 225 HEARING DATE(S) : 4 August 2003 JUDGMENT DATE : 14 August 2003

JUDGMENT OF : Wood CJ at CL at 1; Simpson J at 2; Adams J at 3 DECISION : Appeal dismissed

CATCHWORDS : Possession of prohibited drugs - whether sole or joint - whether alternative cases or prosecution may press both possibilities - appropriate directions - change of prosecution case - whether defence prejudiced LEGISLATION CITED : s233B Customs Act 1901 R v Dib (1991) 52 A Crim R 64 CASES CITED : R v Solomon [1980] 1 NSWLR 321 R v Whitfield [2002] NSWCCA 501 Regina (Respondent)

Arthur Kuen Wan (Appellant) FILE NUMBER(S) : CCA 60129/01 COUNSEL : M M Cinque (Respondent) P Byrne SC (Appellant) SOLICITORS : Commonwealth Director of Public Prosecutions (Respondent) Michael Croke & Co (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 99/11/0494 FILE NUMBER(S) : LOWER COURT Tupman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60129/01

WOOD CJ AT CL SIMPSON J ADAMS J

THURSDAY 14 AUGUST 2003 REGINA v ARTHUR KUEN WAN Judgment 1 WOOD CJ AT CL: I have read in draft form the judgment of Adams J. I agree with the orders proposed, and with the reasons of his Honour. 2 SIMPSON J: I agree with Adams J. 3 ADAMS J: The appellant was arrested on 2 March 1999 and charged with supplying heroin. To this charge he pleaded guilty in the presence of the jury panel and was convicted. Shortly after the appellant's arrest, unit 38 in Blues Tower, which he occupied, was searched by police and a substantial quantity of heroin (about 14 kilograms) was found secreted in various places. He was charged with the possession of this heroin under s233B of the Customs Act 1901 and, following a trial, was convicted on 16 October 2000. His defence was, in substance, that he did not know at the material time that there was any heroin in the unit and that the heroin was that of one David Wang, with whom he shared occupation. 4 The appellant appeals from his conviction for possession of this heroin upon the following grounds - 1. The directions given by the learned trial judge on the issue of possession were, having regard to the evidence and the circumstances of the case, erroneous and inadequate. 2. The directions on the element of exclusive possession were erroneous because they introduced for the jury's consideration the notion of people acting in concert with the appellant, where there was no evidence that any person, known or unknown, was acting in concert with the appellant. 5 Unit 38 is an open plan one-bedroom apartment. The heroin in question was found in a shoebox under the kitchen sink, in a blue zippered suitcase in a cupboard near the kitchen area and in a shopping bag next to the sofa bed in the lounge. The appellant said that the suitcase and the bag belonged to David Wang and that he slept on the sofa bed. A fingerprint of the appellant was found on a freezer bag containing one of the blocks in the suitcase. His fingerprint was also found on the packaging of one of the blocks in the shopping bag. The end of a piece of tape wrapped around the package containing the heroin that was in his possession when he was arrested exactly matched the end of a roll of adhesive tape found in the kitchen of the unit. The tape used on one of the packages in the suitcase was also indistinguishable from the roll found. Scientific evidence showed that all the heroin discovered by police on 2 March 1999 was produced in the same South East Asian laboratory and the heroin found at the appellant's arrest, in the shoebox and the shopping bag, all came from the batch. 6 It was not in dispute that persons other than the appellant had access to the unit, in particular one David Wang who had also lived there for a time. The prosecution case was, however, that Wang was also at most only occasionally resident at the unit and was not staying there at the time of the offence. The crucial question in the trial was whether the prosecution had proved the appellant's possession of the heroin found in the unit. 7 Real estate agency records showed that unit 38 had been leased to a David Wan from 30 April 1998 and the appellant had leased unit 108 from 20 September 1998. On 30 November 1998 the appellant informed the agent that he did not need unit 108 any longer and that, as "David" was moving overseas, he would move into unit 38. Accordingly, the agent noted the appellant as the sole lessee from 1 December 1998. A security guard gave evidence that he had seen the appellant in the environs of Blues Point Tower from about August 1998 and that he had occupied the car space belonging to unit 38 from about that time. He had also occupied another car space from time to time and the guard said he had spoken to the appellant in unit 38 one evening in late January 1999 about the spaces. A person whom he knew as "David" had opened the door on that occasion. He had seen this man in the environs of Blues Point Tower about one hundred times in January and February 1999. On the occasions he saw the appellant over that period, he was in the company of "David". Listening devices established that unidentified persons, male and female, were present in the unit on some occasions when the appellant was not there. Police conducting intermittent surveillance over a period of four months did not observe David for the month prior to 2 March 1999 but were unable to exclude the possibility that he may have spent the night before the appellant's arrest in the unit. One Kuo Ming Wang, the Chinese name of David Wang according to the appellant, flew to Australia from Singapore on 6 February 1999 and departed Australia for Taiwan on 2 February 2000. 8 The appellant gave evidence. He said he knew Kuo Ming Wang, known to him also as David Wang, since early 1998. He said that he first rented unit 38 in about April 1998, using the name "David Wan" which he had changed from "Arthur Wan" in 1995. After a few months he moved to unit 108 where he stayed with his girlfriend for about three months. After they broke up he decided to move back to unit 38 as, he said, Wang was due to move out. At the end of February 1999 he moved into unit 38, although Wang continued to live there using the sofa bed. The appellant used the bed. The appellant kept his personal belongings in the bedside chest of drawers and Wang kept his on a cane stand near the sofa and his clothing in cupboards above and next to the kitchen. He also had luggage in the suitcase inside the wardrobe. 9 The appellant said that on 1 March 1999 both he and Wang slept in unit 38. Wang left the unit in the morning. At about 11 am Wang's friend Chun Li called and the appellant suggested they meet for lunch. The appellant had lunch with Chun and another friend of Wang's named Chan. At about 4 pm Wang telephoned the appellant at the latter's office and asked him to get a white bag for Chun from inside a suitcase in the cupboard next to the oven. The appellant left his office shortly after, met some friends of his about business. He was later joined by Chun and Chan. The three men went to Blues Point Tower and the appellant went to his unit whilst the other two stayed downstairs. He got the white bag as instructed but thought something was wrong when he saw the blocks in the suitcase. He took the bag downstairs to Chan and Chun and then travelled with them into the city, where he was going to leave them, whilst he went to dinner with his family. They were arrested at Town Hall station. 10 The prosecution presented surveillance evidence that suggested that the appellant's meetings with Chun and Chan were not accidental but planned and provided good reason to disbelieve the appellant as to this evidence. It would also have been reasonable, in my view, for the jury to disbelieve the appellant's evidence that he did not know of the presence of substantial quantities of heroin distributed in the unit he occupied, even if jointly. 11 The defence case, plainly, was that the drugs were in the possession of David Wang, that the appellant was only aware of the blocks when he opened the suitcase at Wang's direction, that he did not know they were heroin, let alone that other blocks of heroin that were later discovered were also in the unit. The prosecution case, as clearly enough put to the appellant in cross-examination, was that David Wang had nothing to do with the drugs, that they were the appellant's and that he made the arrangements to deliver a portion of them on the day of his arrest. It was, of course, essential that the jury were directed in clear terms as to the meaning of possession for the purposes of the trial. 12 After some general directions about various everyday uses of the word "possession", the learned trial judge said this - "So with those few examples in mind I will just go through the meaning of possession again with particular emphasis on what needs to be proved in this trial and with reference to the evidence that is relied on to prove it. In order for the Crown to prove the element of possession beyond reasonable doubt, they do not necessarily have to prove that the accused in this trial owned the drugs that were found in the unit number 38. Nor do they have to prove that it was on his person, in his pocket or anything like that to prove that he was in possession of the drugs. What they have to prove however beyond reasonable doubt is that the accused knowingly had the drugs at a place under his control and that he had the intention and the ability to exercise control and dominion over those drugs to the exclusion of all persons other than those acting in concert with him . By 'knowingly' in this context what is meant is that the accused knew either of the existence or the likely existence of the drugs and was also aware that they were likely to be narcotic drugs." (Emphasis added.) 13 Her Honour dealt with the evidence of the prosecution concerning the appellant's occupation of unit 38 and then directed the jury - "From all of that evidence the Crown says that you would accept that unit 38 was a placed owned and lived in by the accused and that the drugs having been found in that unit you will accept that they were under his custody and control. The Crown also has to prove that he had those drugs under his control knowingly in the way that I have spelt out in a way that he had the intention and ability to exercise control of them to the exclusion of other people with the exception of those people who might be acting in concert with him as part of this criminal concern ."

The learned trial judge commented that most of the dispute in the trial concerned "the need to prove exclusive dominion over the goods". 14 No issue was taken either at trial or on the appeal with these directions, which are in conventional terms. I think that the proviso I have italicised probably comes from the judgment of Hunt CJ at CL in R v Dib (1991) 52 A Crim R 64 at 67. With respect, I think that the use of the phrase might well confuse a jury in some cases, of which this is an example. There are three possible situations: the accused has exclusive possession of the drugs; the accused does not have possession of the drugs; or the accused has joint or shared possession of the drugs with one or more other persons. The phrase is meant, as I understand it, to describe the third situation and is limited to "those acting in concert with him" in relation to the possession of the drugs. However, this limitation may not be understood in the sense of the italicised phrase where, for example, the accused has agreed with others to supply them or third parties with the drugs. The crucial question is the character of the accused's relation with the drugs, so that if the accused asserts or exercises dominion or control over the drugs to the exclusion of anyone else, that is sufficient possession for the purposes of the offence. Unless the possibility of joint possession is raised by the evidence, it seems to me that the trial judge should direct the jury to the effect that the accused is in possession of the drugs if he or she exercises dominion or control over them to the exclusion of all others and that the possibility that he or she might share dominion or control with another by way of implicit or explicit agreement is irrelevant. 15 The learned trial judge then dealt with surveillance and fingerprint evidence from which the prosecution asked the jury to infer that the appellant was aware of the storage of drugs in the unit and returned to the issue of possession in the context of Wang's residence in the unit. "As I have said the Crown must also prove that the accused had possession of the drugs to the exclusion of all others except those who might be acting in concert with him and this is probably the area which has generated the most heat in this trial. The Crown must in order to prove beyond reasonable doubt that the accused had possession of the heroin, negative or exclude the possibility that any other person had possession of the heroin, namely that any other person had the heroin under his custody or control in circumstances where he had an intention and ability to exercise control over that heroin. The person to whom the accused points in this trial as the owner of these drugs you know as Mr David Wang." … "On this basis it is argued at best you would be satisfied that the accused knew nothing about the heroin but at the very least you would not be satisfied that the Crown had proved beyond reasonable doubt that the accused had exclusive dominion over it because the Crown could not in the circumstances, exclude the possibility that Mr Wang, as an occupant of the unit, had control over the heroin." 16 Her Honour directed the jury that - "At the end you will have to decide whether or not the Crown has proved beyond reasonable doubt that the accused had possession to the exclusion of any other person excluding those with whom he might have been acting in concert."

and observed that "there is no evidence led by the Crown to suggest that any particular person was jointly involved with the accused in this offence". She pointed to the Crown case that David Wang was irrelevant and directed the jury - "if…the evidence in relation to David Wang raises any reasonable doubt in your minds that the Crown cannot exclude him as a person having control over the drugs, then you would be obliged to acquit the accused because the Crown would have failed to establish this element beyond reasonable doubt".

No issue was taken by defence counsel as to the above directions. 17 After some deliberation, the jury asked the following question - "The jury members are confused about the phrase 'to the exclusion of all others, except for those acting in concert with him' when contrasted with statement that 'if we have any doubts about Wang's involvement, then the Crown has not proved exclusive domain and we must therefore acquit the accused."

After hearing extensive argument, the learned trial judged answered the question as follows - "You will remember that I said to you that items can either be in sole possession or joint possession of a person and that includes heroin. What you have to be satisfied about beyond reasonable doubt for that element of possession to be proved is that the accused had possession of the heroin, whether that was solely or jointly with others. I will just go through with you what I told you were legally those aspects that make up the concept of possession: (1) that the accused knowingly had - I will try and relate it to this trial - that the accused knowingly had the heroin at a place under his control; (2) that knowingly for these purposes means that he knew either of the existence or the likely existence of the drugs and was also aware that it was likely to be a narcotic drug; (3) that the accused had the intention and ability to exercise control and dominion over the heroin; (4) that dominion and control was exclusive of any other person, in other words his dominion and control was exclusive of any other person except for such person or persons who were acting in concern with him as part of the same criminal activity; (5) therefore the Crown has to negative or exclude any reasonable possibility that any other person had the ability and intention to control and dominion over the drugs unless that was a person who was acting in concert with the accused as part of the same criminal activity. … You might think then, summarising it even further, that there are four available scenarios from the evidence in this trial about Mr Wang and the accused. One is that the accused was solely in possession. If you come to that conclusion beyond reasonable doubt then you would be entitled to convict the accused. The second is that David Wang was solely in possession of the heroin. If you come to that conclusion then you would be obliged to acquit the accused and you must acquit the accused if that is the view you come to because the Crown would not have proved the case beyond reasonable doubt. The third scenario you might think is that the evidence, and in particular the evidence about David Wang, does not allow you to conclude whether it was the accused or David Wang who is in possession of the heroin. In those circumstances you would be obliged to acquit the accused because you could not be satisfied beyond reasonable doubt that it was the accused who had possession exclusively except for those who were acting in concert with him. The fourth scenario, and it seems to me that this might be what you had in mind when you wrote the note on Friday, you might think that the accused was in possession with others, possibly Mr Wang, but that those others, possibly Mr Wang, were actually acting in concert with him. If you came to that view you would be entitled to convict the accused because the possession relates to exclusive dominion and control except for those acting in concert with the accused. However, you would not be entitled to speculate about that in this trial. There is no evidence that would enable you to make a finding that Mr Wang was acting in concert with the accused as part of the same criminal activity. It is not the accused's case of course. As you know, his case is that he did not know about it and that it was all Mr Wang's. Nor, you might think, is it the Crown's case that Mr Wang is acting in concert with the accused in possessing this heroin because the Crown's argument to you is that Mr Wang is essentially a red herring who had some items in the unit that were documents no later than about September 1998 who was seen in and about the place by Mr Quinn on a large number of occasions with the accused in January and February 1999, but who is essentially a red herring or irrelevant in relation to the aspect of possession of the heroin. I said to you on Friday also that there was no evidence by way of surveillance or otherwise that has Mr Wang physically involved with the heroin at any stage. So that fourth scenario that you might have thought arose from the evidence and I think might have found its way into your question to me on Friday, I say this to you that you are not entitled to make findings in this trial based on pure speculation and remind you that it is not the case of either party in this trial, either the accused or the Crown, that Mr Wang was acting in concert with the accused. (My italics.) So you might think that what you have left then is the three other scenarios that I raised with you. One - that if you are satisfied beyond reasonable doubt that the accused was solely in possession (and that is the argument that the Crown advances of course as you know) then you would be entitled to convict him. Two - if you were of the view that Mr Wang was solely in possession then you would be obliged to acquit the accused because that had not been proved beyond reasonable doubt. Three - if the evidence does not allow you to conclude whether it was the accused or Wang who was in possession, then you would be obliged to acquit the accused because the Crown had failed to prove that element beyond reasonable doubt."

Mr Steirn of Senior Counsel for the appellant was given an opportunity to make submissions as to these directions and sought no redirection. 18 It seems to me, with respect, that the case was actually somewhat simpler than the way in which it was left to the jury. The Crown case was that the appellant acted on his own to store and supply the heroin, both that with which he was caught and that which was in the unit when the police searched it following his arrest. The defence case was that the appellant supplied the heroin with which he was caught but that this was at the direction of David Wang, and that he never knew that Wang had brought the heroin into the unit in which they both resided; the first he knew of it was when he saw the blocks following Wang's request to get the bag from his suitcase and give it to Chan and, even then, he only suspected it contained drugs and the other blocks were drugs. Wang's involvement with the heroin was therefore an essential part of the defence case. It is therefore impossible to submit that there was no evidence that Wang was in possession of drugs. The appellant swore that he was. The question was whether there was a reasonable possibility that the appellant did not know of the drugs' presence in his unit. If he did know of the drugs it was logically possible that he did not intentionally exercise any joint care and control of them. On the other hand, if he and Wang were acting together to supply drugs, then it followed in the circumstances that the drugs were, at least, in their joint possession. The direction to the jury that there was no evidence that the appellant and Wang were acting together to supply drugs was therefore unduly favourable to the appellant. 19 In my view, the scenarios that the jury should have been directed to consider were as follows - 1. If there was a reasonable possibility that the appellant did not know of the drugs' presence in the unit until he obtained the white bag to give to Chan, then he must be acquitted. 2. If, beyond reasonable doubt, the appellant knew of the drugs' presence in the unit and intended to exercise control or dominion of them, then he must be convicted. 3. If the jury was satisfied that the appellant exercised control or dominion over the drugs, the mere possibility that he did so jointly with Wang did not mean that the Crown has failed to prove the appellant's possession of the drugs.

It seems to me that insofar as the learned trial judge's directions differed from the above, they favoured the accused. 20 It is submitted that the Crown changed its case from an allegation that Wang had nothing to do with the drugs to the allegation that, if he was involved at all, he was acting in concert with the appellant so far as the possession of the drugs was concerned. I do not accept that the Crown ever conceded that, if the heroin was in the joint possession of the appellant and some other person, the appellant was entitled to be acquitted. It is apparent that the prosecutor opened to the jury, in effect, that it was the Crown case that the accused alone occupied the premises and he was in sole possession of the drugs unless he was acting in concert with others, in particular David Wang, "but as to that the evidence does not say". At the end of the trial, it appears that the prosecutor submitted that the jury would reject the appellant's evidence as to the involvement of David Wang and conclude that the appellant was at all material times in sole possession of the heroin. This did not, in my view, amount to a concession that, if the jury thought it was a reasonable possibility that Wang was involved, it followed that the appellant was not. Indeed, in his address as noted by the learned trial judge, the prosecutor said, in substance, that the jury might have the view that Wang was involved somehow, to some unknown extent but that they would conclude he was irrelevant. 21 It seems to me that, having regard to the defence case, the jury was bound to consider the significance of the possibility that Wang was indeed involved to a greater or lesser extent in the possession or supply of the heroin. The defence case, as I have mentioned was that he was involved, to the exclusion of the appellant, except to the limited extent which he admitted. If the jury rejected the reasonable possibility that Wang had possession exclusive of the appellant then, if they were satisfied that the appellant had possession, the mere fact that it might not be exclusive of Wang did not matter. 22 Even if the Crown prosecutor had conceded that the appellant was entitled to be acquitted if the evidence established that the heroin was in the joint possession of him and Wang instead of in the appellant's sole possession, I am of the view that it would have been entirely appropriate for the learned trial judge to direct the jury on the legal effect of such a finding, namely that they would in that event be bound to convict, unless the appellant would thereby have suffered some tactical disadvantage, that is to say, would have conducted the case in another way: R v Solomon [1980] 1 NSWLR 321; R v Whitfield [2002] NSWCCA 501. Having regard to the defence, it is plain that there could have been no such prejudice. Nor could counsel in this court propose any disadvantage except the possibility that the accused may have pleaded guilty and obtained a discount. 23 At all events, as I have pointed out, the learned trial judge directed the jury to the effect that, although they could convict the accused if they concluded that he had possession of the drugs with others with whom he acted in concert, there was no evidence that would justify the "finding that Mr Wang was acting in concert with the accused" and thus, if they could not decide as between Wang and the accused who was in possession, they must acquit. This is, in substance, the direction which, it is contended, should have been given. It is clear from the excerpted passage that the "fourth scenario" was mentioned because it appeared to be the basis for the jury's question. Her Honour immediately pointed out that there was no evidence that Wang was acting in concert with the appellant and, after dealing with the appellant's case, told them they were left with (only) the other three scenarios. It is submitted here that the use of the phrase "you might think" that preceded this direction invited the jury to think that this was a mere suggestion as to a matter of fact. In the context, I have no doubt that the jury would have accepted the direction as one of law which it was required to obey. It is obvious that Senior Counsel then appearing for the appellant also understood her Honour's direction in this sense, as he sought no redirection, despite an invitation to do so. 24 I propose that the appeal be dismissed **********

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