Cumming (1995) 86 A Crim R 156

Grbic v Pitkethly [1992] FCA 451; (1992) 65 A Crim R 12

Greaves v Aikman [1994] TASSC 129; (1994) 74 A Crim R 370

Guney [1998] EWCA Crim 719; (1998) 2 Cr App R 242

Hawkins v The Queen, unreported; CCA SCt of WA; Library No 970194; 1 May 1997

Huynh v The Queen, unreported; CCA SCt of WA; Library No 950689; 1 December 1995

Korculanic v The Queen, unreported; CCA SCt of WA; Library No 980437; 16 July 1998

Lai (1989) 42 A Crim R 460

R v Edwards [1998] Crim L R 298

Shepherd v The Queen (1990) 170 CLR 580

The Queen v Gibson, unreported; CCA SCt of WA; Library No 980308; 5 June 1998

1 McKECHNIE J: On Melbourne Cup Day (4 November 1998) the appellant was sitting in a motor vehicle with his wife when officers from the Tactical Response Group swooped on the vehicle.

2 They searched it, the appellant and his wife. A fold of heroin was located in his wife's handbag.

3 In her underwear they located another eight paper folds containing heroin.

4 In the front of the car, between the driver's seat and the passenger's seat, was a syringe.

5 In the pocket of a jacket in the back of the car were two further folds of heroin. This jacket belonged to the appellant. He denied knowledge of these two folds. Nevertheless he was charged with possession of heroin.

6 On 14 April 1999 he stood trial on that charge. He was convicted and sentenced to 6 months' imprisonment.

7 From both the conviction and the sentence he now appeals on a number of grounds.

8 To understand the nature of the grounds of appeal in respect of the conviction it is necessary to examine the evidence led at trial. The prosecution called five witnesses who gave evidence as to events which they had observed earlier in the day, the apprehension of the appellant, and subsequent search of the vehicle.

9 The defence called two witnesses - the appellant and his wife.

10 Constable Brown gave evidence that he was a senior constable with the Tactical Response Group on duty in Belmont with Constable Cadden when they observed a bronze coloured Commodore sedan travelling along Alexander Road, Belmont. There were two males in the vehicle which was travelling at speed. The officers commenced to follow it. In Keymer Street they observed the vehicle stationary in the driveway of a carpark at the shops at the corner of Belvidere and Keymer Streets. They saw a male person run from the front of a blue Falcon. The appellant later admitted that the blue Falcon he was driving that day was his daughter's car. The person ran to the driver's side of the Commodore. Constable Brown radioed for assistance and about two minutes later, when backup arrived, the police moved in on the Commodore. The driver was unconscious. First aid was commenced. During the course of a search of the Commodore a fitting kit and spoon were found, together with a square piece of paper with traces of white powder on it.

11 Constable Morey gave evidence of attending at the shopping centre and rendering first aid to the driver of the Commodore.

12 Thereafter, in company with Constables Southwell and Adams, he patrolled the Belmont area until observing a blue Ford Falcon registration 7CF 993 in the carpark. They kept the vehicle under observation until it departed. It was then followed and pulled over in McGlinn Way Cloverdale. The appellant was driving and a female, his wife, was in the passenger's seat. When other officers arrived, Constable Morey opened the rear passenger door and saw a grey tweed sports jacket on the back seat. In response to a question: "Whose jacket is this?" the appellant said: "That's mine". Inside the jacket pocket Constable Morey located two paper folds wrapped in plastic. They were later found to contain heroin. He said to the appellant: "Are these yours?" The appellant replied: "No, they're not". One fold was predominantly orange and the other predominantly blue. Constable Morey gave evidence that the two folds were put into a drug movement bag together with a third fold which he described as "very similar" to that which had been discovered in Mrs Paget-Williams' handbag. In cross-examination Constable Morey said that he did not hear Mrs Paget-Williams saying that she owned the drugs and the tweed jacket.

13 Constable Southwell gave evidence that, following attendance at the bronze Commodore, he and his partner located a blue Falcon about 20 minutes later at Belmont Shopping Centre. Initially there was nobody in it. They kept the vehicle under observation and stopped it in McGlinn Way. After the vehicle had halted he observed Mrs Paget-Williams with the sum of $150 in her hand. He searched her purse in which there was another $80 and a paper fold containing white powder. He located the syringe between the driver's and passenger's seat. It was full of fluid and wrapped up in blue insulation tape to seal it.

14 Constable Southwell gave evidence that when he located the heroin fold within Mrs Paget-Williams' handbag she said very quietly to him: "Don't tell him, don't tell him. I've just taken it up again". At that time the appellant said, "What's that? What's that?" His head came up enquiring what the conversation was. Mrs Paget-Williams said: "I'm going to jail, I'm going to jail", saying it loud not to her husband in particular. Constable Southwell did not hear any conversation during which Mrs Paget-Williams acknowledged that the two folds of heroin in the jacket were hers. Constable Southwell denied that when the appellant was told he was going to be charged he raised an objection saying that the heroin was not his and "Rebecca's already told you that it was hers".

15 That was in essence the prosecution case. There are other matters which were raised which may have had a bearing on credibility. However, the learned Magistrate was satisfied as to the evidence of the police officers and disbelieved the appellant and his wife.

16 The appellant gave evidence that he had broken up with his wife a few weeks earlier and they were trying to work things out between them. On 4 November 1998 he was driving his daughter's vehicle when the police carried out the search. During the course of that search he heard whispering between his wife and one of the officers and assumed they had found drugs in her property. Both he and his wife had agreed that they would try and stay off drugs for a time. He was doing so. When the drugs were discovered in the jacket he said that he agreed it was his jacket but said that the drugs were not his. His wife said: "It's mine". During the course of the day both he and his wife had worn the jacket. Later that night he queried why he was being charged with the offence because his wife had admitted the drugs were hers.

17 Under cross-examination his attention were directed to events earlier in the day. They had been to court but left court before lunch. He went to the hotel but Rebecca borrowed the jacket off him before that because she was cold. In relation to the money in the possession of his wife, he said she had been to the bank a little earlier and had some bills to pay. It might have been while she was in town and he was not with her. He was asked about the bronze Commodore. He said he bumped into a couple of people in the carpark, including Steve and Ado. Ado left the Commodore.

18 Mrs Paget-Williams gave evidence that when the car was stopped and her purse searched and the heroin fold located, she leaned forward and said to the officer who found it: "Can you not - - please not let Ray see this, because he doesn't know I've been using". She had been wearing the tweed jacket earlier that day. When the officers found the two folds she said: "It's mine". Earlier that day she had gone off and bought some heroin and never has a chance to use it so it was in the pocket. Under cross-examination she testified that they had both been in court. When they left it was a little bit chilly and she put the jacket on. They agreed to meet at a certain place and she purchased about $100 worth of heroin, wrapped up in two paper folds inside gladwrap which she put in her pocket. As to the heroin in her bag she said it was stuck in a side packet. She did not know about it and she had forgotten she had it. She denied that she had bought it that morning with the two paper folds found in the jacket. As to the money in her hand she testified that she had just been to the bank at Belmont Forum prior to being picked up. She said she went to the handyteller and withdrew $150. The husband was in the vicinity near the ATM. It is to be observed that this evidence is inconsistent with the appellant's evidence as to the source of the money.

19 Under cross-examination, she admitted that she had eight folds of heroin in her underpants which she said she purchased at the same time as the two folds in Perth. She said that the eight folds were half a weight which, if you buy in bulk, is cheaper and the two paper folds were just there and then.

20 The Magistrate summarised the evidence and dealt with the evidence of Mrs Paget-Williams and the appellant. He found her explanation about the heroin extremely odd. Of the appellant's evidence he said:

"I find it difficult to believe that he didn't know what the position was. I find it so difficult to believe that I do not, for one moment, believe it. I don't believe Mr Williams, and I don't believe Mrs Williams."

"I believe that he knew, full well, that the heroin was in his jacket pocket, because he had put it there, and not Mrs Paget-Williams. I'm not in any doubt about that at all. The evidence is crystal clear to me. Both of them were acting in concert. Both of them had the heroin there. He knew the heroin was in his pockets, because he had put it there, and his wife hadn't. I find him guilty."

(a) in law, in that he allowed evidence of prior observations and activities relating to the Applicant which evidence was prejudicial, irrelevant and ought not to have been admitted into evidence;

(b) in fact, in that the decision was against the weight of evidence."

21 During the course of the trial when the prosecution sought to lead evidence as to the prior observations relating to the bronze Commodore, defence counsel objected. The objection was not made in such a way as to crisply identify the issues for consideration by the Magistrate. However, the essence of the objection was that the material was not relevant or alternatively was prejudicial.

22 The central fact in issue in this case was the fact of possession of heroin in the jacket. To be guilty of possession in the circumstances of this case the appellant must have had knowledge that the heroin was present.

23 The evidence relating to the bronze Commodore was capable of amounting to the following:

1. The bronze Commodore drove to a specific place.

2. A person was observed running from the blue Falcon vehicle to the driver's side of the Commodore. He then got into the Commodore.

3. Shortly after that person was found unconscious.

4. There was an empty fold and drug paraphernalia.

5. The appellant's wife, an occupant of the blue Falcon, was found in possession of a significant quantity of heroin and a quantity of cash. The heroin was in deal sized folds.

24 From these circumstances, it could be inferred that the driver of the bronze Commodore purchased heroin from one of the occupants of the appellant's vehicle, injected it when he returned to his vehicle and became unconscious.

25 I consider that the evidence was relevant and therefore admissible. It was relevant to show the knowledge of both of the occupants of the blue Falcon to the presence of heroin within the vehicle. The evidence, relating as it does to the question of the appellant's knowledge, is not so prejudicial that it ought to be excluded in the exercise of discretion. Therefore I do not uphold ground 1 of the grounds of appeal.

"2. The learned Magistrate erred in law and in fact in finding that:-

(a) the Applicant had put the heroin found in his jacket pocket in the pocket; and

(b) the Applicant was acting in concert with his wife and was jointly in possession of the heroin found when there was no evidence from which those findings could be made, or alternatively, when the evidence admitted of alternative inferences consistent with innocence."

26 It was open to the Magistrate to reject the explanation offered by both the appellant and his wife.

27 Rejection of their evidence does not however necessarily equate with guilt.

28 The prosecution case was capable of establishing the following:

(a) Mrs Paget-Williams had purchased heroin that day.

(b) She had secreted heroin about her person at least in her underwear and in her purse.

(c) Either she or the appellant or both had been engaged in the sale of heroin to the driver of the bronze Commodore shortly before they were apprehended.

(d) Although a syringe was found in the car the ownership of that syringe was never tied to any person.

(e) Two folds of heroin were found in the appellant's jacket.

(f) The fold was very similar to the fold found in Mrs Paget-Williams' purse.

(g) Upon being confronted with the heroin the appellant immediately denied knowledge of it.

29 The evidence of the sale to the driver of the bronze Commodore at its highest is that the appellant had knowledge of the sale. While the evidence is cogent that he knew and participated in the sale, there is no actual evidence that he, as opposed to his wife, was the drug trafficker. He may have been assisting her and such a possibility cannot be excluded. Assistance in trafficking does not necessarily amount to joint possession of the heroin secreted on her person or elsewhere. In any event that was not the offence for which he stood trial.

30 The similarity of the two folds in the jacket and the fold in her purse is capable of supporting the inference that it came from the one amount of heroin supplied to Mrs Paget-Williams.

31 An appeal court is in as good a position as a Magistrate to decide on the proper inference to be drawn from facts which are undisputed or established by findings: Vrisakis v ASC (1993) 9 WAR 395 per Ipp J at 447-448.

32 Where, notwithstanding that there is evidence to sustain a verdict of guilty, an appellate court is asked to conclude that a verdict is unsafe or unsatisfactory, the court must ask whether it thinks that upon the whole of the evidence it was open to the inferior court to be satisfied beyond reasonable doubt that the appellant was guilty. In most cases a doubt experienced by an appellate court as to the guilt of the accused will be a doubt which a jury or Magistrate ought also to have experienced: M v R [1994] HCA 63; (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 494-495.

Applications of the principles to the present facts

33 I proceed on the basis that the Magistrate accepted the evidence of the police officers and rejected the evidence of the appellant and his wife.

34 Therefore the question for determination is whether the only reasonable inference to be drawn from the circumstances of the prosecution case is that of guilt.

35 Having conducted an independent review of the evidence, I consider that the verdict of guilty is unsafe and unsatisfactory and ought to be set aside.

36 The prosecution evidence could not exclude beyond reasonable doubt an hypothesis consistent with innocence for the possession of the two folds of heroin. That hypothesis is that the appellant's wife, Mrs Paget-Williams had sole possession of all of the heroin in the vehicle. She was the one found in possession of heroin including heroin folds similar in appearance to those in the jacket. She had the opportunity of putting heroin in the jacket during the day.

37 The evidence was capable of establishing that the appellant had general knowledge of possession of heroin by his wife. However, in the particular circumstances of this case, that general knowledge is incapable of amounting to proof beyond reasonable doubt that he had particular knowledge of the two folds of heroin. I allow the appeal and set aside the conviction. It is therefore unnecessary to deal with the appeal against sentence.