Casella v The State of Western Australia
[2011] WASCA 72
•31 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CASELLA -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 72
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 17 MARCH 2011
DELIVERED : 31 MARCH 2011
FILE NO/S: CACR 206 of 2010
BETWEEN: DOMINIC CASELLA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BOWDEN DCJ
File No :IND 707 of 2010
Catchwords:
Criminal law - Appeal against conviction - Possession of a prohibited drug with intent to sell or supply - Whether the trial judge misdirected the jury in relation to the time at which the offender had to intend to possess the drug - Whether the trial judge impermissibly removed a defence from the jury's consideration - Proposed grounds of appeal hopeless - Extension of time to apply for leave to appeal refused
Legislation:
Misuse of Drugs Act 1981 (WA)
Result:
Application for an extension of time to apply for leave to appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P B Cassidy
Respondent: No appearance
Solicitors:
Appellant: George Papamihail
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
McLURE P: I agree with Buss JA.
BUSS JA: The appellant was convicted, after a trial in the District Court before Bowden DCJ and a jury, on one count in an indictment which alleged that on 7 October 2009, at Murdoch, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
The appellant has applied to this court for an extension of time to apply for leave to appeal against his conviction.
The appellant's delay has been explained satisfactorily. The State would not suffer any relevant prejudice if an extension of time were to be granted. In my opinion, whether an extension should be granted or not depends, in the circumstances of this case, upon the merits of the grounds of appeal.
The grounds of appeal
The grounds of appeal read:
Ground 1
The learned trial Judge erred both in law and in fact, and there was a miscarriage of justice, when he directed the jury they needed to be satisfied the Appellant only intended to possess the drug at the time of his arrest;
1.1on the State case at trial, the relevant time for there to be an 'intention to possess' was when the Appellant took possession of the drug;
1.2the direction His Honour gave the jury was inconsistent with the State case.
Ground 2
The learned trial Judge erred both in law and in fact, and there was a miscarriage of justice, when he removed a defence from the jury's consideration;
2.1the State case left it open that the intention to possess existed at the time the Appellant came into possession of the drug ('the scenario');
2.2on the defence case, the scenario was heavily undermined ('the defence');
2.3His Honour told the jury the intention to possess relevantly arose at the time of arrest ('the direction');
2.4the direction effectively removed the defence from the jury's consideration.
The State's case as opened at trial
The State's case, as opened at trial, was as follows.
The appellant was the subject of a covert police operation.
On 7 October 2009, the appellant was observed by police driving from his home at Hillarys in a Jeep Cherokee. He left home at about 3.30 pm.
The appellant drove to Mount Hawthorn and parked on the corner of Britannia Road and Oxford Street. He alighted from his vehicle and entered the premises of a car yard called Luxury Autos. He spent some time with another man looking at cars on the premises. At about 4.14 pm, the appellant and the other man went into the office of Luxury Autos. He emerged from the office and left the premises at about 5.27 pm, and returned to his Jeep Cherokee.
The appellant was observed by police to drive to the car park of a McDonalds restaurant in Victoria Park. He alighted from his vehicle and walked across Canning Highway to a Shell service station on the corner of Canning Highway and Mill Point Road. At about 5.46 pm, he was seen to walk through the forecourt of the service station, carrying a newspaper. He was then seen to be walking with another man on a footpath abutting Mill Point Road. The appellant spoke to the other man. A little later, the appellant entered the car park of a Hungry Jack's restaurant and spoke to the occupant or occupants of a Holden Calais vehicle.
Shortly afterwards, the appellant retraced his footsteps towards the Shell service station. He was seen to be concealing a round package, about the size of a cricket ball, within the newspaper he was carrying. The appellant returned to his Jeep Cherokee.
The appellant drove to Rivervale and parked in the car park of a Red Rooster store. He permitted another man to enter and sit on the front passenger seat of his vehicle. The appellant then drove a short distance and stopped opposite the Red Rooster store. The other man alighted from the appellant's vehicle. He was seen to lean through the front passenger door and speak to the appellant before getting into the vehicle again.
The appellant drove to the Rivervale shopping centre and parked in front of a Subway store, next to a Toyota Hilux utility. The other man alighted from the appellant's vehicle and entered the front driver's side of the Toyota Hilux. The other man then got out of the Toyota Hilux and re‑entered the appellant's vehicle. A little later, the other man got out of the appellant's vehicle and returned to the Toyota Hilux. The other man drove away in that vehicle.
Shortly afterwards, another man entered the front passenger side of the appellant's vehicle. He stayed for a few minutes and then alighted and walked away.
The appellant drove from the Rivervale shopping centre. He travelled along the Kwinana Freeway for a while and then took the exit at South Street. He drove in a westerly direction along South Street. Shortly before 7.00 pm, the appellant was stopped by police in South Street, Murdoch. The prosecutor then described what occurred:
Here we were in the suburb of Murdoch and he was stopped by police officers, alone in his vehicle, just before 7 pm. At the time that the vehicle is stopped as you'll hear, [the appellant] was the only occupant of his green Jeep Cherokee, which had been watched in the preceding time. All right. So much for the observations. You'll hear about them, but that was just to help you with movements around Perth.
Detective Senior Constable Simmonds and Knight, who had effected the vehicle stop, commenced a search of [the appellant's] Jeep Cherokee at the roadside. On a rear seat, more or less immediately, they discovered $11,000 in cash, all in 100 dollar bills, within the sleeve of a jumper on the rear seat.
…
Now, of relevance to this case, during the course of [a] video‑recorded search, 27.8 grams of methylamphetamine was discovered in and seized from each of the [appellant's] left and right pant pockets. And they collectively, make 55.6 grams, the subject of the single count on the indictment.
Further of relevance we say, a plastic bag similar in appearance to the bags containing each of the two amounts of drugs seized from [the appellant's] pant pockets, were found on the front driver's seat.
[The appellant] was arrested, conveyed to the Organised Crime Squad's office in Perth (28/09/10: ts 33 ‑ 34).
After summarising the facts which the State would seek to prove, the prosecutor told the jury:
Was the accused man, you will be asked to ask yourself in due course, knowingly in possession of the drugs in question, insofar as he had them? Did he know he had them? His Honour will give you a definition of possession.
So was he knowingly in possession of the drugs at the time when they were removed from his pocket? And if you decide yes, which you may not particularly struggle to, but all questions are a matter for you, the real and central question to be determined by you members of the jury, is what was [the appellant's] intention in relation to those drugs found in his possession? (28/09/10: ts 34). (emphasis added)
The appellant's case as opened at trial
The appellant's trial counsel told the jury in opening, relevantly:
Well, members of the jury, one thing you'll be pleased to hear is that there's probably not going to be a lot of dispute about the facts in this case. But where the battleground lies is what was in the mind of [the appellant]?
… And by pleading not guilty, he is saying to you, 'I didn't have ‑ knowingly have possession of drugs and I certainly didn't intend to sell or supply them'.
And as the evidence unfolds, you'll hear the explanation that he gives. And what is really being put to you is that … his possession of these drugs was entirely innocent in the way he came to have them … on his person.
…
There is no doubt that he was stopped; that he was searched; that he was found to have two packets of powder, whatever that may be, you know, in his pocket …
So what's the questions that you have to ask yourself? What are the issues, seeing these facts aren't really in dispute? Was he in possession of drugs? To be in possession of something, you've got to know what it is, and you've got to intend to possess it (28/09/10: ts 35, 38). (emphasis added)
The prosecutor's closing address at trial
The prosecutor, in his closing address at trial, made some brief statements in relation to the law. He then reviewed the evidence, including the appellant's explanations for the presence of the drugs in his trouser pockets when he was stopped by police and his explanations for the $11,000 cash and the plastic bag similar in appearance to the bags containing the drugs. The prosecutor invited the jury to apply their commonsense to the evidence adduced by the State and the appellant's explanations. He completed his address with the following statement:
Ladies and gentlemen, you've got the narrative. I've posed some questions. You doubtless will bring to bear upon this your knowledge of the world, your commonsense, and we say if you do, given what you know, there are a number of reasonable possibilities or explanations. But the obvious explanation for all of this is that [the appellant] was in possession of methylamphetamine with the intent to sell or supply it to another or others (29/09/10: ts 205).
The trial judge's summing up
The trial judge's summing up reads, relevantly:
Now, the third matter that the State must prove is that the [appellant] had an intention to exercise control over the possessed drug. The intention must exist at the time that the [appellant] was arrested. The State must prove that the [appellant] actually intended to exercise control or dominion over the drug.
The State say that the [appellant] clearly had an intention to exercise control of the drug. They say, 'look, he knew it was a drug; he put it in his pocket and he was in the process of transporting it when he, in fact, was arrested'.
The defence say, 'look, although he had it in his pocket he did not know it was a prohibited drug. He didn't have intention to control it because he didn't know that it was a drug'. Now, the knowledge that you're in possession of the drug, the control of the drug and the intention to exercise control must be exercised at the same time.
If on the evidence you were satisfied beyond reasonable doubt the [appellant] had knowledge that the substance was a prohibited drug and that the [appellant] had custody or control in the sense that I've explained to you, that would permit, although it's entirely a matter for you, you to conclude that the prosecution had proved that the [appellant] had the intention to control the drug (29/09/10: ts 160). (emphasis added)
The merits of the grounds of appeal
The assertion in ground 1 that the trial judge's direction to the jury in relation to 'intention to possess' was inconsistent with the State's case is unfounded.
The prosecutor, in his opening address, put the State's case in relation to 'intention to possess' on the basis that it was necessary for the jury to be satisfied that the appellant was knowingly in possession of the drugs 'at the time when they were removed from his pocket' by the police (28/09/10: ts 34).
The trial judge, in his summing up, directed the jury that the State must prove that the appellant had an intention to exercise control over the drugs in question 'at the time that the [appellant] was arrested' (29/09/10: ts 160).
The prosecutor did not refer, in closing, to whether the appellant was knowingly in possession of the drugs 'at the time when they were removed from his pocket', but that was unnecessary and the failure to mention it did not constitute a material departure from the State's case as put in opening.
Ground 1 is hopeless.
The assertion in ground 2 that the trial judge 'removed a defence from the jury's consideration' by instructing the jury that the State must prove the appellant had an 'intention to possess' at the time he was arrested is based on the false premise that the State's case 'left it open that the intention to possess existed at the time the Appellant came into possession of the drug'. The State's case was not put on that basis. See my observations in relation to ground 1.
In any event, it cannot reasonably be suggested that the trial judge's direction on the issue of 'intention to possess' removed a defence from the jury's consideration. It was sufficient, for the purposes of the offence created by s 6(1)(a) of the Misuse of Drugs Act, if the State proved that the appellant had possession of the drugs (in particular, knowledge that the packages in his trouser pockets contained a prohibited drug and an intention to exercise control over that drug) at any time while he had actual physical custody of the items in question. The manner in which the State's case was run, and the manner in which the trial judge directed the jury, did not prejudice the appellant. His sole defence at the trial was that he did not at any material time know the packages contained a prohibited drug and he did not at any material time intend to exercise control or dominion over the drugs. If anything, the manner in which the State's case was run, and the manner in which his Honour directed the jury, operated to the appellant's advantage by confining the point at which the State could prove the requisite aspects of possession to the time when he was arrested.
Ground 2 is also hopeless.
I would refuse to grant an extension of time to apply for leave to appeal because neither of the grounds of appeal has a reasonable prospect of success.
MAZZA J: I agree with Buss JA.
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