DAVIES v Regina - [2007] NSWCCA 316

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: DAVIES v REGINA [2007] NSWCCA 316

FILE NUMBER(S):
2007/2951

HEARING DATE(S): 26 October 2007

JUDGMENT DATE: 16 November 2007

PARTIES:
Marie Ann DAVIES
REGINA

JUDGMENT OF: Mason P James J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/31/0310

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 9 February 2007

COUNSEL:
Appellant: C Davenport SC/ R Webb
Crown: M Barr

SOLICITORS:
Appellant: Wright George Lawyers
Crown: S Kavanagh (Solicitor for Public Prosecutions)

CATCHWORDS:
CRIMINAL LAW – Appeal and new trial – appeal against conviction – particular offences – drug offence – possession of prohibited substance – presumption of supply – whether verdict unreasonable – circumstantial case – lack of positive evidence on possession of drugs – whether jury should have had reasonable doubt

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

CASES CITED:
R v Amanatidis [2001] NSWCCA 400

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/2951
MASON P
JAMES J
HOWIE J
Friday 16 November 2007

Marie Ann DAVIES v REGINA

JUDGMENT

MASON P: The appellant challenges her conviction on the sole ground that the verdict was unreasonable having regard to the evidence. The charge was one of supplying heroin and the quantity involved (9.4g) was such that proof of possession deemed the possessor to be a supplier (see Drug Misuse and Trafficking Act 1985, s29).
In R v Amanatidis [2001] NSWCCA 400, 125 A Crim R 89 Giles JA summarised the applicable principles as follows (at [9]):
Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody (He Kaw Teh (1985) 157 CLR 523 at 537-539, 546, 585-587, 599-600; 15 A Crim R 203 at 212-214, 219, 248-259). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared (Dib (1991) 51 A Crim R 64 at 66-67). It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons – that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in Filippetti (1984) 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred: see also Bazley (unreported, Court of Criminal Appeal, NSW, No 215 of 1988, 23 March 1989) and Sobolewski (unreported, Court of Criminal Appeal, NSW, No 60502…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DAVIES v Regina

Details

AGLC: Davies v Regina [2007] NSWCCA 316
Case: [2007] NSWCCA 316
Decision Date: 16 November 2007

CaseChat Overview and Summary

Davies, the appellant, was convicted of possessing a commercial quantity of a prohibited drug, heroin, and appealed against the conviction on the grounds of unreasonableness and lack of evidence. The appeal was heard in the High Court of Australia. The crux of the appeal was whether the jury's verdict was unreasonable and whether the prosecution had failed to exclude the possibility that the heroin found belonged to someone other than the appellant.

The legal issues before the court involved the presumption of supply when a commercial quantity of a prohibited drug is found, and whether the verdict was unreasonable in light of the circumstantial evidence presented. The appellant argued that the circumstantial evidence was insufficient to establish possession of the heroin, and that the jury should have had reasonable doubt. The court had to assess whether the circumstantial evidence was strong enough to support the jury's verdict and whether the appellant's evidence was compelling enough to warrant a reasonable doubt.

The court found that the appellant's evidence about the ownership of the tin and heroin was not reliable, as it was contradicted by other witnesses and the appellant's previous statements. The court also found that the evidence of the defence witness, Ms Jasmine, was not sufficient to require the jury to have a reasonable doubt as to guilt. The court concluded that the circumstantial evidence, when viewed as a whole, was sufficient to support the jury's verdict.

The High Court dismissed the appeal and upheld the conviction. The court found that the jury's verdict was not unreasonable and that the circumstantial evidence was sufficient to establish possession of the heroin. The court also found that the appellant's evidence was not compelling enough to warrant a reasonable doubt. The conviction was upheld, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Later, having been given a certificate under s128 of the Evidence Act, Mr Smale said that he used to buy large quantities of heroin from Karen Pegg some of which he left in safe keeping in the tin that she controlled. He also said that he gave Karen Pegg some cheques of his mother’s winnings as well as some lay-by dockets. Mr Smale was asked: (Tr 3/10/06 p23:47-52)Q.… in relation to your previous position that you had no knowledge of the cash tin, why is it that you have changed your evidence today?A.I just felt guilty about my mum being charged, and going to prison for the heroin where she had nothing to do with it when it was mine. Mr Smale’s evidence would not have helped the appellant’s case. It is scarcely relied upon in this Court. His original sworn evidence about the ownership of the tin was effectively neutralised by the evidence as to what he had previously told the police on that topic. And his belated claim to have been the owner of the heroin found by the police would, with justification, have been viewed by the jury as an ineffectual attempt to assist his mother. Mr Smale’s evidence about “Karen Pegg” had to be further assessed by reference to the testimony of a Crown witness, Christina White. She said that she had used the false name of Karen Pegg to lease the unit in September 2003. She had made up the name of “Anne Davies” as a referee for her lease application with the real estate agent. She said that when she moved out of the unit a few weeks later Lorraine Studeman moved in straight away and thereafter paid her rent. She denied having taken out the lease to assist the appellant, whom she described as an acquaintance of seven or eight years. This evidence would scarcely have assisted the appellant. No one suggested to Ms White that she had supplied heroin from the premises. Indeed, her testimony that she had moved out within weeks of September 2003 severely undermined Mr Gary Smale’s evidence that “Karen Pegg” was the person controlling the blue box and its contents in January 2005. The inability of the Crown to prove the ownership of various items in the blue tin was also invoked, together with the evidence of Ms Jasmine (discussed below), to show that the Crown did not exclude the reasonable possibility that the heroin itself belonged to someone other than the appellant. In my opinion, the lack of evidence as to ownership of the miscellaneous items in the tin was simply neutral. Nor do I think that the evidence of the defence witness, Ms Jasmine ought to have required the jury to have a reasonable doubt as to guilt. She testified to having seen the blue box open and under a coffee table in the lounge room of the unit on an occasion between December 2004 to early January 2005. She said that it was not her tin. She did not have a good look at it but she observed that it contained “pieces of paper, something in plastic bags”. There were other people at the unit at the time but the appellant was not one of them.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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