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 of 1997, 21 April 1998).
In the present case, the heroin was found by police during a search by warrant of a home unit at North Gosford that was conducted at about 6:30pm on Sunday 8 January 2005. The summing up indicates that it was common ground at the trial that the sole occupier (in the legal sense) of the unit at the time was Lorraine Studeman, the appellant's aunt. She had given evidence that she alone lived at the unit. Other persons, including the appellant, came to the unit at various times (often to obtain drugs) but it was not shown that they did so otherwise than as Ms Studeman’s invitees.
The heroin was discovered in a locked blue box found in a wardrobe in Ms Studeman's locked bedroom. Ms Studeman gave the police access to the bedroom by using a key on a chain around her neck to open the bedroom door. She told the police at the time that, as far as she knew, the box belonged to “Marie”, ie the appellant. This probably explains why the box was not opened until it was brought back to the police station later in the evening in question.
The contents of the box included 9.4g of heroin, $9,875.50 in cash, two cheques in favour of the appellant, four receipts from a jeweller in the appellant's name, and other items (including jewellery) that could not be sourced to anyone's ownership or possession.
The Crown established to the satisfaction of the jury a circumstantial case that the appellant possessed the contents of the box, the heroin in particular. In doing so, the jury rejected the primary defence case which was that Ms Studeman owned and/or possessed the heroin. In framing the issues of this way, I am of course not overlooking the onus that lay upon the Crown throughout.
Among the Crown witnesses were Ms Studeman and the appellant's son, Gary Smale. Each witness was declared unfavourable and permitted to be cross-examined by the Crown prosecutor. The Crown invited the jury to disregard aspects of their evidence that were exculpatory of the appellant and inconsistent with statements each had previously made to the police.
The appellant was arrested on 27 March 2005. Upon arrest she exercised her right of silence and she did not give evidence at the trial.
The nub of the Crown case linking the appellant with the blue box and its contents may be summarised in four points.
First, the appellant had ready access to the unit including her aunt's bedroom. There was a dispute as to whether the appellant was sleeping at the unit at the relevant time, but she was shown to have come there at various times shortly prior to the police raid. She had been seen at the unit by an estate agent during an inspection some time in the recent past. Ms Studeman said that she had stayed at the unit on occasions. Some of the clothing and other belongings in the aunt’s bedroom belonged to her. These included two bottles of methadone in her name issued on 2 January 2004 for use on 3 and 4 January 2004 that were found there during the raid. Diclocil Capsules sold by a chemist to the appellant on 30 December 2004 were found on the kitchen shelf at the unit.
The premises had been under police surveillance since late 2004 and the appellant had been seen near the unit on 6 January 2005. She was also seen by a police officer on 8 January 2005 as a passenger in a car driven out of the underground car park at the unit within about half an hour of the police arriving to execute the warrant.
Second, the two cheques found in the box were made out to the appellant (in the name "M Davies"). They had been issued by the Central Coast Leagues Club on 7 January 2005, the day before the raid, in the amounts of $1500 and $1400 respectively. They were still attached to A4 size documents containing details as to time and source. The appellant was further linked to those cheques by evidence that she had gone to the Leagues Club on in 11 January 2005 seeking to have the Club issue replacement cheques, presumably on the basis that the originals had been lost and that payment was to be stopped at her request.
Third, there were the jeweller's receipts in the box. These had been issued to the appellant (in her married name "Marie Smale") by a Tuggerah jeweller. One receipt is dated 27/11/04 in respect of the repair of an item of jewellery. Another is dated 27/11/04 in respect of a layby sale of jewellery. Two are dated 1/12/04 apparently in respect of other sales. Two further receipts from the same jeweller were found in the appellant’s possession when she drove out of the unit shortly after the raid.
Fourth, there was evidence of Ms Studeman that would have decreased the likelihood of her being the owner of the box and increased the likelihood that it was the appellant. Ms Studeman said in her evidence at the trial that she did not know who owned the blue cash tin although she had seen it at various times at the unit. After she had been declared an unfavourable witness, she was cross-examined about what she had told the police during the search. The videotape of the search was put to her and it was tendered into evidence. A police officer asked her who owned the box. Her answer was “As far as I know, Marie”. She also told the police that she did not have a key to the box.
This portion of the videotape was put to her in cross-examination. She did not squarely admit it but was not really able to deny it. She said that the words “As far as I know, Marie” were directed to ownership of the methadone. It was open to the jury to reject this part of her sworn testimony.
Another part of Ms Studeman’s evidence exculpatory of the appellant was shown to be highly questionable. This in turn would have impacted adversely upon that witness’s credibility as a whole. Ms Studeman gave evidence that the Leagues Club cheques found in the blue box had been handed to her by the appellant late in the afternoon between 5.30pm and 6.30pm on the Wednesday, Thursday or Friday prior to the raid. She said that her niece told her she had won the cheques and asked her to hang onto them. Ms Studeman said that the cheques were normal size and she folded them in three before placing them in her wallet. She did not say how it came about that they were found in the box. There were two discrepancies in this evidence: The second cheque was proved not to have been issued until 8.04pm on the eve of the raid. And both cheques in the box were attached to an A4 size document.
The jury must also have rejected most of the evidence of the appellant’s son, Gary Smale. He said that he put his property into the second bedroom at the unit. He had seen the tin in the kitchen, in the loungeroom and in the dining room and being taken into the main bedroom by Karen Pegg, the woman from whom he claimed to have hired the room. He thought that the tin could have belonged to Karen Pegg or her son, Jason Pegg. He had seen the tin opened and that it contained heroin, money and some paper work. People used to go to the unit to score heroin.
Mr Smale was later declared to be an unfavourable witness. He was asked about the statement he provided to Constable Myers on 17 May 2006 in which he said he knew nothing of the tin or its contents and that he had never seen it in his life. He agreed that he had said those things and that he did not know at the time that his mother had been charged.
In subsequent cross-examination by defence counsel he said that he had frequently gone to the unit to obtain heroin. On some of the occasions he had seen the blue tin opened in the kitchen by Karen Pegg. Other persons had also been supplied heroin by that person in return for cash, jewellery and hock shop tickets. Mr Smale said that he had never had access to the tin except through Karen Pegg. Nevertheless, he agreed with the suggestion in cross-examination by defence counsel that it was “not impossible” that the heroin in the tin on 8 January 2005 was his (Tr 03/10/06, p10).
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.
This evidence is said to support the possibility that the box was used by various persons who were drug users to secrete valuable items.
Under cross-examination, Ms Jasmine agreed that the first time she had been asked to recall the event was in about mid 2006. She agreed that she first met the appellant in December 2004 over the days when she was staying in the unit.
The jury may or may not have been impressed by this witness. But the content of her evidence did very little to take the appellant out of the spotlight.
In final addresses to the jury the prosecutor drew attention to the absence of evidence from Ms Jasmine that she saw heroin in the tin. Reliance was also placed upon the time lapse between the event in question and the time when the witness was first apparently called upon to recall the matters.
I do not think that Ms Jasmine’s evidence cast real doubt about the appellant’s ownership of and/or exclusive access to the blue box with its valuable contents at the critical time when the police searched the premises.
I conclude that, upon the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty. I am not persuaded that the jury should have had a reasonable doubt as to guilt. The appeal should be dismissed.
JAMES J: I agree with Mason P.
HOWIE J: I agree with Mason P.

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LAST UPDATED: 20 November 2007