Davies v The State of Western Australia
[2006] WASCA 151
•4 AUGUST 2006
DAVIES -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 151
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 151 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:156/2005 | 17 MAY 2006 | |
| Coram: | MARTIN CJ WHEELER JA PULLIN JA | 4/08/06 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction allowed Conviction quashed Retrial ordered | ||
| A | |||
| PDF Version |
| Parties: | JANNINE KATRINA DAVIES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Misuse of Drugs Act Possession of methylamphetamine with intent to sell or supply What must be proved to establish possession Evidence Hearsay evidence Whether dismissal of objection to such evidence was wrong in law Criminal law Sentencing Possession of methylamphetamine with intent to sell or supply 13 grams methylamphetamine of 70 per cent purity Sentence of 5 years cumulative on activated suspended sentence not outside range |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(4) Criminal Code (WA), s 36 Interpretation Act 1984 (WA), s 9 Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 3(1) |
Case References: | Abbott v The State of Western Australia [2005] WASCA 42 Atholwood (2000) 110 A Crim R 417 Barca v The Queen (1975) 133 CLR 82 Cumming (1995) 86 A Crim R 156 Davis v The Queen (1990) 5 WAR 269 Dunn (1986) 32 A Crim R 203 Fox v Percy (2003) 214 CLR 118 Grant v The Queen (1975) 11 ALR 503 Green v The Queen (1971) 126 CLR 28 He Kaw Teh v The Queen (1985) 157 CLR 523 Knight v The Queen (1992) 175 CLR 495 Kural v The Queen (1987) 162 CLR 502 Lowndes v The Queen (1999) 195 CLR 665 Macri v The State of Western Australia [2006] WASCA 63 McGreevy v DPP [1973] 1 WLR 276 Pereira v DPP (1988) 63 ALJR 1 Plomp v The Queen (1963) 110 CLR 234 R v Clare [1994] 2 Qd R 619 R v Hutchinson (2003) 144 A Crim R 28 R v Nguyen (2005) 154 A Crim R 360 Saad v The Queen (1987) 61 ALJR 243 Shepherd v The Queen (No 5) (1990) 170 CLR 573 Tabe v The Queen (2005) 79 ALJR 1890 Thomas (1981) 6 A Crim R 66 Thomas v The Queen (1960) 102 CLR 584 Todd (1977) 6 A Crim R 105 Weiss v The Queen (2005) 80 ALJR 444 Widgee Shire Council v Bonney (1907) 4 CLR 977 Wong v The Queen (2001) 207 CLR 584 Bardsley v The Queen (2004) 29 WAR 338 Bellissimo v The Queen (1996) 84 A Crim R 465 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Jarvis v The Queen (1993) 20 WAR 201 Mill v The Queen (1988) 166 CLR 59 Nguyen v The Queen (2001) 160 FLR 284 R v Christie (1978) 41 CCC (2d) 282 R v Hafner [2002] WASCA 211 R v Jellard [1970] VR 802 R v Merritt [1999] NSWCCA 29 Tulloh v The Queen (2004) 147 A Crim R 107 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DAVIES -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 151 CORAM : MARTIN CJ
- WHEELER JA
PULLIN JA
- CACR 157 of 2005
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : NISBET DCJ
File No : IND 821 of 2004
(Page 2)
Catchwords:
Criminal law - Misuse of Drugs Act - Possession of methylamphetamine with intent to sell or supply - What must be proved to establish possession
Evidence - Hearsay evidence - Whether dismissal of objection to such evidence was wrong in law
Criminal law - Sentencing - Possession of methylamphetamine with intent to sell or supply - 13 grams methylamphetamine of 70 per cent purity - Sentence of 5 years cumulative on activated suspended sentence not outside range
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Criminal Code (WA), s 36
Interpretation Act 1984 (WA), s 9
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 3(1)
Result:
Appeal against conviction allowed
Conviction quashed
Retrial ordered
Category: A
Representation:
Counsel:
Appellant : Mr J McGrath
Respondent : Mr M Mischin
Solicitors:
Appellant : Michael Tudori & Associates
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Abbott v The State of Western Australia [2005] WASCA 42
Atholwood (2000) 110 A Crim R 417
Barca v The Queen (1975) 133 CLR 82
Cumming (1995) 86 A Crim R 156
Davis v The Queen (1990) 5 WAR 269
Dunn (1986) 32 A Crim R 203
Fox v Percy (2003) 214 CLR 118
Grant v The Queen (1975) 11 ALR 503
Green v The Queen (1971) 126 CLR 28
He Kaw Teh v The Queen (1985) 157 CLR 523
Knight v The Queen (1992) 175 CLR 495
Kural v The Queen (1987) 162 CLR 502
Lowndes v The Queen (1999) 195 CLR 665
Macri v The State of Western Australia [2006] WASCA 63
McGreevy v DPP [1973] 1 WLR 276
Pereira v DPP (1988) 63 ALJR 1
Plomp v The Queen (1963) 110 CLR 234
R v Clare [1994] 2 Qd R 619
R v Hutchinson (2003) 144 A Crim R 28
R v Nguyen (2005) 154 A Crim R 360
Saad v The Queen (1987) 61 ALJR 243
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Tabe v The Queen (2005) 79 ALJR 1890
Thomas (1981) 6 A Crim R 66
Thomas v The Queen (1960) 102 CLR 584
Todd (1977) 6 A Crim R 105
Weiss v The Queen (2005) 80 ALJR 444
Widgee Shire Council v Bonney (1907) 4 CLR 977
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
Bardsley v The Queen (2004) 29 WAR 338
Bellissimo v The Queen (1996) 84 A Crim R 465
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Nguyen v The Queen (2001) 160 FLR 284
(Page 4)
R v Christie (1978) 41 CCC (2d) 282
R v Hafner [2002] WASCA 211
R v Jellard [1970] VR 802
R v Merritt [1999] NSWCCA 29
Tulloh v The Queen (2004) 147 A Crim R 107
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
(Page 5)
1 MARTIN CJ: I have had the advantage of reading in draft the reasons for decision to be published by Pullin JA. I agree that ground 1 of this appeal must be allowed for the reasons given by him. I also agree that there may be good reason to doubt the correctness of the decision in Davis v The Queen (1990) 5 WAR 269, and the decisions which have followed that decision, but that this is not the occasion to review that line of authority. As to ground 3, the difficulty I have with the direction given by the trial Judge referred to in that ground is seeing how the question of "lawful purpose" fitted at all into the scheme of the issues which the jury had to determine. I am therefore not convinced that a related ground differently expressed which had aimed at the terms of that direction might not have had some prospect of success, but agree with Pullin JA that the ground as enunciated must fail. As the appeal is to be allowed on the basis of ground 1, it is unnecessary to consider further whether this aspect of the direction miscarried. Had it been necessary to consider the appeal against sentence, I agree that that appeal would have had to have been dismissed, for the reasons given by Pullin JA.
WHEELER JA:
Ground 1
2 I have had the advantage of reading in draft the reasons for decision to be published by Pullin JA. I agree that ground 1 of the appeal should be allowed, for the reasons given by his Honour.
Ground 2
3 In relation to ground 2, I agree with his Honour's view that this was not a case in which an inference direction was necessary. I would add, however, a brief observation in relation to inference directions generally.
4 It is a feature of many appeals against conviction that they contain a complaint about a failure to give an inference direction (or a complaint about the content of such a direction when given) in circumstances where either the jury is not required to draw any inference at all, or where no competing inference is identified. Where there is no competing inference, the only question for the jury is whether it is satisfied beyond reasonable doubt that the inference contended for by the State follows from the circumstances which the jury find to be proved. To talk about competing inferences in that situation is to confuse and to invite speculation. It follows that such a direction should not be given as a matter of course, but only where it is necessary to do so and that, where there is said to be a competing inference or competing inferences, it would be reasonable for
(Page 6)
- the trial Judge to expect the assistance of counsel in identifying such an inference or inferences.
5 I would wish to mention a somewhat broader concern relating to inference directions, which also arises from repeated experience in appeals against conviction in this Court. It is not uncommon for there to be considerable dispute, concerning what is or is not an appropriate formulation of a inference direction. In my view, the difficulty with the direction arises from the attempted application of a comfortingly "scientific" sounding formulation to the decidedly unscientific question of whether a juror is or is not able to be satisfied beyond reasonable doubt of guilt.
6 The inference direction is, it appears, an exception to both of the rules that it is not desirable to elaborate unduly on the standard of proof, and that it is not desirable to invite jurors to perform the unaccustomed task of closely analysing their own mental processes (for example, Thomas v The Queen (1960) 102 CLR 584, especially at 605 - 606 per Windeyer J; Green v The Queen (1971) 126 CLR 28 at 33 per Barwick CJ, McTiernan and Owen JJ). It appears to me that there are a number of potential distortions of the jury's reasoning which may flow from a direction of this kind, some favourable to an accused person and some unfavourable. To give an example of the latter, the customary direction that an inference unfavourable to an accused person can only be drawn where it is the "only reasonable hypothesis" or "only reasonable inference" open, tends to invite a process of elimination. That is, it carries the risk that a jury will conceive its task as being deciding whether hypotheses consistent with innocence can be eliminated, rather than whether the guilt of the accused is proved. Once all alternative inferences are eliminated, there is a risk that the jury, perceiving that the hypothesis consistent with guilt is the only one remaining, may feel that its task is accomplished, and may not give appropriate scrutiny to whether that hypothesis is or is not proved beyond reasonable doubt.
7 To give an example of the former type of difficulty, it is illustrated perhaps by the observation of Dixon CJ that there are not "degrees of consistency" (Plomp v The Queen (1963) 110 CLR 234 at 243), and by the raising in this case of the issue which concerned the High Court in Knight v The Queen (1992) 175 CLR 495 as to whether it is ever appropriate for a trial Judge to direct a jury that if there are inferences "equally reasonably open" on the evidence, they cannot draw the one which is consistent with guilt. As a proposition of pure logic, it is obvious that there are not degrees of consistency, and that if an inference
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- consistent with innocence is "reasonably open", then the State has not discharged the burden which lies upon it. The difficulty with the proposition in practice, is that inferences may be stronger or weaker depending upon how well they fit with all the known facts, and upon the reliability of those known facts. All fields of scientific endeavour provide instances of reasonable hypotheses, which are discarded as new facts are established or as facts upon which they rested come to be doubted. It is not clear to me that a jury would understand from the usual inference direction that an hypothesis consistent with innocence is not reasonably open if it requires the jury to disregard facts which it finds to be proved, or to accept as proved facts which it rejects, or if it is consistent with some, but not all, of the facts which the jury find proved. The word "inference" is not frequently used in common speech. "Hypothesis", in common parlance, is often used (when it is used) as synonymous with "theory"; or even "guess" (Macquarie Dictionary, meaning 4). The defence "theory" will, of course, be consistent with innocence, although not necessarily consistent with all proven facts.
8 There is binding authority for the proposition that the "customary inference direction" will be of assistance in some cases of circumstantial evidence, and for the proposition that there will be some cases where such a direction is essential, although the same authority recognises that at other times such a direction may be confusing and unhelpful: Grant v The Queen (1975) 11 ALR 503; Shepherd v The Queen (No 5) (1990) 170 CLR 573 at 579 per Dawson J.
9 For the reasons I have given, it would be my view that such a direction should be reserved only for those circumstantial cases where some competing inference is identifiable, and it should be made clear to the jury in every case that the direction is no more than an aid to the application of the underlying principle concerning the onus and standard of proof.
Ground 3
10 So far as ground 3(a) is concerned, I agree with Pullin JA that this ground must be dismissed. Ground 3(b) is confusing. As Pullin JA points out, the appellant's counsel at trial said to the jury in his opening statement that the fundamental issue in the case is: " ... if she was in possession ... why did [she] have it on her?" That seems to suggest that it was accepted that the appellant was in possession of the drug, but denied that she was in possession with intent to sell or supply.
(Page 8)
11 However, his Honour's directions concerning what might and might not constitute a "lawful purpose" for having custody of a drug appears to be concerned not with the question of intention to sell or supply, but with the question of whether the jury could be satisfied that the appellant was in possession of the drug at all. The ground of appeal appears to me, although very obscurely phrased, to be directed to the question of whether the appellant was in possession of the drug, rather than whether she was able to establish, on the balance of probabilities, that she did not intend to sell or supply it. That impression is confirmed by a reading of the appellant's submissions and by the oral submissions on the appeal.
12 The submissions on the appeal in relation to ground 3(b) revolved, so far as the State was concerned, around the proposition that it was not lawful to have custody of a drug for the purpose of ascertaining the owner, and, so far as the appellant was concerned, around the proposition that it was lawful to have custody of a drug for the purpose of destroying or disposing of it. Neither counsel emphasised the appellant's evidence that she hid the drug for the purpose of ensuring that no-one would "get into trouble", or adverted to the authorities discussed by Pullin JA which, in my view, make it plain that to have physical custody of a drug with the intention of concealing it from the authorities is to have it with an intention to exercise such dominion or control as to satisfy the meaning of "possession" within the Misuse of Drugs Act 1981 (WA).
13 However, it appears to me that Pullin JA's analysis is plainly correct, and that, on the appellant's own evidence, she was in possession of the drug. Her evidence about her purpose would, of course, be relevant to the question of whether she was in possession of it with intent to sell or supply. It would have been open to his Honour to have directed the jury that, if they accepted the appellant's evidence about hiding the drug (and it was plainly consistent with all of the evidence led by the State), then as a matter of law they could accept that she was in possession of it. His Honour's discussion of "lawful purpose", while it concentrated on what may well have been an irrelevant issue, was, if anything, favourable to the appellant. For that reason, I would not uphold this ground.
14 Finally, I would express my agreement with the additional observations of Pullin JA and Martin CJ concerning the correctness of the decision in Davis v The Queen (1990) 5 WAR 269. However, it is not necessary to consider that matter in the present case. If any question of reconsideration of Davis were to arise, it would be my own view that it should be raised before a Bench of five Judges, having regard to the fact
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- that that case has stood for some 16 years and has apparently been followed in this State.
15 PULLIN JA: The appellant was convicted after trial of the offence, that on 29 November 2003 at Dudley Park, she had in her possession a quantity of a prohibited drug, namely methylamphetamine with intent to sell or supply it to another contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(a). She was sentenced to 5 years' imprisonment. She was serving suspended sentences at the time. Orders were made under s 80 of the Sentencing Act in relation to them. The aggregate term was 5 years and 8 months. The appellant appeals against the conviction and sentences.
The evidence
16 It is sufficient if I refer to the opening statement of counsel for the appellant made at the commencement of the trial and the evidence of the appellant. The appellant gave evidence that she lived at Dudley Park in Mandurah with her three children and stepdaughter. Her son Carl was 17 years old and the other children were 10, 9 and 2-1/2 years old.
17 Before 29 November 2003 the appellant said she was in Perth making arrangements for her wedding. Her children, other than Carl, stayed with her mother during this time. She said that her fiancé was at another address in Mandurah but that he might have called into the house.
18 She arrived home at 9.30 pm on 28 November 2003. She said she felt sick and tired. As soon as she came into the house she found a white package on the kitchen floor. She said she unwrapped it a little bit. She said that she had "strong suspicions" that it was amphetamines. She said it was the only thing she thought it could be. She said that it did not belong to her. She was asked by her counsel what went through her head when she found the package. She said:
"--- I don't know. I just - I can't recall.
Did it belong to you?---No.
Did you have any thoughts about who it might belong to?---Well, yeah.
What were they?---Well, first of all I thought, if anything you know, like - I don't know. I really don't know what's going through my head. Just that I had to find out or, you know, get rid of it."
(Page 10)
19 She said she ended up lying down on her bed because she was very tired and thinking "I'll sort it out in the morning". She said that Carl was not there and that she would find out whose it was from Carl and from her fiancé.
20 She then went to sleep and she vaguely remembered her children coming home. At 7.20 am the next morning, the police raided the house in execution of a search warrant. Her fiancé Steve Watkins was standing in the foyer with a set of keys.
21 The appellant then gave the following evidence in her examination-in-chief:
"Right. Tell the jury what happened, what you heard and what you did?---Well, I just woke up to really, really loud bangs and was pretty scared. At that time I did not know what it was. It could've been Carl in trouble or - I just wasn't sure what was going through my head, and then when I found out it was police, I panicked.
Right. Where were you when you first heard noise?---I was in bed.
You say you panicked. What happened? What did you do?---I put the plastic bag down my pants.
Why did you do that?---Because I was scared. I didn't know, you know - I didn't want to get anyone into trouble.
Right?---I hadn't, you know, talked to anyone.
What did you think about the package when you put it there?---I don't think I really thought anything, just I was a bit worried, just - yeah, I don't know what I was thinking.
How many people were in the house at the time the police entered?---Me, Steven and the kids.
What did you intend to do with the package when you put it down your pants?---I don't think I intended to do anything with it. I just - - -
Right. Did you have much time to think about it?---No, no. It was just a heap of banging - - -
(Page 11)
- Did you think anyone in particular might be blamed? What did you think?---I thought they'd blame Steve."
22 While the police were in attendance, she then asked to go to the toilet. She was watched by a female police officer. She took down her underwear and then flicked the package containing the drugs out onto the floor.
23 She was asked the following questions:
"STOCKS, MR: At the time that you put it down your pants, you did so to hide it from the police?---I don't know if it was to hid it from the police, but it was just - well, I didn't know what else to do at that time.
You didn't want the police to find it, did you?---If it was what I suspected, I didn't want to get anyone into trouble.
No. You didn't want the police to find it?---I didn't want to get anyone into trouble.
NISBET DCJ: Well, what about answering the question?---What - - -
You didn't want the police to find it. Is that true or not true? It's a plain enough question?---No, I didn't."
24 She continued during examination-in-chief:
"You didn't want to get rid of it the night before?---I was sick and I didn't know whose - I didn't know anything about it.
So your evidence is that you were sick the night before. You gave no real thought to it and you wanted to hide it from the police in the morning, but you were just going to get rid of it?---Yeah.
So when the police had left, you were going to flush it down the toilet. Is that right?---Well, I can't really say I was going to flush it down the dunny, but, you know, I was going to get rid of it.
By giving it to your son?---No way.
Or your husband?---No."
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25 In cross-examination she said (AB 92):
"Tell me what you were going to do with the drugs when the police left, Mrs Watkins?---Just get rid of them.
How?---I don't care. Just flush them or whatever. I just want to get rid of them.
Why?---Because - well what else was I going to do with them?
What were you going to do with them the night before when you found them?---I don't know. I can't answer that. When I just panic like I've said to you a hundred times, I didn't know what to do, didn't know whose they were. I had my suspicions. I just didn't know what to do. I was crook and tired and just couldn't deal with it at that time.
Isn't the only difference between the morning after and the night before that in the morning after the police are there?---Yeah. Yeah.
Had the police not turned up that morning, you would not have been flushing the drugs away?---Yes, I would have.
Why didn't you flush them away that night?---I just told you. I just panicked.
The night before?---Yes, I did. I've explained to you.
Why did you panic the night before?---I've explained to you how I felt.
You have explained to us that you panicked in the morning, Mrs Watkins?---Okay and then the night-time, first of all I was feeling very crook and I was very tired, okay? I don't, you know like when I seen it and what everybody else and then sort of like had my suspicions. You know? My son's not there, Steve's not there, you know. I didn't know what to think.
You thought enough to hide it in the bed?---To deal with it in the morning.
Your suspicions were strong enough that you didn't just leave it out on the counter?---No. Because I have got other kids and that that were coming home.
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- You well know what it was, didn't you?---I had my - no. I've said to you I had my suspicions. I know that my son, you know, being there for the last couple of days with all his mates - anything's possible."
- A little later in cross-examination the following occurred:
"Your evidence is that you thought that this drug was his?---I didn't say I thought it was his, no. I said it could have been, you know, could have been. His mates that could have - I don't know. I've talked to my son since then and I would rather just leave it at that."
27 Two sets of scales were found in the house, one in her bedroom. When analysed they were found to contain traces of methylamphetamine on them. The drug in the package which she flicked out of her underwear, when analysed, contained methylamphetamine weighing 13 grams of 70 per cent purity. Clip seal bags were found in a bundle and over $3000 in cash was found in her possession. She first gave an explanation that this came from her sister who had obtained the money by drawing it from her account using her card, but this was false.
28 Finally, I will relate additional evidence which is relevant to one of the grounds. At the end of evidence-in-chief she was asked:
"After the police had raided the house, for want of a better word, and left, did you - and I don't want you to tell me what the answer to it was, but did you subsequently speak to your son Carl?---Yes."
29 In cross-examination there were some questions and answers and then an objection which was overruled as revealed by the following passage in the transcript:
"So you spoke to your son?---Yes.
Are you suggesting in that evidence that the drug belongs to your son?---No.
Your son denied it was his.
LEVY, MR: I object to the question.
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- NISBET DCJ: Sorry?
LEVY, MR: I object to the question.
NISBET DCJ: Yes, Mr Levy. Any reason?
LEVY, MR: Because we're getting into the area of hearsay now. He's asking about a conversation with her son.
NISBET DCJ: But it's not hearsay against this witness.
LEVY, MR: It is hearsay against this witness.
NISBET DCJ: No, it's not. It's a direct conversation she's having with her son.
LEVY, MR: Yes.
NISBET DCJ: Yes.
LEVY, MR: It doesn't matter, with respect, your Honour.
NISBET DCJ: It's not hearsay, Mr Levy. It's not hearsay.
LEVY, MR: It's a conversation out of court.
NISBET DCJ: Yes, had with her son, 'He said, I said.'
LEVY, MR: Yes. It doesn't matter, with respect, whether it's her son or any other person.
NISBET DCJ: I'm sorry, Mr Levy, I've not heard a submission like that before. If that's the ground of the objection then I overrule you. It's clearly admissible.
LEVY, MR: As your Honour please.
STOCKS, MR: What did your son say, Mrs Watkins?--- He denied it.
Did you ask Mr Watkins if it was his?---He denied it.
Doesn't that rather leave you?---Me?
Mm?---No. It could have been - you know, like, there was other people that went to the house.
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- Who?---Well, all my son's friends were at the house, you know.
Did you ask them?---Not all of them, no.
Are you suggesting that one of your son's friends left - - -?---I don't know. I don't know. I don't really want to know any more."
30 Finally I refer to the opening statement made by the appellant's counsel to the jury. He said:
"My learned friend quite properly told you a little bit about what the prosecution have to do and how they go about proving the elements of this offence. My learned friend told you that essentially one of the issues is going to be whether or not Ms Davies in fact had this package in her pants. As he has told you, the state must prove that she was in possession of it, firstly, and that she was in possession of it with intent to sell or supply. The fundamental issue in this case is really, if she was in possession - and I will tell you right now she had physical custody of those drugs, the package; that when she went into the bathroom she had physical custody of that package, but the issue is not that. The issue in this trial is why did she have that custody, why did [she] have it on her?
Appeal against conviction
31 The grounds of appeal against conviction read as follows:
"1. The learned trial Judge erred by allowing the Prosecution to lead inadmissible hearsay evidence of conversations between:
a) the appellant and her son, and
b) the appellant and her de facto husband Mr. Watkins
such evidence being highly prejudicial to the appellant's case.
[T. 107]
2. The learned trial Judge erred in law in his directions to the jury in relation to circumstantial evidence.
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- a) The learned trial Judge erred by directing the jury that '[i]f there are two or more competing inferences, each reasonably open on the evidence, that is, equally reasonably open on the evidence, and one of them is favourable to the accused and one unfavourable to her, you must use the inference that's favourable to her…'
[T.152] (underlining added)
b) There is no requirement in law that the inference that is favourable to the accused must be 'equally reasonable' to an adverse inference before the jury must, as a matter of law, reject the unfavourable inference.
3. The learned trial Judge erred in fact and law by failing to properly explain to the jury the way in which the law relating to the Misuse of Drugs Act 1981 (WA) definition of 'possession of a prohibited drug' applied to the facts of the case.
Particulars
- a) The learned trial judge erred by failing to properly summarise the defence case in that he failed to instruct the jury that the defence case was not merely that the appellant was holding the drugs with an intention to find out who owned the drugs, but to find out who owned the drugs and then to destroy them.
b) The learned trial Judge erred in law by directing the jury that it was not lawful to hold a drug for the purposes of ascertaining the owner of the prohibited drug."
The case to be proved by the prosecution - the possession element
32 Section 6(1)(a) of the Misuse of Drugs Act 1981 reads:
"Subject to subsection (3), a person who - with intent to sell or supply it to another, has in his possession … a prohibited drug
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- commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority."
33 The State therefore had to prove possession of a prohibited drug. Section 3(1) defines the phrase "to possess" in the following way:
"… includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings;"
34 Section 9 of the Interpretation Act 1984 (WA) provides that:
"Where a word or phrase is defined in a written law, other parts of speech and grammatical forms of that word or phrase have corresponding meanings."
35 The word "possession" is used in s 6. The word "possession" is a noun. Section 3 defines the verb "to possess" and not the noun "possession". However, even if the noun "possession" is not an inflection or derivative of the verb "to possess", it is certainly another "part of speech or grammatical form" of the verb. Therefore, the word "possession" in s 6 requires the prosecution to prove that the accused had control or dominion over, or the order or disposition of a prohibited drug.
36 It is necessary to turn to the case law to see what else must be proved. When reading case law concerning the meaning of "possession", it is essential to take care because the cases often arise in circumstances where the State law is different or where the doctrine of mens rea applies. Thus, in Queensland under the Drugs Misuse Act 1986 the prosecution merely has to prove that accused knew they had a substance in their possession and that it was in fact a prohibited drug. It is not necessary for the prosecution to prove that the accused knew the nature of the substance. See R v Clare [1994] 2 Qd R 619. In jurisdictions where the common law applies, the doctrine of mens rea intrudes and complicates discussion about the mental element which has to be proved to establish possession. See for example, He Kaw Teh v The Queen (1985) 157 CLR 523 at 536, 549, 565, 583, 591 and 596; Kural v The Queen (1987) 162 CLR 502; Saad v The Queen (1987) 61 ALJR 243 and R v Nguyen (2005) 154 A Crim R 360. The court in Nguyen said at [8]:
"… it was held in He Kaw Teh that in order to convict an accused of an offence under s 233B(1)(b) of the Customs Act 1901 … the prosecution had to prove both the intent to commit
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- the act of importation and knowledge of the nature of the subject of the importation …"
37 In Western Australia and Queensland, the doctrine of mens rea does not apply to charges of criminal offences. Instead, the provisions of Ch 5 of the Criminal Code concerning criminal responsibility apply to all persons charged with any offence against the statute law of Western Australia. See s 36 of the Code and Widgee Shire Council v Bonney (1907) 4 CLR 977; R v Hutchinson (2003) 144 A Crim R 28.
38 Nevertheless, in cases from jurisdictions where the doctrine of mens rea does apply, or where different statutory provisions apply, comments can be found which assist in understanding the meaning of "possession" and what has to be proved in an offence charged under s 6 of the Misuse of Drugs Act. This is because such cases sometimes discuss the meaning of "possession" and what must be proved in circumstances unaffected by special statutory provisions or by the common law doctrine.
39 With those comments I now turn to what must be proved by the prosecution to establish possession of a prohibited drug under s 6(1)(a) of the Misuse of Drugs Act.
Control, dominion, order or disposition
40 First, as the definition of "to possess" makes clear, it must be proved that the accused had control, dominion or the order or disposition of the prohibited drug. This case is one where control was alleged. If control is alleged, then the period of time the accused has control may be relatively brief. Thus, an accused who threw some cannabis over a verandah to escape the attention of police, was convicted of possession of the drug, as was an accused who moved a parcel of cannabis for the purpose of concealing it. See Thomas (1981) 6 A Crim R 66 and Todd (1977) 6 A Crim R 105.
Knowledge
41 Secondly, knowledge has to be proved. The definition of "to possess" in the Misuse of Drugs Act does not refer to any mental element but the authorities are clear that knowledge is necessary to prove possession. See Tabe v The Queen (2005) 79 ALJR 1890.
42 That then raises the question as to what knowledge has to be proved. This has been the subject of much discussion in the cases. The issue arises for consideration in various circumstances, for example where a person charged with possession claims that although they possessed a
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- container they did not know that the container had a substance or a drug within it; where the person says that they knew they had the substance but claims they did not know it was a prohibited drug: see R v Clare (supra); where the accused says that they thought they had possession of one drug, say, amphetamine but in fact had possession of cocaine: Dunn (1986) 32 A Crim R 203; or where a person says they found and took control of a substance which they suspected was a prohibited drug, but did not know whether it was so for certain, as in this case. In Tabe (supra) at [7] Gleeson CJ said:
"The concept of 'knowledge', however, is imprecise. This, no doubt, is why Aickin J spoke of 'sufficient knowledge in the presence of the drug' in Williams v The Queen. The answer to a question as to what constitutes 'sufficient knowledge' for possession depends upon the purpose for which, and the context in which, the question is asked." (Citations omitted)
His Honour continued at [10]:
"In the context of a criminal law that prohibits possession of an article of a certain kind, and leaving to one side any special statutory regime that might alter the case, the concept of knowledge requires further definition. What is it that amounts to knowledge? And what is it that must be known? In He Kaw Teh v The Queen, Gibbs CJ, after reviewing the authorities, concluded that:
'[W]here a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ("in his possession") themselves necessarily import a mental element.'
…
[11] What is it, then, that must, in the relevant sense, be known? The judgments in He Kaw Teh,which concerned the meaning of the Customs Act 1901 (Cth), illustrate a range of different possible conclusions as to the extent of knowledge involved in the concept of possession. One possibility is that, to be in possession of a drug of a particular kind, a person must know that he or she is in possession of the substance, and that
- the substance is a dangerous drug, without necessarily knowing that it is methylamphetamine, as distinct from say, cocaine or heroin. Another possibility is that the person must know that he or she is in possession of a substance, (which is in fact a dangerous drug), and that knowledge that the substance is a dangerous drug is not something that need be shown. Other possibilities exist as well." (Citations omitted)
43 His Honour answered that question by reference to the particular provisions of the Queensland legislation, which does not assist here.
44 From his Honour's discussion, and from He Kaw Teh (supra) and Dunn's case (supra), however, it is clear enough at least that the prosecution must prove the accused knew that they had the thing which it is alleged they possessed, ie the substance.
45 The next issue is whether the prosecution must also prove that the accused knew the nature of the substance, ie that the substance was the prohibited drug referred to in the charge. This was the subject of consideration in Dunn (supra), where the appellant was originally charged with possession of amphetamine, but which on analysis proved to be cocaine. The appellant had believed it to be amphetamine. He was then indicted on possession of cocaine and the question arose about what knowledge had to be proved in the circumstances of that case. Burt CJ said:
"Whether in a case such as this when the offence is being in possession of a prohibited drug it is necessary to establish that the accused knew not only that the thing in his possession was a prohibited drug but also that he knew or believed that it was the kind of drug mentioned in the charge was a question specifically kept open by Gibbs CJ in He Kaw Teh (at 537-538; 212-213). I have read the Canadian cases referred to by the Chief Justice and agree with the conclusions reached by the British Colombia Court of Appeal in Blondin [1971] 2 CCC (2d) 118 that under a statute such as the Misuse of Drugs Act which creates an offence of being in possession of a prohibited drug it is sufficient that the Crown establishes that the accused had in his possession a prohibited drug and that he knew or believed that the thing which he had in his possession was a prohibited drug. It is not necessary to establish that he knew that it was a prohibited drug of the kind charged. And in this case, as it turned out, the drug was cocaine and hence I think
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- that the admitted facts establish that the appellant was in possession of a prohibited drug, to wit cocaine, and to that extent he was rightly convicted." (Citations omitted)
46 Pidgeon J's judgment was to similar effect. Olney J dissented.
47 I agree with the conclusion reached by Burt CJ and Pidgeon J. To prove possession the State must prove that the accused knew he or she had possession of a prohibited drug but need not prove that the accused knew exactly which prohibited drug it was.
48 Finally, the issue arises as to the level of knowledge which has to be established. Knowledge may of course be proved by direct evidence or by inference. See Nguyen's case (supra) at [23]. There are many statements in the cases which establish that what must be proved is that the person charged must know that he or she has custody of a substance that is, or is likely to be, a prohibited drug. See Pereira v DPP (1988) 63 ALJR 1 at 384; Tabe per Gleeson CJ at [10], McHugh J [57] and Hayne J at [102]; Dunn (supra) at 205 and Nguyen (supra) at [16] - [21]. Gleeson CJ in Tabe at [10] said:
"The fact in issue, knowledge, is not limited to knowledge gained from personal observation, or certainty based upon belief in the information obtained from a third party, although those states of mind would suffice. The word 'awareness' is sometimes used as a synonym. A belief in the likelihood 'in the sense that there was a significant or real chance', of the fact to be known, will suffice."
Intention to possess
49 There is nothing in the statutory definition of the phrase "to possess" or in the ordinary meaning of "possession" which requires proof of "intention to possess".
50 However, on the authorities in this State, proof of possession requires proof not only of (a) knowledge, and (b) control, dominion, order or disposition, but also (c) intention to possess. Proof of the third element of "intention" is required by reason of Davis v The Queen (1990) 5 WAR 269, which has been followed in Cumming (1995) 86 A Crim R 156 and Atholwood (2000) 110 A Crim R 417.
51 However, as Malcolm CJ said in Davis at 61:
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- "Proof of knowledge will normally be sufficient to show intention."
52 In this case, as I explain below, the appellant had, on her own admission, knowledge that she had possession of amphetamines and so the element of intention requires no further consideration. In any event, there is no ground of appeal which alleges that intention to possess was not proved, or that the trial Judge erred in his direction about the elements of possession. The appellant's written submissions which referred to Davis were submissions about ground 3(b) which does not raise any issue about intention.
53 However, I wish to add as an aside that I consider that Davis, Atholwood and Cumming might require re-examination in a suitable case. The former Chief Justice in Davis relied heavily on He Kaw Teh (supra) to reach the conclusion that intention to possess had to be proved. His Honour did not appear to notice that He Kaw Teh was a case in a jurisdiction where the doctrine of mens rea applied. Wallace J also referred to He Kaw Teh indirectly by referring to another case relying on He Kaw Teh. Pidgeon J dissented on this point. As Pidgeon J said in Davis and as I have said above, the doctrine of mens rea does not apply in Western Australia. In Davis the Chief Justice appears not to have realised that the Misuse of Drugs Act contained the definition of the phrase "to possess".
The evidence and admissions of the appellant
54 I now turn to the circumstances of this case. It is clear beyond doubt, that the appellant had control of the drug. She admitted in her evidence that she had it with her overnight and then put it in her underwear to conceal it from the police. It remained there until she flicked it onto the floor from her underwear when she went to the toilet. By reference to Thomas (supra) and Todd (supra), this was more than sufficient to establish control. In any event, the appellant's counsel in the opening statement to the jury made an admission that the appellant had "physical custody of those drugs, the package; that when she went into the bathroom she had physical custody of that package".
55 On her own evidence, she admitted that she knew she had possession of the substance. As to the nature of the substance, she said that she "strongly suspected" that it was amphetamines and it was the "only thing" she thought it could be. On the authorities referred to above, that was enough to prove she had knowledge that it was a prohibited drug.
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56 Intention to possess the drug was proved by her knowledge that it was a prohibited drug and her deliberate act of retaining the drug overnight and hiding it from the police.
57 The prosecution proved that the substance was methylamphetamine (that was not in dispute) and proved that it was more than the prescribed quantity. The prosecution then relied on the statutory presumption that she intended to sell or supply the drug.
58 In those circumstances, all that was left as an issue in the case was whether the appellant could prove on the balance of probabilities that she did not intend to sell or supply it. Central to that issue was whether she owned the drug or whether it belonged to others, and whether she found it and intended to destroy it after enquiry about who the owner was. If she owned it, then the jury would have been very likely to dismiss her attempt to prove that she did not intend to sell or supply it.
59 I now turn to the grounds of appeal.
Ground 1 - Hearsay evidence
60 This ground complains about the learned trial Judge's decision to overrule the objection made by counsel for the appellant when prosecuting counsel asked the appellant what her son and fiancé had said when she asked them if the drug was theirs. The objection having been overruled, the prosecution was able to ask the appellant about the conversations between the appellant and her son and her fiancé. The ground alleges that the answers elicited inadmissible hearsay evidence that the drug did not belong to her son or fiancé, and that such evidence was prejudicial to the appellant's case.
61 With due respect to his Honour, the evidence by the appellant about what the son and fiancé said was undoubtedly inadmissible hearsay evidence. It was led for the purpose of proving the truth of the out of court statements made by the son and the fiancé. Those statements were that they were not the owners of the drug. The prosecutor's intention was to elicit this evidence. This is emphasised by the question "Doesn't that rather leave you?" meaning, the son having denied that it was his drug (and the fiancé likewise) that it must have been her drug. The prosecutor was therefore wishing to rely upon the truth of the evidence given about what the son and fiancé said. In dismissing the objection, his Honour made a wrong decision on a question of law.
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62 I should also add that the question asked at the end of examination-in-chief about whether or not the appellant spoke to her son after the police had left, was also objectionable even though no objection was taken. The answer she gave, which was that she had spoken to her son, was evidence given for the purpose of suggesting that the appellant did what she had intended to do before the police arrived; that is to make enquiries of her son and then destroy the drug. In my opinion, the evidence that she made enquiry after the police left was irrelevant. If she wished to show that she did not intend to sell or supply the drug, she could say so but if she wished to rely on statements or actions from which intention might be inferred, they had to be contemporaneous statements or actions. See "Cross on Evidence", par [37085]. In other words, statements or actions to show her state of mind while she had possession were relevant but what she did or said after the police left and after she had lost possession of the drug were irrelevant.
63 In view of my conclusion that his Honour erred in allowing in inadmissible hearsay evidence it is necessary to consider s 30(4) of the Criminal Appeal Act which reads:
"[E]ven if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred."
64 In relation to the matters the prosecution had to prove, the evidence of what inquiries the appellant made and what answers the son and fiancé gave were entirely irrelevant. This is because the matters to be proved by the prosecution were that the substance was a prohibited drug, that it weighed more than the prescribed amount and that the appellant had possession of the drug. Whether her son or fiancé admitted or denied the drug was theirs was not in any way relevant to those issues. Nor was the evidence about any inquiry that the appellant might have made after the police left.
65 Thus, if the charge against the appellant was one of mere possession, I would dismiss this ground because no substantial miscarriage of justice would have occurred.
66 However, the charge was not one of mere possession. It was a charge of possession with intent to sell or supply. The onus was on the appellant to prove on the balance of probabilities that she did not intend to sell or supply to another. She claimed in her evidence that she did not
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- own the drug, that she found it when she arrived home and that she intended to destroy the drug after making inquiries about who owned it, but that the police raid occurred before she could do so. In relation to that issue it was relevant whether the drug was or was not owned by her. The inadmissible hearsay evidence made it more likely that the jury would conclude that the drug belonged to her, and if so, reject her evidence that she did not intend to sell or supply it to others. The effect on the jury of this inadmissible evidence cannot be calculated by this Court. This is a case where the "natural limitations" of the appeal process make it impossible to form a view about the effect of this inadmissible evidence: Fox v Percy (2003) 214 CLR 118 at [23]; Weiss v The Queen (2005) 80 ALJR 444 at [41].
67 Further, his Honour emphasised the inadmissible evidence when summing up to the jury. His Honour said (AB 151):
"She says all she was doing was hiding these drugs simply so she could ask whose they were before destroying them. She was asked a couple of times, 'You had no intention of destroying these drugs,' and you will recall her saying, 'Oh, yes, I was. I was going to destroy them. I just didn't want to get anyone into trouble and I wanted to ask my son,' and later she said her husband, 'Whose were they?' and she says that indeed afterwards she did ask them and they both denied that they were theirs, but anyway, she hadn't got to that stage before the police arrived."
68 This ground of appeal must succeed.
Ground 2 - Inference direction
69 His Honour said in his direction to the jury at AB 140 - 141:
"Can I mention something else to you. This is a case in which the State particularly, which is not unusual, relies on what lawyers call circumstantial evidence. … Circumstantial evidence is where that direct evidence is used to form the basis of drawing a conclusion.
For example in this case the State says her actions there admit of only one inference, namely, that she had this substance in her underwear with guilty knowledge that it was a prohibited drug … and she was trying to distance herself from it. …"
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70 His Honour continued:
"Ladies and gentlemen, states of mind can only be proven by way of circumstantial evidence …
…
If there are two or more competing inferences, each reasonably open on the evidence, that is, equally reasonably open on the evidence, and one of them is favourable to the accused and one unfavourable to her, you must use the inference that's favourable to her and the reason for that is to guard against drawing the wrong conclusion from a given set of facts or circumstances."
71 It is this latter passage which is the subject of complaint. After the jury retired, the following exchange occurred. First, at AB 162, counsel for the appellant said:
"Your Honour directed the jury that if there are two or more compelling [sic] inferences, equally reasonable on the evidence, you cannot draw an inference adverse to the accused. In my submission they don't have to be equally reasonable. That invites the jury to the view that unless they are equally reasonable, for example, if there is a reasonable inference, but one is perhaps a little more reasonable than the other, then they are not equal and therefore they wouldn't have to look at the accused - the reasonable inference in favour of the accused and could then draw the adverse inference against the accused. That's the first matter."
72 At AB 166 counsel for the prosecution said that he did not hear the words "equally reasonable" and his Honour said:
"I did, I think. I think it's a standard direction I give: 'Look, if you are faced with two inferences, both reasonably open on the evidence, both equally reasonably open on the evidence as far as you are concerned, then you have to choose the inference that is favourable to the accused.' I certainly said that."
73 Counsel for the prosecution said:
"Yes. In fact, it must be said that that's a direction that weighted, I would say, in favour of the accused, but
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- your Honour made it quite clear that if they were to draw an inference contrary to the interests of the accused, it had to be the only reasonably available inference. Whilst I take what my friend says, I just simply say that the direction is clear."
74 His Honour responded:
"I certainly say that too. If you are going to draw an inference adverse to the interests of the accused, you have got to be satisfied it's the only inference reasonably open on the evidence."
- His Honour declined to give any further direction to the jury on this point.
75 In Knight v The Queen (1992) 175 CLR 495, Mason CJ, Dawson and Toohey JJ in a joint judgment said:
"The Full Court (Young CJ and Nathan J, Crockett J dissenting) dismissed the appellant's application for leave to appeal. The appellant had argued that even if the evidence concerning his intention at the time the second shot was fired was consistent with an intention to kill, it was also consistent with an absence of that intention. There being competing hypotheses, neither of which could be excluded, he submitted that the jury were bound to have a reasonable doubt whether he fired the second shot with intent to kill. In rejecting this argument, Young CJ took the view that it could only succeed if the court concluded that the two inferences, one consistent with guilt and the other consistent with innocence, were equally open. He concluded that the two inferences were not equally open."
76 At 503 their Honours said:
"With respect, Young CJ was in error in the view which he expressed below that the appellant could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open. There are not, as Dixon CJ observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance."
77 This being the law, a Judge should never, when giving an inferences direction in relation to matters on which the burden is on the prosecution
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- to prove a charge beyond reasonable doubt, say anything to suggest that the jury is required to compare the competing inferences and only if they are "equally reasonably open" to then give the appellant the benefit of the doubt. There are not, to use the words of Dixon CJ, "degrees of consistency": see Plomp v The Queen (1963) 110 CLR 234 at 243. It is for the jury to decide whether an inference should be drawn. It is not necessary to first give the competing inferences equal weight before giving the accused the benefit of the doubt.
78 The question arises however, whether an inferences direction was necessary at all in relation to that part of the case which the prosecution had to prove beyond a reasonable doubt. All the State had to prove had been proved, leaving the appellant to seek to establish that she did not intend to sell or supply the drug.
79 In my opinion, on the facts of this case, and in relation to the matter the accused was seeking to prove, it was not necessary to give a direction in relation to inferences. It is not essential to give an inferences direction in every case. See Barca v The Queen (1975) 133 CLR 82 at 105; McGreevy v DPP [1973] 1 WLR 276. The need for a direction on inferences depends on the evidence and the issues in the case: Abbott v The State of Western Australia [2005] WASCA 42 at [74]. To give an inferences direction without identifying the competing inferences may sometimes be confusing.
80 In this case the appellant's evidence that she did not intend to sell or supply, but instead intended to destroy the drug after making inquiry, was direct evidence. The members of the jury had to decide whether or not they believed that evidence. If they did not believe her then the statutory presumption applied and she would be convicted.
81 In my opinion, although his Honour erred in giving the inferences direction, there was no necessity for an inferences direction and there was no substantial miscarriage of justice. Ground 2 must therefore be dismissed.
Ground 3(a) - Failing to properly summarise the defence case
82 In my opinion, this ground must be dismissed. It is contended that the learned trial Judge did not explain to the jury that the defence was that she did not intend to sell or supply the drug but rather intended to find out who owned the drugs and then destroy them. In fact his Honour did say that this was the defence. His Honour said:
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- "She says this to you. She says all she was doing was hiding these drugs simply so she could ask whose they were before destroying them." (AB 151)
83 Ground 3(a) must therefore be dismissed.
Ground 3(b) - Lawful purpose
84 His Honour directed the jury in the following terms (AB 150):
"I tell you again, as a matter of law, to hold an illicit substance so as you can find out which of two people close to you owns it is not a lawful purpose. There are really only two lawful purposes, or three really, but one of them doesn't count. You can have a drug if you are an undercover agent - that doesn't apply here, clearly - of the police, but you can have the drug in an innocent circumstance if you are going to give it to the police and you are going straight to the cops and you are going to give it to them or you are going to destroy it. You are going straight to the rubbish bin or to a toilet to flush it away.
As soon as the intention is other than that, it's not being in possession for a lawful purpose."
85 His Honour was correct to say that to hold an illicit drug to ask somebody if it is theirs is not a lawful purpose.
86 What his Honour said can be understood as meaning (correctly in my view) that the fact the appellant controlled the drug for the purpose of finding out who owned the drug, did not mean that she was not in possession.
87 Once she had control of the drug with knowledge that it was a prohibited drug, then she was in possession of the drug. As the cases of Todd (supra) and Thomas (supra) indicate, possession will be established even if the control of the drug is exercised for a very short time. In this case the appellant controlled the drug through the night and through the early part of the police raid. This ground must be dismissed.
Result on the conviction appeal
88 I would uphold ground 1 of the appeal but dismiss grounds 2 and 3. I would set aside the conviction and order a new trial.
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89 In view of my decision on the conviction appeal, it is not strictly necessary to deal with the sentence appeal. However, as it was fully argued, I will deal with it.
The sentence appeal
90 The grounds of appeal read:
"1. The learned trial Judge erred in law, or alternatively in the exercise of his discretion, by imposing a sentence that was outside the range of sentences commonly imposed for offences of this nature when proper regard is had to all the circumstances of the offence and to all the circumstances of the appellant.
Particulars
a) The learned Judge erred by failing to give sufficient weight to the hardship that the appellant's family would suffer as a result of her incarceration.
b) The learned Judge erred by placing undue weight on:
i. the appellant's criminal history
ii. the weight and purity of the prohibited drug (approximately 13 grams of methylamphetamine of about 70% pure).
2. The learned Judge erred in law by failing to properly apply the 'totality principle' when sentencing the appellant.
Particulars
a) The learned sentencing Judge, when activating the suspended term of imprisonment of 8 months imprisonment in relation to the offence of possession of amphetamine committed on 4 May 2000, made an order that the term be served wholly cumulatively upon the term of 5 years imprisonment imposed with respect to the offence of possession of methylamphetamine with intent
- to sell or supply to another, being the offence the subject of indictment 821 of 2004."
91 The appellant was pregnant at the time of her trial. The sentencing Judge adjourned the sentencing of the appellant to enable her to deliver her child out of prison. For that purpose the appellant was allowed to remain on bail until shortly after the birth of her child. On 9 August 2005 his Honour sentenced the appellant. Because of the conviction on the charge under review in this appeal, she breached a suspended imprisonment order which had been imposed on 13 September 2002. That offence was one of possession of amphetamine. She had been sentenced to 12 months' imprisonment, suspended for 18 months. Pursuant to s 80 of the Sentencing Act 1995, his Honour decided that the appellant should be ordered to serve 8 months' imprisonment, after taking into account the transitional provisions in Sch 1 of the Sentencing Act. The conviction also resulted in the breach of eight other suspended imprisonment orders made on 5 February 2003. These were in relation to eight counts of receiving stolen property. The aggregate of the sentences imposed for those eight counts was 27 months, suspended for 24 months on 5 February 2003. His Honour ordered the appellant to serve 18 months' imprisonment, after taking into account the transitional provisions of Sch 1 of the Sentencing Act. These were ordered to be served concurrently with the other terms. In relation to the offence on which she was convicted by the jury, she was sentenced to 5 years' imprisonment, cumulative upon the term of 8 months' imprisonment imposed in relation to the offence of simple possession of amphetamines. Thus, the aggregate term was 5 years and 8 months.
92 The first ground concerns the 5 year term of imprisonment imposed in relation to the offence of possession with intent to sell or supply. In sentencing the appellant, the sentencing Judge said that:
"In all of the circumstances, I have decided the starting point for your sentence is a term of imprisonment of 7½ years on account of your antecedents, the amount and purity of the drug you were found with on this occasion."
93 The reference to "all of the circumstances" must include all personal factors relevant to the appellant. It is clear that the reference to the starting point meant that this was the sentence before he took into account the one-third reduction he was required by law to apply, taking into account the transitional provisions.
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94 The contention is that this sentence was outside the permissible range of sentences imposed for offences of this nature. In this case the 13 grams was 70 per cent pure. The large sum of money found in the appellant's possession and the scales with signs of methylamphetamine, are all indications that this appellant was involved as a drug dealer relatively high up in the distribution chain. A purity of 70 per cent is a high level of purity.
95 The submission that this sentence was outside the permissible range was made by reference to cases mentioned in Tulloh. The submission is not borne out by reference to those cases or by reference to the sentence in Macri v The State of Western Australia [2006] WASCA 63.In my opinion, the sentence of 5 years was within the range of a permissible sentencing discretion. It is not for this Court to intervene because it may have taken a different view if it had been the original sentencing court and imposed a slightly lower sentence: Lowndes v The Queen (1999) 195 CLR 665.
96 The appellant also argues that insufficient weight was given to the hardship the appellant's family would suffer. The appellant's children, apart from the newborn, were then aged 13, 12 and 5 and were to be cared for by the appellant's 19-year-old son. The sentencing Judge clearly gave consideration to these circumstances and it cannot be shown that proper weight was not given to them.
97 The appellant also complains that in arriving at the sentence, the sentencing Judge had regard to the "amount and purity" of the drug found at the premises. The appellant referred to Wong v The Queen (2001) 207 CLR 584 and submitted that this should not be a primary factor in determining the sentence. However, as the appellant concedes, Wong's case does not say that the weight and purity of the drug are irrelevant. In my opinion, the sentencing Judge did not give too much emphasis to the weight and purity of the drug.
98 The appellant submitted that the sentencing Judge regarded the fact that the applicant had a criminal record as a circumstance of aggravation contrary to s 7(2)(b) of the Sentencing Act 1995, but in my opinion, the sentencing Judge did not decide that the offence was aggravated by the fact that the applicant had a criminal record. In my opinion, the prior drug offences did warrant a conclusion that specific deterrence was important as a sentencing consideration in this case.
99 Ground 1 must be dismissed.
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Ground 2
100 The contention is that the cumulative term of 8 months' imprisonment in relation to the suspended sentence, imposed an unwarranted burden on the appellant and that there was a failure to take into account the totality principle. There is no doubt that totality considerations arose, but the sentencing Judge clearly did consider the effect of totality by structuring the sentences in the manner he did and by providing that in relation to some of the sentences, they would be served concurrently. In my opinion, the sentences imposed did not offend the totality principle. Ground 2 must be dismissed.
Conclusion
101 I would uphold the appeal against conviction and order a new trial.
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