Davies v The State of Western Australia
[2005] WASCA 47
•15 MARCH 2005
DAVIES -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 47
| (2005) 30 WAR 31 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 47 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:92/2004 | 17 FEBRUARY 2005 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA MCLURE JA | 15/03/05 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | DAVID WILLIAM SIDNEY DAVIES THE STATE OF WESTERN AUSTRALIA FLORENCE GLADYS DAVIES |
Catchwords: | Appeal Criminal law Prohibited drugs Possess cannabis with intent to supply Joint possession of three persons Whether two of them can have intent to supply to the third |
Legislation: | Misuse of Drugs Act 1981 (WA), s 3, s 6(1)(a) |
Case References: | Atholwood v The Queen (2000) 110 A Crim R 417 Cumming v The Queen (1995) 86 A Crim R 156 Davis v The Queen (1990) 5 WAR 269 He Kaw Teh v The Queen (1985) 157 CLR 523 Humphry v The Queen (2003) 138 A Crim R 417 Lai v The Queen [1990] WAR 151 Manisco v The Queen (1995) 14 WAR 303 Pelham v The Queen (1995) 82 A Crim R 455 R v Buckley (1979) 69 Cr App Rep 371 R v Urbano (1983) 9 A Crim R 170 Urbano v The Queen (1983) 9 A Crim R 170 Maroney v The Queen (2003) 216 CLR 31 R v Storey (1978) 140 CLR 364 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DAVIES -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 47 CORAM : STEYTLER P
- ROBERTS-SMITH JA
MCLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WILLIAMS DCJ
File No : IND 46 of 2003
Catchwords:
Appeal - Criminal law - Prohibited drugs - Possess cannabis with intent to supply - Joint possession of three persons - Whether two of them can have intent to supply to the third
Legislation:
Misuse of Drugs Act 1981 (WA), s 3, s 6(1)(a)
Result:
Appeal dismissed
Category: A
Representation:
CCA 92 of 2004
Counsel:
Appellant : Mr L M Levy
Respondent : Mr K P Bates & Mr T B L Scutt
Solicitors:
Appellant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions
(Page 3)
CCA 93 of 2004
Counsel:
Appellant : Mr L M Levy
Respondent : Mr K P Bates & Mr T B L Scutt
Solicitors:
Appellant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Atholwood v The Queen (2000) 110 A Crim R 417
Cumming v The Queen (1995) 86 A Crim R 156
Davis v The Queen (1990) 5 WAR 269
He Kaw Teh v The Queen (1985) 157 CLR 523
Humphry v The Queen (2003) 138 A Crim R 417
Lai v The Queen [1990] WAR 151
Manisco v The Queen (1995) 14 WAR 303
Pelham v The Queen (1995) 82 A Crim R 455
R v Buckley (1979) 69 Cr App Rep 371
Urbano v The Queen (1983) 9 A Crim R 170
Case(s) also cited:
Maroney v The Queen (2003) 216 CLR 31
R v Storey (1978) 140 CLR 364
(Page 4)
1 STEYTLER P: I have read, in draft, the judgments of each of Roberts-Smith and McLure JJA. I agree with them that the appeal should be dismissed.
2 On 2 August 2002 the appellants were found to have in their home a very substantial quantity of cannabis, some 19 kilograms in all. A comparatively small part of that cannabis (amounting to around 300 grams) was found in plastic ice-cream containers under the bed in their bedroom. The rest had been secreted in containers of various kinds in what was described as a "false ceiling" in their house. There was evidence at the trial that the male appellant, Mr David Davies, had built this "false ceiling". At the time of the search the appellants had in their possession a substantial cash sum amounting to $7000. This was underneath the driver's seat of their motorcar which was parked in their garage.
3 When asked for an explanation for what had been found, the appellants told police that the cannabis found in their bedroom was for the use of the female appellant, Mrs Florence Davies, in order to alleviate her back pain.
4 The appellants have a son, Tyssul Davies, who lives apart from them. He was arrested by police on the morning upon which his parents' home was searched. He was charged with possession of the cannabis with intent to sell or supply it to others. The charge related to the whole of the cannabis found at his parents' home. He pleaded guilty to that charge on 25 October 2002 and was convicted accordingly.
5 Notwithstanding Tyssul's conviction, two charges under the provisions of s 6(1)(a) of the Misuse of Drugs Act 1981 ("the Act") were brought against each of the appellants in respect of the cannabis. The first, being one of possession of cannabis with intent to supply it to another, related to the cannabis found in the false ceiling. The second charge, one of possession of cannabis with intent to sell or supply it to another, related to the cannabis found in their bedroom.
6 The prosecution case at the trial centred around the proposition that the cannabis (or at least that the subject of the first count) had been stored by the appellants in their house with the intention of allowing their son to retrieve it at a later date, and that he had been given a key to the house for that purpose. Both appellants denied any knowledge of the cannabis. They said that they had lied to police officers at the time of the search in a misguided attempt to protect their son. They admitted that Tyssul had a
(Page 5)
- key to their house but said that this was because they had been planning to go away on holiday. The jury convicted both of them.
7 There is, after amendment, only one ground of appeal. It is that the verdicts were unreasonable or cannot be supported by the evidence because it was not open to the jury to conclude that the appellants possessed the cannabis with intent to supply it to their son Tyssul in circumstances in which he was, at the time of the alleged offence, already in possession of it.
8 In my opinion there is, firstly, no reason why all three family members should not have been found to have been in possession of the drug for the purposes of s 6(1)(a) of the Act. The words "to possess" are defined by s 3 of the Act to include "to control or have dominion over, and to have the order or disposition of …". Each of the appellants and their son Tyssul fell within that definition, so far as the cannabis was concerned. Given that it was in their house (and the jury must have found that they knew that it was there), the appellants could control what was done with it. For so long as he had a key to the house, and was free to come and go whenever he wished for the purpose of obtaining the cannabis, Tyssul Davies, too, exercised a degree of control or dominion over it.
9 That leaves the question whether the appellants could, in the circumstances posited, be found to have been in possession of the cannabis with an intent to supply it to Tyssul. The words "to supply" are widely defined by s 3 of the Act. The definition reads as follows:
"'to supply' includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied."
10 The jury must have accepted (even putting to one side the provisions of s 11(a) of the Act) that the control which the appellants exercised over the cannabis was exercised by them for the purpose of making it available to their son, when he considered it opportune to remove it from their house. Consequently, their possession of the drug was exercised with intent to supply it to their son for the purposes of s 6(1)(a): see Urbano v The Queen (1983) 9 A Crim R 170 at 184 and R v Buckley (1979) 69 Cr App Rep 371. This was so notwithstanding that, for the purposes of that section, Tyssul Davies already had a form of possession of the cannabis. The form of possession which he had was different to that proposed to be
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- given to him, being possession as a result of the physical transfer of the drug to him.
11 It was consequently open to the jury to convict the appellants on the charges brought against them.
12 ROBERTS-SMITH JA: At 81 and 77 years of age respectively, Mr David Davies and Mrs Florence Davies were convicted following trial before a Judge and jury in the District Court at Perth on 4 June 2004, of one count of possessing cannabis with intent to supply it to another, and one count of possessing cannabis with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
13 The amount of cannabis involved in the first count was 18.735 kilograms and in the second count was 303.5 grams.
14 There was evidence at trial that the cannabis was worth somewhere between $163,000 and $264,000.
15 The cannabis was found by police officers when they executed a search warrant at the appellants' house on 2 August 2002. The small quantity of cannabis was found in three plastic ice-cream containers in their bedroom. The large amount was found in a large cardboard box, travel bags and plastic containers or buckets located in an enclosed storage space in the ceiling of the house.
16 The cannabis had been placed in the ceiling by the appellants' son Tyssul. He had a key to their house. That had apparently been given to him sometime earlier, so he could look after the house when the appellants were away on holiday.
17 On the morning of 2 August 2002 police officers stopped Tyssul shortly after he left the appellants' property. He was arrested and charged with possessing the cannabis with intent to sell or supply. On 25 October 2002 he was convicted of that offence on his plea of guilty. The charge encompassed all the cannabis in the ceiling and under the appellants' bed.
18 As this appeal raises only a short point of law - albeit an important one - it is not necessary to refer to the evidence beyond what I have said above.
19 The prosecution case against the appellants was that they had allowed Tyssul to store ("warehouse") the cannabis at their house in exchange for a payment of $7000.
(Page 7)
20 Notwithstanding the different wording of the two charges, the prosecution conceded both concerned an intent to supply.
21 The State's case was that the appellants were in possession of the cannabis with intent to supply it to Tyssul.
22 The notices of application for leave to appeal against conviction dated 21 June 2004 contained the single ground that the conviction was unsafe and against the weight of evidence. The particulars given were that there was no evidence the appellants were ever aware that there were prohibited drugs in the house, nor that they had the requisite knowledge or control or dominion over them.
23 By notices dated 4 August 2004 the appellants sought leave to add a further ground of appeal. That was that the verdicts were unreasonable or cannot be supported by the evidence. The particulars given were that it was not open for the jury to conclude that they possessed the cannabis with intent to supply Tyssul in circumstances in which Tyssul was also in possession of the same cannabis at the same time and place as that alleged against them.
24 Leave to add that ground was given at the hearing. The other grounds were abandoned. As the extant ground involves only a question of law the appellants' appeal is as of right; leave to appeal is not required (s 688(1)(a) Criminal Code (WA)).
25 The appellants' contention is that they could not in law be guilty of possessing the cannabis with intent to supply it to Tyssul because at the time of their possession he was already in possession of the same drugs.
26 In Manisco v The Queen (1995) 14 WAR 303, the Court of Criminal Appeal of this State held that where an accused was in possession of a prohibited drug as a bailee for the person who had given it to him or her, and had it in their possession for no other purpose than to return it to the person who had given it to them, their intention did not fall within the meaning of the word "supply" as then used in s 6(1) of the Misuse of Drugs Act. The decision was followed in Pelham v The Queen (1995) 82 A Crim R 455.
27 As a consequence, in 1998 (by the Misuse of Drugs Amendment Act, No 3 of 1998) Parliament inserted in s 3 of the Misuse of Drugs Act a definition of the words "to supply", specifically to cover a situation in which a person is re-delivering drugs under a bailment - that is, where an
(Page 8)
- accused claims to be holding the drugs on behalf of the owner, and for return to the owner as required.
28 That definition, which applies to this case, is that:
"'to supply' includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied;"
29 It may be accepted that because he had a key to the house, Tyssul had access to the cannabis whenever he wished. It may further be accepted that the appellants had no intention of doing anything physically with the cannabis; their intention and expectation was that Tyssul would remove it.
30 The respondent relied upon Humphry v The Queen (2003) 138 A Crim R 417, in which the accused had been convicted of possessing heroin with intent to supply it.
31 The facts were that the accused had arranged for another person to bring heroin into Western Australia for the purpose of supplying it to the accused. The argument was that he could not be guilty of the offence of possessing heroin with intent to supply it to himself.
32 That case is of no assistance to the respondent and nor does it illuminate the question here, because the accused was convicted on the basis that by reason of him procuring the other person to commit the offence of being in possession of heroin with intent to supply it to the accused, he was deemed to have taken part in committing that offence and to be guilty of it (s 7(d) Criminal Code).
33 This case was not put as one on which the appellants' criminal liability was attracted by s 7 of the Criminal Code.
34 Notwithstanding this specific purpose for which s 3 of the Misuse of Drugs Act was amended, being to cover the bailee situation, the definition is much wider than that. The wording of the definition is extremely wide. Even so, it is expressed to include the words adumbrated - that is, it is not confined to them.
35 "To possess" is defined in s 3 of the Misuse of Drugs Act as including to control or have dominion over, and to have the order or
(Page 9)
- disposition of, and inflections and derivatives of the verb "to possess" have correlative meanings.
36 As the author of "Criminal Law Western Australia" points out (at [20,010.1], the definition is inclusive, not exhaustive; the effect of it is to enlarge upon a more basic dictionary definition. Thus, while possession may be actual physical custody, it includes control or dominion over the item.
37 Possession need not be exclusive, either as a matter of fact or law. Several persons can have joint possession as against the rest of the world (Cumming v The Queen (1995) 86 A Crim R 156).
38 Possession can therefore be had in a wide variety of ways and exclusively by one person or jointly (in different ways) by several (Davis v The Queen (1990) 5 WAR 269; Atholwood v The Queen (2000) 110 A Crim R 417). So in this case, both the appellants and Tyssul had control and dominion over the cannabis while it was in the appellants' house. The appellants knew it was there (He Kaw Teh v The Queen (1985) 157 CLR 523), had permitted Tyssul to store it there in exchange for cash and allowed him access to it. That was sufficient exercise of control or dominion (Lai v The Queen [1990] WAR 151).
39 Where several people have joint possession of a prohibited drug they may each have a different intention with respect to it. That was the situation here. Tyssul's intention (as was accepted at his sentencing) was to sell or supply the cannabis to others. The appellants' intention was to allow Tyssul to remove it as and when required for his own purposes. The factual nature or basis of their possession was different.
40 The appellants intended and expected Tyssul to take the cannabis from the house and in so doing, remove it from their possession. The State characterised that as a relinquishing of the joint possession of the two of them to the sole possession of Tyssul. Whether that be an accurate characterisation or not (and in my view it is) that situation clearly involved the appellants "making available" the cannabis, or "returning" it, to Tyssul. That would involve the appellants ceasing to be in (joint) possession of the cannabis and changing the nature of Tyssul's possession of it from joint to sole possession. The appellants would no longer have possession of the cannabis at all; Tyssul would have exclusive possession - something he would not have had otherwise. It therefore falls within the scope of the definition of "to supply" in s 3 of the Misuse of Drugs Act.
(Page 10)
- Thus, the fact that Tyssul already had joint possession with them does not detract from this conclusion.
41 The appeal must be dismissed.
42 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Roberts-Smith JA. I agree that the appeal should be dismissed generally for the reasons he gives. However, I propose to make some additional observations.
43 The appellants contend it was not open to find that they were in possession of the cannabis with an intent to supply because whilst the cannabis was in their possession, it was also in the possession of their son, Tyssul Davies. The essence of the submission is that you cannot supply a person with something of which he is already in possession.
44 The appellants rely on the son's conviction as the allegedly incontrovertible basis for the assertion that at all material times the son was a co-possessor of the cannabis. To deny the proposition is said to impugn the son's conviction. The State challenges the factual and legal correctness of these propositions. However, it is unnecessary to determine their correctness because the State case was that the appellants stored the cannabis at their Carlisle house with the intention of allowing their son to return to the house at a later date to retrieve the drugs, giving him a key to the house for that purpose. On that scenario, the appellants and their son are each in "possession" of the cannabis as that term is defined. Section 3 of the Misuse of Drugs Act 1981 (WA) (Act) provides:
"'to possess' 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".
45 The appellants and their son were each convicted of offences contrary to s 6(1)(a) of the Act which materially provides:
"(1) … a person who -
(a) with intent to … supply it to another, has in his possession;
a prohibited drug commits a crime …".
46 Thus, a person in possession of a prohibited drug with an intention to supply the drug to another contravenes s 6(1)(a). The words "to supply" are very broadly defined as follows:
(Page 11)
- "'to supply' includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied".
47 The question is whether the appellants were in possession of the cannabis with an intent to supply the cannabis to their son. To supply involves (at least) the physical transfer of the drug from one person to another. Pausing there, it is appropriate to ask what, if any, significance attaches to the fact that the son, with or without the key to the house, was also in possession of the cannabis as that term is defined in the Act. The answer is none. The appellants were in possession of the cannabis with the intention of relinquishing that possession by making the cannabis available for collection by, or returning the cannabis to, their son: that constitutes possession with an intention to supply. Following supply, the factual basis for the son's possession of the drug changes. The conclusion that you can supply a person with something of which he is already in possession is consistent with authority on a similarly worded provision: R v Buckley (1979) 69 Cr App Rep 371 (followed by Brinsden J in Urbano v The Queen (1983) 9 A Crim R 170 at 184).
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