Davis v The Queen

[1991] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P37 of 1990

B e t w e e n -

ERIN DAVIS (nee KEARSLEY)

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 22 OCTOBER 1991, AT 12.17 PM

Copyright in the High Court of Australia

Davis 1 22/10/91

MR W.B. HARRIS: I appear for the applicant. (instructed by

William Berkeley Harris)

MR G.F. SCOTT, QC:  And again, if the Court pleases, with my

learned junior, MS T.D. SWEENEY, I represent the

Crown in this matter. (instructed by the Crown

Solicitor for Western Australia)

DEANE J:	Mr Harris?
MR HARRIS:	If it please the Court. Your Honour, this

application, it is submitted, comes within the
guidelines for special leave in that it is

suggested that the Court of Criminal Appeal fell

into error of law in its consideration of the

summing up, and it failed to recognize an

inaccuracy and insufficiency in the directions

given. The basis of the opinion of the application

is that the trial judge must be astute to secure

for the accused a fair trial according to law.

DEANE J:  Mr Harris, I just notice we have your summary of

argument. If you could just sit down for a few

moments we will glance through it.

MR HARRIS:	Thank you.
DEANE J:	Mr Harris, I think the most convenient course

would be if you just proceeded to develop your

argument without worrying separately about showing

that it is a case for leave, and the Court will be

in a position to assess whether it is a case for

leave at the end of your argument.

MR HARRIS: Yes, Your Honour, thank you.

DEANE J:  I am not saying that we will decide whether it is

a case for leave at that stage, but it will be

implicit in what you say in the arguments as to why

leave should be granted.

MR HARRIS: Your Honour, I think the shortest way I can put

this to you is how it happened. At the close of

the Crown case a submission was made, in the terms

of an article that was presented by Brown in

supplying drugs in England and Australia, in the

copy you have before you, and it deals with the

concept of control and it was pointed out that, in

this particular case, although this woman, the

applicant, is driving, it is submitted the drugs were in the actual possession of her husband who

had pleaded guilty to the possession of the drugs,

and in all the circumstances there was a rational

hypothesis of innocence and, therefore, it was

submitted that there should be no case to answer.

Davis 2 22/10/91

The learned trial judge looked at it, a

definition in the Criminal Code, and although

really there is nothing wrong with the definition

he never explained to the jury what the definition

meant in relation to the defence of the applicant.

In fact he told the jury that if they find, in a sense, because she is the driver of the car and, in a sense, that is control of the cannabis within it,

that is enough.

Of course, the basis of the submission was

that a taxi driver who drives a passenger would not

be in control of a watch on the passenger's wrist

or, indeed, he would not be in control or

possession of the passenger's briefcase, and if the

passenger had a 20 litre barrel then the taxi

driver would not be in control or possession of the

barrel because it is in the actual possession of

the passenger.

The normal cases - the cases that this Court has dealt with Saad, Kural and Teh, has all been

done - would have been dealing with manual

possession and then knowledge comes into it. In

each case the accused had a case or had imported

something. In this case, it was submitted that the

accused had never taken delivery and the knowledge,

for example, that a taxi driver might have that the

watch was stolen or the briefcase contained stolen

books or the barrel contained cannabis, really did
not apply until actual delivery had taken place,

and if the explanation, given by the applicant,

that the journey she took was incidental to

returning to Bunbury so that she could be married,

then she was really in the position of a taxi

driver; she did not know what was going on; she

did not help the co-accused obtain the drug - - -

DAWSON J: Well, she did know what was going on, did she

not? There is not much question that she knew what

it was that went into the vehicle?

MR HARRIS: Before. She did not drive him to the spot for

the purpose of obtaining, she knew when it was in

the vehicle that it was cannabis.

DAWSON J: It was a diversion from the normal journey was it

not? It was a diversion that she took?

MR HARRIS: Yes, but in the circumstances and the area where

it is, it was just a very short diversion.	The
young lady had already driven two and a half

thousand kilometres up from her country town to

pick up the boy friend for the purpose of taking

him back to get married and legitimizing the child.

Davis 3 22/10/91

DAWSON J:  You do not go to the end of the bitumen just for

a social call do you?

MR HARRIS:  No. He just said, "Run me out before I go" on

their journey, and you of course can draw an

inference from that, she must have known something

was going on. But you must remember that, in the

circumstance of this particular case, there was a

young woman exhausted who travelled a long way and

she had a young child with her.

DAWSON J: But all these are things which were no doubt put

to the jury, it was a question of fact, was it not?

MR HARRIS: Yes, Your Honour.	But His Honour -
DAWSON J:	But you say His Honour went wrong in his charge,

that is really what you say, is it not?

MR HARRIS: His Honour rejected that approach, told the jury

that, "Look, the situation is this: she owns the

vehicle, she is driving it, then in a sense she is

in control of the cannabis", and that is how he

left it to the jury without explaining the

situation fully and allowing that rational

hypothesis of innocence to be put to the jury.

DAWSON J:  He did say, did he not, that it was a question

whether she had custody and dominion with

knowledge, or dominion with knowledge of the

cannabis?

MR HARRIS:  Yes. What His Honour said, one could perhaps

not take fault with, but what His Honour did, we

submit, in the misdirection, was fail to follow

through and put fairly a defence that was open on
the evidence that, indeed, she was an innocent

party and if they accepted that then there was a

hypothesis of innocence. Now, that was not ever

really left to the jury in this case.

TOOHEY J:  Mr Harris, could I - sorry, were you going to add

something else?

MR HARRIS:  No, Your Honour.

TOOHEY J: Could you just clarify for us the statutory

position here. The provisions of the Code, bearing

on responsibility, presumably, applied to this

offence, is that right?

MR HARRIS: Yes.

TOOHEY J: But I note that the Court of Criminal Appeal said

that the definition of possession in the Code had

no application to this particular statute?

Davis	4	22/10/91
MR HARRIS: That is right.

TOOHEY J:  Why is that?

MR HARRIS: Because the Code says, "The following

definitions will apply in this Code."	You have a
copy of the - - -

TOOHEY J: Yes, I appreciate that. So, so far as possession

is concerned that was to be determined according to

ordinary principles of the law if they had been

laid down in cases?

MR HARRIS:	Yes, Your Honour.
TOOHEY J:	And does the Code, itself, play any part, from

your point of view, in the resolution of this

application?

MR HARRIS: Actually, I would submit, no.

TOOHEY J:  So you do not rely upon any provisions of the

Code going to responsibility, for instance, as

bearing upon the application for special leave?

MR HARRIS:  No, Your Honour. The Code is important because

in so far as His Honour Mr Justice Wallace, after

pointing out the errors in the direction set out

what would be called a model direction, and I read

it, perhaps, too favourably that he could concede a
rational hypothesis of innocence. But then he
applied the proviso on the basis that she was
aiding, and although the other judges, His Honour

the Chief Justice and His Honour

Mr Justice Pidgeon, both said that was a wrong

approach or they indicated it was a wrong approach,
and, indeed, in similar circumstances in this State

that approach has been rejected by the Court of

Criminal Appeal including Mr Justice Wallace, and

my case No 23, Buck, is an example, where the Crown

approached a case of possession on the basis that

the man had control, and the Chief Justice pointed

out that that was a wrong approach and refused to
order a retrial to allow the Crown to decide

another approach as an aider.

TOOHEY J:  I am not entirely clear what the complaint is

here. Is it that the trial judge erred in law in directing the jury in the way in which he did, or

that he was correct in law but perhaps misapplied

the law to the facts in so far as he was directing

the jury as to the view they could take of the

evidence; what is the complaint?

MR HARRIS: That he did not give an adequate direction both

as to the law and the possible use of the relevant

facts upon any matter upon which the jury could, in

Davis 22/10/91

the circumstances of the case on the material

before it, then find or base a verdict. That he

took the view that driving the car meant that you

were in control of the cannabis because he pointed

out, using that definition, that it did not matter

who was in actual possession of it or who owned it,

if you controlled it in any manner then you were

guilty. And having taken that approach which, I submit, is the wrong approach, then of course he

felt there was no longer any need to direct on

exclusive control, on circumstantial evidence, on complicity, because he saw it simply as driving a

motor vehicle in control of the cannabis.

DAWSON J: But that does not seem to me to be entirely

accurate. If you look at page 71, which is the

first page in which the relevant passages appear,

he was merely putting the Crown case there,

line 17:

In this case it is said that the accused had possession of the cannabis because she was both the owner and the driver of the car in

which the cannabis was situated and she knew

that in fact it was cannabis. You are asked

to infer from all the circumstances that it

was more than her simply being in a car with

cannabis there -

which is her defence -

she did have, in a sense at least, dominion or

control over that cannabis.

And then he says it is a matter for the jury. Now,

that is simply putting the Crown case, is it not?

MR HARRIS: Yes, Your Honour.

DAWSON J:  And then later on, at page 76, he puts her case:

On her behalf Mr Harris has reminded you

that she told the police officers in effect

that she did not want to have anything to do

with the cannabis. The trip was purely

incidental to her getting married. The trip

40 miles out or more to the end of the bitumen

on the Gibb River Road was just something she

got involved in. She did not want to be

there. She did not want to have anything to

do with the cannabis.	He also put to you that
she did not intend to commit a crime.	She did
not intend to possess cannabis.

And then he goes on to say that, in the circumstances, the intention perhaps to posses the cannabis is not really the question.

Davis 6 22/10/91

MR HARRIS: Yes, Your Honour.

DAWSON J:	What is it you complain about?
MR HARRIS:	Going back to the first - you refer to page 71?
DAWSON J:	Yes.
MR HARRIS:	You look at page 70, paragraph 60:

The term "possession" includes having under

control in any manner whatever, whether for

the use or benefit of the person of whom the

term is used or of another person and although

another person has the actual possession or

custody of the thing or property.

That definition, when coupled with the direction

and without it being explained to the jury, that if

they found that Stephen Davis was in actual

possession of the drug, and if they accepted her
statement to the police that she had nothing to do
with the cannabis, then the fact that she was
driving the vehicle did not make her to be in

possession of the cannabis.

DAWSON J: But he said that:

You are asked to infer from all the

circumstances that it was more than	her simply
being in a car with cannabis there:	she did
have, in a sense at least, dominion	or control
over that cannabis.

MR HARRIS: But before that:

because she was both the owner and the driver

of the car.

DAWSON J:  And that is the fact from which the Crown

suggested the inference could be drawn in the

circumstances.

MR HARRIS:  Yes.

GAUDRON J: Your answer is that that, in itself, was not

sufficient unless there was some determination as

to the role of the husband in all of this?

MR HARRIS: Yes, Your Honour, that is exactly the point.

McHUGH J: But you really needed a negative direction, did

you not, that it was not enough that she was the
owner of the vehicle and the driver of the vehicle
and that she was aware of something being in the

car? Is that not really what you needed?

Davis	22/10/91
MR HARRIS: Yes, that is what we needed. In a very

difficult case such as this, make it quite clear to

the jury that if the situation was, then she was

not in possession, and His Honour concentrated on

when she would be, I would have thought.

DAWSON J:	But the difficulty with that is that it may be enough in these circumstances that she was the
owner and driver of the car.  It was not exactly
like a wrist-watch on someone's wrist, this was a
substantial quantity of stuff for which she had driven out 40 miles - perhaps I should not put it that way - and the car had been driven 40 miles out in order that this stuff could be received from two
men, at least one of whom was known to the accused
here, the female accused, with whom she had had
previous dealings.  Now, in all of those
circumstances there was no evidence that she
objected to the stuff being put in the car; she
knew what it was;  now in all of those
circumstances it was open to the jury to infer from the fact that she was the driver and owner of the
car that she was in possession of it, jointly,
perhaps, with her then de facto husband.
MR HARRIS:	Yes, they could infer that, Your Honour, but

surely in those circumstances that a Barca

direction would be necessary on circumstantial

evidence.

DAWSON J: Well, no, why? You mean that there may have been

a hypothesis consistent with innocence?

MR HARRIS:	Yes.
DAWSON J:	It would be incorrect to give that direction

here. Either the jury found that she was in

possession of the cannabis or they did not. If

they did not then that is the end of the case, if they did that is the end of the case, there would be no place for the direction of that sort.

MR HARRIS: But without that clear negative direction - - -

DAWSON J: There is no room for hypothesizing here, there is

just one clear question.

MR HARRIS: But without the negative - the positive negative

direction, the jury could well have believed that

control of the car was control of the cannabis

within it.

DAWSON J: They might have been the circumstances but it was

a question for them and it was left by the trial

judge.

Davis	22/10/91
McHUGH J:	You do not dispute it was open to the jury to

convict your client of possession?

MR HARRIS:  Not at all.

McHUGH J: But if a taxi driver allows me to get into his

taxi with my briefcase has the taxi driver got

possession of my briefcase, that is the question is

it not?

MR HARRIS: Yes, Your Honour.

McHUGH J:  And you say that these directions of the trial

judge allowed your client to be convicted on that

approach?

MR HARRIS: Yes, Your Honour.

DAWSON J: 

One rather gets the impression - correct me if I am wrong - that her defence was not so much that

she was not in possession of the cannabis, that she

did not want to have anything to do with the

enterprise, that it was against her better judgment

that all of this happened and that she had been

prevailed upon. But that, in the circumstances,

may not be sufficient.

MR HARRIS: 

It was never put to the jury, Your Honour, the

question, "Did she intend to share in the exclusive
possession of the cannabis with others". Intent

was of - - -

DAWSON J: That is intent going to whether she possessed it

for supply, is it not, that is a different question

and there there was a statutory reversal of onus?

MR HARRIS: That only arises, of course, if they find that

she is in possession.

DAWSON J: Yes, that is right.

MR HARRIS:  And if they find that she is in possession on

the basis that a taxi driver is in possession of a

brief case then the direction of His Honour, at

page 70, again, is somewhat confusing for he says:

What evidence is there of the absence of

intent to sell or supply the drug? There

really is very little. As I understand it

there is no direct evidence at all save for
the accused's statement to the police officers

that she had nothing to do with it.

That goes to the intent.

DAWSON J:  Of course it does but the situation there was

that is the last element, whether there was an

Davis	22/10/91 intent to supply - is that the word? - and because
the quantity of cannabis was so great, or
sufficiently great, the onus was shifted on to the
accused to prove that she did not intend to supply
it and there was no evidence. That is a different
question.
MR HARRIS:	She has told the police that she had nothing to

do with it.

DAWSON J: Yes.

MR HARRIS:  The police never asked her whether she knew was

there an intent to sell or supply or what her

husband intended to do with it, because, clearly,

the police officer accepted her explanation that

she had nothing to do with it and charged her on

the basis that she was driving a vehicle and,

therefore, if you are driving a vehicle you are in

control of the cannabis.

DAWSON J:  I am not sure how you put that. The question of

possession is a separate question with what the

intent was with respect to disposal of the

cannabis, ultimately. We are not concerned with

that last question, we are concerned with whether

there was possession.

MR HARRIS: Yes, Your Honour.

DAWSON J:  The trial judge directed that she had to,

knowingly, exercise some custody or control over

the cannabis and that the jury might infer, in the circumstances, from the fact that it was placed in

her car that she did have possession. The other

circumstances being that the car was driven out to

this remote spot, there two men were met - one or

both of whom? - one at least of whom was known to

the - - -

MR HARRIS:  Two.

DAWSON J: Both of them were known to the accused. Indeed,

a document relating to one of them was discovered

in her handbag later on, that was in evidence.

MR HARRIS: Yes, Your Honour. There was a document a year

old when she lived up north, it was a document -

there was some petrol that was purchased, it was a

year old. It was not denied that she had shared

accommodation with him in Coconut Wells some 12

months before.

DAWSON J: But it was a situation in which the men were not

known only to her de facto husband but known also

to her, a situation in which she really did not

deny that she knew what the substance was. Well,

Davis 10 22/10/91

you might incur possession in those circumstances,

or be it joint possession.

MR HARRIS:  I am not suggesting that the jury could not

infer so. I am suggesting that, in all the
circumstances, His Honour did not put the defence

case and relate it to the facts adequately.

DAWSON J:  He said that it was her case that:

She did not want to be there.

She did not want to be involved in it.

She did not want to have anything to do with

the cannabis ..... she did not intend to commit

a crime.	She did not intend to possess
cannabis.

MR HARRIS: But he also said that, in a sense, if you find

that in a sense she is controlling the cannabis

then she is guilty of possession.

McHUGH J: There is nothing wrong with that is there, if she

was controlling it she would have been in

possession in the certain facts of this case, would

she not?

MR HARRIS:  I really meant it on the basis of the way it

came across in that driving a car is, in a sense,

control. So it really gets back to the definition

of "control".

DEANE J:  Do you not really have to found on that passage in

the middle of page 76, where His Honour expressly
told the jury that there was no need for any intent

to have possession in the circumstances of this

case?

MR HARRIS: Yes, Your Honour.

DEANE J:  And in terms of the intent to supply or sell, is

that not relevant to what possession means in this
statute; that is, that if possession in the

relevant sense exists, it is presumed that the

person who has it intended herself to supply or

sell the product?

MR HARRIS: Yes, sir.

DEANE J:  Now, that is really what your case is about, is it

not?

MR HARRIS:  Thank you very much, sir.

DEANE J: Well, I was not saying, I was asking.

Davis 11 22/10/91

MR HARRIS:  Yes, that is what the case is about and before

His Honour attacked intent - and I appreciate that

he did not mean the meaning that came across was

after he mentioned in the prior paragraph what the

defence case was. He said:

Members of the jury, with respect to Mr Harris

I suggest to you that that approach is

unhelpful -

which, to a jury, could have interpreted it as

meaning the fact that if they accepted her

explanation, it was not good enough. She was in

control of the vehicle and intent did not matter.

DEANE J:  Now, is there any particular case you would like

to take us to or anything that you want to add to
the written submissions that has not been covered

in the dialogue - - -

MR HARRIS:	I should deal with DPP v Brooks - - -
DEANE J:	Very well.
MR HARRIS:	- - - because that influences His Honour the

Chief Justice's decision. His Honour, in his judgment, refers to DPP v Brooks and says Privy

Council had no trouble in those circumstances of finding Brooks guilty of possession; he was driving the van.

DEANE J:	You would have a copy of this in - - -
MR HARRIS:	The passage I wish to draw your attention to is at page 842 2 All ER, it is the second paragraph -
I have underlined it. His Lordship says that:

Since R v Livingston was the foundation of the judgment from which the instant appeal is brought, it is however important to see what

it was that that case did decide.	The
defendant, Livingston, was a baggageman

employed by bus owners who were common

carriers. He took into his custody from a

consignor for carriage on the bus on which he

travelled as baggageman a sack which was found

to contain ganja -

which is cannabis. That, clearly, was a manual

possession case and that was the basis of the

judgment in DPP v Brooks. It was always accepted,

and it was never argued on appeal, that the van

driver had taken delivery of the van and the drugs

and the question was, in that case, "Could a

servant be in possession of his master's property?"

And it was answered, "If he had taken delivery, he

must have knowledge". So I was suggesting, in that

Davis 12 22/10/91

case, that His Honour misdirected himself and it

really had no application to this situation.

Case No 11 is the case of Gerry Maio, Court of

Criminal Appeal of Victoria, and His Honour the
Chief Justice uses that case to argue that

exclusive possession is inapplicable but, again,

that case is a manual possession case, Maio having

taken possession of the case from two Chinese

couriers. He had physically taken - that was the

question, "Had he physically taken?", and if he

had, so on and so forth. But it was decided on the

basis that it was a manual possession case.

Finally, His Honour referred to the Canadian

case of Bourne and it is suggested in the judgment

- it might not have been - that he was influenced

by it because he quoted it in his decision and I am

sure that he did not realize that in Canada there

is such a thing as deemed possession. "Possession"

is defined in their Criminal Code:

Where one or two or more persons with the

knowledge or consent of the rest has anything

in his custody or possession it should be

deemed to be in the custody and possession of

each and all of them.

I think with the combination of those three cases

His Honour misdirected himself, otherwise I am sure

he would have quashed the conviction.

DEANE J:  What about the point made by Justice Wallace and

that is that if you accept as unavoidable knowledge

of the cannabis, that on your client's own account

it was a case of aiding and abetting?

MR HARRIS: Well, the argument there is clearly Davis had

possession of the cannabis before the applicant was

involved, that the actus reus of possession is the

obtaining of possession, that possession is a state

of affairs, that unless she drove him or aided him

in some way to obtain possession she did not commit

any act which is required under section 7. So

where an offence is being committed, anyone who

aids the commission of the offence - and she did
not aid because the offence was already committed.
When she started driving the car the state of
affairs was Davis was in possession; at the end of
the journey the state of affairs was still Davis

was in possession. There was not a case where she

took and delivered because before one can deliver,

one would have to be in possession. So, I would

submit that aiding - well, in those terms, and I

used the argument in my summary of Beckwith and I

think it was mentioned again in He Kaw Teh where

possession had been passive.

Davis	13	22/10/91
DEANE J:	Thank you.	Mr Scott, could you give an estimate

of approximately how long your submissions would

be?

MR SCOTT:  I think, Your Honour, 15 to 20 minutes, but may I

hand up my summaries of argument.	I have a folder
prepared of the cases that I wish to refer to.	It
may assist Your Honour to shorten the matter.	I
have five folders there.	They contain our

submissions on the special leave points; our

submissions on the appeal; and two cases with

which, I am sure, Your Honours are familiar, He Kaw

Teh and a case that followed.

DEANE J: Thank you. In that case the Court will adjourn

now until a quarter past two.

AT 12.57 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

DEANE J: Yes, Mr Scott.

MR SCOTT:  Thank you. May it please the Court. In our

submission, there were two aspects of intent

involved in the indictment in this case. I say two

aspects, if Your Honours please, because on the

face of He Kaw Teh the starting point may well be

to say the definition of "possession" for the

purposes of the relevant offence under our Misuse

of Drugs Act, the concept of intent is involved in
the definition of that word.

There was separately - and it needs, in our submission, to be distinguished - the question of

the intent to sell or supply which, as I understand

the argument being advanced by my learned friend,

does not arise for consideration in this case. The

intent upon which we need to focus is the aspect of

intent involved in possession as explained in the

He Kaw Teh case. And I say that with the

qualification as was later explained in both Kural

and Saad which are in the cases that I supplied to
Your Honours. If one starts with the He Kaw Teh
proposition, and I am citing the judgment of His

Honour Mr Justice Dawson, which I provided Your

Honours with, which we extracted at page 599, the

paragraph which commences:

Possession may be an intricate concept

for some purposes, but the intricacies belong

Davis 14 22/10/91

to the civil rather than the criminal law.	As
was observed in Director of Public of the civil law which separate proprietary
and possessory rights in chattels are
generally irrelevant for the purposes of the criminal law. There the concept is a basic one involving the intentional exercise of physical custody or control over something. Knowledge is the basis of the necessary
intent. There may be a sense in which
physical custody or control can be exercised

over something in ignorance of its presence or

existence, but this has never been considered

sufficient to amount to possession in law.

And then, having cited the case of Irving v

Nishimura, below that citation -

Although intent must be based upon knowledge,

it is the degree of knowledge required which
poses the difficult question.

Your Honours, the next step in the line of reasoning, in our submission, was in Kural's case

and if I may take Your Honours, in that case, to

page 504 of the judgment of this Court where in the

judgment of the majority in that case the Court

held, at the start of the judgment:

the prosecution must prove that the accused

has acted with mens rea, that is to say, with

a guilty mind.

And then, further down the page -

How does one prove the existence of the

requisite intention? Sometimes there is

direct evidence in the form of an admission by

an accused that he intended his conduct to

involve the forbidden act. More often, the

existence of the requisite intention is a

matter of inference from what the accused has

actually done. The intention may be inferred

from the doing of the proscribed act and the

circumstances in which it was done.

And then, at the foot of that same page -

But that is not to say that actual knowledge

or awareness is an essential element in the

guilty mind required for the commission of the

offence. It is only to say that knowledge or

awareness is relevant to the existence of the

necessary intent. Belief, falling short of

actual knowledge, that the article comprised

or contained narcotic drugs would obviously

Davis 15 22/10/91

sustain an inference of intention ..... As a

practical matter, the inference of mens rea or

a guilty mind will ordinarily be irresistible

in cases involving the importation of narcotic

drugs if it is proved beyond reasonable doubt

that the accused actually imported the drugs

and that he was aware, at the time of the

alleged commission of the offence, the

likelihood of the existence of the substance

in question in what he was importing and of

the likelihood that it was a narcotic drug.

What we have said is designed to emphasize

that the existence of the requisite intention

is a question of fact and that in most cases

the outcome will depend on an inference to be

drawn from primary facts found by the tribunal

of fact. In this, as in other areas of the
law, it is important not to succumb to the
temptation of transforming matters of fact

into propositions of law. In that regard, we

would emphasize that the foregoing comments

are not designed as a direction or instruction

to be read by trial judges to juries. They

are intended to give guidance to trial judges

in order to enable them to formulate such

directions as may be appropriate to the facts

and circumstances of particular cases.

In our respectful submission, what was necessary in this case was that the applicant should have the

relevant guilty knowledge that what she was

participating in was the illegal transportation of

the cannabis in question.

If that aspect of the case is pointed up, in

our respectful submission, it draws the very distinction that my learned friend would not

embrace in his argument to the Court and that is

that the taxi driver who picks up the man who has

with him the briefcase, on which is marked

"cannabis", and says to the taxi driver, "I have

with me a brief case full of cannabis", in our
submission, does not commit the offence.	And he

does not commit the offence, we would say, because

he does not have the requisite guilty knowledge.

For all he knows, it may be an analyst, a

government analyst, taking the drugs to the
chemical laboratories or a police officer taking

drugs to the police station.

Once the passenger gets into his taxi and

says, "I have with me the satchel full of cannabis

and I would like you to take me a hotel where I

intend to be involved in a drug transaction", the

taxi driver then acquires the relevant guilty

knowledge and, in our submission, that would make

Davis 16 22/10/91

him then guilty of the offence under our Misuse of

Drugs Act.

McHUGH J: Well, that means he must be in possession.

Supposing some passer-by, driving past, grabbed the

briefcase, can the taxi driver sue for conversion

or trespass?

MR SCOTT:  In the situation that I prognosticated where he

is assisting in taking the man to the drug

transaction?

MCHUGH J: Yes.

MR SCOTT: Yes, Your Honour, we would say

McHUGH J: Or generally. Supposing it is just a briefcase

full of books.

MR SCOTT: Well, not if he does not have the requisite

guilty knowledge, we would say.

McHUGH J: But what has guilty knowledge got to do with the

law of possession?

MR SCOTT: In our respectful submission, it arises out of

the element of intention in the way in which it was

explained in He Kaw Teh. You can have possession

without having guilty knowledge, as we would say

would be the case of the taxi driver who took the

man to these drugs, the government analyst to his

laboratory; he would not have the guilty knowledge

necessary for him to be a party to the illegal transaction. He would simply be a taxi driver

taking somebody. But the moment that he assumes

dominion or control in the sense of knowing what

the illegal transaction is that is taking place and

taking the step in furtherance of the criminality

by doing an act necessary for that to take place,

then that knowledge, once he acquires it, is

sufficient in our submission for him to be in

possession within the sense of dominion or control of the law, suffice for him to commit the offence.

So the man who steals the briefcase from the

taxi driver when he is going to the government

chemical laboratories, the taxi driver would not

have possession of it within the meaning of the

criminal law. The man who asked the taxi driver to

take him to the drug transaction with the guilty

knowledge, we would say, for the purposes of the

criminal law, does have the necessary possession.

And that is how we distinguish between those two

fact situations that were prognosticated by my

learned friend. In our submission, that is an
important distinction for the purposes of the

criminal law in this area.

Davis 17 22/10/91

DAWSON J: It cannot do that, can it? I mean, what say the

passenger says, "I've got something in my pocket;

it's a little packet of" - whatever it might be -

"heroin and I'm taking it to supply it to users",

well, now, surely the taxi driver in that situation

has not got control, custody, whatever knowledge he

might have?

MR SCOTT: It m~y depend, as the judgments that I was

referring to point up, upon the extent of his

knowledge and the extent of his participation in

the offence; in other words, the extent to which

he is with knowledge of what is going to take

place.

DAWSON J: Well, he says to the man, "I don't care what you

tell me. I'm only a taxi driver. I'll take you

where you want to go for the fare.	I don't want to
know anything about that."

MR SCOTT: Well, that then might well become a question of

fact for a jury.

DAWSON J: What is the question of fact?

MR SCOTT:  The question of fact is whether he has

sufficiently exercised dominion or control, as

indeed was the way in which His Honour put it to

the jury here, to constitute possession.

DAWSON J: Incidentally, does the word "dominion" add

anything to control?

MR SCOTT:  It is an odd word, in our submission, and I - - -

DAWSON J: It would mystify the jury, but still.

MR SCOTT:  I gave the matter some thought and I cannot be of

great assistance to Your Honour as to what it is

trying to distinguish from control except it seems

to purport with it a sense of joint proprietorship,	but I do not mean that in the ownership sense of	the word; if you like, the sitting above in the
sense of not necessarily hands-on control in the
sense of being a party who has some capacity to
direct the ultimate disposition of it, perhaps
using it in that sense. But I doubt that it adds very much to the question of control.

McHUGH J:  You keep injecting this concept of guilt into it

but, I mean, surely if somebody gets into a taxi

and he says, "This suit I've got is a stolen suit.

I bought it very cheap in the hotel.", is the taxi

driver in possession of the suit?

MR SCOTT:  No, Your Honour. In our submission, that is not

so because he would not be doing something

Davis 18 22/10/91

necessarily in furtherance of that particular

offence; in the sense that the offence of
receiving or of stealing may well have taken place.

If, on the other hand, the man is running out of

the shop with the stolen suit, and there is

somebody after him, and he says, "I've got the

stolen suit, run me away.", and the taxi driver

does, his degree of knowledge, we would say, would

be sufficient for him to become a party to the

criminal offence of the receiving.

DEANE J: This is a constructive sort of possession, is it?

MR SCOTT:  Yes, it is a constructive sort of possession.

DEANE J: If the man gets in the taxi and says, "I've

swallowed the drug, take me to the hotel so I can

get it back and supply it", you would say he is in

possession of the drug in the man's stomach?

MR SCOTT:	Yes, we would.
GAUDRON J:	And it is joint possession, I take it?

MR SCOTT: It would have to be.

GAUDRON J: But that does raise a problem, does it not? It

might come as something of a shock to the first

criminal to find that he has got a shared dominion

and control with this taxi driver whom he had

proposed merely to pay $10 for the fare?

MR SCOTT: Again, Your Honour, I come back to the same issue

which lies at the basis of it, and that is the

extent of the knowledge of the taxi driver in each

individual case. And we say it is no real

difficulty in this case because the Crown's case is

and always was that the applicant in this case was

a party to the drugs transaction, not just an aider

but was a party in the criminal sense to the drugs

transaction that was taking place.	The Crown
always put its case on that footing.

But it is in that sense that we say that when

she went out to the scene she was there to

transport drugs; she then knew that the cannabis

was being placed in her car; she knew what it was

that was being placed in the car and then when she

took the step of transporting it, knowing that that

was the next step in relation to the use that was

to be made of the cannabis, whatever that may be,

that she did not need to have specific knowledge as

to how it was to be dealt with. That was, in our

submission, sufficient for her to be guilty of the

offence with which we are dealing here.

Davis 19 22/10/91

McHUGH J: That is the point. Obviously, if the jury

accepted those facts, that is a strong case for

inferring she was in possession of it. But

supposing that all that the jury found against her

was that she was the owner of the vehicle, she was

the driver of the vehicle and she did not object to

the drums being put in with knowledge.

MR SCOTT:	Your Honour, that really comes back to the proposition that I think you put to my learned
friend and that is that His Honour - and I can take Your Honour to other passages where it is, where it
is referred to, where His Honour was very clear
with the jury that they needed to go the further
step and be satisfied that there was the exercise
of dominion or control over it in the possessory sense. Your Honour took my learned friend to a
couple of passages in the appeal book relating to
that and there are other passages.  I think the
relevant passage commences at page 71 of
His Honour's summing up which is the first
time - - -
McHUGH J:	The two sentences that trouble me are at page 71,

line 17:

In this case it is said that the accused had

possession because she was both the owner and

the driver ..... and she knew that in fact it

was cannabis. You are asked to infer from all

the circumstances -

MR SCOTT:  Did she have, in a sense at least, dominion or control over that cannabis?

McHUGH J: Yes, but the inference is to be drawn from those

three factors, is it not? That is the problem.

MR SCOTT:	Yes. Your Honour, the Crown would say, without taking Your Honours laboriously through it, that
there were many more factors in the evidence than
just those from which the - - -
McHUGH J:	I know that and - - -
MR SCOTT:	- - - jury could come to this, but the important

aspect, so far as the Crown is concerned, was the

emphasis that was being placed by His Honour on the

need for the jury to look to this question of

dominion or control over the cannabis as being one

of the aspects of the offence that they needed to
find against the applicant before they could return

the verdict of guilty. And, as I say, Your Honour, it is referred to not only there, it is referred to

then again in lines 31 and 32 on that same page;

it is referred to as well at pages 75 and 76 of the

appeal book in the same terms as being the critical

Davis 20 22/10/91

issue that the jury needed to look to. At page 75,

at line 58, His Honour expresses it this way:

Did she in a real sense have some power? Did she have some dominion? Did she have some

control over the cannabis?

Is His Honour expressing that to the jury as being one of the critical issues that they the jury

needed to resolve? He says, in leading up to

that -

It is a matter for you to consider and for you

to work out if you can whether in fact her

involvement with the cannabis was more than

just knowledge that what was there was

cannabis. Did she in a real sense have some

power? Did she have some dominion? Did she

have some control over the cannabis?

And, putting it at all times, Your Honour, in our respectful submission, on the basis that she was a party to the criminal offence, in no sense being an aider in the way in which His Honour was explaining

it to the jury.

His Honour picks that up again at page 76

where he puts the test, at lines 21 and 22.	He
says:

She did not want to be there. She did not

want to have anything to do with the cannabis.

He also put to you that she did not intend to

commit a crime. She did not intend to possess

cannabis.

And then, at line 40, he goes on to say -

She had knowledge and it is not a question in

relation to possession whether she had any

intent. The question is, did she have the

The question of intent is relevant in relation cannabis in her control, power or custody? to the third element.

And, of course, that is the intent in the other

sense in which I have used it concerning this

offence; that is the intent to sell or supply and
not the intent in relation to the concept of

possession.

The Crown puts its case here that way and we

would say that the intent in possession is the - or

the way in which it is put in He Kaw Teh and in

Kural and in Saad is the right way, in our

submission, for a judge in Western Australia to sum

up in relation to this offence. We say that,

Davis 21 22/10/91

Your Honours, because, in our submission, the

definition of possession in the Criminal Code is

not relevant to the Misuse of Drugs Act and we say

that, Your Honours, because our Criminal Code picks

up certain aspects of the Code for the purposes of

the criminal law under section 36. I need not take

Your Honours to it but the criminal responsibility

sections are picked up.

So, section 23, for example, is picked up by

section 36 but the definition sections are not.

And so, it remains that the definition of

"possession" within the Criminal Code would be of

no relevance to an offence under the Misuse of

Drugs Act, which means that the word "possession"

in the Misuse of Drugs Act would pick up its

meaning from the common law and that, in turn,

would mean that the He Kaw Teh, Kural, Saad line of

reasoning would apply to the case. So that the

common law meaning of possession would be grafted
on to the Misuse of Drugs Act, in our submission,

in the way in which our statutory law works.

That being the case, we would make the

submission that, as His Honour Mr Justice Pidgeon

found in this case, that the - in our submission,

His Honour did not err in law in the way in which

he put this case to the jury, and I appreciate that

His Honour Mr Justice Wallace and the Chief Justice

both upheld the appeal on the ground that there was

no miscarriage but for different reasons.

But, in our submission, His Honour did not err

in law in the way in which he put the matter to the

of intention was not a separate question to be addressed. It is subsumed in the question as to
jury because of the emphasis that he placed upon
the question of dominion and control on the facts
of this case, coupled with the requisite knowledge.

whether the requisite knowledge, guilty knowledge,

is there coupled with dominion and control and in

that way - and, indeed, that is the way in which

His Honour Mr Justice Pidgeon saw the case in the

reasons in the court below - we would say that

His Honour did not misdirect the jury in relation

to this case.

But even if it was seen by this Court that

there were a misdirection of the sort that was
complained of, His Honour Mr Justice Wallace, in

his reasoning, picking up the proviso, goes on to

say that there is no miscarriage in any event

because whichever way you look at the case being

put by the applicant, even looked at on the best

you possibly could from her point of view, she was

an aider to this criminal enterprise once she

Davis 22 22/10/91

commenced to drive the car, knowing that there was

cannabis unlawfully in the back of this car that

she hired and knowing that her transportation of it

was in furtherance of the criminal enterprise by

her then fiance.

So, in that sense, and it is only in that

sense, His Honour Mr Justice Wallace is saying

there could then be no miscarriage of justice in

this case because even looked at from the best

point of view - - -

GAUDRON J: But of what offence was she then guilty, on that

view?

MR SCOTT:	She would then be guilty as an aider to the offence of possession with intent to sell or
supply.

GAUDRON J:  Why? What if her husband later gave evidence

and discharged the onus of proof so that it was

mere possession?

MR SCOTT:  In other words, that it was just for his own use?

GAUDRON J: Yes.

MR SCOTT: Well, if that were the case - - -

GAUDRON J:  Or that he was taking it to destroy it, or

something of that nature.

MR SCOTT:  Your Honour, our answer to that is, of course,

that in relation to that, the presumption applies

from the quantity - a quantity, to her knowledge,

which exceeded the statutory amount. So, of

course, there was then a shifting of the onus of

proof as to that, and that is our entire answer to

that, really, that in the absence -

GAUDRON J: But I do not follow how the onus of proof shifts

merely because she aids possession.

MR SCOTT:  It is the other aspect of the offence, what

His Honour calls the third element, and that is the

intent to sell or supply it to another.	Proof of
that arises because of the quantity.	To her

knowledge, the quantity in this case was sufficient

for her to be deemed to be in possession with

intent to sell or supply it to another.	In the
absence of any evidence that - - -

GAUDRON J: But does the deeming operate with respect to the

aiding? That is really the question. One can see

how the deeming operates with respect to

possession, but if all that is aided is the

acquisition of possession there is another step

Davis 23 22/10/91

involved in bringing those deeming provisions into

operation, is there not?

MR SCOTT: Well, in our submission, no.

DAWSON J:	What do the deeming provisions say?
MR SCOTT:	I am sorry, Your Honour. Section 7 is the offence provision. Perhaps we could photocopy this
and supply it to the Court.

DAWSON J: Just read it out at the moment.

MR SCOTT:  My learned friend says section 11 is the deeming

provision.	I will read you the section, if I may,
Your Honour:

For the purposes of -

relevantly, section 7 -

a person shall, unless the contrary is proved,

be deemed to have in his possession, or to

cultivate, prohibited plants of a particular

species or genus with intent to sell or supply those prohibited plants or any prohibited drug

obtainable therefrom to another if he has in

his possession, or cultivates, a number of

those prohibited plants which is not less than
the number specified in Schedule VI in

relation to that species or genus.

That is the relevant deeming provision.

GAUDRON J: Yes, but that relevantly relates to having

possession.

MR SCOTT:	Yes.
GAUDRON J:	We are talking, on this hypothesis, about aiding

someone to obtain possession.

MR SCOTT: Perhaps, if that is the case, I have not

expressed myself clearly, Your Honour, because what

we would say is that she was aiding him in the

furtherance of the criminality of this drug

transportation process.	He may already have had
possession before that.

GAUDRON J: Yes, but he may prove to the contrary, you see.

Under ll(a) or under 11, he may prove to the

contrary.

MR SCOTT:  Indeed, and, Your Honour, one of the aspects of

the case that was open to the defence in this case

was to have called the man who was her fiance to

say exactly that and discharge the onus - - -

Davis 24 22/10/91

McHUGH J: That is a different charge. That is what I have

some trouble with. How can you say there was no

miscarriage of justice because you say, "Well, she

could have been convicted of another offence if

they had charged her"? She has never been tried

for this offence.

MR SCOTT:  No, indeed. What His Honour Mr Justice Wallace

was saying was that, although the case was never

left to the jury on that basis - and it was not,

and it was never the Crown's case - however you

view the way in which the defence case was being put, this applicant could be found guilty of the offence by virtue of being an aider on the way in

which the case was presented. That is what

His Honour was saying.

GAUDRON J: Well, where did he say "must have been"? It

does not matter. Where is the provision with

respect to aiding?

MR SCOTT: In the Criminal Code, Your Honour? It is in the

Criminal Code under section 7. Your Honours will

see that reads:

When an offence is committed, each of the

following persons is deemed to have taken part

in committing the offence and to be guilty of

the offence, and may be charged with actually

committing it, that is to say .....

(b) Every person who does or omits to do any

act for the purpose of enabling or aiding

another person to commit the offence;

and:

(c) Every person who aids another person in

committing the offence.

GAUDRON J: Yes. Now, on this view, the applicant aided the

husband to obtain possession and to keep it in his

possession.

MR SCOTT: Yes.

GAUDRON J:  And I take it there is a defence of possession

simpliciter?

MR SCOTT: Yes, there is, Your Honour, under section 7 of

the Misuse of Drugs Act.

GAUDRON J: But the offence of which the applicant was

convicted was deemed supply, was it not?

MR SCOTT: Indeed, Your Honour.

Davis 25 22/10/91

GAUDRON J: Well, I still do not see why the deeming

operates when it is by combination of section 7 of

the Code when it is open to the other person to

establish that he did not have it in possession for

sale or supply.

MR SCOTT:  I suppose, Your Honour, I can put my submission

no higher than to say - two aspects. Firstly, of

course, we are dealing with a point which was a no

miscarriage point, but dealing more specifically
with the point that Your Honour puts to me, our
submission is, of course, that that shifts the onus
of proof even on the aider. Once she has knowledge

of the quantity, as was the case here - she saw it

loaded into the car - and that it exceeds the

trafficable amount, then that is sufficient for the

deeming provision to come into operation to shift

the onus of proof if she wishes to say that so far

as she was concerned this was not to be

trafficable.

GAUDRON J: Yes. Now, could I ask you another question?

What authority says that aiding is brought into

operation with respect to the Misuse of Drugs Act?

MR SCOTT: 

Your Honour, it arises, in our submission,

because of section 36 of the Criminal Code, and the
criminal responsibilities of the Criminal Code,

which - - -

GAUDRON J: 

I mean, it has been held somewhere, has it, that this is not a code, an entire code in itself, that

the Misuse of Drugs Act can be added to by

operation of the Code, because I know in some

States similar legislation has, I think, been held to be a code in itself.

MR SCOTT: 

Your Honour, I am not aware - and, Your Honour, I

will make it clear, I have not researched the point

for the purpose of these proceedings because that

issue has never been raised in that way in the

grounds of appeal, so I am speaking without the

advantage of doing the research that I would do to

give Your Honours an authoritative reply to that.

But so far as I am aware, in our Court of Criminal

Appeal there has never been a suggestion that the

Misuse of Drugs Act was a complete codification

because it does not contain, for example, the

defences that are contained within the criminal

responsibility section of the Criminal Code, which

apply to all statutory offences in Western

Australia. So I am not aware of any judgment of

this Court which would suggest that the Misuse of

Drugs Act is a complete codification and, indeed,

we would resist such a proposition because within

Western Australia the whole concept of our

statutory criminal law is based around the

Davis 26 22/10/91

proposition that it engrafts onto it by virtue of

sections 36 of the Code certain provisions of the

Code in relation to criminal responsibility.

TOOHEY J: But section 36 does not help you, does it,

because all that does is apply Chapter V to other

offences. The question was directed at the parties

to an offence in section 7.

MR SCOTT:  Yes, that was picked up - and again, Your Honour,

I am speaking without research - but I think it was

picked up in the earlier WA case of Brennan v

Williams, and I can provide Your Honours with

authority for that, if you wish - I do not have it

with me - which said that parties to offences in

sections 7 and 8 were also provisions which applied

generally to the statute law of Western Australia.

Brennan v Williams springs to mind as the name of

the case, Your Honour, but it is a point that would

require some research.

TOOHEY J:  And if that be the case, would it be by virtue of

section 36 - - -

MR SCOTT:	No.
TOOHEY J:	- - - or some other provision?
MR SCOTT:	Yes, because it is a criminal responsibility area

and as to parties But I really raise that

argument, and perhaps it was a digression which was

unnecessary, because it arose over the no

miscarriage of justice point, and it arises only

because one of three judges saw the case in that

light. His Honour the Chief Justice did not see it

in that way at all, and that was not the basis upon

which he put his "no miscarriage of justice".

Mr Justice Pidgeon held that the summing up

was adequate.	The Chief Justice in his reasons for
but held that there was no miscarriage of justice judgment held that the summing up was wrong in law	in any event, the Chief Justice's reasons for that
being different from the judgment of His Honour Mr
Justice Wallace in that the Chief Justice - his
judgment is at page 104, and I take Your Honours to
line 18:

In my opinion the evidence against the

appellant in this case was sufficiently strong

to make it inevitable that the result of the

trial would have been the same had there been

no blemish at the trial and had the jury been

properly directed. The matter does not end

there, however, because there is a question

whether the error in the conduct of the trial

was fundamental.

Davis 27 22/10/91

And then referring to those authorities.

GAUDRON J:  Does that mean, in effect, that there was no

conclusion open other than that the applicant and

her would-be husband were engaged in a joint

enterprise?

MR SCOTT:  Yes. As His Honour the Chief Justice says, at

page 105 of the appeal book, absent the:

question of duress or anything of that

nature -

we would say that is the conclusion to which one

comes.

In other words, if there is no suggestion that

she was compelled to take the steps which she did

in relation to the cannabis, in other words that it

was a voluntary act within the meaning of the

criminal law, absent that, we would say that is the

position. And that is, indeed, the reasoning that

His Honour the Chief Justice uses at page 105 of
the appeal book on his conclusion as to why there

is no miscarriage of justice which is, of course, a

different reason to that used by His Honour Mr
Justice Wallace.

If it please Your Honours, I have provided

copies of the submissions, both on the special
leave aspect and on the appeal itself, but they are

my submissions in relation to what appears to be

the critical issues arising in this case.

DEANE J: Thank you, Mr Scott. Yes, Mr Harris.

MR HARRIS: Sir, the case of Buck, with which I have

provided you, deals with the case of drugs in a

body - and that is my case number 23 - and the

court there disagreed with my learned friend.

Although section 7 of the Criminal Code deems

an aider to commit an offence, it does not deem an

aider to be in possession, and I would submit that,

as she is not deemed to be in possession, then

section 11 of the Misuse of Drugs Act would not

arise.

Finally, I did make available the case of

Searle, and that is my case number 12.

GAUDRON J:  Can we go back, Mr Harris, to your other point

about section 7 of the Code? You say it does not

deem them to be in possession, it deems them to

commit an offence, but why would not the offence

deemed to have been committed be that with which

Davis 28 22/10/91

your client was convicted, as suggested by

Mr Scott?

MR HARRIS:  I am submitting that it is too big a jump. Because you are deemed to have committed an offence

GAUDRON J: Yes, but why do you not deem it to be that

offence?

MR HARRIS:  It would be deemed to have committed the offence of possession.

GAUDRON J: Yes, possession with intent to supply.

MR HARRIS: Yes.

GAUDRON J: Well, why are you not deemed to have committed

the offence of supply by reason of the deeming

provisions in the Misuse of Drugs Act?

MR HARRIS:  The submission is, because you are deemed to

have committed the offence, it does not mean that

you are deemed to be in possession and until you

are in possession, then section 11 would not arise.

GAUDRON J: Yes, that is one way of looking at it. The

other way is to say the offence of which you are deemed to be guilty by section 70 is the offence

which you aided, namely, deemed supply or supply by

virtue of the deeming provisions of the Misuse of

Drugs Act.

MR HARRIS: There is a possibility of that, but I think you

have lost me there. Searle and Others, I was

referring to you:

mere knowledge of the presence of a forbidden article in the hands of a confederate was not

enough: joint possession had to be

established.

And then he gives the sort of direction that should

have been given, common enterprise, and really

those sort of directions were not given in that

case.

GAUDRON J: Well, if we go back to it, one answer might be,

to my question, that section 7 operates with

respect to an offence actually committed and not

one deemed to have been committed.

MR HARRIS: Exactly, because it says:

When an offence is committed.

GAUDRON J: Yes. Thank you.

Davis	29	22/10/91
MR HARRIS:	Thank you.	Your Honour has answered it.

DEANE J: Thank you, Mr Harris. The Court will take a short

adjournment to consider the course we will take in

this matter.

AT 2.54 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.01 PM:

DEANE J:  The Court will consider its decision in this case.

AT 3.02 PM THE MATTER WAS ADJOURNED SINE DIE

Davis 30 22/10/91