Hamilton v The State of Western Australia
[2010] WASCA 7
•19 JANUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HAMILTON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 7
CORAM: WHEELER JA
PULLIN JA
BUSS JA
HEARD: 12 NOVEMBER 2009
DELIVERED : 19 JANUARY 2010
FILE NO/S: CACR 54 of 2009
BETWEEN: RODNEY KEITH HAMILTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
File No :IND 146 of 2008
Catchwords:
Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA), s 3
Result:
Leave refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters & Ms B E Robbins
Respondent: Mr P D Yovich
Solicitors:
Appellant: Justine Fisher
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ali v The Queen (1981) 6 A Crim R 161
Atholwood v The State of Western Australia [2000] WASCA 76; (2000) 110 A Crim R 417
Courtney‑Smith v The Queen (No 2) (1990) 48 A Crim R 49
He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523
Honeybone v R (Unreported, WASCA, Library No 950224, 10 May 1995)
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
R v Lowery & King (No 3) [1972] VR 939
Ryan v Dimitrovski (1996) 16 WAR 457
Williams v The Queen (1978) 140 CLR 591
WHEELER JA:
Background
This is an application for an extension of time within which to appeal, and for leave to appeal against conviction. On 23 July 2009, Miller JA ordered those applications be heard together with the appeal.
On 14 November 2008, the appellant was convicted of possession of MDMA with intent to sell or supply, possession of methylamphetamine with intent to sell or supply, and possession of methylamphetamine. He was sentenced on 5 December 2008. On 7 May 2009, the appellant filed a notice of appeal against conviction. That is nearly four months out of time.
Facts of the offences
At approximately 12.05 am on 29 May 2007, the appellant was pulled over by police as he drove down Ninth Avenue in Maylands and found to be in possession of two ecstasy tablets (the subject of summary charges and not relevant to this appeal) and $3,750 in cash. The appellant was then taken by police to a house on Ninth Avenue. Present in the house at that time were Anthony Avila, an occupant of the house, and a girl named Michelle. Avila fled out the back door and was apprehended by police in the backyard.
Police conducted a search of these premises and discovered, under a lawn mower, two plastic PVC tubes wrapped in black tape. One tube contained three plastic bags, each containing methylamphetamine, and 20 MDMA tablets - six were green in colour and marked with an apple symbol, 14 were cream in colour and marked with a male/female symbol. These MDMA tablets were the subject of count 1 on the indictment. The second tube contained a single plastic bag within which was found methylamphetamine. A total of 22.91 g of methylamphetamine was discovered, of which the majority was roughly double "street level purity". This methylamphetamine was the subject of count 2 on the indictment. The appellant's DNA was later located on the tape covering both tubes, and on a clipseal bag found within the first tube. Also found during that search was the appellant's backpack, inside which was found cannabis (not the subject of any criminal charge), a number of unused syringes and a coin change machine.
Police then took the appellant to premises on Maple Street in Greenwood where he was a boarder. He assisted them in opening a safe in his bedroom, within which was found 3.42 g of methylamphetamine the subject of count 3. Under the appellant's bed, police found PVC tubing and black tape consistent with those used in the construction of the tubes located under the lawn mower.
The appeal
There are two grounds of appeal, which read:
1.His Honour erred in law when he misdirected the jury as to the meaning of possession for the purposes of Section 6(1)(a) of the Misuse of Drugs Act 1981 such that there was a miscarriage of justice.
Particulars:
i)His Honour directed the jury the Appellant did not have to know the location of the drugs.
2.The trial Judge erred both in law and in fact when he failed to fairly and adequately put before the jury the Appellant's case such that there was a miscarriage of justice.
Ground 1
After the jury retired to deliberate, they requested an answer to the following question (ts 385):
On the question of possession, is it necessary to be aware of the exact location of the item in question i.e. tube or is prior knowledge control sufficient?
His Honour then discussed the issue with counsel. The appellant's trial counsel (and his solicitor in this appeal) said the following (ts 387):
The question seems to be a two pronged question. One in relation to whether or not the accused needs to be aware of the exact location. Of course, the answer to that would be no. That's the first prong. With a direction obviously that someone doesn't need to be aware of the exact location if they find that they had knowledge of it and exercised control or dominion over it. Notwithstanding they didn't know exactly where it was. [emphasis added]
His Honour then directed the jury in the following terms (ts 398 ‑ 399):
As to the first part of that question, is it necessary to be aware of the exact location, the answer to that is no, with the proviso that of course, nevertheless, that he had knowledge, that he knew of the existence of the drug, and that he had custody or control over the drug.
So he didn't need to know exactly where it was, but if he did have knowledge of the drug and did have custody or control over it, or an intent to exercise control. Control, order or disposition is central to the notion of possession and if he did have knowledge that if he did have control, then that satisfies the requirement so far as possession is concerned. So no, he didn't have to know the exact location. If he didn't know the exact location and didn't have control of it, for example, well, that wouldn't be enough because the criteria of control isn't filled.
The appellant's written submissions on this point cite Malcolm CJ's reasons in Atholwood v The State of Western Australia [2000] WASCA 76; (2000) 110 A Crim R 417 at [30] ‑ [55]. It is submitted that a direction to the jury to the effect that the appellant could be in control of the drugs, despite not knowing exactly where they were, is "contrary" to that case. Atholwood is something of a red herring. It appeared during the course of oral argument that counsel was advancing a submission that his Honour's direction here was in error because it did not follow precisely the terms of the primary judge's direction in that case. Why his Honour should have duplicated a direction presumably crafted for, and appropriate to, the very different facts of Atholwood was not explained.
At various points during oral submissions in relation to this ground, counsel for the appellant appeared to suggest:
•that the direction was inconsistent with the State case;
•that, in order to convict, the jury had to be satisfied that the appellant possessed the drugs at the time they were located by police, rather than at some prior time; and
•that, whatever the concept of possession entailed, there was insufficient evidence in this case from which possession could be inferred.
None of those points was raised by the ground of appeal, and none was pressed. When asked about each of them, counsel simply moved on to another point. It is therefore not necessary to deal with any of them.
The only issue raised by ground 1, then, is whether it is an indispensable requirement of the concept of possession, under the Misuse of Drugs Act 1981 (WA) (the Act) that the person alleged to have possession know the precise location of the drugs. As to that, the appellant's counsel himself appeared to concede, during argument, that it was not (appeal ts 12, 14). The concession, if it was one, was rightly made. The view expressed by the appellant's counsel at trial was correct.
"To possess" is defined in s 3 of the Act as including "to control or have dominion over, and to have the order or disposition of". It does not appear to be a necessary requirement of having "dominion over" or "the order or disposition of" an item that one has knowledge of its precise location. A courier has possession of drugs if, for example, the courier knows that they are secreted somewhere in his or her baggage, even if he or she does not know in which case, or in which package (see He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 at 537). Moving from physical possession, a person may "have" an item if they know that the item is in a particular type of receptacle, and have a general knowledge of where the receptacle is kept, even if they are not aware of its precise location and even if they need the assistance of another to have access to it (see Ryan v Dimitrovski (1996) 16 WAR 457 at 460, 462). What is required in each case is "sufficient knowledge" of the item (see Williams v The Queen (1978) 140 CLR 591 at 610), together with an ability to exercise control.
Turning to the facts of the present case, it was open to the jury to infer either or both of the following:
•the appellant had had the drug in his actual physical possession at some earlier time, when he had assisted in placing it in the pipe for the purpose of hiding it at the house of Avila;
•the appellant knew in what type of receptacle the drug was contained, and in a general sense where it was (at the house occupied by Avila) and was able to, and intended to, have access to the drug by arrangement with Avila.
In either case, it would be open to the jury to convict. The direction was appropriate to the facts of this case. This ground of appeal fails.
Ground 2
The appellant complains that the learned trial judge "devoted 25 to 30 minutes to the State's position and only about five minutes to the defence case" (AB 25). However, this is not the correct way to determine whether a summing up was balanced and fair. As Kennedy J said in Honeybone v R (Unreported, WASCA, Library No 950224, 10 May 1995) at 9:
The question of whether a summing up is properly balanced is not to be determined merely by considering what proportion of the summing up related to the Crown and what proportion related to the defence case.
A similar view was expressed by the New South Wales Court of Criminal Appeal in Courtney‑Smith v The Queen (No 2) (1990) 48 A Crim R 49 in which that court said that it "is not the length of the time devoted to the cases of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the Appellate court must review or safeguard" (at 56).
The appellant further complains that the learned trial judge "glossed over" aspects of the defence case in his summing up and failed to adequately address salient features of the cross‑examination of Ms Bennett, the forensic biologist. These "salient features" are listed in the appellant's written submissions, but it is not necessary to set them out here. Again, the appellant is incorrect in his approach. A trial judge is not required to restate all the evidence of a case and failure to refer or refer further to such matters does not make the summing up unbalanced or result in the defence not being adequately put: R v Lowery & King (No 3) [1972] VR 939 at 948.
There are, however, certain particular matters referred to by the appellant, in relation to this ground, with which it is necessary to deal in more detail.
The defence case at trial was run, the appellant submits, on the basis that the appellant's DNA on the tape and other items could have been transferred from another source. This appears to be based on the hypothesis that if the officers who searched the appellant's car were the same officers involved in the search of the house on Ninth Avenue, and if they did not change gloves, there could have been secondary transfer (AB 27). The learned trial judge said this in relation to that possibility in his summing up:
As to the DNA on the items, defence counsel cross‑examined Ms Bennett quite articulately and to the point, so far as contamination of items is concerned. You recall also that each of the police officers were cross‑examined as to their use of gloves. How often they changed gloves and none of them could say positively at all that they did change gloves, or at what time they changed gloves, or whether gloves were changed between handling items and other items, or whether they may have touched each other, or whether they may have touched Mr Hamilton. All circumstances which you may think give rise to the possibility of the transference of cellular material or DNA from the accused and that in that is the possibility that it is possible and Ms Bennett couldn't deny that it was possible, that there may have been a transference of DNA onto the items.
Again, ladies and gentlemen, it's a matter for you to weigh up all of the evidence in that respect. It may be that that causes you to have a reasonable doubt, so be it. On the other hand, you may come to a different view. So the question in that context is, how did the DNA get there? (ts 375 ‑ 376)
That seems to me to have been a fair and adequate summary of that part of the defence case.
The appellant also points to an experiment referred to in cross‑examination of Ms Bennett, in which DNA was, apparently, transferred from one item to another via a pair of latex gloves. His Honour had this to say in relation to that evidence:
In cross‑examination of Ms Bennett reference was made to an experiment conducted in another state involving the use of latex gloves, searching of a backpack and the fact that then handling of a rifle there was no DNA, but then handling of a drug balloon DNA was conveyed from the backpack to that balloon.
Ms Bennett wasn't familiar with how that experiment was conducted. It was not verified by a re‑run. It was not peer reviewed. It was not published and so you might think that little weight can be attached to that evidence. (ts 376)
It was open to his Honour to suggest that little weight could be attached to this evidence, provided that he had made it clear (as he had) that evaluation of the evidence was for the jury and that his comments were not binding upon them. The evidence was that not all items touched in the course of that experiment received transferred DNA, and that the experiment had not been repeated. A party offering novel scientific evidence bears an onus to show it has been accepted as reliable among other impartial and disinterested experts: Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1. In circumstances where an experiment, conducted once and not repeated nor published, is relied upon by the defence - who did not adduce any expert evidence of their own - such evidence can be given little, if any, weight.
The observations of Street CJ in Ali v The Queen(1981) 6 A Crim R 161 would appear to me to apply in this case:
It is frequently said that a summing-up must present a balanced account of the conflicting cases. But when one case is strong and the other is weak it does not follow that a balanced summing-up will be achieved by underweighting the strong case and over-weighting the weak case. If one case is strong and the other is weak, then a balanced account inevitably will reflect the strength of the one and the weakness of the other. (at 165)
Ground 2 fails.
Extension of time
This appeal was filed nearly four months out of time. This is a significant delay. However, it is explained by a full and frank affidavit by the appellant's then solicitor, who refers to certain administrative deficiencies (since rectified) in her office. I would grant an extension of time, but would refuse leave to appeal and dismiss the appeal.
PULLIN JA: I agree with Wheeler JA.
BUSS JA: I agree with Wheeler JA.
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