Kempe v The State of Western Australia - [2021] WASCA 48

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KEMPE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 48
CORAM:   MAZZA JA
BEECH JA
VAUGHAN JA

HEARD:   15 MARCH 2021
DELIVERED          :   19 MARCH 2021
FILE NO/S:   CACR 89 of 2020
BETWEEN:   MICHAEL KEMPE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MACLEAN DCJ
File Number            :   IND 863 of 2019

Catchwords:

Criminal law - Possession of a prohibited drug with intent to sell or supply - Whether the judge erred in directing the jury that if the jury were satisfied that the appellant had knowledge of the drugs then that would permit them to conclude he had an intention to control the drugs - Possession of money reasonably suspected to have been unlawfully obtained - Where the appellant admitted possession but denied that the money was reasonably suspected to have been unlawfully obtained - Whether the judge erred by directing the jury that the money the subject of the count was reasonably suspected of being unlawfully obtained, thereby removing that issue from the jury's consideration

Legislation:

Nil

Result:

Leave to appeal on ground 1 refused
Leave to appeal on ground 2 refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	A D Sullivan
Respondent	:	J C Whalley SC

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417
Baldwin v The State of Western Australia [2020] WASCA 110
Davies v The State of Western Australia [2006] WASCA 151
Davis v The Queen (1990) 5 WAR 269
Fenn v The State of Western Australia [2020] WASCA 134
Kalbasi v The State of Western Australia [2016] WASCA 144
Nuhana v The State of Western Australia [2018] WASCA 79
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483

JUDGMENT OF THE COURT:

Introduction

The appellant was tried on an indictment alleging three offences. He appeals against two of his convictions.
The appellant was charged with: possessing methylamphetamine with intent to sell or supply it to another (count 1); possession of N‑Dimethyltryptamine (DMT) with intent to sell or supply it to another (count 2); and possession of $3,355 that was reasonably suspected to have been unlawfully obtained (count 3).
The State case, in broad summary, was as follows. Observing the appellant in his car in a dark location at a service station, police approached his vehicle to make inquiries. They found the DMT the subject of count 2 in the appellant's car and the money the subject of count 3 on the appellant's person. The appellant was arrested and put in the back of a police van. Shortly afterwards, police noticed the appellant moving in the back of the police van. When they opened the door to the back of the police van, police observed a fabric sunglasses case near the appellant's knee. The sunglasses case contained the drugs the subject of count 1.
The appellant was convicted, after trial, of counts 1 and 3 and, as to count 2, was convicted of the alternative charge of simple possession of a prohibited drug.
The appellant appeals his convictions on counts 1 and 3, contending in respect of both counts that the judge erred in his Honour's directions to the jury.
By ground 1, the appellant contends that the judge erred in directing the jury on the issue of possession for the purposes of count 1 by directing that if the jury were satisfied that the appellant had knowledge of the drugs, then that would permit them to conclude that he had the intention to control those drugs.
By ground 2, the appellant contends that the judge erred by directing the jury that the money the subject of count 3 was unlawfully obtained, thereby erroneously removing that issue from the jury's consideration.
In our view, there is no merit in either ground of appeal. For the reasons that follow, we would refuse leave to appeal on both grounds and dismiss the appeal. In short, ground 1 fails because, on the appellant's submission, the judge's direction might have led the jury into error if, but only if, the jury found, at least as a reasonable possibility, that while the appellant was in the police van he (i) became aware, for the first time, of the sunglasses case and (ii) formed the belief there was a real chance that it contained prohibited drugs. Given the parties' respective cases and the issues at trial, and given the whole of the judge's direction, there is no risk that the jury could have come to those conclusions in reasoning to their verdict of guilty. Consequently, there is no risk that the jury might have been led into error. Ground 2 fails because it is founded on a reading of a passage of the judge's direction in isolation, divorced from the conduct of the trial and divorced from the rest of the judge's summing up.

The State case

At about 8.00 pm on 24 March 2018,[1] the appellant's car was parked at a service station.[2] Police officers drove past and, having noticed the car was parked in the dark, checked the vehicle's registration.[3] The registered owner of the vehicle was under a points disqualification so police made further inquiries as to why the vehicle was there.[4]
[1] ts 17.
[2] ts 239.
[3] ts 239.
[4] ts 239.
Police identified that the driver of the vehicle was the appellant.[5] Police found the DMT the subject of count 2 in the appellant's vehicle and the cash the subject of count 3 on the appellant's person.[6] The State case was that the money the subject of count 3 was the proceeds of drug sales.[7]
[5] ts 239.
[6] ts 239.
[7] ts 24, 25, 226, 237 ‑ 238.
The appellant was arrested at the service station and was placed into the back of a police van.[8]
[8] ts 239.
A short time after driving away from the service station, police officers noticed the appellant moving in the back of the van.[9] The police van was equipped with a video system that allowed officers in the front of the vehicle to see what the person in the back of the vehicle was doing on a video screen fitted in the front area of the vehicle.[10] The police officers saw movements around the appellant's pants area and observed that he appeared to be using his hands to move something down his pants.[11] The police officer driving the van pulled over and when the officers opened the back of the van, they saw a fabric sunglasses case beneath the appellant's left leg, near his knee.[12] The case contained the methylamphetamine the subject of count 1.[13]
[9] ts 24.
[10] ts 24.
[11] ts 24, 240; see also ts 225.
[12] ts 24, 240.
[13] ts 25, 240.
The State case was that the sunglasses case had not been in the police van when the accused was placed into it.[14] The State case was that the appellant possessed the case,[15] that he had the methylamphetamine when he entered the van and that he entered the van with it.[16] In her opening address, the prosecutor said:[17]
And possession in this case is going to come down to two things. The first one is the knowledge of the drugs. So the accused must have had an awareness or a belief that the substance that he was in possession of was a prohibited drug. And the second thing that possession will come down to is either a physical possession of the drug or, if he doesn't have a physical possession, an ability to exercise and an intention to exercise control over the drugs. In this case the State's alleging that there is a physical possession of the drugs. (emphasis added)
[14] ts 24.
[15] ts 240.
[16] ts 228.
[17] ts 26.
In closing, the prosecutor made several further references to the State case on count 1, namely that the appellant knowingly had the methylamphetamine on his person, prior to entering the back of the police van:[18]
[18] ts of closings 10, 13, 19.
And you may very well also conclude that … the accused [was] also subject to some form of strip search in the toilets that night. It is entirely a matter for you.
But either way, the State case is that whatever search or searches that the accused was subject to before he was put in the back of that police car, the police have missed finding the methylamphetamine in the sunglasses case, that he had concealed it somewhere on his person or in his person and the police have simply missed it.
…
The movement [in the back of the police van] that the police officers saw certainly wasn't down to the movement of the car. What they saw was the accused moving, trying to get the drugs out of the spot where he had hidden them, and he was doing that because he was worried that it would be found on him once he got to the police station.
…
And the only answer that does that and the only inference you can draw when you put all of the evidence together is this, that when the accused was placed in the back of that police car, the black sunglasses case with methylamphetamine in it was not inside the police car, it was hidden somewhere on or in the accused's person, and he knew full well that it contained methylamphetamine.
It tells you that the accused was in physical possession of the methylamphetamine. It tells you that the methylamphetamine belonged to the accused. It tells you that he knew what it was.
Not only did he have an intention to exercise control over it, but he actually had physical possession and did exercise control of it when he attempted to remove it from his pants.
…
Now, there may be some criticism of the police, whether that's from my friend or something you conclude is open to do in the circumstances. You may very well consider they should have done things differently. You may very well think, for instance, forensic testing should have been done. You may very well think that their memories should be better.
That may be something you take into account when you consider that whoever searched the accused, and whatever type of search was performed, they missed finding the methylamphetamine entirely, because that is the State's case and it has always been the State's case.
When the accused was searched before he was put in the back of that car, police absolutely failed to find the methylamphetamine he had either hidden on or in his person. He pulls it out in the back of the car so that it wasn't found on him when he was in the police station.
He wanted to be able to say, 'Well, you searched me and you didn't find it. So it wasn't mine'. (emphasis added)

The defence case

As to count 1, the defence case was that the appellant did not know about or possess the methylamphetamine ‑ he had nothing to do with the drugs, they were found in the back of the police van, and he did not put them there.[19] The defence case was that the appellant was thoroughly strip searched before he entered the back of the police van and therefore, had the sunglasses case been on his person before he entered the police van, police officers would have found it prior to the appellant entering the police van.[20] The defence case was that the jury could not exclude the inference that the methylamphetamine was in the police van by an oversight and that it was not on the appellant.[21]
[19] ts 31, ts of closings 28.
[20] ts 226, 228, 240.
[21] ts 228.
The appellant admitted that he possessed the DMT the subject of count 2 and that DMT is a prohibited drug,[22] but asserted that the DMT was for his personal use only.[23]
[22] ts 32, 232, 235; exhibit 1.
[23] ts 31.
In opening, and by an admission under s 32 of the Evidence Act 1906 (WA), the appellant admitted possessing the money the subject of count 3.[24] The appellant denied that the money was reasonably suspected of being unlawfully obtained.[25] In opening, defence counsel emphasised the appellant's admission that he possessed the $3,355, identifying the issue as: '[w]as the money from drug dealing?'[26] The defence case was that the appellant had the money in his possession to purchase a motorcycle.[27]
[24] ts 32, 226, 232, 237; exhibit 1.
[25] ts 31.
[26] ts 32.
[27] ts 238 ‑ 239; ts of closings 25.

The evidence

The State witnesses

Several police officers who were involved with the appellant's arrest gave evidence at the trial, including Constable Harrison Martin and Detective Constable Isabelle Skala. Constable Martin and Detective Constable Skala were on duty together,[28] and the appellant was placed into the back of the police vehicle that they were using, on the evening the appellant was arrested.[29] Constable Martin was the driver of the vehicle on that shift.[30]
[28] ts 34, 80.
[29] ts 36.
[30] ts 35, 80.
It is not necessary to detail their evidence, which was broadly to the effect alleged by the State, as outlined in [9] ‑ [12] above.

The appellant's evidence

The appellant gave evidence at the trial. Relevantly to count 1, he gave evidence that:
(1)He was strip searched by police in the toilets near the service station.[31]
(2)When he was first put into the back of the police van, he did not look around the inside of the custody unit and that it was quite dark.[32]
(3)A short while after he was placed in the back of the police van, handcuffed, and after the officers began driving, the vehicle was stopped. A male police officer opened the back of the police van and said that they were going to handcuff the appellant behind his back because he was moving around too much.[33]
(4)The male police officer pushed the appellant's legs over. The male officer then said, '[w]hat's that'? The appellant did not know what the male police officer was referring to. The male police officer grabbed something and said, '[t]his'. The appellant did not clearly see what the male officer had grabbed; he could just see that it was something black. The appellant responded, '[t]hat's not mine' and '[d]on't know, that's not mine'.[34]
[31] ts 156 ‑ 159, 175 ‑ 177.
[32] ts 159.
[33] ts 160, 177, 178.
[34] ts 160.
In examination‑in‑chief, the appellant denied that the methylamphetamine was his; he denied that he had seen it before; and he denied that he intended to sell or supply the methylamphetamine to anyone because it was not his.[35]
[35] ts 161.
During cross‑examination of the appellant, the prosecutor put to the appellant that he had been conducting a drug transaction at the service station when he was approached by police.[36] The following exchange occurred:[37]
When you were in the back of the police van, and you pulled that item out of your pants, the black sunglasses' [sic] case, did you do that because you knew you were going to be strip‑searched at the police station and you didn't want police to find drugs on you?---I didn't pull no item out of my pants. I'd already just been strip‑searched in the toilets at the service station about two minutes prior to being put in the back of the van.
[36] ts 167, 179.
[37] ts 179 ‑ 180.
As to count 3, the appellant's evidence was that when he was searched by police, he had money on him in his pocket.[38] He said he had approximately $3,000 with him, lent to him by a friend, which he was carrying in order to buy a motorbike.[39]
[38] ts 152.
[39] ts 154, 170 ‑ 171.

The judge's summing up

The judge began his Honour's charge with a general direction on matters including the presumption of innocence and the burden and standard of proof.[40]
[40] ts 222 ‑ 224.
The judge directed the jury on the difference between direct and circumstantial evidence, and said the following:[41]
[41] ts 225 - 226.
However, in the course of telling you about that direct evidence which the prosecutor submits to you supports the State case, the prosecutor told you that Constable Skala saw [the appellant] with a black item in his hand. And in relation to that part of the evidence, Constable Skala's evidence was in fact in response to this question:
So he was touching his thigh and it looked like he was shuffling something down the inside of his clothing?---Yes.
Okay. When you open the rear of the pod, where did you see the black sunglasses case?---It was underneath his left leg, sort of around the calf area.
So there was no direct evidence from Constable Skala that she saw the black item in [the appellant's] hand. The evidence was that she saw him touching his thigh and shuffling down the inside of his clothing and that she saw a black sunglasses case under his left leg, sort of around the calf area. The point remains though, members of the jury, that the State case insofar as count 1 goes and, of course, that's the count that alleges a possession of methylamphetamine with intent to sell or supply to another, that relies on direct evidence and also on circumstantial evidence.
And the evidence that each of the officers gave of what they saw [the appellant] doing in the back of the van is direct evidence, but the State also relies on circumstantial evidence which includes the initiating feature which is that [the appellant] was seen to be parked in the dark. That he moved the car when police approached. That the van was checked by Police Officer Martin before he commenced his shift and before there was any contact with [the appellant]. That police checked the van before [the appellant] was placed into it.
That on the State case [the appellant] was the only person who was arrested and put into that van by that stage of the evening.
That no one else had been in the van before him during that shift. That as the van was leaving, police saw something by way of a camera that was streaming from the van into the front of the police car. That police stopped the car, that is the van, a short distance from the petrol station. That police found a sunglasses bag with methylamphetamine in it. That [the appellant] had admitted possession of another illicit drug, DMT. In circumstances by reason of the amount of that drug, the law deems a person who possesses that amount to do so with an intent to sell or supply it. And further, [the appellant] admits possessing an amount of $3,355 which the State alleges was the proceeds of drug sales.
And the State alleges that [the appellant] did as a matter of fact possess the methylamphetamine and they are [the] circumstances [in] which the State says you should conclude that [the appellant] is guilty of count 1 in the indictment.
The judge also gave directions as to when, in a criminal trial, inferences against an accused can be made. The judge referred to the State and defence cases and some of the evidence. Relevantly, the judge said:[42]
This is a criminal trial and the accused is presumed to be innocent unless a charge is proved beyond reasonable doubt. Therefore before you draw an inference against [the appellant], you must be satisfied that it is the only inference that is reasonably available.
In this case, the State submits that you should draw the inference that [the appellant] possessed the methylamphetamine because of where it was found, namely with him in the back of a police van. The van which on the State case had been checked and was clear at the start of the shift. The van which on the State case was checked before he went in. The van which on the State case had not been used for an arrest for any other person on that shift prior to [the appellant] going in.
And in circumstances where on the State case, the officers in the front of the van saw [the appellant] moving something which police identified and saw [the appellant] moving so shortly after leaving the petrol station that the petrol station and the officers were still in view when police stopped the car to investigate what they saw [the appellant] doing on the camera. It would not be open for you to draw that inference unless you are satisfied beyond reasonable doubt that when [the appellant] entered the van that he had the methylamphetamine on him somewhere. And that if there was a search, a full strip‑search or otherwise, that police officers missed the methylamphetamine.
In relation to the facts from which the State ask[s] you to draw an inference you do not consider those facts in isolation, but you must consider them as a whole to determine whether the inference of guilt, that is the possession of methylamphetamine in count 1, is the only inference reasonably available.
In this case the State says that the inference to be drawn is that [the appellant] had the methylamphetamine at the time that he entered the van and he entered the van with it. The defence says that the inference to be drawn from all of the evidence is that if [the appellant] did have the methylamphetamine it would have been discovered by reason of the searches and, of course, you'll recall [the appellant's] evidence that he was subject to a thorough search.
The defence position is that you cannot exclude the inference that the methylamphetamine was in the van by an oversight and was not on [the appellant]. The defence do not have to prove the oversight. The prosecution must prove beyond reasonable doubt that [the appellant] possessed the methylamphetamine. (emphasis added)
[42] ts 227 ‑ 228.

The judge gave a conventional Liberato direction as to the manner in which the jury should consider the appellant's evidence. In concluding that direction, the judge stressed the appellant's evidence denying that he possessed the methylamphetamine, pointing out that possession was a key element of count 1 that the State was required to prove beyond reasonable doubt.[43] The judge also reminded the jury that the appellant admitted that he was in possession of the cash.[44]
[43] ts 232.
[44] ts 232.
The judge then set out the elements, and explained the relevant law, for each of the counts. As to count 1, his Honour explained that the State had to prove three things: first, identity ‑ that the appellant was the person who did the things that the State said constituted the offence;[45] secondly, possession ‑ that the appellant had a prohibited drug in his possession;[46] and thirdly, intention ‑ that the appellant had the intention to sell or supply the prohibited drug in his possession to another.[47]
[45] ts 233.
[46] ts 233.
[47] ts 234.
The judge said that the first element, identity, was not much in issue.[48] As to the third element, the judge explained that unless an accused can prove the contrary on the balance of probabilities, an accused is deemed to have intended to sell or supply the drug in their possession if he or she possessed not less than 2 grams of the drug (as was the case for count 1).[49]
[48] ts 233.
[49] ts 234 ‑ 235.
As to the second element, the judge said that, as a matter of law, methylamphetamine is a prohibited drug.[50] The judge then said as follows in relation to the issue of possession:[51]
A person has possession of a prohibited drug when they have control or dominion over it and an intention to possess it. A person can possess something by physically holding it but a person can also possess something without physically holding it.
What is required is that the person has control or dominion over the thing and an intention to possess it. There are two requirements of this element of possession. Firstly, the accused … must know of its existence, that is, must know of the existence of the methylamphetamine. Knowledge means an awareness or a belief and the likelihood on [sic] the sense that there was a significant or a real chance that the item in question was a prohibited drug.
The State does not have to prove that [the appellant] knew what type of prohibited drug he had in his possession. The State has to prove that the accused knew that he had a prohibited drug in his possession, but the State does not have to prove that he knew that it in fact was methylamphetamine.
Secondly, the State must prove that [the appellant] had control over the drug. Control and an intent to exercise control must be exercised at the same time. If on the evidence, members of the jury, you are satisfied beyond reasonable doubt that [the appellant] had knowledge that the substance was a prohibited drug, then this would permit you to conclude that the prosecution had proved that [the appellant] had the intention to control the drug, that is, the State must prove that he knew he had a prohibited drug in his possession. It's a fundamental element that the State must prove. Possession need not be exclusive and several people can have joint possession of a prohibited drug. (emphasis added)
The italicised portion of this passage is the subject matter of ground 1 of the appeal.
[50] ts 233 ‑ 234.
[51] ts 234.
The judge directed the jury that there are four elements to count 3, the charge of possessing money reasonably suspected of being unlawfully obtained. The judge directed that the first two elements, identity and possession, were not in issue, as by exhibit 1 the appellant admitted that he possessed the money the subject of count 3.[52] The judge directed the jury that the third element ‑ whether the $3,355 was a thing that was capable of being stolen ‑ was also not in issue in the trial.[53]
[52] ts 237.
[53] ts 237.
The judge then said, as to the fourth element:[54]
[54] ts 237 - 239.
The fourth element that the State must prove is that the $3,355 was reasonably suspected of being unlawfully obtained. To prove this, it is not necessary for the State to prove beyond reasonable doubt that this money was actually stolen or unlawfully obtained.
The State must prove beyond reasonable doubt from all of the evidence that there is a reasonable suspicion that the $3,355 was stolen or otherwise unlawfully obtained. In this instance, the State case is that the $3,355 was unlawfully obtained and that it represented the proceeds of drug sales because the State case, fairly and squarely, is that [the appellant] is a drug dealer.
The law does not require any particular person to form a suspicion. It is a matter for you, members of the jury, to reach an objective conclusion from the evidence as to whether or not the money might reasonably be suspected of being stolen or unlawfully obtained.
To do that, members of the jury, you must look at all of the surrounding circumstances and [sic] well as the particular circumstances, if any, which relate to the charges in this case. You will need to ask yourself, members of the jury, has the State proved beyond reasonable doubt that a reasonable suspicion open on the evidence is that the $3,355 was obtained other than by way of some lawful manner of obtaining it.
And as you will recall, members of the jury, the State case is that the $3,355 was the proceeds of drug dealing and that it was unlawfully obtained because it was held by [the appellant] as part of his enterprise as a drug dealer.
And in this case, the State says that you should have regard to the circumstances as to the location of the money being with [the appellant] in circumstances where he was in the car and again, with his admission with drugs, namely the DMT, that the drugs, namely the DMT, were of a weight were there was a presumption at law, rebuttable by [the appellant], that he had an intention to sell or supply the DMT.
That [the appellant] was in a car which was parked in the dark, when seen by police, and that when police attended, [the appellant] drove away from where he had been and on the State case, the State also alleged that there was not only the admitted cash and the DMT, but that [the appellant] was also in possession of methylamphetamine.
And they are circumstances, members of the jury, that the State says that allow you to be satisfied beyond reasonable doubt that the $3,358(?) [sic] was reasonably suspected of being unlawfully obtained. Bearing in mind, members of the jury, that the State does not have to prove that money was, in fact, unlawfully obtained.
The defence say that the money was lawfully obtained and they refer to [the appellant's] evidence of the loan and to Mr Butler's evidence of the loan for the motorcycle and that you will have, in addition to your memory of [the appellant's] evidence and Mr Butler's evidence, as exhibit 7, Mr Butler's bank records which at around the time of the offences, particularised by the State, 24 March 2018, demonstrates a number of cash withdrawals which the defence say explain and demonstrate the provenance, that is the origin, of the money.
And the defence say that the money was lawfully obtained. The obligation that remains on the State to prove beyond reasonable doubt that a reasonable suspicion was open on the evidence that the money was unlawfully obtained.
The judge went on to summarise the State and defence cases in relation to each count.[55]
[55] ts 239 ‑ 242.
The judge summarised the defence case on count 1 as being that the appellant was thoroughly searched and was not in possession of the methylamphetamine.[56] The judge told the jury that the defence case included the following points:[57]
(a)before the jury could convict on count 1, they would have to be satisfied beyond reasonable doubt that the appellant had the methylamphetamine on him when he entered the police van; and
(b)given the fact that the appellant was searched before he got in the van, the jury could not be satisfied beyond reasonable doubt that he had the drugs on him when he entered the van.
[56] ts 240.
[57] ts 240.
In concluding his summing up, his Honour distilled the issues that the jury had to determine to reach a verdict on each of the counts:[58]
So insofar as the issues that arise for you to determine, members of the jury, and they are for you and for you alone to determine, they are in relation to the first count on the indictment, as to whether the State has proved beyond reasonable doubt, that [the appellant] possessed the methylamphetamine.
With regard to count 2, having regard to the way in which this case had been conducted, and the admissions which were made by [the appellant], has [the appellant] demonstrated on [the] balance of probabilities, that he did not have an intent to sell or supply the DMT to another.
And in relation to count 3, whether the State has proved that [the appellant] was in possession of the $3,355 that was reasonably suspected to have been unlawfully obtained.
The italicised portion of this passage is the subject of ground 2 of the appeal.
[58] ts 242.
The judge concluded his Honour's charge with further directions of a general nature, including as to the procedure by which the jury would provide their verdict.[59]
[59] ts 242 ‑ 245.
The judge asked counsel whether there were any matters of fact which should be corrected or clarified. Defence counsel asked the judge to clarify the evidence of the police officer who had said that he would have searched at the commencement of the shift the police van in which the appellant was placed, which his Honour did.[60] In the absence of the jury, counsel and the judge discussed whether the judge should have directed the jury, as his Honour did, that the jury could find the appellant guilty of count 1 as charged, guilty of the offence of possession simpliciter, or find him not guilty. The prosecutor said it was a matter for his Honour to consider, and ultimately the jury were not brought back for further directions on this point.[61]
[60] ts 245 ‑ 246.
[61] ts 246 ‑ 250.

Grounds of appeal

The appellant appeals on the following grounds:
(1)The learned trial judge erred in law in his directions to the jury in relation to the element of 'possession' with respect to count 1.
Particulars
(a)In directing the jury in relation to the requirement of 'knowledge' his Honour erroneously directed the jury that '[i]f on the evidence … you are satisfied beyond reasonable doubt that [the appellant] had knowledge that the substance was a prohibited drug, then this would permit you to conclude that the prosecution had proved that [the appellant] had the intention to control the drug': ts 233 [sic].
(2)The learned trial judge erred in law in his directions to the jury in relation to the issues to be determined in relation to count 3.
Particulars
(a)In instructing the jury as to the issues to be determined in the trial, his Honour erroneously directed the jury that the issue in relation to count 3 was 'whether the State has proved that [the appellant] was in possession of the $3,355 that was reasonably suspected to have been unlawfully obtained': ts 241 [sic].

Ground 1

The appellant's submissions

Ground 1 complains of the judge's directions on the element of possession for the purposes of count 1, the count of possessing methylamphetamine with intent to sell or supply it to another. Specifically, ground 1 impugns the following passage of the judge's directions, repeated here for convenience:[62]
If on the evidence … you are satisfied beyond reasonable doubt that [the appellant] had knowledge that the substance was a prohibited drug, then this would permit you to conclude that the prosecution had proved that [the appellant] had the intention to control the drug.
[62] ts 234.
The appellant submits that the judge erred because, in so directing, the judge removed from the jury's consideration the question of whether the appellant had the intention to exercise control over the drugs.[63] That is, the appellant submits, by this passage the judge directed the jury that if they were satisfied that the appellant had an awareness or belief that the item in question was a prohibited drug, then they must find him guilty.[64]
[63] Appellant's submissions [23].
[64] Appellant's submissions [24].
The appellant accepts that there are instances where to so direct a jury would not be an error. He accepts that a jury may infer that an accused had the intention to control a prohibited drug from the fact the accused knew that the substance was a prohibited drug where, for example, the prohibited drug was on the accused's person or if it was in a location under their control.[65]
[65] Appellant's submissions [19].
However, the appellant submits, the present case was not such an instance. The appellant says, in this case, it was open for the jury to conclude that the appellant, while in the back of the police car, became aware or developed a belief that there was a significant or real chance that the fabric sunglasses case contained a prohibited drug.[66]
[66] Appellant's submissions [21]; appeal ts 2 - 3, 5.
The appellant submits that the question of whether the appellant had knowledge was, in this scenario, separate to the question of whether he intended to control the drugs, and the judge should have directed the jury accordingly.

Disposition

In Fenn v The State of Western Australia, this court recently summarised what the State is required to prove in order to establish the element of possession for a charge under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA):[67]
[67] Fenn v The State of Western Australia [2020] WASCA 134 [63] ‑ [66].
Section 3(1) of the MDA provides that, in the Act, unless the contrary intention appears, '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'.
Where an accused is charged, as a principal offender under s 7(a) of the Code, with possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA, and putting to one side for the moment the issue of the knowledge of the accused, the State must prove beyond reasonable doubt that:
(a)the accused had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;
(b)at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) of the MDA;
(c)the substance or thing was, in fact, a 'prohibited drug' as defined in s 3(1) read with s 4 of the MDA; and
(d)(unless the presumption in s 11(a) of the MDA applies), the accused intended to sell or supply to another at least some of the substance or thing.
As to the issue of the knowledge of the accused, the State must prove beyond reasonable doubt that:
(a)the accused had at least an awareness of or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing; and
(b)the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was, in fact, 'a drug' within the ordinary and natural meaning of that term.
See Sgarlata v The State of Western Australia [[2015] WASCA 215; (2015) 49 WAR 176 [181] ‑ [182], [192], [202], [211]]; La Bianca v The State of Western Australia [[2019] WASCA 105 [28]].
Possession of a prohibited drug, for the purposes of s 6(1)(a) of the MDA, need not be solely by or exclusive to one accused. Two or more accused can jointly possess a prohibited drug at the same time, even though only one accused has the drug in his or her actual physical possession at the relevant time. Also, two or more accused can jointly possess a prohibited drug at the same time even though none of the accused has actual physical possession of the drug at the relevant time.
In a case where the substance is in the accused's immediate physical custody, while differing views have been expressed, the weight of authority is that an intention to control or have dominion over the substance is necessary.[68] However, it has been observed that, particularly in a case of physical custody of the drugs, generally at least knowledge will be sufficient to prove intention to possess.[69]
[68] See, for example, Nuhana v The State of Western Australia [2018] WASCA 79 [73]; Kalbasi v The State of Western Australia [2016] WASCA 144 [91] ‑ [92], [105] ‑ [107], but compare Davies v The State of Western Australia [2006] WASCA 151 [1], [14], [50] ‑ [53]; see also The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483.
[69] Davis v The Queen (1990) 5 WAR 269, 276; Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417 [55]; The State of Western Australia v R [18], [210].
This appeal can be resolved on the assumption, favourable to the appellant, that an intention to control or have dominion over the drugs was a necessary requirement in order for the prosecution to establish possession.
The crux of the appellant's submissions on ground 1 is that:[70]
(1)It was open to the jury to find, at least as a reasonable possibility, that:
(a)the sunglasses case containing the drugs was already in the back of the police van when the appellant was arrested and put in the police van; and
(b)the appellant ‑ while in the back of the police van ‑ saw the sunglasses case and then became aware or formed the belief that there was a significant or real chance that it contained prohibited drugs.
(2)In these circumstances, notwithstanding that the appellant had the knowledge outlined in (1)(b) above, the jury might have found that the appellant did not intend to control the drugs, given that he simply happened upon them when he was placed in the back of the police van.
(3)However, the judge's direction that a finding of knowledge would permit a conclusion that intention to control was proved, in effect took away from the jury their ability to reason as outlined in (2), leading to a conviction founded on the findings outlined in (1) above.
[70] Appeal ts 2 - 3, 5.
The appellant did not submit that the impugned direction was liable to lead the jury into error in the scenario that they were satisfied beyond reasonable doubt that the appellant had physical custody of the sunglasses case before he was put in the van.[71]
[71] See appellant's submissions [19].
In our view, there was no risk that the jury would convict the appellant of count 1 by reasoning in the fashion outlined at [47] above. This is so for two related reasons.
First, the judge directed the jury, in plain and unambiguous terms, that the jury could not convict on count 1 unless they were satisfied beyond reasonable doubt that when the appellant entered the van he already had the methylamphetamine on him.[72]
[72] ts 228, see [26] above; see also ts 240, as outlined at [34] above.
As a consequence of the judge's clear directions as to the State case, there was no perceptible risk that the jury would reason in the fashion outlined at [47] above.
Secondly, and in any event, the hypothesis advanced by the appellant by the submissions outlined at [47(1)] above was not reasonably open on the evidence.
The State case supported an inference that when the appellant entered the police van, he had the sunglasses case on his person, as he knew.
The appellant's case, and the effect of his evidence, was that the sunglasses case was already in the police van when he entered it. At trial, the appellant did not suggest in his evidence that he became aware of the sunglasses case before it was seized by police. To the contrary, his evidence was that he did not know what the police were talking about when he was asked about what had been found in the police van ‑ something that the appellant could '[n]ot really' see other than to say it was 'something black'.[73] Nor did the appellant give any evidence of forming any view about what the sunglasses case might have contained. Even where a jury rejects the evidence given by an accused, the evidence given, and not given, by the accused may bear upon what alternative inferences are reasonably open.[74] The appellant's evidence at trial left no room for any reasonable inference that he became aware of the sunglasses case while he was in the police van and formed a view as to what it contained.
[73] ts 160.
[74] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [54], [57]; Baldwin v The State of Western Australia [2020] WASCA 110 [54].

For these reasons, ground 1 is without merit. Leave to appeal on ground 1 must be refused.

Ground 2

The appellant's submissions

By ground 2, the appellant asserts that the judge erred in his directions in relation to count 3, the count of possessing $3,355 that was reasonably suspected of having been unlawfully obtained. For convenience, the particulars to ground 2 are repeated below:
In instructing the jury as to the issues to be determined in the trial, his Honour erroneously directed the jury that the issue in relation to count 3 was 'whether the State has proved that [the appellant] was in possession of the $3,355 that was reasonably suspected to have been unlawfully obtained': ts 241 [sic].
The appellant submits that the judge, in effect, directed the jury that the money the subject of count 3 was unlawfully obtained, thereby removing this question of fact from the jury's consideration.[75] The appellant notes that he never disputed that he possessed the money the subject of the count and that, therefore, the issue for the jury was whether that money was in fact reasonably suspected to have been unlawfully obtained.[76] The appellant adds that the evidence and counsel's closing addresses would have made it apparent that this (whether the money was reasonably suspected of being unlawfully obtained) was the issue in respect of count 3.

Disposition

[75] Appellant's submissions [31]; appeal ts 6.

[76] Appellant's submissions [28] ‑ [29].

Ground 2 impugns a single sentence of the judge's direction, which we acknowledge was said in his Honour's concluding distillation of the issues for the jury on each count. As noted at [35] above, his Honour said, in relation to count 3, that the issue was:[77]
whether the State has proved that [the appellant] was in possession of the $3,355 that was reasonably suspected to have been unlawfully obtained.
The appellant submits that this direction would or may have been taken by the jury to mean that the issue as to count 3 was the question of possession, with the judge, in effect, telling the jury that, as a matter of fact, the sum of $3,355 was reasonably suspected to have been unlawfully obtained.
[77] ts 242.
In our opinion, when regard is had to the judge's direction as a whole, there is no risk that the jury would have understood what his Honour said in that manner.
Ground 2 suffers from the flaw of relying on a reading of a single sentence in the summing up that is entirely divorced from the rest of the summing up and the context of the trial as a whole. As the appellant's submissions point out, from the outset of the trial the appellant admitted that he possessed the money the subject of the count and, therefore, the issue for the jury was whether that money was reasonably suspected to have been unlawfully obtained. That is how the judge outlined to the jury the case they were required to decide on count 3. As already noted, the judge told the jury that possession of the money was not in issue and gave the jury detailed directions as to the fourth element, namely whether that money was reasonably suspected of being unlawfully obtained.[78] His Honour repeated that it was for the jury to consider whether the State had proved beyond a reasonable doubt that the money the subject of count 3 was reasonably suspected of being unlawfully obtained[79] and his Honour summarised the State and defence cases and evidence on this particular aspect of count 3.
[78] ts 237 ‑ 239, as set out at [32] above.
[79] ts 238.
For the jury to have understood the judge's concluding summary in the manner asserted by the appellant would have required the jury to, in effect, ignore or put to one side (i) the conduct of the entire trial concerning count 3; and (ii) the entirety of the judge's earlier direction as to count 3. In the context of the trial that was had, and the judge's direction as a whole, the jury could only have taken the impugned passage as identifying, in relation to count 3, the issue as whether the State had proved that the $3,355 of which the appellant was in possession was reasonably suspected to have been unlawfully obtained.
For these reasons, there is no merit in ground 2. Leave to appeal should be refused in relation to ground 2.

Conclusion

For the above reasons, we would make the following orders:
1.Leave to appeal on grounds 1 and 2 is refused.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Beech
19 MARCH 2021