Malesevic v The Queen

[2019] SASCFC 134

Supreme Court of South Australia

(Court of Criminal Appeal)

MALESEVIC v THE QUEEN

[2019] SASCFC 134

Judgment of The Court of Criminal Appeal

(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Auxiliary Justice David)

31 October 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL

Application for permission to appeal against a conviction by a jury of Trafficking in a Large Commercial Quantity of a Controlled Drug. Permission previously refused by a single Judge of this Court.

Application concerned a trial judge’s directions to the jury on the question of possession which the applicant argued were inadequate. Specifically, the applicant argued that the judge failed to appropriately direct the jury regarding the statement of a Mr Moed, who claimed ownership of the controlled drug. The applicant submitted the verdict was unsafe and unsatisfactory, with regard to the entirety of the evidence presented at trial, as there was no direct evidence involving his possession of the controlled drug.

Held per David AJ (Stanley and Parker JJ agreeing):

1.  The trial judge’s direction on possession were appropriate;

2.  It was clearly open to the jury to find the applicant guilty beyond reasonable doubt on the prosecution’s case.

Application for permission to appeal refused.

M v The Queen (1994) 181 CLR 487, applied.

MALESEVIC v THE QUEEN
[2019] SASCFC 134

Court of Criminal Appeal:       Stanley and Parker JJ and David AJ

1. STANLEY J:         I would refuse permission to appeal.  I agree with the reasons of David AJ. 

2. PARKER J:          I would refuse permission to appeal.  I agree with the reasons of David AJ.

   DAVID AJ

   Introduction

3. This is an application for permission to appeal against conviction. The applicant, Srjan Malesevic and his wife Caroline Malesevic were both convicted by verdicts of a jury of the offence of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA). The applicant appealed against his conviction but permission was refused by a single judge of this Court. He now applies for permission to appeal from his conviction to this Court.

4. At this stage Caroline Malesevic has not lodged a Notice of Appeal.

5. This application concerns a trial judge’s directions to the jury on the question of possession which the applicant argues were inadequate.  By a late amendment to the Notice of Appeal he further argues that the verdict was unsafe and unsatisfactory. 

6. It is to be noted that the applicant argued the matter before us in person without the assistance of counsel but was represented by counsel at trial.

   The trial

7. The case for the prosecution was based primarily on circumstantial evidence.  As a result, many of the facts alleged by the prosecution at trial were uncontested. 

8. Evidence was led that a number of police officers attended at the house of the applicant at 12 Stirling Drive, Morphett Vale on the morning of 11 August 2015.  The police knocked on the door and made an announcement as to their presence.  Evidence was given by a police officer, Wall, that a moment after that announcement was made he saw a movement at the rear of the property and saw a person with a light blue top or shirt moving from the house to the fence of the adjoining property at 14 Stirling Drive.  Eventually after the house was searched by other police officers three cylindrical objects containing 2.4 kg of cannabis were located over the fence on the property at 14 Stirling Drive, near where officer Wall had seen the person with the light blue top.  An agreed statement of the owner of 14 Stirling Drive was presented to the jury, in which she said she knew nothing of the cannabis found in her yard.

9. When the police knocked on the door and announced their presence there was no response.  After about 15 seconds they forced entry into the house and came across the applicant and his wife.  Before entering and after they had announced their presence and knocked on the door the police heard the sound of a vacuum cleaner.  On inspection of the premises there was no dispute there was cannabis head material found on the kitchen stove.  The applicant and his wife were the only people in the house, and the applicant was wearing a blue shirt which Constable Wall said was the same colour as the shirt worn by the person who was in the backyard.  Constable Wall in his evidence made it clear that there was no identification of the accused and the prosecution case that it was he who was down the back was based upon circumstantial evidence.

10. It was not disputed at trial that the applicant lived at the address, that a set of electronic scales were located above the microwave in the kitchen and that there was further loose cannabis head material found around the back veranda near a barbeque.  The total weight of the cannabis seized from the applicant’s house and from the next-door neighbour’s yard at 14 Stirling Drive was 3.28 kg.  At the trial it was the prosecution case based on circumstantial evidence that the applicant and his wife were in joint possession of the cannabis at their house and the cannabis deposited on the next-door neighbour’s property, and they were both involved in trafficking in it.  The sole issue at trial was whether the applicant and his wife had possession of the cannabis.

11. Also at the trial, during cross-examination of a police officer, the defence tendered a video recording and transcript of a conversation between a person named Scott Andrew Moed and Detective Brevet Sergeant Gladigau, which took place on Monday 26 October 2015 at 5:30 pm at the Christies Beach police station. The trial Judge allowed that video recording to be tendered as a result of an application made by the defence pursuant to s 34KA of the Evidence Act 1929 (SA). The prosecution at trial objected to the tendering of the video recording. The basis of the application was that reasonable efforts had been made to contact Mr Moed and they were unsuccessful and therefore it was admitted pursuant to s 34KA(2)(d), which allows for admissibility if the relevant person, namely Mr Moed, could not be found and reasonable and practical steps were taken to find him.

12. There is now no dispute from either side about the correctness of the trial Judge allowing that video recording.  In that recorded conversation between Mr Moed and the police, Mr Moed maintained that the police had arrested the wrong person for possession of the cannabis which was the subject of the charge as it was he who had deposited it over the fence at 14 Stirling Drive.  Mr Moed told the police that on the evening before the applicant and his wife were arrested he had seen the applicant at the casino having known him briefly before.  At about 1:30 to 2:00 am on the morning of the applicant’s arrest, Mr Moed said that he went to the applicant’s house and was let in by his wife.  The applicant was asleep and Mr Moed told the police that he slept on the lounge that night.  He had with him a bag of cannabis which he had fortuitously found.  The details are vague.  He then told the police that when he woke up the applicant was in the shower.  Mr Moed said he was wearing a blue jumper and that when the police arrived he ran down the back and threw the bag over the fence to the house next-door.  In other words, he possessed the cannabis not the applicant or his wife.   That statement was tendered at trial during the prosecution case although it was used by the defence as the main thrust of their answer to the charge.

13. At trial, neither defendant gave or called any evidence but relied upon the tendered interrogation of Mr Moed to argue that the element of possession had not been proved beyond reasonable doubt.

    Appeal

14. There was originally one ground of appeal for which permission was refused, namely:

    1.   The learned trial Judge failed to adequately direct the jury on possession, in particular there was a failure to adequately to:

    1.1.direct the jury that the prosecution was required to exclude the possibility that a third party at the time of the police search was in possession of the cannabis;

    1.2.direct the jury as to the application of the legal requirements of possession to the particular evidence of the case.

15. This Court allowed a second ground of appeal to be argued, namely that the verdict of the jury was unsafe and unsatisfactory.

    Ground 1 – directions on possession

16. On the question of possession, the trial Judge directed the jury in the following terms:

    As to possession, the prosecution must prove that each accused was in possession of the cannabis the subject of the charge. I will explain the legal concept of possession.

    The essence of the concept of possession in law is that at the relevant time you intentionally and knowingly had control over the object in question. You may have this control alone or you may share that control jointly with others, You, or you and the others, must have the right to exclude other people from possession of the object. It is not necessary that you have the object in your hand or on your person. It is not necessary that you own the object. You need not possess the object permanently. You could possess it temporarily or for some limited purpose. In the legal context, control of an item includes a person having the power or the ability to dispose of the item and to do so without reference to any other person with whom he or she is not in joint possession.

    I will give you an example. If you have a television at home, you are in possession of it even though you are here in court and do not have immediate physical possession of it. You may be in possession of that television on your own or you might be in joint possession of it with members of your family. You may not own the television. You might rent it, you might be borrowing it or you might be looking after it for a short while. In each of these cases you will still be in possession of it.

    It would be different, however, if you did not know the television was in your house. If, for example, someone had, without your knowledge, hidden the television in your house intending to surprise you with it, say on your birthday, then you could not be said to be in possession of it. You don’t know of its existence. Even though you are home every night, you do not know about the presence of the television. It will be a complete surprise to you on your birthday. In that case, you cannot be said, in the eyes of the law, to be in possession of the television.

    The prosecution must prove beyond reasonable doubt that each of the accused was in possession of the drug in the sense that I have just described. Simply by being in the house does not mean an accused was in possession. Similarly, a person’s mere knowledge of the presence of an item alone is not enough to establish possession. The prosecution case is the accused knew the cannabis was in the house and they were in knowing possession of the cannabis. The defence case is that the accused did not have control of the cannabis either individually or jointly and did not have the right to exclude other people from the possession of the cannabis. The defence case that is Mr Moed, and Mr Moed alone, had possession of the cannabis. On the defence case, the accused’s intention to sell – which I will deal with in a minute – does not arise as either individually or jointly they were not in possession of it.

17. Further on in his summing up the trial Judge directed the jury when referring to the statement on the video recording of the police interview with Mr Moed that “If you think it is a reasonable possibility then … you will acquit both accused.”  He was there referring to the statements made by Mr Moed in his interrogation.

18. In my view, the trial Judge’s directions on possession were correct and he had made clear to the jury that if it is reasonably possible that what Mr Moed said in his statement was true then the prosecution would not have proved beyond reasonable doubt that the applicant possessed the cannabis.  I would refuse permission on that ground.

    Ground 2 – unsafe and unsatisfactory verdict

19. I turn to the amended ground of appeal that the verdict was unsafe and unsatisfactory.  The task of this Court is to ask whether upon the whole of the evidence, notwithstanding that there is evidence to sustain a verdict of guilty, this Court should conclude that the verdict is unsafe and unsatisfactory.  In undertaking this task an appeal court must ask whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[1]  As I have already indicated the prosecution case at trial was based upon circumstantial evidence; in particular the question of possession by the applicant of the cannabis was based upon circumstantial evidence.  There is no dispute that the trial Judge correctly directed the jury as to the proper approach when considering a case based upon circumstantial evidence, and most of the evidence itself in this case was basically undisputed.  The applicant before us emphasises that there was no direct evidence involving himself with possession of the cannabis.  He argues that the lack of fingerprints and DNA evidence on various items combined with the video statement of Mr Moed’s interrogation should indicate that there must at least be a reasonable doubt.  In my view, however, the prosecution mounted a strong and compelling case of possession based upon circumstantial evidence.  In essence, the circumstances were:

    1The applicant and his wife were living at the address where cannabis was found in the kitchen.

    2There was cannabis head material both on the kitchen stove and around the back veranda of the applicant’s home.

    3There were a set of electronic scales which had cannabis remnants on them in the kitchen.

    4No-one answered the door when the police originally knocked and there was the sound of a vacuum cleaner drawing the inference that upon hearing of the police presence the applicant or his wife were trying to clean up.

    5When entering the house, the vacuum cleaner was in the hands of the applicant’s wife.

    6The police officer, Wall, saw a person in the same colour top as the applicant in the area of the backyard close to where the cannabis was found on the other side of the fence.

    [1]    M v The Queen (1994) 181 CLR 487.

20. The clear inference that the jury drew was that on the arrival of the police the applicant and his wife tried to dispose of the bulk of the cannabis by running around to the backyard and throwing it next-door, and tried to clear up the remnants of the cannabis in the kitchen.  It was clearly open to the jury to find that inference proved beyond reasonable doubt.  It was also open to the jury to reject beyond reasonable doubt the contents of Mr Moed’s interview. On an objective reading the explanation contained in that interview smacks of implausibility, namely that he happened to find cannabis, take it to the applicant’s home in the early hours of the morning and then dispose of it when the police arrived.  In my view, there is no basis for finding the verdict is unsafe or unsatisfactory.  I would refuse permission to appeal on this ground.

    Conclusion

21. I would refuse permission to appeal.