Musa v The Queen

[2019] NSWCCA 279

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Musa v R [2019] NSWCCA 279

Hearing dates:

11 October 2019

Decision date:

22 November 2019

Before:

Gleeson JA at [1]
Johnson J at [88]
Cavanagh J at [89]

Decision:

(1)   Grant leave to appeal on ground 2.

 

(2) Refuse leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) on ground 3.

 (3)   Appeal against conviction dismissed.

Catchwords:

CRIME – appeals – leave to appeal against conviction – Drug Misuse and Trafficking Act 1985, s 25(1) – deemed supply of traffickable quantity of a prohibited drug methylamphetamine – unreasonable verdict – issue of possession – whether open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – miscarriage of justice – complaints about Crown’s conduct at trial and closing address – where no complaint made at trial – whether applicant should be bound by forensic decisions

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5(1), 5F, 6(1)
Criminal Appeal Rules (NSW), r 4
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
Gold Buyers Act 1921 (WA), s 36

Cases Cited:

AP v R [2013] NSWCCA 189
Browne v Dunn (1893) 6 R 67
Chahine v R [2006] NSWCCA 179
Fennell v The Queen [2019] HCA 37
Flack v R [2011] NSWCCA 167
Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188
Halmi v R [2008] NSWCCA 259
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Chin (1985) 157 CLR 671; [1985] HCA 35
R v Delon (1992) 29 NSWLR 29
R v Dib (1991) 52 A Crim R 64
R v Filippetti (1978) 13 A Crim R 335
R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Stanford v R [2018] NSWCCA 249
Williams v Douglas (1949) 78 CLR 521

Category:

Principal judgment

Parties:

Mohamed Abdimalik Musa (Applicant)
Crown (Respondent)

Representation:

Counsel:
P Little (Applicant)
B Hatfield (Respondent)

  Solicitors:
Laith Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/96579

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Before:

Culver DCJ

File Number(s):

2017/96579

Judgment

1. GLEESON JA: On 8 July 2018 the applicant was found guilty and convicted in the District Court of the supply of a prohibited drug, methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). The supply was a deemed supply under s 29 of the DMT Act, established by proof of possession of a traffickable quantity of the prohibited drug, being more than 3 g of methylamphetamine.

2. On 24 August 2018, Culver DCJ sentenced the applicant to a term of 30 months imprisonment commencing 9 June 2018 with a non-parole period of 20 months. The earliest date on which the applicant is eligible for parole is 8 February 2020.

3. The applicant seeks leave to appeal his conviction only. He relies on three grounds as follows:

1.   Her Honour erred in finding that there was prima facie evidence of possession in that the Crown did not need to prove that the accused had the legal right to exclude all others from the premises in which the drugs were situated.

2.   The verdict is not reasonably supported by the evidence.

3.   The trial miscarried due to the Crown’s cross examination and splitting of its case despite there being no objection by Counsel for the accused.

4. Ground 1 involves a challenge to the trial judge’s interlocutory decision on 6 March 2018 dismissing an application for a directed verdict of acquittal. Although this is a question of law which may be explored on appeal to this Court under ss 5(1)(a) and 6(1) of the Criminal Appeal Act 1912 (cf Flack v R [2011] NSWCCA 167), counsel for the applicant accepted that the point sought to be advanced by ground 1 was subsumed effectively by ground 2 in the circumstances of this case.

5. Ground 2 contends that the verdict was unreasonable because the evidence at trial was insufficient to establish that the applicant had possession of the drugs. This ground raises a question of mixed fact and law and the applicant requires leave to appeal: Criminal Appeal Act 1912 (NSW), s 5(1)(b). The Crown did not oppose the grant of leave on this ground.

6. Ground 3 involves a challenge to the admission of evidence in circumstances where no objection was taken at trial. Leave is required under the Criminal Appeal Rules (NSW), r 4.

Background

7. At about 8.45 am on 14 October 2016, agents of the Australian Federal Police attended an apartment situated at Woodville Road, Guildford (the unit) to execute a search warrant which related to another investigation. The unit contained two bedrooms; bedroom 1 was occupied by Mohamed Abdi (Mohamed), and bedroom 2 was occupied by his brother, Abdul Abdi (Abdul). Mohamed and Abdul were close family friends of the applicant, who regularly attended the unit. They had grown up together with the applicant in Somalia.

8. When the police attended the unit, Mohamed, Abdul and a third person, Ms Kawsar Kalif (Kawsar), were present. Kawsar was a guest, staying with Abdul in his bedroom. The applicant was not present but had been observed by surveillance arriving at the apartment building at around 4.30 pm the previous day, 13 October 2016, in a black Range Rover which was registered to his sister. He entered the apartment building. He was next observed leaving the apartment building and driving away at around 1.45 am the following morning, 14 October 2016.

9. During the search of the unit, at approximately 10.50 am, police located in bedroom 1 a blue Adidas shoe box for US size 10 shoes (Adidas box) on the top shelf of the built-in wardrobe, which was estimated to be about 190 cm in height. A still photograph from the police video recording of the walk-through before the search commenced showed that the sliding door to the wardrobe was open at the time the video was taken. Inside the shoe box were various items, including two plastic freezer bags containing a total of 87.5 g of methylamphetamine, two plastic and glass electronic scales, a black plastic box, and an iPhone box containing a “Regal” branded electronic scale, and one small clear plastic clip seal bag. Police also found a Nokia mobile phone registered to Mr Denir Ahmed, and on which was stored a self-portrait photo of the applicant.

10. Forensic examination of the Adidas box and the items contained therein revealed 41 latent fingerprints of which 13 fingerprints matched the applicant, 27 fingerprints had insufficient ridge friction detail, and one fingerprint could not be matched to anyone on the relevant database. There were no matches to Mohamed – the other person of interest for whom fingerprints were obtained.

11. Of the fingerprints matching the applicant, one was found on a freezer bag containing methylamphetamine, one in the black plastic box, two on one of the plastic and glass electronic scales (Scale 1), and nine on the Adidas box itself (seven on the exterior lid of the box and one on each of the exterior long sides of the box). The unmatched fingerprint was also on Scale 1.

12. Mohamed, Abdul and Kawsar each participated in recorded conversations at the scene and/or formal interviews with police on 14 October 2016. Each denied any connection to the Adidas box and the items contained therein or any knowledge of the drugs.

Crown case

13. The Crown case was that the applicant either solely or jointly possessed the 87.5 g of methylamphetamine found in the Adidas box for the purpose of supply. As indicated, the Crown relied on the extended definition of supply under s 29 of the DMT Act, established by proof of possession of more than 3 g of methylamphetamine.

14. The critical issue at the trial was whether the applicant had possession of the prohibited drugs. The Crown alleged that the applicant was in possession of the drugs to the exclusion of all other persons except any person who might be acting jointly with him.

15. The defence case accepted that the applicant’s fingerprints were contained on the Adidas box and some of its contents, but contended that the applicant did not have physical custody or control of the box to the exclusion of any other person.

Evidence at trial

Crown witnesses

16. The Crown called evidence from the investigating police and an expert fingerprint officer.

17. Federal Agent Mark Connelly gave evidence that he found the Adidas box inside the wardrobe on the top shelf. He said that Kawsar told him that she smoked ice, but didn’t have any ice on her. Although he gave evidence of a second pipe found on the floor, the evidence of First Constable Ryan Henderson was that there was only one pipe found; he found a pipe in the pocket of Kawsar and had placed it on the floor of bedroom 2.

18. Mohamed gave evidence that the first time he saw the Adidas shoe box was when shown a photograph in his interview with police. He said he had never seen the shoe box in his bedroom. He wore US size 8 or 9 shoes and his brother wore, “about the same size or just maybe one size bigger”. He also said that he did not use the top part of the wardrobe; his clothes were always in a bag or in the closet at the bottom. In cross-examination, he said: “I can’t remember what was there, but there wasn’t much in the wardrobe, I never really used, or used, or used the wardrobe” and that it contained “probably some blankets and say a few T-shirts, that’s about it. I never really used the wardrobe”.

19. Mohamed agreed that he had an Adidas shoe box like the one in the photograph. He said he left that shoe box in the lounge room, empty. It was a size 8 shoe box. He agreed the shoe box with the drugs in it was US size 10, UK 9 ½. He said in 2016 his feet were size 8, and now he is a size 9, as his feet have grown. He rejected the proposition that there was only one shoe box in the unit.

20. Abdul gave evidence that his shoe size is US 9. In cross-examination, he said he had seen a similar blue Adidas shoe box at the unit before; it was for his brother’s black shoes. It was empty on the balcony. He denied putting the blue Adidas box with drugs in his brother’s bedroom, and said he did not see anyone put it there. Abdul agreed that there were quite a few people at the unit on 13 October 2016, including himself, his brother, Kawsar and the applicant. He could not recall if Mr Zachariah Hassan and Mr Denir Ahmed were there.

21. In re-examination, Abdul confirmed that when he was shown the shoe box and the items inside it during the search, he had told police he had not seen it before.

22. Kawsar gave evidence that she stayed at the unit on 13 October 2016 with Abdul in bedroom 2. She had stayed at the unit on another occasion about a week prior to the police search. Police found an ice pipe on her. She never saw any Adidas boxes in the unit.

23. In cross-examination Kawsar said that she never had ice at the unit, and denied smoking ice in the bedroom. She denied knowing about the shoebox with ice in it.

24. In re-examination, Kawsar said she thought she only became aware of the shoe box when she was being interviewed when the police came to the unit.

Applicant

25. The applicant gave evidence at trial. He confirmed that Mohamed and Abdul were close family friends and that they grew up together in Somalia. From around October 2016 he would go to the unit about four times per week with a number of other people and they would play a FIFA soccer game on PlayStation and smoke cannabis two or three times per week. To access the unit he would buzz the intercom and would be “buzzed up”; he did not have a key to the door of the unit.

26. The applicant accepted that he attended the unit on 13 October 2016 from about 4.30 pm until 2 am the next day. He said that in addition to Mohamed, Abdul and Kawsar, six other persons were present and they “ate, played FIFA and smoked dope”. He said he did not get the “dope” himself and that it was usually in “the blue Adidas box”, which was usually located in the living room on the dinner table.

27. The applicant denied that he had been in Mohamed’s bedroom. He said that he did not wear Adidas footwear. He said that he had handled “the Adidas box”, that he had seen one scale in the kitchen of the unit which he handled to weigh protein for protein drinks that was similar to the two scales seized by police, he had seen the iPhone box before, “in the Adidas box”, but had not handled it and had seen the small digital scale inside the iPhone box. He could not recall the black plastic box or how his fingerprints got onto it. He had seen plastic bags like those containing the crystalline substance, but only with cannabis inside them and he had handled freezer bags at the unit, but never with methylamphetamine inside them. He denied taking “the Adidas shoe box” to the unit or putting it in Mohamed’s wardrobe.

28. In cross-examination, the applicant said that he could not access the bedrooms; that bedroom 1, occupied by Mohamed, was locked most of the time and that bedroom 2, occupied by Abdul, was always locked. The applicant denied that he had seen a size 8 Adidas box at the unit containing the cannabis.

29. After the applicant concluded his evidence, the Crown complained that defence counsel had breached the rule in Browne v Dunn (1893) 6 R 67 by not cross-examining the occupants of the unit to the effect that the door to bedroom 1 was a locked door. Ultimately, the Crown applied to re-open to lead further evidence. Defence counsel did not oppose that application.

30. The Crown adduced evidence from the strata property manager, Mr Shady Tannous, who said that he had managed all of the units in the apartment building at the relevant time and that the bedroom doors do not have locks on them; that they are standard lever doors with no locks on them inside or outside. Two photographs of bedroom doors from another unit, unit 24, in the apartment building were tendered without objection (Exhibit O).

31. In cross-examination, Mr Tannous said that he had been to the unit, that the bedroom doors do not have locks and there were no locks on them in October 2016. He accepted that he could not say when he had last been to the unit, explaining that he would need to check his computer. When challenged as to whether the photographs for unit 24 clearly showed that there were no locks on the bedroom door of that unit, Mr Tannous adhered to his evidence that the photographs definitely showed that there were no locks on them.

No case submission

32. At the close of the Crown case, the applicant applied for a directed verdict of acquittal. The basis of the application was that the Crown had not proved that the applicant had the legal right to exclude all persons from the premises in which the drugs were situated, other than those acting jointly with him. The applicant referred to R v Dib (1991) 52 A Crim R 64 (Dib) at 66-67, where Hunt J formulated the appropriate jury directions in a case where drugs were found in the presence of a person:

What must usually be conveyed to the jury – in addition to the elements of knowledge referred to in He Kaw Teh (1985) 157 CLR 523; 15 A Crim R 203 (see also Baird (1985) 3 NSWLR 331) – is that, at the relevant time when possession is alleged, an accused had (subject to any investigatory and seizure powers given to the police and others) the right to exclude any person not acting in concert with him from interference with the property in question. He must have that property either in his manual possession or in a place to which he (and any person acting in concert with him) may go without physical bar in order to obtain such manual possession of it.

Where (as in the present case) the Crown seeks to establish an accused's possession of property found not within his manual possession but rather in premises to which he has access, it must – in order to establish beyond reasonable doubt that it was the accused rather than anyone else who had such possession of that property – persuade the jury that the accused has the legal right to exclude all persons from the premises in which the property is situated (other than those acting in concert with him). In a case where two or more accused are alleged to be in joint possession of the property, the Crown must establish that they all had that legal right. (Emphasis added.)

33. The Crown submitted before the trial judge that the facts of the present case were distinguishable from Dib because it should be inferred that the applicant had effectively hidden the drugs so that he could take them into his physical custody when he wished and where others were unlikely to discover them except by accident, referring to R v Delon (1992) 29 NSWLR 29.

34. In Delon, Priestley JA referred to Williams v Douglas (1949) 78 CLR 521 where the High Court considered the meaning of “possession or control” in s 36 of the Gold Buyers Act 1921 (WA) and construed those words as referring to de facto possession and actual control but not to extend the word “possession” to “constructive possession”. Priestley JA accepted (at 33) the following statement of Latham CJ, Dixon and McTiernan JJ in Williams v Douglas at 527 concerning possession:

It is wide enough to include any case where the person alleged to be in possession has hidden the thing effectively so that he can take it into his physical custody when he wishes and where others are unlikely to discover it except by accident.

35. The trial judge dismissed the application, giving ex tempore reasons on 6 March 2018. Her Honour accepted the Crown’s submission relying upon Delon that it was sufficient for the Crown to prove that the drugs were secreted in such a way, or deposited in such a way, or hidden in such a way, as to show inferentially an intention by the accused to maintain dominion or control of the drugs such as to have exclusivity of possession.

The closing addresses

36. The sole issue in dispute was possession of the drugs. Elements 1 and 3 of the supply offence were not in dispute: methylamphetamine is a prohibited drug and the weight of the drugs of 87.5 g is more than the 3 g, that constitutes deemed supply.

37. As to element 2, on the issue of possession the Crown relied upon:

1. the evidence of the applicant’s frequent, almost daily, attendance at the unit, giving him access to the unit, and his attendance over nine hours on 13-14 October 2016;

2. a submission that the jury should reject the applicant’s evidence that there were locks on the bedroom doors, and accept the contrary evidence of the strata manager;

3. the concealed location of the drugs in a shoe box high up in the wardrobe;

4. the evidence of Mohamed, Abdul and Kawsar denying knowledge of the Adidas box and the drugs found by police on the shelf of the wardrobe;

5. the evidence that other men may have gone into the unit and when stopped by police on 14 October 2016, they refused to give a statement;

6. a submission that the jury should reject the applicant’s evidence that the drugs were not his;

7. a submission that the applicant possessed the drugs because he put them in a place beyond the control or dominion of anybody else and his fingerprints were all over the Adidas box, the scales, the freezer bag and the plastic box;

8. a related submission that the applicant’s explanation for his fingerprints being on the Adidas box, the scales and the freezer bag was implausible and absurd, and that he had no explanation for his fingerprints being on the plastic box;

9. a submission that the applicant was in possession of the drugs because he had hidden them so effectively that he could have taken them into his physical custody or control whenever he wished, and he put the drugs where others were unlikely to discover them except by accident;

10. a submission that either the applicant or someone else acting jointly with him was in possession of the drugs to the exclusion of all other people, except the person with whom he was acting jointly; and

1. a submission that the applicant knew that the drugs were in the shoe box.

38. The applicant relied upon the following on the issue of possession:

1. that the applicant did not live at the unit where the drugs were found;

2. there was no evidence that the applicant was seen to take a box to the unit;

3. there was no evidence as to how long the Adidas box and its contents had been on the shelf in the wardrobe;

4. the applicant’s fingerprints on the Adidas box were not probative because Mohamed and Abdul admitted to keeping cannabis in a blue Adidas shoe box;

5. a submission that the shoe box on the shelf of the wardrobe was clearly visible and not concealed and not hidden;

6. a submission that the location of the Adidas box on the top shelf of the wardrobe was more consistent with panic by the occupants of the unit in response to the police knocking on the door of the unit and gathering everything up and putting it in a box on the shelf before the police came in;

7. the plastic freezer bag containing the applicant’s fingerprints had, according to the applicant, cannabis in it;

8. the evidence that Kawsar possessed the ice pipe found at the unit and a submission that she had recently smoked it;

9. a submission that it was possible that the drugs belonged to Mr Denir Ahmed, whose mobile phone was found by police in the unit.

Directions given to the jury

39. The trial judge gave written directions to the jury as to the elements of the offence including, relevantly, the element of possession:

…

2.   the Accused, either solely or jointly possessed that drug, (that is, the Accused intentionally had the drug in his physical custody or control to the exclusion of any other person except some other person who might have been acting jointly with him in possessing the drug); …

…

40. The trial judge expanded upon the written directions as follows:

So let us look at what is meant by possession at law. The Crown must prove that the accused intentionally had the methylamphetamine in some place to which he had access and might go to obtain physical custody or control of it to the exclusion of any other person who was not jointly possessing it with him. The Crown case is that the accused possessed the drug in that way either alone or together with some other person acting jointly with him in possessing the methylamphetamine.

Here, what the Crown is saying is that the methylamphetamine was effectively hidden. It was hidden so that the accused effectively could take it into his physical custody when he wished and it was hidden where others were unlikely to discover it except by accident. That is what the Crown is relying on. The fundamental aspect for the concept of possession in this context is having the exclusive control over the methylamphetamine to the exclusion of anyone not jointly possessing it with you. (Emphasis added.)

Later, the trial judge directed the jury:

The Crown here alleges that the accused was either alone or jointly in possession of the drugs. The Crown says he was possibly in possession of the drugs with one of the young men who also attended the premises at [the unit on] Woodville Road, Guildford on or about 13 October 2016. In particular, the Crown has suggested that possibly Denir Ahmed or Zachariah Hassan, the two young men spoken to by the police outside the block of units on 14 October 2016, might have had joint possession. The Crown has not suggested that the accused jointly possessed the drugs with any other particular person.

The Crown’s position is that you would be satisfied beyond reasonable doubt that the accused, at the least, himself possessed the drugs, whether by himself or jointly with any other person or persons. The Crown does not have to prove that the accused did, in fact, possess the drugs with any other people or prove the identity of any such people. The Crown must prove beyond reasonable doubt that, at the least, the accused himself possessed the drugs, regardless of whether anyone jointly possessed the drugs with him.

The defence position is that at no stage did the accused in any way possess the methylamphetamine and that you would acquit the accused.

In this case, the Crown must remove any reasonable possibility that any of Mohamed Abdi, Abdul Abdi or Kawsar Khalif, the occupants of the unit, or any other person had possession, namely, custody or control, of the methylamphetamine to the exclusion of the accused. If the Crown cannot remove any such reasonable possibility then you must find the accused not guilty. It has never been the prosecution case that those people, the three occupants I named, jointly possessed the methylamphetamine with the accused. If the Crown has not proved beyond reasonable doubt that the accused was in possession of the substance, as I have explained, that is, the methylamphetamine, then the Crown case has failed and the accused must be found not guilty of the charge.

41. No issue was taken, either at trial or on appeal, with these directions which are in conventional terms. The passage emphasised in bold in [40] above comes from Delon at 33.

Ground 2 – jury’s verdict not reasonably supported by the evidence

42. The test to be applied when dealing with this ground is that stated by the High Court in M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson, Toohey JJ), 508 (Gaudron J); [1994] HCA 63. This test has been reiterated in subsequent cases including MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); and Fennell v The Queen [2019] HCA 37 at [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).

43. The question is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering this question the Court must give full weight to the jury’s advantage in having seen and heard the witnesses give their evidence: M at 493. However, as the joint judgment in M states at 494:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside the verdict based upon that evidence.

44. Thus two competing considerations arise: one is the importance of the constitutional role of the jury; the other is the duty of an appellate court to make its own independent assessment as to the sufficiency and quality of the evidence: M at 492-4; Baden-Clay at [65]-[66]; Fennell at [81]; Stanford v R [2018] NSWCCA 249 at [52] (Simpson AJA, Walton and Wilson JJ agreeing).

45. As the High Court recently said in Fennell at [81]:

… the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. … (Citations omitted.)

Applicant’s submissions

46. The applicant submitted with reference to Dib that it was necessary for the Crown to prove beyond reasonable doubt that the applicant “has the legal right to exclude all persons from the premises in which the property is situated (other than those acting in concert with him)”.

47. The applicant further submitted that the verdict was unreasonable because it was not open to the jury to find that the applicant had “the capacity to exclude others from interference with the property in question”.

Crown’s submissions

48. The Crown submitted that the facts of this case were distinguishable from cases such as Dib, and also R v Filippetti (1978) 13 A Crim R 335, where the drugs found in the presence of a person could not be shown to have been in that person’s possession. The Crown pointed to the fingerprint evidence on the freezer bag containing the drugs, as well as the Adidas box, the scales and black box, and submitted there was a strong inference available that the applicant had manual possession of the package containing prohibited drugs.

49. The Crown submitted, in the alternative, that if this case was not distinguishable from Dib, then the fingerprint evidence gave rise to an inference that the applicant had custody of the Adidas box and its contents at some stage prior to it being placed in the wardrobe, and the Crown case had been put on a basis which contemplated either exclusive possession or joint possession. The submission continued that, even if someone else put the Adidas box in the wardrobe or permitted it to remain there or hid it there, there was an available inference based on the applicant’s fingerprints and presence at the unit that he was acting jointly with that person and that the drugs had been effectively hidden in the unit.

50. The Crown referred to the evidence of Mohamed, Abdul and Kawsar that none of them was aware of the drugs in the unit, and submitted that if that evidence were to be accepted then it follows that for whatever period of time it had remained on the shelf, the Adidas box had been effectively hidden from them. Reference was made to Delon.

51. The Crown submitted that while the wardrobe may have been open and the Adidas box visible to police when they entered bedroom 1, that did not mean that the drugs had not been effectively hidden by the applicant, as the drugs themselves were not on display but were enclosed within the Adidas box and had not been discovered until during the search by police.

52. The Crown submitted that the issue was essentially one of fact for the jury to decide.

Consideration

53. In R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89, Giles JA said of the concept of possession at [9]:

Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody (He Kaw Teh v The Queen (1985) 157 CLR 523 at 537-9, 546, 585-7, 599-600). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared (R v Dib (1991) 52 A Crim R 64 at 66-7). It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons - that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in R v Filippetti (1984) 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred; see also R v Bazeley (CCA, 23 March 1989, unreported) and R v Sobolewski (CCA, 21 April 1998, unreported).

54. The present case was not a Dib or Filippetti situation. Here the inference open to the jury was that at some point relatively proximate to the discovery by the police of the Adidas box on the top shelf of the wardrobe, the applicant had exercised control over the box and its contents, including the freezer bag containing the drugs, because he touched it and held it. The fingerprint evidence in this case was powerful and cogent evidence that the applicant had exercised control over the contents of the items which he had touched: Chahine v R [2006] NSWCCA 179 at [96]; Halmi v R [2008] NSWCCA 259 at [81]. This case was a Delon-type of situation. The case put to the jury by the Crown was that the drugs were hidden effectively so that the applicant could exercise physical custody of the drugs whenever he wished to do so, and others were unlikely to discover the drugs except by accident: see [37(9)] above.

55. In light of the directions given, the jury’s verdict involves a finding that the applicant intended to exercise control over the drugs to the exclusion of all others except some person who might have been acting jointly with him in possessing the drug. His frequent access to the unit, including for nine hours on 13–14 October 2016, the evidence of the strata property manager that the bedroom doors were not locked, the concealed location of the drugs in the Adidas box on the top shelf of the wardrobe, the applicant’s fingerprints on the Adidas box, the scales, the freezer bag and the plastic box and the evidence of the two occupants and their guest denying knowledge of the presence of the Adidas box containing the drugs, provide a clear basis for this finding.

56. Counsel for the applicant submitted that there were inadequacies in the evidence of Mohamed and Abdul denying that that they had seen the Adidas box on the top shelf of the wardrobe, given Mohamed’s evidence that a blue Adidas box was used to store cannabis in the lounge room, Abdul’s evidence of an empty blue Adidas box on the balcony, and the photo taken from the video recording showing the Adidas box visible on the top shelf of the wardrobe when the police searched the unit. But it was open to the jury to find that the blue Adidas box referred to by Mohamed and Abdul was different to the Adidas box found on the top shelf of the wardrobe in bedroom 1.

57. As to the applicant’s explanation of his fingerprints on the Adidas box, in his evidence-in-chief the applicant said:

Q:   What did you do whilst you were there?

A:   We ate, played FIFA, smoked dope.

Q:   You did that night, did you?

A:   Yeah.

Q:   Where did you get the dope from?

A:   I didn’t get it myself, it was already in the house.

Q:   Okay, was there a place in the house where it was?

A:   Yeah, it’s usually in the blue Adidas box.

Q:   A blue Adidas?

A:   Yeah, in the blue Adidas box usually.

Q:   Where was that located?

A:   In the living room, the dinner table.

Q:   You say usually, any other occasion besides 13 October?

A:   Yeah, it would be there most of the time usually. I do not recall exactly on the days, but it’s there most of the time.

Q:   Did you ever handle that box?

A:   Yes, I did.

Q:   Did you take that box to that unit?

A:   No.

Q:   Do you wear Adidas footwear?

A:   No.

Q:   Have you seen more than one Adidas shoebox there at that unit?

A:   No.

(Emphasis added.)

58. Later, when the applicant was asked about the iPhone box found in the Adidas box, the applicant gave the following evidence-in-chief:

Q:   There was an iPhone box, you’ve seen a photograph of that?

A:   Yes, in the photograph, yep.

Q:   Had you seen that box before?

A:   Yes, I have.

Q:   Where had you seen that?

A:   I’ve seen in the Adidas box. (Emphasis added.)

59. Plainly, the jury rejected the applicant’s evidence seeking to explain his fingerprints on the Adidas box and its contents. That involved a rejection of his evidence that he had only handled the box which was used to contain cannabis in the lounge room, and that the freezer bags which he had handled only contained cannabis.

60. As to the concealment of the drugs on the top shelf of the wardrobe, it was open to the jury to find that the drugs found by police had been effectively hidden from the three occupants of the unit. The evidence of each of Mohamed, Abdul and Kawsar that they had no knowledge of the Adidas box containing the drugs was not implausible. The evidence of Mohamed that he rarely used the wardrobe in his room was credible, given his evidence that he did not use the top part of the wardrobe and his clothes were always in a bag or in the closet at the bottom: see [18] above.

61. As to the applicant’s access to bedroom 1, it was open to the jury to accept the evidence of the strata property manager that the bedroom doors of the unit did not have locks and to reject the applicant’s contrary evidence. The evidence of the strata manager was credible, given that he had personally visited the unit, notwithstanding that he could not recall the date of his last inspection.

62. As to the hypothesis that possession may have laid with the occupants of the unit or their guest, it was open to the jury to reject the applicant’s suggestion in closing address that the occupants had panicked when the police knocked on the door, and had gathered everything up and put it in a box on the shelf of the wardrobe before the police came in. This scenario was speculative.

63. First, Mohamed and Abdul each gave evidence describing an Adidas box that had once stored Mohamed’s shoes which, according to Mohamed was subsequently used to store cannabis in the loungeroom and according to Abdul was empty on the balcony. Second, at the relevant time, Mohamed’s shoe size was US size 8 and Abdul’s shoe size was US size 9, whereas the Adidas box found by police was for US size 10 shoes. Third, only the applicant’s fingerprints and one unmatched fingerprint were found on the Adidas box and its contents.

64. As to the evidence that Kawsar possessed an ice pipe, it was open to the jury to reject the applicant’s submission that possession of the drugs may have laid with her. Her denial of knowledge of the drugs found by the police was not implausible given that the drugs were found in a different bedroom to where she was staying. And, her evidence in this regard was consistent with Mohamed and Abdul’s evidence, which supported her credibility.

65. Having made my own independent assessment of the nature and quality of the evidence, I am satisfied that it was open to the jury on the evidence to find beyond reasonable doubt that the applicant was in possession of the drugs contained in the Adidas box on the top shelf of the wardrobe in bedroom 1 of the unit.

Ground 3 – Miscarriage of justice

66. The applicant’s complaint in ground 3 that there was a miscarriage of justice relates to three aspects of the trial: first, the manner of cross-examination of the applicant; second, that the Crown split its case in relation to whether the bedroom doors had locks; and third, the inferences the Crown sought to draw in the closing address.

67. As the applicant’s trial counsel did not object to the cross-examination, the Crown reopening its case or the Crown’s closing address, leave to argue ground 3 is required by Rule 4 of the Criminal Appeal Rules (NSW) which provides:

4.   No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground of appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

68. The absence of any complaint at trial ordinarily provides a reasonable basis for concluding that there was nothing unfair or misleading about the relevant direction or admission of evidence: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [90]; AP v R [2013] NSWCCA 189 at [29]. There is also another consideration. As Simpson JA observed in Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188 at [16] (Hoeben CJ at CL and Price J agreeing):

The fact that no objection was taken at trial does, however, give rise to a further consideration beyond the requirements of r 4. This was referred to by Yeldham J in R v Tripodina [1998] 35 A Crim R 183 at 191 where his Honour said:

“ … as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done.”

69. For the reasons that follow, I am not persuaded that a different conclusion should be reached in this case.

Manner of cross-examination

70. The applicant complained that certain propositions that the Crown affirmatively put to the applicant in cross-examination were not the subject of evidence or were speculative, namely: the applicant hid the Adidas box in the units, that the Adidas box was the applicant’s, the iPhone found in the Adidas box was the applicant’s, and the applicant had put the drugs in the wardrobe in Mohamed’s bedroom.

71. The Crown’s response was that the matters the subject of complaint were inferences arising or capable of arising from the evidence at trial based upon the applicant’s fingerprints on the Adidas box and some of its contents, his presence at the unit on 13 October 2016, and his relationship with Mohamed and Abdul. I agree. It was open to the jury to find, accepting the evidence of Mohamed, Abdul and Kawsar, that the Adidas box was effectively hidden from them. Given the fingerprint evidence connecting the applicant to those items and his frequent presence at the unit including on 13 October and into the following morning, the cross-examination of the applicant was not unfair or misleading, a conclusion supported by the absence of any complaint at trial.

Whether the Crown unfairly split its case

72. The issue of locks on the bedroom doors first arose during the applicant’s no-case submission when the trial judge asked a question concerning the applicant’s access to bedroom 1, to which the Crown responded that there was no evidence to the effect that the bedroom doors were locked. Trial counsel for the applicant did not suggest that the position was otherwise.

73. After the no case submission was dismissed and the applicant elected to give evidence, the applicant volunteered in cross-examination that Abdul’s bedroom was always locked and that Mohamed’s bedroom was locked most of the time. He denied that he could access the two bedrooms if he so wanted.

74. As recounted above, the Crown raised a complaint about the failure of the applicant’s counsel to cross-examine any of the occupants of the unit that there were locks on the bedroom doors. The applicant’s trial counsel responded that the matter had not been raised by the defence in cross-examination because the applicant “didn’t tell me about it obviously. He’s just said, ‘I didn’t know that it was important’.”

75. After some discussion between counsel and the trial judge, the Crown indicated that it proposed to call the strata property manager to give evidence to the effect that there were no locks on the bedrooms. The applicant’s trial counsel did not oppose that course, and said:

I don’t oppose it, your Honour. I think the outcome might be more favourable to the defence. That’s why.

76. Contrary to the applicant’s submissions in this Court, the response by his trial counsel ought not be viewed as an oversight; rather, it is apparent that it was a considered forensic decision.

77. The applicable principle is stated by Gibbs CJ and Wilson J in R v Chin (1985) 157 CLR 671 at 676-677; [1985] HCA 35:

The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. The Queen [6]; Killick v. The Queen [7] and Lawrence v. The Queen [8]. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v. Levy and Tait [9] ) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief.

78. Dawson J’s judgment was to similar effect at 684-685, and stated that the relevant principle is essentially one of fairness.

79. In this case, it was not reasonably foreseeable that the Crown would need to prove the absence of locks on the bedroom doors; that issue had not been raised by the applicant’s trial counsel with the occupants of the unit, and indeed, trial counsel acknowledged that the issue had not been foreshadowed to him by the applicant prior to him giving evidence. There was no unfairness in the trial judge permitting the Crown to adduce evidence to rebut the applicant’s evidence on this issue, and the applicant should be held to the forensic decision made by his trial counsel not to object to the evidence from the strata property manager.

Closing address

80. The applicant complained about four matters referred to in the Crown’s closing address:

1. a submission that the jury would infer from the fact that the applicant was like family with Mohamed and Abdul that he had access to every room, and accepting Mr Tannous’ evidence, the bedroom doors did not have locks;

2. a submission that the drugs were secreted in the bedroom wardrobe;

3. a submission that the applicant had hidden the drugs such that he could take the drugs into his physical custody or control when he wished;

4. a submission that the defence counsel had not cross-examined any of the occupants of the unit or the police witnesses about whether there were locks on the bedroom doors.

81. The Crown submitted that the first three matters are matters of inference which the Crown was entitled to invite the jury to draw. I agree. There was no unfairness in any of those submissions by the Crown and no objection to these aspects of the Crown’s address was taken at trial by the applicant’s trial counsel.

82. The fourth matter involved the suggestion by the Crown of recent invention by the applicant in his evidence by reason of the failure by his trial counsel to cross-examine the occupants of the unit on the issue of locks on the bedroom doors. The trial judge identified this error by the Crown immediately at the conclusion of the Crown address, and the Crown acknowledged the error.

83. The matter was dealt with, by agreement with applicant’s trial counsel, by a further statement by the Crown to the jury that they should disregard what the Crown had said in closing address about drawing an inference adverse to the accused about the fact that none of the police witnesses or the occupants of the unit were asked about the locked door. The Crown’s statement emphasised that the accused had the right to silence and he did not need to prove or disprove anything and that it was for the Crown to prove the alleged offence beyond reasonable doubt.

84. The trial judge also instructed the jury as follows:

HER HONOUR: Thank you Madam Crown. So ladies and gentlemen just be clear, the law is that when a piece of information emerges for the first time in the defence case you can’t use that adversely against the accused. You can’t infer or conclude that that is a recent invention because the law is that a person has a right to silence. Mr Marr was there anything in that regard?

MARR: No, thank you your Honour.

85. The absence of any complaint by the applicant’s trial counsel about the Crown’s statement withdrawing the submission and the direction given by the trial judge provides a reasonable basis for concluding that there was nothing unfair or misleading about the manner and terms of the correction of the Crown’s error in closing submissions.

86. In my view, none of the matters complained of give rise to a miscarriage of justice. Leave under r 4 should be refused.

Conclusion

87. I propose the following orders:

1. Grant leave to appeal on ground 2.

2. Refuse leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) on ground 3.

3. Appeal against conviction dismissed.

88. JOHNSON J: I agree with the reasons of Gleeson JA and his Honour’s proposed orders. With respect to Ground 2, having made my own independent assessment of the evidence, I am well satisfied that it was open to the jury to find the applicant guilty of supplying a prohibited drug.

89. CAVANAGH J: I agree with Gleeson JA.

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Decision last updated: 22 November 2019