Papaluca v The Queen
[2001] WASCA 193
•27 JUNE 2001
PAPALUCA -v- THE QUEEN [2001] WASCA 193
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 193 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:30/2001 | 14 JUNE 2001 | |
| Coram: | WALLWORK J STEYTLER J MILLER J | 27/06/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | LISA DANIELLE PAPALUCA THE QUEEN |
Catchwords: | Criminal law Drug offence Possession Need for actual physical custody or alternatively de facto custody Need to exercise control and dominion over article Necessity for knowledge of existence of drug Whether verdict of conviction of the appellant unreasonable |
Legislation: | Criminal Code, s 689(1) Misuse of Drugs Act 1981, s 3, s 6(1)(a) |
Case References: | Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Draper v The Queen [2000] WASCA 160 Lai v The Queen (1989) 42 A Crim R 460 R v Cumming (1995) 86 A Crim R 156 R v Filippetti (1984) 13 A Crim R 335 R v Lai (1989) 42 A Crim R 460 Shepherd v The Queen (1990) 170 CLR 573 Solway v The Queen [1984] 2 Qd R 75 Wilby v Gilder [1942] VLR 28 Davis v The Queen (1991) 5 WAR 269 Edwards v The Queen (1993) 178 CLR 193 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Mullally v The Queen, unreported; SCt of WA; Library No 940566; 13 October 1994 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PAPALUCA -v- THE QUEEN [2001] WASCA 193 CORAM : WALLWORK J
- STEYTLER J
MILLER J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Drug offence - Possession - Need for actual physical custody or alternatively de facto custody - Need to exercise control and dominion over article - Necessity for knowledge of existence of drug - Whether verdict of conviction of the appellant unreasonable
Legislation:
Criminal Code, s 689(1)
Misuse of Drugs Act 1981, s 3, s 6(1)(a)
(Page 2)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr I Weldon
Respondent : Mr D Dempster
Solicitors:
Appellant : Gary Massey & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Draper v The Queen [2000] WASCA 160
Lai v The Queen (1989) 42 A Crim R 460
R v Cumming (1995) 86 A Crim R 156
R v Filippetti (1984) 13 A Crim R 335
R v Lai (1989) 42 A Crim R 460
Shepherd v The Queen (1990) 170 CLR 573
Solway v The Queen [1984] 2 Qd R 75
Wilby v Gilder [1942] VLR 28
Case(s) also cited:
Davis v The Queen (1991) 5 WAR 269
Edwards v The Queen (1993) 178 CLR 193
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Mullally v The Queen, unreported; SCt of WA; Library No 940566; 13 October 1994
(Page 3)
1 WALLWORK J: The facts are comprehensively set out in the draft reasons for judgment of Steytler and Miller JJ. I will not repeat them, except as is necessary for these reasons.
2 It can be assumed for the purposes of only these reasons, that the appellant knew that the scales and the Glucodin were in the pantry. The question then becomes whether the jury could have been satisfied beyond reasonable doubt that the appellant had control or dominion over, or the order or disposition of, the relevant drug.
3 The learned trial Judge said to the jury:
"The Crown says that the only reasonable inference in each case is that the accused knew the drug was in the pantry; each accused had control of the pantry. It is logical to assume that each accused had control over all the contents, including the drug. What the Crown says is that the only reasonable inference in each case is that each of them was in possession and they each had ready and easy access to the pantry." (my emphasis)
4 The learned trial Judge also put the defence position, which included:
"… or even if she knew it was there you can't be satisfied that she had control or dominion over it. She works away from home. She is not home during the day. She works away from home during each day. There are those items I have referred to that cannot be used against her and this is in, as I have said, a cleverly concealed container. It's not as though it's in a container that she has claimed as hers. It's not as though it's in a container that is transparent. So they would say you can't possibly draw an inference that she is in possession."
5 In their reasons, Steytler and Miller JJ say:
"In Chamberlain v R, Gibbs CJ and Mason J (at 534) made it clear that the proper test to be applied in determining whether the verdict of a jury should be set aside on the ground that it is unreasonable and cannot be supported in regard to the evidence is 'to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, ie must have entertained a reasonable doubt as to the guilt of the accused'."
(Page 4)
6 In Chamberlain v The Queen (No 2) (1984) 153 CLR 521, at 536,Gibbs CJ and Mason J also said:
"When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; … and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v Vines (49); and Barca v The Queen (50)."
7 I agree that the law is as stated by Steytler and Miller JJ.
8 Steytler and Miller JJ also refer to a comment of Owen J in Lai v The Queen (1989) 42 A Crim R 460, where his Honour pointed out that there are two elements within the concept of possession as it applies in this area:
"First, the accused must know of the existence of the drugs. Secondly, the accused must have control over the substance."
9 If the comments of Gibbs CJ and Mason J in Chamberlain v The Queen that "in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence" are applied in this case, in my view it cannot be said that the evidence in this case excluded the reasonable hypothesis that it was Mr Papaluca who had the effective control over the drug. There was no evidence which excluded that reasonable hypothesis which is consistent with the innocence of Mrs Papaluca. Such an inference could be strengthened by the evidence that the appellant worked away from home and was not home during the day. In any event, in my view it cannot be said that a wife or partner has control over anything which the male partner might place in a pantry whilst he is engaged in criminal activity.
10 There is just no evidence connecting the appellant with criminal activity. It cannot be assumed that a wife or partner is in a position to order a male offender to remove a drug or other illegal article from a particular place in the house, for example a wardrobe in their bedroom. Further, there is no legal duty on a woman to make such a demand - cf R v Filippetti (1984) 13 A Crim R 335; Wilby v Gilder [1942] VLR 28.
11 I cannot agree that it was open to the jury in this case to be satisfied beyond a reasonable doubt that the appellant had possession of the methylamphetamine which was found in the soup can in the pantry.
(Page 5)
12 I would allow the appeal.
13 STEYTLER & MILLER JJ: The appellant was charged with her husband, Vincenzo Papaluca, that on 9 September 1998 at Padbury they and each of them had in their possession a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another, contrary to the provisions of s 6(1)(a) of the Misuse of Drugs Act 1981. They were tried before a Judge and jury in the District Court at Perth between 5 and 9 February 2001 and at the conclusion of the trial Vincenzo Papaluca was found guilty as charged and the appellant guilty of the lesser offence of being in possession of the prohibited drug methylamphetamine. The penalty imposed upon the appellant was a fine of $5000.
14 The appellant appeals against her conviction on the ground that the verdict of the jury cannot be supported by the evidence. Particulars of that ground are set out in the grounds of appeal as follows:
"(a) The Crown case against the appellant was entirely circumstantial and consisted only of evidence that the prohibited drug which was the subject of the indictment was found concealed in a house in which the appellant lived with and as the wife of her co-accused.
(b) No admissions were made by the appellant of the knowledge of, still less the possession of, either the prohibited drug or of any item which could be demonstrated to be connected with the prohibited drug or reasonably regarded as indicia of the presence of or the dealing in a prohibited drug.
(c) The circumstantial case against the appellant was not one in which discrete items of circumstantial evidence could be collated so as in combination to produce to the required standard proof of the guilt of the appellant but rather was one in which the Crown relied upon only one circumstance, that being the presence of the prohibited drug in the house where the appellant lived.
(d) The evidence was incapable of disproving a hypothesis consistent with innocence."
15 In her notice of appeal the appellant advanced two other grounds. They were:
(Page 6)
- "(a) The Learned Trial Judge erred in law and in fact in refusing the application made on behalf of the appellant at the conclusion of the Crown case that there was no case to answer.
(b) The Learned Trial Judge erred in fact and in law in refusing the appellant's application that the case against her ought not to be left to the jury."
16 At the hearing of the appeal the respondent submitted that neither of these additional grounds were valid grounds of appeal against conviction, relying upon the decision in Draper v The Queen [2000] WASCA 160. Faced with this contention, counsel for the appellant said that he was content to rest his case solely upon the first ground of appeal. It is consequently unnecessary further to consider the remaining grounds of appeal.
17 The question to be determined in this appeal is therefore solely whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence: Criminal Code, s 689(1).
18 The prosecution case against the appellant and her husband was a circumstantial one. Police officers executed a search warrant at the home of the appellant and her husband at 34 Black Wattle Parade, Padbury on 9 September 1998. A search of the house began at around 10 am and did not conclude until some time after 3 pm. Parts of the search were recorded on video.
19 On a number of occasions the kitchen in the house was searched. The first search revealed in the kitchen pantry a set of electronic scales and a ceramic bowl in which there was a packet of Glucodin. That packet was open. Later, some plastic bags of the type used to package drugs were found. There was evidence that during the search of the kitchen, Mr Papaluca appeared much more nervous than on occasions when other parts of the house were being searched. Indeed, at one point during the search, Mr Papaluca stepped into the pantry and moved some items on a pantry shelf. This caused the investigating officers to pay greater attention to the contents of the pantry and in particular to pick up one of the tins on the pantry shelf. This was a tin of soup and it appeared to the officer who picked it up to be somewhat lighter than a normal soup tin. It was a Campbell's chicken noodle soup tin and when closely examined it was found that the bottom of the can could be unscrewed. The tin was
(Page 7)
- hollow inside and within it were two plastic bags of white powder. They were later analysed and found to contain methylamphetamine. Analysis of the scales and ceramic bowl also revealed traces of methylamphetamine in each case.
20 The appellant returned home some time after 5 pm on the day in question. She was asked to accompany police to the police station where a video record of interview was conducted. She was shown various items found by police during the search of the pantry and she was asked questions in relation to the pantry. When told that there were traces of white powder in the bowl in the pantry which contained a box of Glucodin, the appellant stated that she was unable to say anything about it. When asked about the set of electronic scales found in the pantry, she said she had never seen them before. When asked about plastic bags found in the pantry, she replied that they were used by her to take vitamin tablets to work. The following extract from the transcript of the record of interview reveals the appellant's answers to questions in relation to the soup tin:
"Q. … Also found on the pantry shelf, the second one from the floor, was this tin. Have you seen it before?
A. No. No, I haven't.
Q. Can you tell me what's … what's on the side of it?
A. 'Chicken noodle soup.'
Q. 'Chicken noodle soup.' This was found in amongst other food items ---
A. Mm.
Q. … um, in your pantry cupboard. Vince, your husband, inferred that … that you do the shopping?
A. Yes, I do.
Q. All right. And you buy the shopping and you place it in the pantry, in the different shelves in the pantry?
A. Yes.
Q. That's where this item was located.
(Page 8)
- A. Right.
Q. Have you seen this item ---
A. No, I haven't.
Q. --- in your pantry cupboard?
A. No, I haven't.
Q. You've never seen it?
A. No, I haven't.
Q. When was the last time you would have been to the pantry cupboard?
A. Yesterday.
Q. Yesterday?
A. Yep.
Q. Did you see this item in there?
A. No. I've got lots of tins in there, so unless I'm specifically looking for something I don't go ---
Q. Mm. Do you purchase soup very often?
A. Um, yep. I do.
Q. What type of soup do you normally purchase?
A. Well, whatever; tomato soup.
Q. Mm. Chicken noodle soup?
A. No. I don't like chicken noodle soup."
21 The appellant elected not to testify at her trial, but her husband did testify. In the course of his evidence he said that both his wife and he did the shopping. He was asked about the contents of the pantry and the following exchange took place.
"There was some cans? --- Yes.
(Page 9)
- We can see some cans of baked beans, I think it's baked beans, in the pantry? --- Yes.
Were there any other cans that you recall being in the pantry that day? --- We've always, always, got a tendency to have canned olives, canned tuna, tinned fruit, baked beans and three-bean mix and ---
Were they there that day? --- Possibly. I - they're there all times at home, so I can't understand why they weren't there that day.
Did you eat chicken noodle soup, Campbell's? --- No, never.
Never ate that soup? --- Never.
You know the reason I'm asking that? --- Yeah.
You never ate chicken noodle soup? --- Never.
Did your wife ever eat chicken noodle soup? --- We don't eat tinned soup, full stop. We don't eat it.
As I understand it, and correct me if I'm wrong, you and your wife at that time were health conscious? --- I - not my wife, me.
You were health conscious so tinned soup was not considered a good thing for you to eat? --- I wouldn't say that. I just - I have never - not being - I'm Italian. I've never ate tinned soup in my life. I'm not going to get married, leave home and start eating tinned soup.
I wouldn't know, but as it turns out you don't eat tinned soup. Is that right? --- Yes.
Did your wife, in the time that you have known her, had - did she eat tinned soup? --- Exactly the same thing. She is of the European nature as well. We've never eaten tinned soup.
I take it you've never bought tinned soup? --- No.
Have you ever seen your wife bring home tinned soup? --- We've never eaten tinned soup.
Okay, so the simple answer is neither you nor your wife have anything to do with tinned soup? --- That's correct."
(Page 10)
22 The Crown case against the appellant in relation to possession of the prohibited drug thus relied upon the fact that in the pantry of the kitchen which she shared with her husband there was a "fake soup can" within which there was concealed methylamphetamine. The Crown relied upon the fact that the appellant admitted that she had access to the kitchen pantry; used it on a daily basis; did the shopping; often purchased soup; did not like chicken noodle soup; and yet allegedly had not seen the fake soup can in the pantry before it was found by the police. The Crown also relied upon the fact that the appellant denied knowledge of the Glucodin or electronic scales in the pantry in relation to which traces of amphetamine had been found in each instance. Reliance was placed upon the evidence of Mr Papaluca to the effect that neither he nor the appellant had anything to do with tinned soup, and yet the appellant in her video recorded interview stated that she did often purchase tins of soup but never chicken noodle soup.
23 The learned trial Judge's directions to the jury were proper in every respect. No complaint was made about any of them during the course of this appeal. Her Honour defined for the jury what possession was in the provisions of the Misuse of Drugs Act, pointing out that possession included "to control or have the dominion over; to have the order or disposition of". In point of fact, the definition in s 3 of the Misuse of Drugs Act is a definition of "to possess" which is in the following terms:
" '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;"
- When dealing with the prosecution case against the appellant her Honour said:
"In this case it's necessary for the prosecution to prove that the accused - and when I say 'the accused', I'm talking about each accused - had physical custody of the drug or the means of exercising control over the drug to the exclusion of persons other than any who were acting jointly with him or her, together with the intention of exercising such dominion or control.
He or she has to know it's there, so he or she has got to - well, what that means, 'with the intention of exercising dominion or control', he has got to know it's there. So what the prosecution have to prove is that the accused had physical custody of the drug or the means of exercising dominion or control over the drug to the exclusion of persons other than any who were acting
(Page 11)
- jointly with him or her, together with the intention of exercising such dominion or control.
The mere fact that the drug is in the pantry, particularly when each shares the unit with the other, doesn't necessarily connote possession. When I say that, it's not a matter of law. There's no law that says if it's in your pantry it's yours. The crown doesn't say that to you; that the law is if it's in your pantry it's yours. The crown says that is an evidentiary matter when you're trying to work out this control with intention.
So the mere fact that it's in your pantry doesn't necessarily connote possession. Nevertheless, it's a factor to be considered when you're deciding if in fact the person possessed it. Possession is wide enough to include any case where the person alleged to be in possession has hidden the thing effectively, so that he or she can take it into his or her physical custody when he or she wishes and where others are unlikely to find it except by accident. That scenario obviously includes knowledge of the existence of the drug.
In short, possession is often said to be control with knowledge. So that's control with knowledge. The crown says that the only reasonable inference in each case is that the accused knew the drug was in the pantry, each accused had control of the pantry. It is logical to assume that each accused had control over all of the contents, including the drugs. What the crown says is the only reasonable inference in each case is that each of them was in possession and they each had ready and easy access to the pantry."
24 When dealing specifically with the appellant her Honour gave these directions:
"Now, turning to Mrs Papaluca, you have Mrs Papaluca's video and no doubt you will be able to watch that again and you will observe that she said there she doesn't know anything about the drugs or the soup tin, the bowl, the scales or the money. The money was in his wallet. She has never seen these items before. There are lots of tins in the cupboard, so unless she was specifically looking for it she wouldn't notice and two police officers searched the pantry and didn't find it.
(Page 12)
- It's cleverly concealed. She doesn't use Glucodin and she didn't see it there. What is being put to you is there is insufficient evidence or no evidence by which you could infer she knew it was there. If she didn't know it was there she can't be said to have control or dominion over it or even if she knew it was there you can't be satisfied that she had control or dominion over it. She works away from home. She's not home during the day. She works away from home during each day. There are those items I have referred to that cannot be used against her and this is in, as I have said, a cleverly concealed container. It's not as though it's in a container that she has claimed is hers. It's not as though it's in a container that is transparent. So they would say you couldn't possibly draw an inference that she is in possession."
25 It is not in dispute that the learned trial Judge gave a very clear and correct direction on circumstantial evidence pointing out the essential need for the jury to be satisfied beyond reasonable doubt that before drawing an inference of guilt against the appellant it must be the only reasonable inference open and must exclude any reasonable hypothesis consistent with innocence. To this extent her Honour's directions were entirely consistent with what was said in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 and Shepherd v The Queen (1990) 170 CLR 573. In Chamberlain v The Queen, Gibbs CJ and Mason J (at 534) made it clear that the proper test to be applied in determining whether the verdict of a jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence is "to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, ie, must have entertained a reasonable doubt as to the guilt of the accused." Their Honour's added (at 536) the following observations in relation to cases in which the evidence is circumstantial:
"When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v Vines [(1952) 85 CLR 352 at 358); and Barca v The Queen [(1975) 133 CLR 82 at 104]."
(Page 13)
- No complaint is made in this case that the jury were directed otherwise than in accordance with these principles. The question therefore is whether it can be said in this case that the jury must have entertained a sufficient doubt to have entitled the appellant to an acquittal in that the circumstances were such that they could not exclude a reasonable hypothesis consistent with innocence. That hypothesis was contended to be that the appellant could well have had absolutely no knowledge of the existence of the fake can of soup within the pantry in her house.
26 It is important to appreciate that the Crown had to prove both that the appellant had possession of the drug contained within the fake soup can and that she had an intent to sell or supply it. Clearly the jury was not satisfied beyond reasonable doubt in relation to the latter. So far as possession was concerned, that is a question of fact: Solway v The Queen [1984] 2 Qd R 75. The term "to possess" as defined in s 3 of the Misuse of Drugs Act was said in R v Cumming (1995) 86 A Crim R 156 by Owen J (at 162) to be "an imperfect definition". His Honour referred to R v Lai (1989) 42 A Crim R 460 where (at 463) Nicholson and Wallace JJ pointed out that it is now well settled that possession for the purposes of the Act requires "either actual physical custody or alternatively, de facto custody in the sense that the accused person may be said to exercise control and dominion over the article in question". As Owen J pointed out, there are two elements within the concept of possession as it applies in this area: "First, the accused must know of the existence of the drug. Secondly, the accused must have control over the substance."
27 The facts of R v Cumming were not dissimilar to those in this appeal. The appellant and her partner lived at a house in Armadale and they were the only occupants of the house. On an early morning police executed a search warrant at the house and during the course of the search examined a refrigerator in the kitchen in which were found two plastic containers, one of which was a clear container. Both contained a small amount of white powder. Upon analysis this was found to be methylamphetamine. Other items commonly associated with the preparation of drugs for sale and distribution were found in the house. They included scales, clip-seal bags, Glad bags and Glucodin. Upon completion of the search one of the detectives had a conversation with the appellant during the course of which she denied that she had any knowledge of the containers in the refrigerator or their contents. She conceded she may have seen one of the containers but did not know what was inside it. She admitted owning one of the containers and admitted that she did the shopping and cooking for the household. In the course of
(Page 14)
- dismissing the appeal against conviction Pidgeon J (at 157) made these observations on the facts:
"… capacity to exercise control by the drug being in the refrigerator is not by itself enough. It must be shown that she actually intended to exercise control over it. In my view, the jury could come to no other conclusion than a present capacity on the part of the appellant to exercise such control. The drug was in a refrigerator in the kitchen where she did the cooking. She was one of two householders that had access to that refrigerator. In her interview with the investigating detectives, she said that she did the shopping for the house and she did the cooking most of the time. It would be obvious that she had control over what was in the refrigerator."
"There was undisputed evidence before the court that more than 700 g of methylamphetamine were found in the appellant's refrigerator. There was evidence that the appellant did the cooking and had easy and ready access to the refrigerator. There was evidence that the drug was kept in clear containers owned by her and to which she had access. Police also found other objects commonly associated with the sale and distribution of drugs. All of this was evidence from which the jury could draw the necessary inferences that she had knowledge of the drug and that she was in possession of the drug. In my view, on all of the evidence it was open to the jury to be satisfied beyond reasonable doubt of each of the elements of the offence under s 6(1)(a) of the Act."
29 In the present case we consider that it was open to the jury to be satisfied beyond reasonable doubt that the appellant had possession of the methylamphetamine found in the fake soup can in the pantry. It was, in our view, open to the jury to conclude that the circumstances excluded any reasonable hypothesis consistent with innocence. That was because the methylamphetamine was found within the soup can which was clearly visible on a shelf within the kitchen pantry of the house in which the appellant lived. The appellant had access to the pantry and used it on a daily basis. She did the shopping. She said that she placed the shopping on the pantry shelves. It was consequently open to the jury to conclude that, if her husband had placed the can there, he must have known that it would be likely to come to her attention, particularly if it ostensibly
(Page 15)
- contained a soup that she would not herself have purchased, making it unlikely that he would have done so if she was not complicit in the possession of its contents. Furthermore, there was in the pantry Glucodin within a set of bowls and a set of sophisticated electronic scales. Traces of methylamphetamine were found on both. These items were clearly associated with the use of drugs. If anything further is required, reference might also be made to Mr Papaluca's testimony that neither he nor the appellant had anything to do with tinned soup. This testimony was in direct contradiction of what the appellant had said in the course of her video record of interview about often purchasing soup although not chicken noodle soup.
30 For these reasons we are of the view that it cannot be said that the verdict of the jury was unreasonable or could not be supported having regard to the evidence. We would therefore dismiss the appellant's appeal.
2
11
2