R v Baftiroski - [2018] SASCFC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BAFTIROSKI
[2018] SASCFC 83
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
21 August 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - WHAT CONSTITUTES
Appeal against conviction. The appellant was convicted of one count of trafficking in a controlled drug following a trial by jury. The police found a quantity of a substance containing methylamphetamine in the house in which the appellant was living. The only other person living in the house was the appellant’s fiancée.
The only real issue before the jury was whether or not the prosecution had proved beyond reasonable doubt that the appellant was in possession of the methylamphetamine at the time of the police search of the house.
The prosecution relied upon a number of items of circumstantial evidence, including a tick list that was found at the same premises. The prosecution adduced evidence from a handwriting expert in support of the contention that the appellant was the author of the tick list.
The two grounds of appeal relied on by the appellant complain about the directions given to the jury by the Judge. The appellant contends that there has been a miscarriage of justice as a result of the Judge failing to adequately direct the jury as to the handwriting evidence and as to the element of possession, in particular on the topic of acquiescence.
Held per Nicholson J (Kourakis CJ and Parker J agreeing), dismissing the appeal:
1.       There has been no miscarriage of justice resulting from the manner by which the Judge dealt with the handwriting evidence or the Judge’s directions on the element of possession.
2.       The Judge made plain in his summary of the handwriting evidence the limitations on the reliability of the expert’s opinion and adequately focused his directions with respect to the facts before the jury.
3.       The directions as to the element of possession, including as to the insufficiency of mere knowledge, were adequate to bring home to the jury a proper understanding of possession at law sufficient to the facts of this case.
Controlled Substances Act 1984 (SA) s 4, s 32; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) r 6; Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) s 30, referred to.
R v GNN (2000) 78 SASR 293; R v Wood [2017] SASCFC 100; Shepherd v The Queen (1990) 170 CLR 573, considered.

R v BAFTIROSKI
[2018] SASCFC 83
Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ
KOURAKIS CJ.

I agree with the reasons of Nicholson J. I would dismiss the appeal.
NICHOLSON J.
Introduction
On 28 June 2017, the appellant,[1] was convicted following a trial by jury of the offence of trafficking in a controlled drug.[2] The police had found 58.7 grams of substance of which 36.9 grams was methylamphetamine (a controlled drug) in the laundry of the house in which the appellant was living. The only other person living in the house was the appellant’s fiancée.
[1] The appeal is of a nature that requires permission and a Judge of this Court had previously granted permission to appeal.
[2] Contrary to section 32(3) of the Controlled Substances Act 1984 (SA).
The notion of trafficking in a controlled drug is broadly defined in section 4 of the Controlled Substances Act 1984 (SA) (“the CSA”) and includes “to have possession of the drug intending to sell it”. It was only this limb of the definition upon which the prosecution relied at trial. Subsection 32(5) of the CSA provides, to the effect, that where possession of a trafficable quantity of a controlled drug is proved, it will be presumed, in the absence of proof to the contrary, that the person in possession intended to sell it. A trafficable quantity of methylamphetamine, by definition,[3] is 2 grams. The appellant did not give evidence, nor was any other evidence that might serve to rebut the presumption adduced.
[3] See section 4 of the Controlled Substances Act 1984 and regulation 6(8) and Part 2 of Schedule 1 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.
As a consequence, the only real issue before the jury was whether or not the prosecution had proved beyond reasonable doubt that the appellant was in possession of the methylamphetamine at the time the police found it. The two grounds with respect to which permission to appeal was granted are directed to this issue.
Important to the prosecution’s circumstantial evidence case on the question of possession was a so-called “tick list” which had been found in the “study” of the appellant’s premises at the time of the search and was tendered at the trial. The prosecution adduced evidence from an experienced drug investigation police officer as to the potential relevance of the tick list. The Judge’s summary of this evidence, about which there is no criticism, was in these terms.
Officer Wall also said sometimes drugs can be given to users with an agreement that they pay for them later. This is known as buying drugs on tick. Buying drugs on tick can sometimes cost the buyer a premium. Looking at P3, the document seized in the office of the accused’s home, the witness said that it had characteristics which are quite common in tick lists; for example, the list of names with numbers to the right and to the left.
You will remember, members of the jury, he explained how they were set out and what they may represent. He said that the left column here can indicate a quantity of drugs and the numbers on the right seem to indicate payment. Cutter is identified as a valued commodity and one of the transactions indicates that the drugs had been paid for by cutter. The witness also noted that it appears as though there has been a reconciliation process at the bottom of the page as to what is owing.
The prosecution also adduced evidence from a handwriting expert in support of the contention that the tick list had been authored by the appellant.
The two grounds of appeal relied on are in these terms.
Ground One
The Learned Trial Judge failed to adequately [sic: direct] the jury as to the handwriting evidence in that:
1.The warning as to the dangers attendant to handwriting analysis evidence was insufficient in the circumstances;
2.The warning as to the jury performing their own analysis as to the handwriting evidence was insufficient and failed to adequately relate the dangers of lay comparison to the particular facts of this case.
Ground Two
The Learned Trial Judge failed to adequately direct the jury on possession, in particular, there was a failure to adequately:
1.[withdrawn]
2.[withdrawn]
3.Direct the jury that the prosecution was required to exclude the possibility that the other occupant of the house at the time of the police search was in possession of the drug;
4.Direct the jury as to the application of the legal requirements of possession to the particular evidence of the case.
During argument, counsel for the appellant advised that the essence of the complaint about the possession directions was that the Judge had failed to adequately direct the jury on the topic of acquiescence. That is, that mere acquiescence in the sense of the appellant being aware of the existence of the drugs and allowing another person to store them in the appellant’s house was insufficient, of itself, to establish possession at law. In addition, it was contended that because directions relating to possession were given on a number of occasions throughout the summing up and in slightly different terms, the overall effect was disjointed and confusing.
Summary of the Crown case
On 5 September 2015, police attended and searched the appellant’s Flinders Park address during the course of which they found the methylamphetamine earlier referred to in a basket under a sink in the laundry. The prosecution relied on the following 11 items of circumstantial evidence which, in combination, were said to establish beyond reasonable doubt that the appellant was in possession of the methylamphetamine.
(i)The quantity of methylamphetamine located was substantial.
(ii)The methylamphetamine was very valuable.
(iii)The methylamphetamine was located in plain sight in the laundry.[4]
(iv)Small plastic tubs of a kind commonly used to package larger quantities of methylamphetamine were located in plain sight in the kitchen pantry.
(v)A further small plastic tub of a kind commonly used to package larger quantities of methylamphetamine was located in plain sight on a draining board in the kitchen.
(vi)Functioning digital scales of the kind commonly used to weigh methylamphetamine for sale was located in plain sight in the kitchen.
(vii)Dimethyl sulfone, a substance commonly added to methylamphetamine to cut, that is, increase the yield of the product was located in a pantry.
(viii)A tick list in relation to which there was qualified support for the proposition that the appellant was the author, was located in the vicinity of documents with the appellant’s name that were also found in the premises. The tick list contained the words “paid in cutter” being, on the prosecution case, referrable to the dimethyl sulfone found in the pantry.
(ix)The appellant lived at the Flinders Park premises.
(x)The appellant was the only male who lived at the Flinders Park premises.
(xi)The only person present when the police attended was the appellant’s fiancé who also lived at the premises.
[4] An inference available from (i), (ii) and (iii) is that it was highly unlikely that a stranger to the house, friend or otherwise, would have stored such a valuable quantity of drugs in plain sight in the appellant’s laundry.
The jury convicted the appellant and there is no complaint that the verdict is unreasonable or cannot be supported having regard to the evidence.[5] Rather, the appellant contends that there has been a miscarriage of justice[6] as a result of the Judge’s failures to adequately direct the jury in the ways earlier identified.
Appeal ground 1 – the handwriting evidence directions
[5] Section 158(1)(a) of the Criminal Procedure Act 1921 (SA).
[6] Section 158(1)(c) of the Criminal Procedure Act 1921 (SA).
The evidence of the handwriting expert
The prosecution adduced evidence from Elizabeth Ockleshaw, a forensic document examiner employed by Forensic Science SA. She provided very detailed evidence concerning the processes employed by an expert in her field when undertaking handwriting analysis and comparison. She outlined various considerations which, potentially, have a limiting effect on the accuracy or otherwise of a particular comparison exercise. These included matters such as attempts to disguise handwriting, but noting that this can be difficult to maintain for an extended period of time; the intoxication of the author; the presence of internal or external influences, such as the manner in which the author’s brain processes information at the time and the writing surface or implement employed; problems attendant on a small letter pool in the questioned sample; and the problem arising where a different style of writing might be used in the questioned sample as compared with the comparison sample. Other potentially relevant factors that need to be allowed for include such matters as whether or not the questioned sample or the comparison sample is prepared whilst the person is in a state of tiredness, stress or anxiety and the physical conditions in place at the time either the questioned or comparison sample is prepared.
Ms Ockleshaw outlined the hierarchy of opinion used by experts in this area to express a level of similarity or dissimilarly between comparison samples. There are five levels of opinion: very strong support for the proposition that the questioned sample was written by the writer of the comparison sample; qualified support for this same proposition; no opinion able to be expressed as to this proposition; qualified support for the proposition that the questioned sample was not written by the writer of the comparison sample; and very strong support for this latter proposition. She told the court that the level of opinion to the effect that there is qualified support for the proposition that the questioned sample was written by the writer of the comparison sample is employed in circumstances where particular limitations associated with the analysis can be identified.
Ms Ockleshaw was provided with the tick list as the questioned sample. The tick list contains a relatively small number of written entries. It contains a number of complete words including: “sister”, “paid” (five entries), “Red”, “Diesel”, “Pixi”, “PAT”, “Miko” (two entries) and “Berry” and the phrases “paid in cutter” and “paid full” (two entries). The tick list also contains a number of initials including “MM”, “BBB”, “A” and “V”. The tick list also contains the numerals 0, 2, 4, 5, 6 and 9, some of which were employed on multiple occasions.
By way of comparison samples, Ms Ockleshaw had available to her more extensive writings authored by the appellant. The appellant had been directed to write a contrived passage of approximately 80 words, first in normal handwriting, second in lower case and third in upper case. The appellant was also directed to write a number of individual words and a series of combinations of numerals (10 numerals in each combination) and each word and combination of numerals had to be written five times.
Ms Ockleshaw told the jury that the primary limitation applicable to her analysis was that the letter pool in the questioned sample was small. Nevertheless, she expressed the opinion that there was qualified support for the proposition that the questioned sample was written by the same person who wrote the comparison sample, that is, the appellant. In support of this opinion, Ms Ockleshaw took the jury to a number of perceived similarities and a worksheet or handwriting comparison chart containing photocopied representations of these perceived similarities was tendered and made available to the jury. The worksheet contained 15 entries recording separate similarities. The 15 entries comprised upper case letters, lower case letters, numerals and the word “cutter”. Ms Ockleshaw also told the jury that she found no dissimilarities in the comparison writings.
The Judge summarised Ms Ockleshaw’s evidence in chief at some length during his summing up. I set out in full that summary in order to demonstrate the level of assistance provided to the jury in this respect.
Then came the second expert witness, Ms Ockleshaw. Elizabeth Ockleshaw is a scientist and forensic document examiner. She works in the chemistry group at the South Australian Forensic Science Centre. She has been working there since 1997 as a forensic document examiner.
She detailed her qualifications. She studied for a Bachelor of Applied Science in 1974. After graduation she worked at the IMVS, after which she left and started training as a document examiner.
You will recall that is on-the-job training and I think both counsel likened it in their questioning of her to an apprenticeship. She said she had been qualified since the year 2000 as a document examiner and has given evidence in the Supreme Court, District Court, Magistrates Court and Family Court in both criminal and civil cases. She is a member of the Australian and New Zealand Forensic Science Society and of the Australian Forensic Document Examiners Group. She also attends conferences and keeps abreast of papers and journals in the area. That is a brief summary of her expertise as she told it to the court.
Ms Ockleshaw compared the writing on the tick list located in the office of the accused’s house to the piece of comparison writing obtained from the accused at the police’s direction at the time of his arrest. She described in detail the specific process involved in examining handwriting. She also noted the potential limitations involved with any such examination such as disguise, external influence and intoxication. The witness also gave evidence that everyone writes differently, that is differently at different times, and factors can influence that, for example, the way you might feel at a particular time and the particular environment you are in.
The witness described the five level opinion scale used in forensic document examination in Australia. 1. Strong support for the proposition that the person is the writer of the questioned document. 2. Qualified support for the proposition that the person is the writer of the questioned document. 3. The comparison is inconclusive and no opinion can be expressed. 4. Qualified support for the proposition that the person is not the writer of the questioned document. 5. Strong support for the proposition that the person is not the writer of the questioned document.
She came to the view that there was qualified support for the proposition that the person was the writer of the questioned document and I will return to that in a moment.
In discussing the limitations associated with her opinion in this matter and why she qualified her opinion here, she said “There is sometimes as here not a large letter pool available in the questioned writing so there is a limit to the number of letters to compare with the known writing.” That is why she qualified her opinion here and said there was only qualified support for the proposition that the person was the writer.
She was shown documents P3 and P8. She said that she examined the questioned document; P3, that is the alleged tick list and P8 the comparison writing which was the handwriting sample taken from Mr Baftiroski at the police station. She made some general observations about the two documents and the handwriting on them. She described how she extracted and compared letters and numbers and the features she observed and assessed. She described some of the similarities of the size, shape and slope of the letters between the two documents. She went through the features that she particularly noted. She provided a copy of the worksheet and the work file and that was tendered to you as P9. So that is the sheet, members of the jury, where she extracted common letters that were common to both documents, and numbers, and from which she then conducted her closer examination.
She gave her opinion that the evidence provided qualified support that the writer of P3 was the writer of P8. She set out the similarities that she noted to you that led to her conclusion. She said there were no dissimilarities. She qualified her opinion based on the fact there was limited writing on the questioned document. According to the witness, the main limitation in this examination was exactly that, there was not a great deal of writing on the questioned document.
The comparison writing she said was also taken under supervision and this may mean that it might not be representative of someone’s natural style. But she said that disguise; that is, efforts by a writer to disguise their writing, is difficult to keep up over an extended period of time.
So, members of the jury, you heard her list the similarities and that there were no dissimilarities but importantly she qualified her opinion and reported that there was only qualified support for the proposition, for the reasons that she gave.
You will remember she went through each of the letters and numbers on her chart and she explained what it was about those features that caused her to come to the various conclusions she came to. You have that, P9. As I mentioned earlier, you are fully entitled to examine and compare the features yourself as well as having regard to the expert’s evidence and do that as you see fit. I will not repeat all of my earlier directions but of course you will have regard to them.

His Honour then devoted a similar amount of time during his summing up in summarising trial[7] counsel’s cross-examination of Ms Ockleshaw. Cross-examining counsel robustly challenged both the discipline of handwriting comparison and analysis generally and the specific analysis undertaken and conclusions reached by Ms Ockleshaw. The witness made a number of concessions as to the potential unreliability of handwriting comparison analyses. She agreed that there was a substantial subjective element to such analyses and that conclusions cannot be “calibrated”.
[7] Different counsel appeared on the appeal.
To this point, it can be seen that the Judge provided substantial assistance to the jury, not just with respect to the basis relied on by Ms Ockleshaw for her ultimate opinion of “qualified support” but also as to the limitations and difficulties attendant upon the comparison exercise she undertook. This not only explained why Ms Ockleshaw had arrived at “qualified support” but also served to explain and illustrate the necessity for the jury to proceed cautiously when assessing Ms Ockleshaw’s evidence as a component of the prosecutions overall circumstantial evidence case.
The Judge’s directions concerning the handwriting evidence
Relatively early in the summing up, the Judge provided a conventional direction as to the proper approach to be taken by the jury to its assessment of expert evidence, including that of Ms Ockleshaw. As part of those directions, the Judge reminded the jury that they were the sole judges of the facts and were not bound to accept the expert opinion evidence that was before them.
It is for you to give such weight to the opinions of those expert witnesses as you think they should be given, having regard to the qualifications of a witness, the partiality or impartiality of the witness and the extent, if any, to which the witness’ opinion accords with other facts that you find proven in the case.
More specifically, the Judge provided these further directions.
In the case of expert opinion in terms of handwriting, I should tell you that you are entitled to use the exhibits yourselves to test the validity of the expression of opinion. Conversely, you can test any views you yourself form by the opinions of the expert.
Similarities of handwriting can of course be deceptive, both the very nature of handwriting and the way it is taught create necessary similarities. In any particular case the handwriting of different people offered for your comparison will always contain some similarities and sometimes apparently similar eccentricities and the handwriting of the same person can vary from occasion to occasion. This is a field of evidence, members of the jury, where you are entitled to make comparison of the samples of handwriting tendered as exhibits. In doing so, however, you should bear in mind the warning I have given you. You should also seek to apply the assistance, if any, that you derived from the expert, if you accept her evidence.
I do warn you that it would be dangerous for you who are not experts to jump to any conclusions just by your own comparison of the sample. You should consider any conclusions suggested by your comparison most carefully in light of all the evidence given by the expert or any other evidence as to handwriting in a case before finally coming to any conclusions about the handwriting.
So it is a somewhat unusual area of evidence, members of the jury, it is one of those areas where, yes, you should give appropriate weight to the expert opinion but you yourselves are also allowed to look at the evidence and compare it.
Later in the summing up and by way of conclusion to the Judge’s summary of Ms Ockleshaw’s evidence the Judge reiterated an earlier direction.
As I mentioned earlier, you are fully entitled to examine and compare the features yourself as well as having regard to the expert’s evidence and do that as you see fit. I will not repeat all of my earlier directions but of course you’ll have regard to them.
Consideration of and conclusion as to ground 1
I will deal with subgrounds 1.1 and 1.2 together.
Expert evidence concerning handwriting is admissible in a criminal trial and is to be dealt with in accordance with the usual rules concerning expert witnesses.[8] In addition, lay persons, including jury members, are permitted to make their own handwriting comparisons. Section 30 of the Evidence Act 1929 (SA) is in these terms.
[8] R v Bonython (1984) 38 SASR 45.
30—As to comparison of disputed writing
Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court as evidence of the genuineness or otherwise of the writing in dispute.
Indeed, a trier of fact is entitled to reach conclusions following a comparison of known with disputed handwritings in the absence of any evidence on the topic, expert or non-expert.[9] This is consistent with the standard direction given to juries in this State concerning the way in which they are to approach expert evidence and, ultimately, the undisputed proposition that the jury in a criminal trial is solely responsible for determining the facts.
[9] Adami v The Queen [1959] HCA 70; (1959) 108 CLR 605, Daley v R [1979] Tas R 75 at 82, R v Leroy [1984] 2 NSWLR 441 at 446, and R v Mazzone (1985) 43 SASR 330.
With this as the starting point, counsel for the appellant contended that, whilst not obligatory, there appears to be a common practice that cautionary warnings are given to juries in criminal matters concerning the dangers of handwriting evidence.[10] Counsel contended that the risks in relying upon the handwriting expert evidence in this case were not sufficiently brought home to the jury in the Judge’s directions and, in particular, that it was insufficient merely to recite the various qualifications and limitations identified by the expert herself in her evidence. This was a case where the Judge’s imprimatur with respect to and reinforcing those qualifications and limitations was called for (subground 1.1). Not only did the Judge not provide a sufficient warning but to the extent that his Honour did identify the need for caution, it was not adequately directed to the specific facts of this case (subground 1.2). The warning given by the Judge as part of his directions concerning expert evidence was in only general terms and was insufficient.
[10] Citing cases such as Sumner v Booth [1974] 2 NSWLR 174 at 178-179, R v Leroy [1984] 2 NSWLR 441, R v Mazzone (1985) 43 SASR 330 and R v Browning (1991) 103 FLR 425 at 447-448.
The strength of the appellant’s concerns must be assessed in the context of the overarching issue before the jury. The jury was confronted with a circumstantial evidence case bearing on what was effectively the ultimate issue before them of whether it had been established beyond reasonable doubt that the appellant was in possession of the methylamphetamine. The circumstantial evidence case was, with respect, a strong one.
The prosecution carries the burden of proving each element of a criminal charge beyond reasonable doubt. This burden does not apply to intermediate findings of fact or to inferences drawn from findings of fact which, taken as a whole, comprise a circumstantial evidence case, save for such a finding or inference that is an indispensable link in the chain of proof to guilt. Dawson J (with whose reasons Mason CJ, Toohey and Gaudron JJ agreed) explained the position in Shepherd v The Queen.[11]
Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.
On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards and inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.
As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
[11] [1990] HCA 56; (1990) 170 CLR 573 at [4]-[6], 579-580 (citation omitted).
It was not necessary for the jury to attribute authorship of the tick list to the appellant beyond reasonable doubt. Such a finding was not an indispensable link in the chain of proof to a finding of guilt. As Dawson J observed in Shepherd, “the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately”.[12] Further, a particular item of circumstantial evidence – in this case, the writing comparison exercise undertaken by the jury with or without the assistance of the expert’s evidence – may gain added strength from other items of circumstantial evidence bearing on the issue, such as, in this case, the finding of the tick list in the appellant’s house and in the proximity of other documents in the name of the appellant and the fact that the appellant and his fiancée were the only occupants of the premises.
[12] [1990] HCA 56; (1990) 170 CLR 573, 580.
It is correct that the authorities, including those specifically relied on by the appellant, counsel the exercise of caution in this area, particularly in the case of criminal trials. However, none mandates a particular approach nor a specific form of jury direction always to be employed. Where the relevant finding has to be arrived at beyond reasonable doubt, great caution might need to be emphasised. Where a sample size is extremely small, such as various signatures on competing wills,[13] again great caution might need to be emphasised. What is required in a criminal trial will vary according to the circumstances.
[13] Sumner v Booth [1974] 2 NSWLR 174.
I accept that the very nature of handwriting comparison evidence and the risks associated with an uncritical acceptance of it in the present case are such that caution in its assessment had to be exercised by the jury. However, I am satisfied that the Judge’s summary of the evidence and directions adequately brought this home to the jury.
The Judge made plain in the evidence summary the limitations on the reliability of the expert’s opinion, particularly as to why only qualified support as to authorship was available. This necessarily made clear to the jury that they, as untrained examiners of the same material, could be in no better position. Further, the Judge in his directions made the following points: that the jury was entitled to assess the relevant exhibits for themselves in order to test the expert’s opinion; conversely that the jury could test their own views with the assistance of the expert evidence; and that similarities in handwriting can be deceptive for a number of (explained) reasons.
The Judge specifically warned that it would be dangerous for the jury as non-experts to “jump to any conclusions” from their own comparison. In particular, the Judge counselled as follows:
You should consider any conclusions suggested by your comparison most carefully in light of all the evidence given by the expert or any other evidence as to handwriting … before finally coming to any conclusions … .
In this case, the Judge, by his summary of the expert’s evidence and by exhorting the jury to have regard to the comparison of similarities chart and the expert’s finding of no dissimilarities, adequately focused his directions with respect to the facts before the jury. I have no doubt that the jury were left with a clear understanding of the task and its pitfalls that was before them which, ultimately, was one strand, albeit an important one, in a much broader circumstantial evidence case.
There has been no miscarriage of justice resulting from the manner by which the Judge dealt with the expert handwriting evidence and I would reject appeal ground 1.
Appeal ground 2 – the directions on possession
General observations
For the appellant to be found guilty of the charged offence, the jury had to be satisfied beyond reasonable doubt that the appellant was in possession of the methylamphetamine alone or jointly with another person.[14]
[14] On the assumption that the other elements of the offence (not in contest) had been established.
At common law, possession refers to the power and intention to exercise control over something to the exclusion of all others.[15] The notions of power and intention to exercise control necessarily imply knowledge of the existence of the object in question.
[15] Save for a situation of possession jointly with others.
There is a definition of “possession” contained in and for the purpose of the CSA. It is of the “inclusive” type. As found in section 4:
Possession of a substance or thing includes─
(a)having control over the disposition of the substance or thing; and
(b)having joint possession of the substance or thing.
I am not aware of any authoritative consideration of whether the “included” meaning in paragraph (a) simply restates the common law or provides for a wider, more easily satisfied, form of definition. Whilst the phrase “having control over the disposition” implies power to control and knowledge of existence, it is not so clear that the definition embraces an intention to exercise the power of control. In any event, the trial was conducted by all parties and the Judge on the basis of the arguably more restrictive, and favourable to the defence, traditional or common law definition. Appeal ground 2 turns on whether or not the Judge’s directions were adequate in that context.
In R v GNN,[16] the appellant was charged with possessing heroin for sale. Heroin was found in the kitchen and in the bedroom. There was evidence that a man was temporarily sharing the bedroom with GNN at the time of the police search. In addition, a number of male visitors to the house, some from interstate, were present at the time of the police search. Doyle CJ (with whose reasons Prior and Olsson JJ agreed) provided the following statement of principle[17] that is regularly cited with approval in this Court.[18]
Apart from giving appropriate general directions, there are several matters of significance that had to be dealt with in the direction given to the jury in this case.
First, it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury's part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who were at the house that night. Thirdly, it was necessary to emphasise the requirement to prove physical control over the heroin and an intention to exercise control over it. It was necessary to relate these matters to the facts, in a practical way, to avoid the risk of the jury convicting on an unreliable basis. It was necessary to give directions that dealt adequately with the possibility that the heroin was in the possession of one of the men found in the house.
It is important to note the qualification explained by Vanstone J (with whose reasons Kourakis CJ and Nicholson J agreed) in R v Wood.[19]
The passage in GNN relied on does not prescribe a particular approach to directing juries on possession. Certainly there is material there which Judges may well find helpful in drafting directions suitable for the particular case before them. But each case turns up different facts and different issues. Generally speaking, the main requirement in terms of the elements of an offence is to clearly explain what is required in terms of proof. If that is done then it will not usually be necessary to provide a catalogue of what is not sufficient. Of course, if issues are muddied by counsel, or if the issue for determination can be honed by sweeping away some red herrings or straw men, then it may be helpful to dispose of those issues by directing that certain matters cannot prove the charge. It is true that the concept of possession, and particularly joint possession, can be a difficult one for jurors, who do not customarily think in such terms. For this reason examples are helpful. However, in the circumstances of this case, having considered the evidence and the directions, I am of the view that the legal issues were clearly laid out.
[16] [2000] SASC 447; (2000) 78 SASR 293.
[17] [2000] SASC 447; (2000) 78 SASR 293 at [19]-[20].
[18] See for example, R v Ngo and Le [2002] SASC 373; (2002) 135 A Crim R 550 at [63], R v Alwazan [2016] SASCFC 155 at [14], R v Tran [2017] SASCFC 168 at [17], R v Saleh [2017] SASCFC 75 at [15] and R v Wood [2017] SASCFC 100 at [10], [18].
[19] [2017] SASCFC 100 at [18].
Counsel at trial and counsel on appeal both conceded to the effect that the realistic alternatives to the appellant being in possession were possession by the fiancée or perhaps the appellant’s brother, to the exclusion of the appellant. The notion that a stranger to the household was somehow involved was not seriously pressed, save with respect to evidence that the appellant’s brother visited on occasion and documents referable to the brother together with his phone were in the house. Practically speaking, the circumstantial evidence factors in (i), (ii), (iii), (vii) and (viii) of paragraph [xx] strongly militate against the brother having the power and intention to exercise control. It is of significance that the tick list was found in another room in the house (the study), that is, separate from the methylamphetamine, and the tick list referred to “cutter” (being the dimethyl sufone) which was found in yet another room (the pantry). This further strengthens the inference that it was someone in the house who knew of and exercised control over, that is, possessed, the methylamphetamine.

The Judge directed the jury as to the requirements for proof of possession a number of times and in a number of ways. The concept of possession at law is not one often encountered by lay persons and will not necessarily be readily understood by some jurors. For this reason, it can be helpful for a Judge to restate during the summing up the core directions and to provide readily accessible factual illustrations. Further, as with all directions of law, directions on possession need to be related to the facts of the particular case before the jury and in a practical way.[20]
[20] R v GNN [2000] SASC 447; (2000) 78 SASR 293 at [22]-[25].
A potential difficulty to be guarded against when restating directions on a particular concept, such as possession, and when offering examples or illustrations, is the risk that inconsistent language might be employed leading to inaccurate explanations or confusion in the mind of the jury. The use of examples has another potential vice. Unless each example is elaborately (and likely tediously) structured, there is a risk that it will misstate or not fully state all of the elements of possession. By way of illustration, an example often given is to the effect that the fact that you (the jury) are not at home will not necessarily mean that your television in the lounge room is not still in your possession. The example is intended to explain that possession can apply even where a person is not in close physical proximity with the object, that is, does not possess it in the lay sense. However, the example says nothing about power to and intention to control the object. There may be circumstances in which a particular jury member does not have possession in law of a television in their home. Further, the example stated in this simple way may tend to conflate in a juror’s mind the concept of ownership with that of possession.
Having raised this note of caution, one has to take a practical approach to jury directions. In many cases where possession directions are challenged and absent an egregious error, the question will become whether the summing up as a whole made clear to the jury what is required by law in the circumstances of the case before them in order that they might be satisfied beyond reasonable doubt of possession. As Vanstone J pointed out in Wood, “it will not usually be necessary to provide a catalogue of what is not sufficient”.[21] I would add that such an exercise can run the risk of confusing matters. Further, an individual direction or example read in isolation might technically be inaccurate or potentially misleading but, when assessed in the context of the summing up as a whole, quite innocuous.
[21] [2017] SASCFC 100 at [100].
The Judge’s directions
The Judge in this case amplified and revisited his directions on possession in a number of ways and provided a number of illustrations of his statements of principle. It is best to set out all of the directions.
(i)I want therefore to talk in a little more detail about the concept of possession of something. Possession involves knowing something is there and exercising control over it to the exclusion of any others who are not in joint possession of it with you. So possession can include joint possession with one or more people.
(ii)Possession is not however necessarily the same as ownership. Possession does not require ownership at all. For example, if you are keeping or minding something for someone else, hypothetically, in this case, if a person is minding or keeping drugs for someone else, then that person is in possession of that drug even though they might ultimately be owned by someone else and going to be ultimately sold or dealt with in some way by that other person.
(iii)I will use some simple examples to illustrate the concept in the context of this case. For example, if you have property at your house or in your garage and you go to the shops or even away on holiday, you are still in possession of the property that remains in your house, so long as you know it is there, and you are exercising control over it by having it secured and locked up in your house.
(iv)So if you know something is in your garage and you go away on holiday and you leave the house locked or even if you just go down to the shop and do not leave the house locked, you are still exercising control over your property in that house and therefore you are in possession of it. You are still seeking to exclude strangers, thieves or whatever, who are hypothetically or possibly, going to come to your house and steal your property.
(v)Let me give you a further example as to how possession does not necessarily require ownership. Say you are on a park bench and someone sits next to you, puts their newspaper down and walks off. Just because that newspaper is next to you and you know it is there, does not mean you are in possession of it because you are not exercising any control over it at that point.
(vi)On the other hand if the person says ‘Can you mind my paper until I get back in a few minutes’ and you agree to mind the paper, then you are in possession of that newspaper. Because you know it is there, and you are exercising control over it by minding it for the other person until they get back and, for example, not letting a stranger come along and pick up the paper. So you do not need to own something to possess it, but you do have to know it is there and exercise control over it by, for example, minding it, guarding it or keeping it for somebody.
(vii)In this case members of the jury, if the accused knew the drugs were in the house and exercised control over them either by owning them or minding them, either by himself or jointly with someone, then he was in possession of the drugs. So to summarise all of that, members of the jury, for the prosecution to prove the accused guilty of his crime it needs to prove beyond reasonable doubt that the accused knew the drugs were in his house and that he exercised control over them, either by owning them or minding them, either by himself or jointly with one or more others to the exclusion of anyone who is not jointly possessing drugs with him.
(viii)If he was in possession of them in one of those ways then it is presumed he was trafficking in methamphetamine unless the contrary is proven on the balance of probabilities. As both counsel have said, possession may be joint possession. If both the accused and for example his fiancée or someone else jointly kept the drugs there then they are jointly in possession and the accused is equally guilty.
(ix)To use another simple example, ladies and gentlemen, if a married couple jointly own a dog then they are jointly in possession of the dog. If they agree to mind their neighbour’s dog for the afternoon they are both jointly in possession of the neighbour’s dog for the afternoon.
…
(x)I do want to mention something about my general directions to you yesterday. You will remember I gave some directions about joint possession. However, it is important to understand that this case is not about Mr Francica’s guilt or anyone else’s guilt. You should only consider the question of the accused’s guilt or innocence and, in doing so, whether it was the accused who was in possession of the drug, rather than whether others were or were not. If there is a reasonable possibility that others were in exclusive possession of this drug, then, of course, the accused is entitled to the benefit of that doubt and be acquitted. I hope that was clear yesterday. Just in case it was not, I do emphasis that to you.
…
(xi)Firstly, in relation to circumstantial evidence, members of the jury, you will remember I directed you that you consider each item of circumstantial evidence that has been led and you weigh that up and you give it the weight that you think is appropriate in support of the prosecution case. You will remember that I said that you might find some of them hypothetically strong such as the drug and the cutter and the tick list, and things of that nature. It is entirely up to you the degree of strength that you ascribe to those items. And you might hypothetically, again just for the purposes of example, find things like tubs or old phones etc. of much less weight. And so what you do, you put them all into the mix and you look at the combined weight.
(xii)Obviously, members of the jury, implicit in that is that you make a clear assessment of each of those items and the degree to which it is connected with the accused, or not. Or the degree to which it might be associated with someone else, or not. And you weigh up the connection to the accused of each of those items as a part of assessing their weight. That is just common sense members of the jury. I hope it was implicit in what I have said, I have been asked to clarify and emphasise that to you and I do so.
(xiii)Members of the jury, just in relation to the concept of possession, I remind you that I said in my summing up at the early stages that the primary issue in the case is whether the accused possessed the drugs, then you have that deeming position that comes in and has the effect that I earlier directed you.
(xiv)I told you that possession involves knowing something is there and exercising control over it to the exclusion of any others who are not in joint possession. Each counsel has told you that is the law on that, and that is the law. Now, implicit in that, but I should make it explicit, is that merely knowing something is there is not custody or control, if that is all you do; if you just know it is there and you take no role in having custody of it to the exclusion of others.
(xv)I will take you back to a very simple example that I gave you in my summing up. I hope it will emphasise that point. You remember I talked to you about the park bench and the person who comes along and puts a newspaper on it and I did that to draw to your attention the distinction between possession and ownership. In the example I gave you, I said, if a person sits down and puts their paper next to you and walks off, obviously you are not in possession of it. But if they sit down and say ‘Could you mind my paper?’, and they go away and come back, you do not own it but you are in possession of it and that is a type of possession.
(xvi)So I will use that example hopefully to emphasis the requirement for knowledge and control. If the person sits down and just leaves their paper there and walks off, you know about it, it is there, but you are not in possession of it. So simply knowing about the paper being there and taking no other part in for example agreeing to mind it or using it yourself, etc., whereby you exclude others, is insufficient.
(xvii)So, if the accused simply knew that the drug was there without anything else and played no part in exercising control and custody over it, then that is not sufficient to satisfy that element of having custody or control over it.
(xviii)So, members of the jury, I think it is important to emphasise that simply knowing something is there – hypothetically, you might be on a park bench and suddenly see drugs there. You are not in possession of those drugs just because you know they are there. You can keep sitting there and you are not committing a crime. Until you exercise some control over it by saying ‘Yes, I will mind those’ or ‘I will take them into my own possession for a purpose’, you are not exercising that custody and control element.
(xix)So, members of the jury, I hope I have illustrated that with reference to the newspaper example. Of course, I remind you of both counsel’s arguments on both sides of the bar table. Mr Dickson referred to all those other items – I will not go through them – that he said established that the accused was in knowing possession. Some of those were the tick list and the cutter and the totality of all the other circumstances.
(xx)On the other side of the coin, Mr Aitken validly argued that there were other people about who may have been in exclusive possession of that drug and, if they were, and if the accused only knew about it and did nothing more, that does not satisfy that element of the offence.
(xxi)I hope I have not lifted that to an inappropriate degree of prominence in your thinking, members of the jury, but it is an important point in the context of the whole summing up. So you will have regard to all of my summing up but you will also have regard to those directions.
I have numbered the paragraphs for convenience. Paragraphs (i) to (ix) comprise the Judge’s initial directions on the topic. Paragraph (x) was a redirection following extensive debate between the Judge and defence counsel concerning the Judge’s directions on the topic of joint possession. The form of the redirection was arrived at with the concurrence of defence counsel. Paragraphs (xi) to (xxi) were also by way of redirection following another extensive debate with defence counsel and were given in order to assuage his additional concerns. At the conclusion of these redirections, defence counsel was asked by the Judge “… are you happy with that?” to which he replied “Thank you”.
The initial directions and the two sets of redirections were to be understood by the jury in the context of the extensive directions given on how the jury was to approach circumstantial evidence which were in conventional terms and are not the subject of criticism. In conjunction with those directions, the Judge outlined at length the various matters of circumstantial evidence relied on by the prosecution in support of its case and, in particular, in support of the essential trial issue; the element of possession. It can be seen that as a prelude to his final redirections, the Judge revisited in brief form the fact that the prosecution case was a circumstantial evidence case.
Consideration and conclusion as to ground 2
The primary complaint on appeal is that the Judge did not properly direct on the topic of “acquiescence” in accordance with the guidelines found in GNN.
Counsel on appeal submitted that the appellant’s mere knowledge of or acquiescence in the methylamphetamine having been in the possession of his fiancée and stored in the house was not just a theoretical possibility. It had to be rejected by the jury as a reasonable possibility before they could find the appellant guilty. Counsel relied, inter alia, on the facts that the fiancée was the only person present at the time of the police search; that the tick list was found in a common area of the house; that the methylamphetamine and other indicia relied on by the prosecution were found in common areas of the house; and that there was no forensic evidence linking the appellant to any of those items.
It is to be accepted that these considerations bear on the question of whether the fiancée may have been in possession (either solely or jointly with someone else) although the issue of her potential guilt was not directly before the jury. However, these considerations do not necessarily preclude a finding of possession in the appellant (either solely or jointly with the fiancée or someone else) and this was not the appellant’s case on appeal. Rather the submission was put in these terms.
[T]here is a live issue on the facts of this case that … the jury could well have thought the appellant knew of the presence of the drugs. Theoretically, on the defence case, the drugs were possessed by the partner. So he knew of the presence of the drugs. He knew the drugs were in the house. He could have of course controlled access to the house if he wanted to with the drugs inside, but he may not have wanted anything to do with them. “Not my business at all. I will turn a blind eye to this and I want nothing to do with it”. That particular scenario wasn’t properly dealt with in his Honour’s summing up … .
As I understand counsel’s complaint here, it was open to the jury to find that there was a reasonable possibility, on the evidence, that the fiancée was in possession to the exclusion of the appellant. Further, the mere fact, if proved, that he was aware of the methylamphetamine and had acquiesced in his fiancée storing it in the house would not be sufficient to inculpate him. The jury should have been but were not clearly instructed about this. Further, the mere fact that the appellant knew about the methylamphetamine, if proved, and that he had control over the house in general was insufficient to inculpate him and this should have been explained.
It is correct that the word “acquiescence” was not employed by the Judge. However, the Judge did explain on more than one occasion (with examples) that mere knowledge or awareness of the methylamphetamine was insufficient and that a power to exercise control over the methylamphetamine had to be established. It was made clear that a power to control necessarily requires more than a finding of mere knowledge with or without acquiescence.
The summing up has to be considered in light of the common understanding that the only real alternative candidate for possession was the fiancée or perhaps the brother. In this context the directions as a whole, including as to the insufficiency of mere knowledge, and the examples aimed at contrasting knowledge of presence with power to exercise control, were adequate to bring home to the jury a proper understanding of possession at law sufficient to the facts of this case. Bearing in mind Vanstone J’s observation in Wood, the jury were properly instructed as to what was required at law. They did not need an additional direction as to what was not sufficient. In any event, the fact that knowledge was insufficient to demonstrate the essential requirement of power to control had been repeatedly emphasised.
The appellant’s second complaint is to the effect that the summing up as a whole with respect to the possession directions was inexact and confusing. Counsel acknowledged that this characterisation of the summing up, to the extent it had merit, was largely a product of the Judge’s attempts to accommodate the various concerns raised by trial defence counsel. As matters eventuated, the jury may have been better served had the Judge stayed with his original directions. It is unfortunate that the Judge used slightly different language when addressing the same concepts in different parts of the summing up and that some of the examples given were incomplete in the sense I have earlier described. Individual aspects of the possession directions can be criticised as potentially misleading when considered in isolation.
Nevertheless, in the context of this quite straightforward trial, with the very limited alternatives as to possession realistically available to the jury and given the strength of the prosecution case (particularly given the strong evidence in support of the appellant as author of the tick list) I do not doubt that by the end of the summing up the jury had a proper understanding of the task before them.
I am fortified in the view I have taken by the fact that the appellant’s experienced criminal trial counsel expressed his satisfaction with the Judge’s various redirections. The atmosphere at this stage of the trial was for counsel and the Judge to assess. It would seem that trial counsel did not apprehend any prejudice to his client as a result of the possession directions as ultimately formulated.
Conclusion
There has been no miscarriage of justice as a consequence of either the Judge’s directions dealing with the handwriting evidence or the Judge’s directions on the element of possession. I would dismiss the appeal.
PARKER J.
I agree with the reasons of Nicholson J. I would dismiss the appeal.