R v Cerullo - [2005] SASC 250

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CERULLO
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Layton)
6 July 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY
Appellant found guilty by jury of possession of cocaine in contravention of section 233B(1)(ca) of the Customs Act 1901 – Whether appellant was in possession of cocaine found in trailer located in garage attached to appellant’s home – Evidence that two keys to trailer padlocks were found in appellant’s property – Evidence of inadequacies in police searches of appellant’s property, and in police record keeping – Appeal against conviction on ground that it was not open to the jury to find beyond reasonable doubt that appellant was in possession of either key – Whether the trial Judge erred in not directing the jury to this effect, or alternatively, in not directing jury to disregard the evidence in relation to the keys found in property of appellant – Whether trial miscarried by reason of cumulative errors – Evidence concerning keys was circumstantial evidence to be considered by jury – Whether keys were in the possession of the appellant depended upon jury’s assessment of credibility of prosecution witnesses – Open to the jury to rely upon the prosecution evidence as to the location of the two keys – Whether it was necessary to direct jury that proof of the appellant’s possession of the keys was an essential step in the reasoning toward guilt which had to be established beyond all reasonable doubt – Trial Judge’s direction on this aspect placed a higher onus on the prosecution than was necessary – No other error shown – Appeal dismissed.
Customs Act 1901 (Cth), s 233B, referred to.
M v The Queen (1994) 181 CLR 487; Morris v The Queen (1987) 163 CLR 454 ; Smith v The Queen (2001) 206 CLR 650; Jones v The Queen (1997) 191 CLR 439 , applied.
Prasad v The Queen (1994) 68 ALJR 194; Pearce and Carter v DPP (No 2) (1992) 59 A Crim R 182; R v Dib (1991) 52 A Crim R 64; R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89; R v Filippetti (1978) 13 A Crim R 335, distinguished.
Shepherd v The Queen (1990) 170 CLR 573 , discussed.
R v Cerullo [2003] SASC 185; (2003) 227 LSJS 509; Kingswell v The Queen (1985) 159 CLR 264; R v Meaton (1986) 160 CLR 359, considered.

R v CERULLO
[2005] SASC 250
Court of Criminal Appeal Gray, White and Layton JJ
GRAY and LAYTON JJ
Introduction

The appellant, Pietrantonio Cerullo, was found guilty by jury verdict of possession of a prohibited import in contravention of Section 233B(1)(ca) of the Customs Act 1901 (Cth).[1] This is an appeal against that conviction.
[1] 233B Special provisions with respect to narcotic goods
The prohibited import the subject of the conviction was cocaine of a pure weight of 219 kilograms. On 16 August 2000 police discovered the cocaine in a locked trailer in a garage attached to a unit at Prospect.
We have had the advantage of perusing the draft reasons of White J. His Honour has extensively reviewed the facts. We respectfully adopt that review. We refer to the facts only where necessary for an understanding of our reasons.
The prosecution had to prove beyond reasonable doubt each of the elements of the offence. This included the element of possession, namely that on 16 August 2000, the appellant was in possession of the drug, cocaine. This was the contentious element at trial and is the subject of this appeal.
The Trial
The learned trial Judge’s directions to the jury on the element of possession included the following:
In law, a person has possession of something if he or she knowingly and intentionally has control over the object in question to the exclusion of others. Possession does not have to be sole possession. The law says that when two or more persons acting together intend to, and have the right to, exercise control of property at a given time to the exclusion of others, then each is said to be in possession of it at this stage. However, the case put forward by the prosecution is that at the time of the charge, the accused had exclusive possession and intended to exclude others.
...
In this case, the mere fact that the cocaine was in the trailer in the garage does not constitute possession by the accused. The prosecution must prove that at the time alleged, the accused knew that there was a prohibited drug in the trailer in the garage at Prospect. It must also be proved that the accused had physical control over the drug, that he had the right to exclude others and that he had an intention to exercise control over it.
There cannot be an intention to exercise control over it unless he is aware of its existence and presence in the trailer. Mere knowledge that the drug was in the trailer would not suffice either. There must be the intention to exercise control over the substance in the trailer before the charge is proved.
The Crown relied on circumstantial evidence to prove the element of possession of the cocaine. The Judge, in the course of his summing up, gave unexceptional directions concerning circumstantial evidence. During those directions, the Judge said:
Now, the process – and I underline the word ‘process’ – is the same in dealing with circumstantial evidence in court. You consider a number of matters which are led in evidence. You consider whether, in their combined effect, they lead to a particular result. But there are differences. One of the main differences, of course, is that we are in the criminal court where serious charges are being dealt with and, therefore, any fact upon which you rely which is a basic fact, and I will refer to this in due course, must be proved beyond reasonable doubt.
Secondly, any inference you draw from the combined evidence, if it is to lead to a conclusion of guilt, must be a conclusion which is drawn beyond reasonable doubt.
In considering the individual facts which you rely upon in order to form your opinion, you must find that the primary or basic facts are proved to your satisfaction beyond reasonable doubt. It is also important to consider whether those facts which you accept may be open to some other explanation. In this respect, you will take into account the whole of the evidence, including that of the accused.
There is no requirement that your finding on an individual issue must prove a case of itself. That is not the nature of circumstantial evidence. If you accept a particular fact as being proved, you simply keep it in mind and ultimately consider it in conjunction with other facts which you find established. After a series of facts have been established to your satisfaction, if that is the case, you then consider them in their combined effect.
I have said that the case against the accused must be proved beyond reasonable doubt. There is another way of putting that in a matter such as this where the case is dependent upon circumstantial evidence. You cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the offence. In other words, before you can be satisfied beyond reasonable doubt that the accused is guilty, you must be satisfied not only that his guilt is a rational inference from the proved facts, but that it is the only rational inference that the circumstances you find proved enable you to draw.
The circumstantial evidence advanced by the Crown included the following:
-the occupation of the Prospect unit by the appellant;
-the finding of cocaine in the trailer in the garage of the Prospect unit;
-the position of the trailer in the garage up against a wall and behind a number of items;
-the barrels containing the discs of cocaine were large and occupied most of the space in the trailer, there was little else in the trailer;
-the possession by the appellant of keys which were able to open locks on the trailer;
-evidence of traces of cocaine found in a utility in premises at Wingfield occupied by the appellant;
-conduct by the appellant designed to avoid any connection between his name and the Prospect unit. It was the Crown case that the appellant maintained two identities as part of the plan to prevent anyone drawing a connection between one of the names – Cerullo - and the possession of the drugs; and
-the creation by the appellant of a facade so as to give the appearance that he returned to Australia to operate a legitimate business. This was to disguise the fact that the appellant was in possession of a large quantity of cocaine.
It was the defence case that the appellant had nothing to do with the cocaine found in the trailer. He denied, on oath, any knowledge of the existence of the cocaine or the circumstances in which the cocaine was placed in the trailer. As the Judge observed in the course of his summing up:
His evidence left open the inference that some person or persons gained access to the trailer while it was in the garage and placed this large quantity of cocaine in it without his knowledge, or the trailer might have been removed and the cocaine put in and then the trailer taken back.
The Appeal
Counsel for the appellant complained of the Judge’s decision to leave before the jury evidence of the finding of the keys on the person and in the vehicle of the appellant as evidence from which the jury could infer the appellant’s possession of the drugs. The trial Judge dealt with this evidence and concluded his remarks in respect to the keys said to have been discovered on the appellant with the following direction:
Well, all this evidence requires the closest scrutiny, and you will take all the submissions into account when considering it carefully. It is only if you find beyond reasonable doubt that this key was in the possession of the accused when arrested and that it was not wrongly substituted by the police, that you will use it as evidence in the case.
In respect of the key found in the vehicle, the trial Judge directed the jury:
The Crown, for its part, relies on Wilson’s denial that he substituted the key or planted it. Again, unless the Crown proves beyond reasonable doubt that the key was found in the manner described by Wilson, it cannot be used in the case against the accused.
The evidence concerning the discovery of the keys is set out in detail in the reasons of White J.
At trial, counsel did not submit that the evidence concerning the keys should be withdrawn from the jury’s consideration. However, on appeal, a different position was adopted. Counsel for the appellant submitted that it was an essential element of the offence for the Crown to prove beyond reasonable doubt that the accused had possession of the keys to the trailer. It was further submitted that the evidence of the police with respect to the finding of the keys had been totally discredited and was so implausible that the evidence should have been withdrawn from the jury. The argument for the appellant continued that the trial Judge had therefore erred by inviting the jury to make findings in respect of possession of the keys or alternatively in permitting the jury to do so.
Counsel for the appellant relied on the decision in Prasad v The Queen[2] and submitted that the reasoning of the High Court applied by analogy to the present case. Prasad concerned murder by a fatal stabbing. Three boys gave evidence about men who were seen by them at about the time and in the vicinity of the stabbing. Their evidence differed as to the number of men seen, but the descriptions they gave were consistent with the accused and the deceased. One of the directions given to the jury was that, on the evidence of the boys alone, the jury could find as a fact that the accused was in the street with the deceased. The High Court concluded, however, that whilst it was open to the jury to find on the basis of the boys’ evidence that the deceased was one of two men and that the deceased was in the company of a person known to him, such as the accused, the evidence of the boys alone was insufficient to establish that the accused was one of the men. The Court concluded that the direction given by the trial Judge was a positive misdirection and as such there was a possibility that the jury was led into a false line of reasoning. The appeal was allowed and a new trial ordered.
[2] (1994) 68 ALJR 194.
The misdirection given by the trial Judge in Prasad was in relation to an essential element of the offence, namely the identification of the accused as being present with the deceased at the place and time of the stabbing. This fact was required to be proved beyond reasonable doubt as it was an essential link in proving that the accused was guilty of the offence.
Counsel for the appellant argued by analogy that, in the present case, as the goods were found in a locked trailer, an essential element of the offence was possession of those goods in the trailer. The Crown, it was said, was required to prove beyond reasonable doubt that the appellant had possession of the keys to that locked trailer. In particular it was emphasised that this case was not being conducted as a case of joint possession and therefore the Crown had to prove exclusive possession. The argument then continued that like Prasad, the evidence of the police officers and the customs officer could not by itself found that essential element because of its unreliability and that the same conclusion as in Prasad should be reached.
In our view Prasad is not analogous. The proof of possession of the cocaine in the trailer did not depend on the Crown having to locate the keys and also prove that those keys were in the possession of the appellant. Whilst this was an important item of evidence, the guilt of the appellant could be founded on other circumstantial evidence. The possession of the keys was an item of circumstantial evidence but was not an essential link in proving the appellant’s guilt. In the present case there was other strong circumstantial evidence, which could found the guilt of the appellant.
A review of the summing up discloses no express invitation to the jury to make a finding as to possession of the keys. The Judge left the evidence concerning the keys as an item of circumstantial evidence to be considered and weighed by the jury.
For reasons previously given, the evidence concerning the discovery of the keys was relevant and probative evidence. The jury was entitled to consider the evidence as items of circumstantial evidence, together with the whole body of evidence in the trial when considering its verdict.[3] It was for the jury to determine whether it accepted or rejected the police officers’ evidence. It was for the jury to decide whether it accepted the evidence of the appellant when he denied possession of the keys. We respectfully agree with the analysis of the evidence made by White J on this topic.
[3] Smith v The Queen (2001) 206 CLR 650 per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [6]; Festa v The Queen (2001) 208 CLR 593 per Gleeson CJ at [14].
The trial Judge summed up in the following terms:
The exercise of assessing witnesses in a case such as this, and indeed in every case, involves a two stage inquiry. First, do you accept that you have a truthful witness? Is the witness at least attempting to tell you the truth about a particular incident? Then, if you are satisfied that you do have a truthful witness, is the witness, nevertheless, accurate in what he or she recalls? It is not unknown for truthful witnesses to be inaccurate because of lack of sufficient memory or for some other reason in attempting to recall past events. In the case of some witnesses, of course, the evidence is not in dispute.
Allegations have been made in this case about the conduct of police officers and also the Customs officer, Mr Chantrell. It is important that you do not approach their evidence with any preconceived notions or attitudes. Their evidence must be judged on the same basis as the other witnesses in the case. Their position as police officers or officers of a particular authority does not entitle them to any presumption of honesty. There is no category of witnesses in this court which has the benefit of such a presumption, no matter what.
Earlier in his summing up the trial Judge directed:
It is your obligation to take a cold, dispassionate and impartial view of the evidence that is presented to you, ignoring questions of sympathy or prejudice. In so doing, you must not be frightened to draw inferences from the evidence that appeal to you and to your commonsense.
...
There, you have the absolute right as jurors to believe or to disbelieve. You can accept parts of a witness’s evidence and reject other parts.
These directions were made in entirely appropriate terms. They were specifically designed to assist the jury in its consideration of the evidence, including evidence concerning possession of the keys. The Judge was correct in leaving it to the jury to assess the credibility and the truthfulness of the police witnesses.
The trial Judge considered that the jury should be satisfied on the issue of the possession of the keys beyond reasonable doubt before acting on the police evidence.
In Shepherd v The Queen,[4] Dawson J observed:[5]
[4] (1990) 170 CLR 573.
[5] (1990) 170 CLR 573 at 584-585.
In that passage [in Chamberlain] the reference to “the primary facts from which the inference of guilt is to be drawn” is clearly a reference to such intermediate conclusions of fact as are necessary for the drawing of the inference of guilt and is not a reference to each basic fact – each individual item of evidence – upon which those conclusions may be based. That is why his Honour points out that an inference of guilt may be drawn even though a particular “primary” fact falling short of the whole would be insufficient to exclude other inferences. I do not take this latter reference to a “primary” fact to mean anything more than a piece of evidence. That I think, is shown by the use of that term in the sentence that follows. The term “primary facts” is apt to confuse if it is used to refer to the basic facts – the individual items of evidence – as well as to the factual conclusions from which inferences may be drawn. More often than not it is in the latter sense that the term is used when it is said that an appellate court may draw its own inferences from the primary facts as found by the trial judge.
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The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognised in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.
Also, Mason CJ reasoned:[6]
With the benefit of hindsight, it can now be seen that the joint judgment of Gibbs C.J. and myself in Chamberlain appears to have given rise to some misconception and that, accordingly, it has played a part in the course of reasoning by which courts of criminal appeal have come to the conclusion that the direction now in question should always be given. I refer particularly to the passage:
“Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. 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.”
In the first sentence in that passage it would have been more accurate to refer to “an intermediate fact as an indispensable basis for an inference of guilt”. And, later on the same page, the reference to the passage quoted from Reg. v. Van Beelen, might have been accompanied by a statement that it was to be understood in the same way. Nonetheless, when the discussion of the principles in the joint judgment is read in its entirety and the particular passages to which I have referred are read in the light of the entire discussion, they should be understood in the sense stated by Dawson J. (footnotes removed)
Toohey and Gaudron JJ both agreed with Dawson J.
[6] (1990) 170 CLR 573 at 576.

Using the language of Mason CJ, the Crown did not have to prove that the appellant had possession of the keys as an indispensable intermediate conclusion of fact necessary for the drawing of the inference of guilt. It was open to the jury to be satisfied beyond reasonable doubt that the appellant was in possession of the drugs without reaching any conclusion with respect to its acceptance of the evidence concerning the appellant’s suggested possession of the keys. The other circumstantial evidence in the case was sufficient to allow the jury to reach that conclusion beyond reasonable doubt.
In the circumstances, the trial Judge placed a higher onus on the Crown with respect to the proof of the possession of the keys than the law required. However, the consequence was that the appellant benefited by the prosecution carrying a greater evidentiary onus than it should have on this issue.
Conclusion
For these reasons we would reject the first four grounds advanced by the appellant, all of which, in substance, complained about the evidence of possession of the keys being left to the jury.
The final ground of appeal presumed that the evidence of possession of the keys should have been withdrawn from the jury. This then led to the submission that in the absence of proof that the keys were found in the possession of the appellant, it followed that there was a reasonable hypothesis that some other person had possession of the keys and that therefore the Crown had not proved exclusive possession on the part of the appellant. The Crown joined issue with the trial Judge’s direction concerning exclusive possession, arguing that the direction was unduly favourable to the appellant. However, as the premise for this ground, grounds one to four, was not established, there is no need to further consider this ground.
For these reasons we would dismiss the appeal.
WHITE J: The appellant was found guilty by a jury of having had in his possession on 16 August 2000 a prohibited import in contravention of s 233B(1)(ca) of the Customs Act 1901 (Cth). This is an appeal against the conviction.
The prohibited import which was the subject of the charge was cocaine. The cocaine was in the form of 476 compressed white powder discs, the net weight of which (excluding wrappings) was 317 kg. The amount of pure cocaine was 219 kg. There was evidence that the discs had a value of $31 million. The cocaine was located in a locked trailer parked in a garage attached to a unit at 2/17 James Street, Prospect.
There are five grounds of appeal. Each relates to evidence admitted at the trial about two keys to the locked trailer which were said to have been found in the appellant’s clothing and in his car.
Background Circumstances
In May 2000, the appellant leased two premises in Adelaide. The first was an industrial block of land containing a large shed at 16 York Street, Wingfield. Those premises were leased by the appellant in his own name. The second was the unit at James Street, Prospect. Those premises were leased by the appellant using the name Gary Dettman.
At the time of leasing the premises at York Street, Wingfield, the appellant told witnesses that he was setting up business as a stonemason specializing in monumental masonry. The appellant acquired a number of large blocks of stone ostensibly for use in that proposed business. The Crown case was that the stone masonry business was no more than a façade for the appellant’s real purpose, namely, involvement with commercial quantities of cocaine.
On the afternoon of 16 August 2000 the appellant was arrested at a marine showroom at Blair Athol in relation to an unrelated matter. In a search of the appellant immediately following his arrest, the police found, amongst other things, two wallets and some keys. One wallet contained money and papers in the appellant’s own name. The other wallet contained money and papers in the name Gary Dettman. The police also searched the Holden Commodore sedan in which the appellant had travelled to the showroom. Amongst other things, they found a lease agreement for the unit at James Street, Prospect, in which the lessee was described as Gary Dettman.
The appellant told the police that he resided at 16 York Street, Wingfield.
Shortly after the arrest, the police, in company with the appellant, went to the premises at York Street, Wingfield. The police entered the shed using a key from among those found on the accused. The shed comprised a workshop and office. There was little indication that anyone lived in the shed but the appellant told the police that he slept on a couch located there and that he ate out. In addition there were two refrigerators, a television set and a gas ring which could be used for cooking. At the back of the shed were a number of large blocks of stone. Inside the shed the police located three large blue plastic barrels.
The appellant was then taken by the police to the Adelaide City Watch House where he was charged in relation to the unrelated matter.
In the evening of 16 August 2000, the police went to the unit in James Street, Prospect and searched it. In the kitchen they found, amongst other things, a little over $300,000 in notes. In the garage attached to the unit, they found a trailer covered with a metal canopy with padlocked doors at its rear. The police used bolt cutters to break the two padlocks. Inside the trailer they found a number of blue barrels which, when opened, were found to contain the discs of cocaine.
The appellant was charged only with the offence of possession of a prohibited import. It was not part of the Crown case that the appellant had imported the cocaine into Australia.
In an earlier trial for the same offence, the appellant had been found guilty. However, that verdict was set aside on appeal and a retrial ordered.[7] I mention this because at the second trial and on the appeal there were several references to evidence and events at the first trial.
[7] R v Cerullo [2003] SASC 185; (2003) 227 LSJS 509.
The Elements of the Offence
In order to find the appellant guilty of the offence, the jury had to be satisfied beyond all reasonable doubt of the following matters:
(1) that on 16 August 2000 the appellant had possession of the drug cocaine.
(2)that the cocaine is a prohibited import and a narcotic good: see s 233B(2).
(3)that the substance was reasonably suspected of having been imported into Australia in contravention of the Customs Act.
(4)that the appellant was in possession of not less than a commercial quantity of cocaine, ie, more than 2 kg.[8]
The critical issue for the jury’s consideration was the first element. Cocaine is a prohibited import and it was an agreed fact at trial that the substance in the barrels was cocaine. It was also an agreed fact that all of the samples from the cocaine in the barrels which had been analysed originated from overseas and had been imported into Australia. The amount of cocaine found in the trailer well exceeded 2 kg. There was no suggestion at the trial that the appellant had any reasonable excuse which would have justified possession of the drug. Hence, as was acknowledged by the appellant at the trial, the critical issue for the jury’s consideration was whether the Crown had proved that the appellant was in possession of the cocaine found in the trailer.
[8]Strictly speaking, this was not an element of the offence: Kingswell v The Queen (1985) 159 CLR 264. However, it was left to the jury in accordance with the practice approved in R v Meaton (1986) 160 CLR 359.
The Crown Case
The Crown case against the appellant was circumstantial.
The cocaine was found in the trailer in the garage of the unit occupied by the appellant. The appellant was the sole lessee of the unit and, despite evidence from the appellant to the contrary, there was evidence upon which the jury could have concluded that he was the sole occupant. The Crown evidence established, however, that in the period from May 2000 until his arrest, the appellant had often been absent from Adelaide, so that there were times when the unit was unoccupied.
The appellant had painted onto the trailer the registration number of his car (which was registered in the name Gary Dettman). The appellant, with the assistance of another, had put the trailer into the garage. There was evidence that the appellant was in possession of two keys, each of which was able to open both padlocks on the rear of the trailer. This evidence in particular was subject to significant criticism by the appellant at trial.
The appellant admitted that he had entered and used the garage frequently.
Additional pieces of circumstantial evidence included the fact that access to the trailer was made difficult, first, by its position in the garage with the rear of the trailer and the padlocked doors adjacent to a wall of the garage and, secondly, because of the placement of numerous other items in the garage around it. The Crown case was that those features would have made it difficult for a third party to enter the garage, unbeknown to the appellant, and to have placed the cocaine in the barrels in the trailer. In addition, the Crown case was that it would have been difficult for a third party, unbeknown to the appellant, to have removed the trailer from the garage, inserted the cocaine, and then relocated the trailer into the garage in exactly its former position and with the items surrounding it placed in exactly their former positions so as to make the trailer’s removal unnoticeable to the appellant.
Apart from the blue barrels containing the discs, the trailer contained very little other material. In particular, it did not contain any tools or other equipment.
The Crown pointed to the fact that the appellant used two identities with the false identity used in relation to the place where the cocaine was located.
Further again, the Crown relied on the evidence of the large amounts of money which were found at the Prospect unit. Absent evidence of that kind, the jury might have considered it unlikely that a person of otherwise modest means and living in modest circumstances could possess such a substantial amount of cocaine. The Crown also relied on evidence that in the period between March 2000 and 16 August 2000, the appellant had engaged in some substantial cash transactions, including the purchase of land at Truro for $130,000 and a boat for $30,000.
The Crown also pointed to the volume and value of the cocaine which was found. It invited the jury to conclude that it was unlikely that the appellant could have had cocaine of such substantial volume and value in his garage without knowing of its presence. Furthermore, the Crown submitted that it was unlikely that a third party who was the owner or possessor of the cocaine would have been prepared to leave cocaine of such volume and value in the garage of the appellant and, what is more, in a trailer which could relatively easily be moved away.
Finally, the Crown pointed to the fact that traces of cocaine had been found in the tray of a white utility belonging to the appellant and which was located at the Wingfield premises.
The Finding of the Keys
As noted earlier, there were two padlocks securing the rear doors on the trailer. Those padlocks could be opened with a common key. The Crown case was that two keys, each capable of opening both padlocks, were found in the appellant’s property.
The first key was found on 26 March 2001, ie, more than seven months after the arrest of the appellant. The Crown evidence was that this key was found in the trousers which the appellant was wearing at the time of his arrest, and which had been seized by the police on 17 August 2000 and held in their possession thereafter. I will refer to this key as “the first key”. It was Exhibit P86 at the trial.
The second key was found later again, on 14 October 2001, ie, 14 months after the appellant’s arrest. The Crown case was that it was found in the front seat area of the appellant’s car. That car had been seized by police at the time of the arrest and again, had been held in police custody thereafter. I will refer to this key as “the second key”. It was Exhibit P89 at the trial.
The submissions of the appellant at trial and on appeal were based in what were said to be a number of “inadequacies and … inherent improbabilities” in the Crown evidence concerning the appellant’s possession of the keys. It was suggested to Mr Wilson, the officer in charge of the Australian Federal Police (“AFP”) investigation, that he had substituted the first key for another key found in the appellant’s trousers, and that he had added the second key to the appellant’s vehicle before “finding” it there.
The Evidence of the Appellant
The appellant told the jury that he was born in Italy and had grown up in that country. His father worked in a marble mine at Carrara and, as a result, during the course of his growing up he had obtained experience in working with stone. The appellant initially came to Australia in 1970 and developed a successful business in the manufacture of caravans. Between 1994 and March 2000, however, he had been overseas, and in particular, in Italy.
Whilst in Italy, he heard from some Australians of the possibility of establishing a business manufacturing and supplying pre-fabricated mausoleums. The appellant said that he decided to take up the idea and arranged to purchase an expensive and large stone cutting machine. He also arranged the purchase and import into Australia of a supply of stone.
The stone cutting machine had been arranged to arrive in Australia in about October 2000.
The appellant himself arrived in Australia on 31 March 2000. He said that he brought with him approximately $A360,000 but some of this was in $US and some in Lira. After a short time in Queensland he went to Melbourne. He said that he purchased a car from one Gary Dettman and, for a further $4,000 purchased from the same man some documents of identity in the name of Gary Dettman.
The appellant said that he leased the York Street, Wingfield premises for the purposes of carrying on the proposed masonry business. He had the imported stone delivered to that address. He said that he did stay overnight in the Wingfield premises from time to time.
The appellant said that he leased the unit at James Street Prospect so as to be able to provide accommodation to the workers who would be coming to install the large stone cutting machine, and because it was more comfortable for him than living at Wingfield.
The appellant said that the trailer belonged to others. It had been used to store tools and for most of the month of May 2000 had been left at the Wingfield premises. The appellant said that the trailer had been brought to the Prospect unit because he thought that it would be safer there than at Wingfield. The trailer had been empty when it was put in the garage at the Prospect unit. At that time, the rear doors had been secured with wire only.
The appellant agreed that he had purchased the utility in which the traces of cocaine were found but said that a number of different people had driven the utility after he had taken possession of it. Whilst in Adelaide after April 2000, the appellant said that he purchased, using cash, a number of items of equipment including some expensive equipment. He proffered an explanation for his use of a false identity.
The appellant said that the money found at the James Street unit was the money which he had brought to Australia and the money which he had obtained after arrival by the conversion of the $US and the Lira into Australian currency together with some other money ($450,000) which he received whilst in Australia from a friend who had brought it from Italy.
The appellant denied that the cocaine was his and denied knowledge of its presence in the trailer in his garage. He denied having possession of the keys to the trailer padlocks and denied any knowledge of those keys and of the padlocks.
The Crown adduced a good deal of evidence on which the jury could reasonably have concluded that the appellant was a man with little credibility. It is not necessary to record the matters to which the Crown referred. The effect of many of them was not, in substance, contested by the appellant’s own counsel at the trial. Instead the appellant’s counsel told the jury to consider whether the appellant was lying about the charge itself, cautioning it by using the aphorism “nobody believes a liar even when he is speaking the truth”.
The jury was instructed that even if it rejected the evidence of the appellant, it still had to be satisfied beyond reasonable doubt on other evidence of the guilt of the appellant.
Directions of the Trial Judge
The issue of the appellant’s possession of the two keys to the trailer padlocks was prominent at the trial. Much evidence was led on the topic, and there was much, if not more, cross-examination on the topic. In his summing up, the trial Judge summarised the evidence as to the keys said to have been in the appellant’s possession. He directed the jury that they should subject that evidence to careful scrutiny. The trial Judge cautioned the jury to consider carefully the criticisms of the police evidence made by the defence. The trial Judge then directed the jury that before it could use the fact that the appellant was in possession of either key, it had to be satisfied beyond all reasonable doubt of that fact.
The respondent submitted that the latter direction was unduly favourable to the appellant. It was submitted that in the circumstances of this case a finding of fact by the jury as to the possession by the appellant of the keys was not a finding of “an intermediate fact as an indispensable basis for an inference of guilt”.[9] In my opinion, that position is at least arguable, but it is contrary to the stance taken on this issue by the Crown counsel at trial. The trial Judge was told that the Crown did not oppose the trial Judge giving a direction to the jury in the terms in which he did. In that circumstance, and the further circumstance that the issue was not addressed fully on appeal, I consider that this appeal should be determined on the basis that the direction given by the trial Judge on this aspect was correct. It is relevant to note that the direction of the trial Judge would have served to reinforce to the jury the need to consider most carefully the evidence concerning the appellant’s possession of the keys.
[9] Shepherd v The Queen (1990) 170 CLR 573 at 576 per Mason CJ.
The trial Judge also instructed the jury that it had to be satisfied beyond all reasonable doubt that the appellant had exclusive possession of the cocaine. This direction was repeated in a redirection following a question from jury. In the redirection, the Judge said:
The law says that when two or more persons, acting together, intend to and have the right to exercise control over property to the exclusion of others, each is in possession of it. However, neither the prosecution nor the defence has submitted to you that this is a case of joint possession. You must consider the case on the basis that this offence can only be proved against the accused if he had exclusive possession in the sense which I have explained.
I direct you that there is insufficient evidence to support a finding of joint possession. Furthermore, if it is a reasonable possibility that another or other persons was or were in possession of the cocaine, then the accused must be found not guilty of the offence.
Grounds of Appeal
There were five grounds of appeal. The first four grounds in substance make the same complaint expressed in differing ways. Ground 1 alleges error by the Judge in “inviting and/or permitting” the jury to find that keys to the padlocks on the trailer had been found in the appellant’s property. Ground 2 pleads that it was not open to the jury to find beyond all reasonable doubt that the keys had been found in the appellant’s clothing or in his car. Ground 3 complains that the Judge erred in directing the jury that it was open to it to find that the keys had been found in the appellant’s property. Ground 4 alleges that the trial miscarried by reason of the cumulative effect of the errors alleged in Grounds 1-3 inclusive.

Ground 5 alleges that the verdict of the jury was unreasonable and could not be supported having regard to the evidence. In addition to relying upon the matter alleged in Ground 2, this ground pleads that there was at least a reasonable possibility that someone other than the appellant had possession of the keys to the trailer padlocks and therefore that there was at least a reasonable possibility that the appellant did not have possession, or at least exclusive possession, of the cocaine.
Submissions on the Appeal
Mr Holdenson QC, who appeared for the appellant, accepted that the gravamen of Grounds 1, 2, 3 and 4 was contained in Ground 2. The submission of the appellant in short in relation to those grounds was that the evidence and, in particular, inadequacies in the evidence, given by police officers was such that it was not open to the jury to find beyond reasonable doubt that the appellant was in possession of either of the two keys.
Mr Holdenson submitted that the trial Judge should have directed the jury that it was not open to it to be satisfied beyond all reasonable doubt that the appellant was in possession of either of the two keys or, in the alternative, that it should disregard all the evidence about the keys having been found in the possession of the appellant.
The appellant’s submission was that as the possibility that the jury had used the evidence concerning the appellant’s possession of the keys could not be excluded, the directions of the trial Judge may have led the jury into a false process of reasoning. In this respect, reliance was placed on Prasad v The Queen[10] in which the High Court, in a short ex tempore judgment, held that a verdict, reached by a jury after a misdirection by the trial Judge as to the effect of some evidence, should be set aside because of the possibility that the jury had reached its verdict by a false process of reasoning.
[10] (1994) 68 ALJR 194.
Ground 5 had its basis in the direction which the trial Judge had given to the jury that it needed to be satisfied beyond all reasonable doubt that the appellant had exclusive possession of the cocaine. It was submitted that, if it was not open to the jury to find beyond reasonable doubt that the appellant was in possession of the keys (ie if Ground 2 was upheld), then there was a reasonable possibility that a third party was in possession of the keys, in which case, given the direction of the trial Judge about exclusive possession, the possibility that that third party was in possession of the cocaine could not have been reasonably excluded by the jury.
It was submitted that if any of Grounds 1-4 inclusive was upheld, the appellant would be entitled to a retrial, but that success on Ground 5 would entitle the appellant to an acquittal.
The Approach of an Appellate Court
This Court is required to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. In the circumstances of this trial, and of the directions of the trial Judge, this Court is required to determine whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was in possession of the keys to the trailer padlocks. That requires an independent assessment of all the evidence in the manner indicated in M v The Queen[11], Morris v The Queen[12] and Jones v The Queen.[13] In particular, this Court is required to determine not only whether there was sufficient evidence on which the jury could find beyond reasonable doubt that the appellant was in possession of the keys, but also whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant had possession of the keys.[14]
[11] (1994) 181 CLR 487 at 494-5 per Mason CJ, Deane, Dawson and Toohey JJ.
[12] (1987) 163 CLR 454 at 462 per Mason CJ; at 472-3 per Dawson, Toohey and Gaudron JJ.
[13] (1997) 191 CLR 439 at 450-2 per Gaudron, McHugh and Gummow JJ; at 466-8 per Kirby J.
[14] Morris v The Queen (1987) 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ.
The Evidence Concerning the First Key
Immediately after his arrest on 16 August 2000, the appellant went with police to his vehicle in the car park attached to the marine showroom. He was asked by the arresting officer, Sgt C M Williams, to empty out his pockets. The appellant produced three sets of key rings. One set, when tendered, contained three keys on a single ring, being the keys to the Commodore vehicle. These became Exhibit P1 at the trial. The second set, when tendered, contained four keys on two attached rings. One was the ignition key to the appellant’s utility. These keys became Exhibit P2 at the trial. The third set, when tendered, comprised four keys on a single ring together with a white “The Professionals” tag. This set became Exhibit P3 at the trial. The appellant also produced a single post office key which became Exhibit P4 at the trial. None of the keys produced by the appellant fitted the trailer padlocks.
Apart from the keys, the appellant also produced two wallets, some money, a handkerchief and two mobile phones. Sergeant Williams said that he satisfied himself, by patting down the appellant, that there was nothing else left in the appellant’s pockets. There was evidence from Senior Constable Taylor, who accompanied Sgt Williams, that the appellant had turned his pockets out to demonstrate that he had produced the entire contents.
Sergeant Williams said that all of the property produced by the appellant was placed in a brown paper bag and placed in a police vehicle which was then driven to the Wingfield premises. However, there must have been some exceptions to this as a police officer drove the appellant’s vehicle away and must therefore have had Exhibit P1. Furthermore, the appellant must have been permitted to return some items at least to his pockets as later, when the appellant was charged at the City Watch House, he produced items from his pockets.
The appellant was charged in relation to the unrelated matter at the City Watch House at approximately 6.40pm on 16 August 2000. The brown paper bag containing the items he had earlier produced was given to the Charge Sergeant. The appellant was asked again to produce all the contents from his pockets. No further keys were produced.
Although the appellant did produce items from the pockets, it is apparent that he must have been permitted to retain at least the handkerchiefs. Furthermore, although the appellant was observed closely whilst producing the items from his pockets, no physical search was then conducted to confirm that nothing remained in his pockets. His clothes were not taken from him at this stage. The appellant was held in custody overnight.
The following morning, at approximately 7.30am, the appellant was charged with the offence of possession of a prohibited import. At that time, he removed his clothing and it was placed into bags. Those bags, with the other items earlier taken from the appellant, were then taken by Mr Wilson to the headquarters of the AFP in Adelaide. Mr Wilson then directed another officer, a Mr M R Williams, to record each item.
M R Williams gave the appellant’s trousers the item number “PC02”. He said that he found in the right hand pocket of the trousers two handkerchiefs, a five cent piece and a key. His full description of item PC02 as recorded on the AFP Property Seizure Record numbered A18816 was “one pair charcoal grey trousers with two handkerchiefs in right pocket, with 5c piece and key”. He did not record any other identifying feature of the key and at trial was not able to say any more than that the first key “looked liked” the key which he had found. At the first trial, he had not been able to give any description at all of the key which he had found.
In the AFP electronic recording system, Item PC02 was given the number 845927.
Although stating that he had found the key in the pocket of the trousers, M R Williams admitted that his recollection of finding the key in the pocket was not as clear as his recollection of the finding of the two handkerchiefs and the five cent piece and seemed to accept therefore that the key may have been in the bag containing the trousers as opposed to being in the pocket of the trousers. In any event, having recorded them, he put the handkerchiefs, the five cent piece and the key back into the right hand pocket of the trousers.
The AFP appreciated, very soon after the finding of the cocaine, that the keys to the trailer padlocks could be significant items of evidence. Furthermore, as each of the padlocks had on one side the trademark “AAA” and on the reverse side “TRI-A No 264 China”, the police appreciated that any keys in the appellant’s property bearing those trademarks could possibly fit the padlocks. Mr Wilson gave a direction, on either 18 or 19 August 2000, that efforts should be made to locate a key or keys which would fit the padlocks. However, as at March 2001, when the AFP was preparing for the committal proceedings, no such keys had been identified. Mr Wilson then asked another AFP officer, Ms Alde, to test the padlocks with all the keys in the AFP’s custody, including those found in the property of the appellant and those found at the property of others during the course of the AFP investigation. Ms Alde carried out that task by locating keys recorded by the AFP and physically testing them against the padlocks. Ms Alde found that the keys recorded in the AFP records as part of item PC02 with the number 845927 on Property Seizure Record A18816 fitted both padlocks. She identified the first key (Exhibit P86) as being that key.
The Appellant’s Criticisms Concerning the First Key
On its face, by the evidence just reviewed, the Crown proved the chain linking the first key to possession of the appellant. However, the appellant submitted that a number of considerations, individually or in combination, made that conclusion unsafe.
First, the appellant pointed to the fact that he had been searched by the police twice before his clothing was seized at approximately 7.30am on 17 August 2000, and on neither occasion had any key been found. If it had been present it would, so the argument ran, have been found and seized on at least one of those occasions. If the key was found as deposed to by Ms Alde, that suggested that it had been introduced into the appellant’s clothing after that clothing had been taken into police custody.
There is some force in this submission but the failure to detect the key at the time of each of the two searches is also consistent with inadequate searches having been carried out. Mr Barrett QC, who appeared for the Crown, accepted that the Crown case involved an acceptance that “a completely inadequate search” had been made by the police of the appellant. In my opinion, the failure to detect a key is explicable. Both the five cent piece and the key were small flat items which could easily be caught up in the fold of one the appellant’s handkerchiefs and thus have escaped detection. It is readily understandable that such small flat items may not have been detected on a patting down of the appellant and that the police officers may have been reluctant, for reasons of hygiene, to unfold the handkerchiefs. Furthermore, although the appellant was observed closely whilst producing the contents of his pockets at the Watch House, no physical search was then made of him. It is also relevant that a non-incriminating item, namely, the five cent piece, as well as the key, was found in the trousers.
Secondly, although M R Williams recorded a key as having been found in, or with, the appellant’s clothing, that key was not described at all, thereby precluding confirmation, by comparison of the first key with a description, that the first key was the key found with the clothing, or at least, similar to that key.
Related to this criticism was another submission of the appellant. If the appellant did have the first key in his clothing, then he must, so the argument ran, have appreciated the incriminating effect of that possession. If he had somehow been able to retain the key after each of the two searches, he had had several opportunities to dispose of the key surreptitiously before his clothing was seized, and it is reasonable to conclude that he would have done so. It was submitted that this consideration supported the claim that the key must have been introduced into the appellant’s clothing after that clothing had been seized by the police.
Mr Barrett QC accepted that it was a legitimate criticism of the AFP investigation that the key found by M R Williams had not been described in any detail, let alone in sufficient detail for it to be later identified. It should be accepted, in fairness to M R Williams, that apart from his carrying out of Mr Wilson’s request to record the items of property found on the appellant, he had no other involvement in the investigations concerning the appellant. Furthermore, at the time that he was requested to record the property, he had no knowledge of the issues then thought to be pertinent to the investigation. He was not given information which might have led him to appreciate the potential significance of the key which he located. That said, the fact is that his omission to record any detail of the key found with the trousers left open some scope for uncertainty in the identification of that key.
However, if the first key (Exhibit P86) was not the key located by M R Williams, that could be so only because there had been some later substitution, whether accidental or deliberate, of the key found by him with the first key. That possibility formed the basis of the third criticism made by the appellant.
Mr Holdenson QC pointed to shortcomings in the police descriptions, recording and tracking of various keys found in the appellant’s property which it was submitted allowed for confusion and mix ups to occur. Mr Barrett QC accepted that legitimate criticisms could be made of the police investigation in this respect.
No count was made at the time of the appellant’s arrest of the number of keys comprising the sets of keys which became Exhibits P1, P2 and P3. Furthermore, no count was made of the number of keys comprising each set at the time that the appellant was charged at approximately 6.30pm on 16 August 2000. Further again, no description was made of these keys. The record made at the City Watch House was simply “Keys x 4”. Further again, during the course of the night of 16 August, keys were taken from the Watch House by various police officers as part of their continuing investigations. At 7.55pm Sgt C M Williams took one set of keys, described as house keys. The Watch House register records that these keys were returned at 10.22pm the same evening. At the time of that return, a second set of keys, described as house keys, was also removed from the Watch House. There is no record of the return of those keys. The Watch House record further records that at 2.22am on the 17 August “2 x 2 keys” were removed by Detective Minchenberg. There is no record of the return of those keys to the Watch House. No record was made identifying precisely the keys which were removed and later returned. It seems that there was some passing from one officer to others of the keys which had been removed from the Watch House. The keys which became Exhibit P1 were not entered into the AFP records until 5 September 2000, and their whereabouts between 16 August 2000 and that date was not explained.
A further deficiency in relation to the recording of the keys is that the AFP had no separate record, whether on a Property Seizure Record, or in electronic form, of the post office key which the appellant had produced at the time of his arrest. Nevertheless, that key was tendered as part of the Crown case and, as noted above, became Exhibit P4. The location of that key between the time of leaving the Watch House, and the time of the appellant’s first trial was not explained. This led to a submission at trial, and on appeal, that the key found by M R Williams with the appellant’s trousers when he was recording the appellant’s property on 17 August 2000 was the post office key, and that the first key had later been substituted for it.
There are regrettable shortcomings in the police procedures, or alternatively in compliance with police procedures, in relation to the identification and recording of keys. This is especially so as the AFP appreciated at an early stage the significance to the investigation of keys to the trailer padlocks. Those shortcomings, coupled with the belated discovery of the keys that fitted the padlocks, has given rise to the very issue now being considered. Those shortcomings have led to a significant amount of time being spent at trial and on the appeal, in relation to the identification of keys. However, that said, the issue for the jury was whether the key found by Mr M R Williams was the first key. If it was not, that could be so only because there had been some substitution of another key, being the first key for the key actually found by M R Williams.
This led to the appellant’s next submission, namely that Mr Wilson had substituted the first key for another key found in the appellant’s clothing and that he had himself placed the second key into the appellant’s car and then claimed to have found it there. I will return to this submission as part of my consideration of the appellant’s submissions in relation to the second key.
The Evidence Concerning the Second Key
As noted earlier, the second key was found in the front section of the appellant’s vehicle on 19 October 2001. The vehicle had been in the custody of the AFP continuously since 16 August 2000. The second key was found by Mr Wilson who said that he was giving the vehicle a final check before releasing it to the Insolvency and Trustee Service Australia.
Mr Wilson found bags containing miscellaneous material in the car. He took the bags to his desk and searched them. In a bag which he had found on the front seat, he found a silver key bearing the markings “AAA” and “TRI-A China”. This is the second key. Mr Wilson found that it fitted both trailer padlocks.
The Appellant’s Criticisms Concerning the Second Key
The appellant’s trial counsel launched a major attack on the evidence of Mr Wilson. It was put to him that he had “created” the evidence of the keys as part of a “biased” investigation of the appellant. Specifically, it was put to Mr Wilson that he had substituted the first key for the post office key, that being the key which M R Williams had located with the trousers, and that he had “added” the second key to the appellant’s vehicle. Mr Wilson denied each of the suggestions. The appellant pointed to, and elicited evidence about, a number of matters which it was said gave rise to concerns about Mr Wilson’s evidence, notwithstanding those denials.
First, the appellant pointed to the fact that there had been two prior searches of the appellant’s vehicle without, it was said, either locating the key found by Mr Wilson. The first search occurred in the car park of the marine showroom immediately after the appellant’s arrest. Three police officers spent approximately 30-40 minutes searching the car. None of the police officers reported at that time locating any keys. Of course, at the time of that search, the cocaine had not yet been discovered and the significance of keys would not have been as apparent as it later became. One of the officers, Sgt Williamson, said they were searching for “evidence and items of interest”. Presumably this referred to materials relevant to the matter for which the appellant was then being arrested. However, two officers did say that, had they noticed the keys, it is likely that they would have remembered that fact the following day when the significance of identifying keys to the trailer padlocks was known. A further matter of significance in relation to the search of the vehicle at that time is that the contents of the appellant’s car were substantial. The appellant kept a substantial number of documents, personal possessions, tools and equipment in his vehicle. There was a lot of material for the three police officers to examine.

Following this search, the vehicle was secured by the AFP. On 19 August 2000 a very detailed search was made of the car by two police officers, Mr Mason and Ms Johnston. The entire contents of the vehicle were removed. This was done section by section. The contents of each section were placed on the ground adjacent to the vehicle but separate from the contents of each other section. Then the two police officers conducted a detailed search of the contents in each section. A handwritten record was made of those contents. A total of six keys were found. Four of those keys were seized by the officers Johnston and Mason. The first was a silver key described by Ms Johnston in the AFP Property Seizure Record as “1 x silver coloured key with ‘AAA’ on front, ‘TRI-A China’ on reverse”. It was recorded as having been found in the front section of the vehicle. Next two silver keys in the nature of post office box keys were seized. Finally, a gold coloured Lockwood key was seized. None of those keys fitted the padlocks.
One of the keys not seized was a gas tank key. It is not suggested that that key has any relevance in the matter. The other key not seized was, on the Crown case, the second key (Exhibit P89) which was found later by Mr Wilson. It was said that this was the key located by Mason and Johnston in the back seat section of the car, and which had been described by them simply as “1 x silver key”. Neither Mason nor Johnston was able to proffer any explanation for seizing the silver key with “AAA” on the front and “TRI-A China” on the reverse which was found in the front section of the vehicle, but not the second silver key said to bear exactly the same markings which was found in the back section.
Having completed the search and seized various items, Mason and Johnston put the remaining items into a bag and returned that bag to the section of the car from which the items had been taken. Thus, the items removed from the front seat area which were not seized were placed in a bag and that bag was placed in the front seat area of the vehicle. The silver key said not to have been seized by Mason and Johnston was the key said to have been found in the back seat area of the appellant’s vehicle. However, Mr Wilson’s evidence was that the key which he found on 19 October 2001 was contained in a bag in the front seat area of the vehicle. If Mason and Johnston had put the bags into the same section of the car from which the contents had been removed, the means by which the key, or the bag containing it, came to be in the front section at the time of Mr Wilson’s check were not explained.
Mr Barrett QC both at trial and on appeal accepted that legitimate criticisms could be made concerning the adequacy of the police search of the appellant’s vehicle on 19 August 2000, the record keeping at that time, and the delay in identifying the existence in the appellant’s property of a key fitting the two padlocks.
The resolution of the discrepancies to which the appellant referred was not assisted by the fact that Ms Johnston had signed two statements, one dated 31 October 2001 and the second dated 8 November 2001, which were in relevant respects identical save that in the first statement she referred to locating a silver key (the implication being that this was the key found by Mr Wilson) in the back seat of the appellant’s vehicle, whereas in the second she referred to having located the key in the front seat of the vehicle. It was suggested that this was an indication of Ms Johnston’s willingness to lie in order to support Mr Wilson’s account of having found the key in the bag in the front section of the vehicle. It was in this context that the appellant’s counsel put to Mr Wilson that he had brought the keys into the property of the appellant so as to create evidence against him.
The appellant elicited evidence indicating that Mr Wilson had had the opportunity, if so minded, to substitute the first key for the key noted by M R Williams in item PC02. As the finder of the second key, he had obviously had the opportunity, if so minded, to place that key in the appellant’s vehicle before “finding” it, or alternatively, to claim falsely that it had been found in the appellant’s car.
The appellant’s counsel also elicited that Mr Wilson, as the officer in charge of the investigation, had failed, prior to the appellant’s first trial, to comply with an investigation officer’s duty of bringing to the attention of both the DPP and of defence counsel evidence which may have been exculpatory of the appellant. Mr Wilson had not disclosed that two barrels which were virtually identical to those found in the trailer in the appellant’s garage had been found at the home of a Mr Soukoulis who at one time had been suspected by the AFP of involvement with the cocaine. Mr Wilson’s explanation was that he had not thought the existence of those two barrels to be relevant. Coming from an experienced police officer, this explanation was somewhat surprising. After that disclosure, Mr Wilson did not disclose for a further two weeks the evidence of other material such as gloves with traces of cocaine on them, tape similar to that on the barrels found in the trailer, a large sum of money in cash, a money counter and numerous keys, all of which had been seized from the premises of Mr Soukoulis by the AFP. This was said to evidence bias in Mr Wilson’s investigation. Mr Barrett QC accepted that legitimate criticisms could be made of the failure by Mr Wilson to disclose relevant material until part way through the appellant’s first trial.
The Soukoulis property had been searched in March 2001 prior to Ms Alde testing the key forming part of item PC02. Mr Wilson denied a suggestion made by the appellant’s then counsel that each of the first and second keys had come from the home of Mr Soukoulis.
At the first trial, Mr Wilson had produced to the Court ten blue barrels, stating that they were all the barrels seized by the AFP in relation to the investigation of the appellant. When it was pointed out that the AFP had in its possession a further three blue barrels relevantly identical to those found at the appellant’s premises, Mr Wilson proffered as an explanation of their presence the suggestion that an AFP officer may have brought them for his or her private use and was storing them temporarily in the secure property room at the AFP Headquarters. This seems a surprising explanation. Later, however, it emerged that these three barrels had been seized from the appellant’s garage, but this had been overlooked by Mr Wilson.
Decision on Ground 2
In summary, the appellant’s criticisms focussed on the belated discovery of the keys in property which had not only been in the possession of the AFP for some time, but which had previously been searched, the opportunity for substitution or addition which Mr Wilson had had, issues concerning the credibility and reliability of Mr Wilson as a witness, and shortcomings in the AFP records of the keys.
It clearly was appropriate for the trial Judge to have instructed the jury to subject the evidence relating to the appellant’s possession of the keys to the closest scrutiny. The jury can have been in no doubt, from the commencement of the trial, that the appellant’s possession of the keys was a major issue for their consideration. In a short opening statement made by the appellant’s trial counsel immediately after the Crown opening, the issue was signalled to the jury and it was invited then to pay close attention to the evidence that the keys had been in the possession of the appellant.
I have considered carefully counsels’ submissions and the evidence. In my opinion, despite the criticisms of the appellant’s counsel, there was sufficient evidence, and it was open for the jury to have concluded, that the first and second keys were in the possession of the appellant. A number of considerations support that conclusion.
Given the circumstances in which the keys were discovered, and the criticisms made by the appellant at trial, a conclusion that the keys were in the appellant’s possession depended very much upon an assessment of the credibility and reliability of the prosecution witnesses. The appellant had denied on his oath any knowledge of the two keys. Two police officers had deposed on their oath to the circumstances in which they found the keys. The possibility that the first and second keys had been dishonestly substituted or added to the appellant’s property had to be excluded by the Crown as a reasonable possibility. As Mr Barrett QC submitted, whether or not that possibility had been excluded was quintessentially a matter for a jury.
It is relevant, in my opinion, to consider what must have occurred, given the police evidence, if the keys had not, as a matter of fact, been in the possession of the appellant. In those circumstances, there must have been dishonest conduct by one or more of the AFP officers. I say that because the possibility of some accidental substitution or addition of the keys can, for practical purposes, be ignored. The possibility of a single accident occurring resulting in the placement of one or other of the two keys in the appellant’s property is, in my opinion, remote. The possibility of two such accidents occurring can be regarded as fanciful.
The appellant’s trial counsel recognised this. The suggestion put to Mr Wilson was that he had consciously and deliberately created the evidence, ie, by acting dishonestly. It is a regrettable fact that there have, from time to time, been instances of police dishonesty in the presentation of evidence, including the fabrication of evidence. It is, however, reasonable to suppose dishonesty of this kind is not commonplace. That is a factor to be considered in determining whether it was open to the jury to find the appellant’s possession of the keys beyond reasonable doubt. In other words, where there are two alternative inferences open, the more improbable the first alternative, the more open is the second.
I emphasise that this conclusion is not to suppose any presumption of honesty in police officers, nor to express a view about whether such dishonesty had, or had not, occurred in this case. It is simply one reason for my conclusion that it was a matter properly left for the jury’s consideration. Moreover, the trial Judge directed the jury that evidence of the police officers was to be assessed in the same way as the evidence of any other witness and, in particular, that the police officers did not have the benefit of any presumption of honesty.
Mr Barrett QC submitted that dishonest placement of the keys in the appellant’s property by AFP officers was implausible for a number of reasons. It is not necessary to address those submissions individually. These arguments were reasonably available on the evidence. Such submissions were clearly matters for the jury to consider. In my opinion, they are also relevant to the question of whether it was open to the jury to conclude beyond all reasonable doubt that the keys were in the possession of the appellant.
A further consideration is that in each case a key was in fact found in the appellant’s trousers and car respectively. M R Williams, with no involvement in the case other than that of acting as a recorder of property, did, on 17 August 2000, record finding a key in (or at least with) the appellant’s trousers. This was despite two previous searches of those trousers. That suggests that the previous searches had been incomplete. It would be fanciful to suppose that M R Williams, knowing nothing of the investigation concerning the appellant, had chosen to record a key which was not present.
Likewise, Mr Mason and Ms Johnston, did, on 19 August 2000, record a silver key as having been found in both the front and rear sections of the appellant’s vehicle. Whilst it is inexplicable that only one was seized, the fact is that two keys were then recorded as having been found. This is not a case of the police belatedly finding a piece of incriminating evidence in circumstances where no item at all of the kind said to be incriminating had been previously found. I acknowledge that that consideration is not decisive, as it may be that the fact that such keys had been recorded as having been found presented the opportunity for the substitution or addition. However, as I say, I regard it as a relevant consideration in determining whether it was open to the jury to conclude that the keys had been in the possession of the appellant.
Finally, I note that it was not suggested to the trial Judge by the appellant’s counsel that the jury should be instructed that it was simply not open to them to find on the evidence presented that the keys had been in the appellant’s possession. The appellant’s then counsel did submit that the jury should be instructed that it was not open for them to find the appellant guilty unless they were satisfied, beyond all reasonable doubt, that the keys had been in the appellant’s possession. That is quite different from a submission that it was simply not open to the jury at all to find that the appellant had had the keys in his possession.
My conclusion with respect to Ground 2 means that in my opinion, none of Grounds 1 to 4 inclusive have been made out.
Ground 5
Mr Holdenson QC accepted that Ground 5 was dependent on Ground 2 being made out. If Ground 2 failed, then the basis for Ground 5 fell away. Given that in my opinion Ground 2 does fail, this means that Ground 5 also fails.
It was open to the jury to be satisfied beyond all reasonable doubt that the appellant was in possession of the keys to the trailer padlocks. It was, accordingly, open to the jury to find that the appellant had exclusive possession of the cocaine. That conclusion makes it unnecessary to consider the submission of the respondent that the trial Judge had been “unduly generous” to the appellant in directing the jury that the prosecution had to prove that he had exclusive possession of the cocaine.[15] It is also undesirable to consider the submission, given that full argument was not presented to the Court on this aspect.
[15]Cf Pearce and Carter v DPP(No 2) (1992) 59 A Crim R 182; R v Dib (1991) 52 A Crim R 64 at 66-7; R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89 at 90-91; R v Filippetti (1978) 13 A Crim R 335.
Conclusion
For the reasons which I have given, my opinion is that this appeal should be dismissed.

(1)Any person who:

(ca)without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which are reasonably suspected of having been imported into Australia in contravention of this Act.