R v Evans

R v EVANS
[1998] SASC 6798

Court of Criminal Appeal
Coram: Millhouse, Perry and Nyland JJ

Perry J

This is an appeal against both conviction and sentence following the appellant’s trial in the District Court sitting at Mount Gambier before a judge and jury on an information which alleged two drug counts, namely, possessing amphetamine for sale and possessing lysergide (LSD) for sale.[1]
[1] Both offences are contrary to s32(1)(e) of the Controlled Substances Act 1984.
The appellant was convicted on both counts. The learned trial judge imposed one sentence covering both offences,[2] namely, imprisonment for 56 calendar months with a non-parole period of 36 calendar months, both to commence from the date upon which the appellant had been taken into custody, that is, 15 August 1997.
[2] Pursuant to s18A of the Criminal Law (Sentencing) Act 1988.
At about 7.00 pm on Friday 15 August 1997, police officers observed the appellant driving his car in a supermarket car park at Millicent. His son, said to be 14 or 15 years of age, was a passenger in the car. As they approached the car, the appellant was seen to hand to his son his wallet and a small mobile phone. They arrested the appellant and took him to the Millicent police station, together with the car.
While he was being taken into custody at the police station, property which the appellant was carrying on his person was taken from him. It included a small note book which was seen by the police officers to contain a number of telephone numbers.
Soon after being taken into custody, the appellant asked for the return of the book, saying that he wanted to ring a solicitor at one of the telephone numbers recorded in it. The book was given to him, and he was allowed access to a room with a telephone in it. He then tore some pages out of the book and was observed appearing to chew them up in his mouth. Police officers struggled with him and retrieved a number of the torn pages.
In the meantime, the car was searched. Some bedding and clothes were seen lying across the rear seat. On that material, the police officers found a clear plastic container in which there were two small plastic phials. When opened and examined, they were found to contain four strips of paper, each divided into fifty small squares which, on analysis, were found to contain LSD. A police officer who was an experienced member of the Drug Task Force gave evidence that the small squares of paper, which come in sheets, was a common method of packaging LSD for sale.
Located with the LSD was a small amount of powder in a plastic snap-seal bag, along with two syringes, a number of empty plastic press-seal bags, a sponge, and an empty plastic phial. The bags were of a kind commonly used for the packaging of LSD for sale. When analysed, the powder was found to contain amphetamine and methylamphetamine.
On the bedding lying across the rear seat, the police officers also found a chess set, which had concealed in it what was described as a blue box, containing a small mirror.
In the boot of the car the police found a canvas bag containing an envelope. Inside the envelope was a plastic press-seal bag containing powder which, on analysis, was found to contain amphetamine and methylamphetamine. Also in the bag were syringes and a spoon.
Separately in the boot was a plastic press-seal bag in a crude container bound by electrical tape. That bag also contained a mixture of amphetamine and methylamphetamine. As well, the police located in the boot some Tally Ho cigarette papers, and a further quantity of unused press-seal plastic bags.
In the appellant’s wallet there was $1,035.25 in cash.
When questioned on the night of his arrest and again three days later, on which later occasion he was asked to comment on the items found in the vehicle, the appellant made no admissions, declined to make any comment as to what had been found in the car, and said that he wished to speak to his lawyer.
As part of the Crown case, a statement of agreed facts was read to the jury. This was to the effect that about three and a half weeks before the date upon which he was apprehended, the appellant had purchased the car for $500 from a Mr Francis, who had not been in or driven the vehicle since the day upon which he sold it.
The appellant did not call any witnesses or give any evidence at the trial.
At the forefront of his submission to the jury, the appellant’s counsel contended that the Crown had failed to prove that the appellant was knowingly in possession of the drugs. He emphasised that there was no evidence as to where the car had been over the three and a half weeks since its purchase, and who had had access to it over that time. He pointed out that the car was in poor condition, that there was no evidence of any keys, or that the boot was capable of being locked.
In what was very much a subsidiary, alternative argument, the appellant through his counsel put to the jury that if they were otherwise satisfied that the appellant was knowingly in possession of the drugs, the instruments for self-administration, such as the spoon and the needles, should be taken to be indicators of personal use. In those circumstances, he submitted that the jury could not be satisfied that the appellant’s possession of the drugs, if that is what they found to be the case, was for the purposes of sale.

THE APPEAL AGAINST CONVICTION

I will deal with the grounds in the order in which they are set out in the amended notice of appeal.

1...... “The verdict was unsafe and unsatisfactory - in particular, because of the lack of any evidence as to the accused’s possession of the drugs”

The appellant, through his counsel Mr Apps, conceded that the phrase “unsafe and unsatisfactory” should perhaps have been expressed differently, bearing in mind certain comments made by members of the High Court in Gipp.[3]
[3] (1998) 155 ALR 15 at paras 120-127 (inclusive) (Kirby J) and para 167 (Callinan J).
The grounds upon which the Full Court may allow an appeal against conviction are set out in s353(1) of the Criminal Law Consolidation Act 1935. They are that the verdict:
(a).... was unreasonable; or
(b).... cannot be supported having regard to the evidence; or
(c).... was affected by a wrong decision on any question of law; or
(d).... that there was, on any ground, a miscarriage of justice.
The appellant relied on (b), namely, that the verdict cannot be supported having regard to the evidence.
Mr Apps first submitted that where drugs are hidden in a car, it is the person who hides them, provided that he or she continues to exercise dominion and control over them, who is their possessor, and not the car owner.[4]
[4] See Kranz (1989) 151 LSJS 178 per Legoe J at 189.
That proposition may hold good if there is evidence that in fact drugs were hidden in a car by someone other than the owner. But where there is no evidence from which that inference should be drawn, or for that matter, no evidence one way or the other, I see no reason why it should not be open to the jury to infer that the owner and driver of the car in which the drugs are found is in possession of them. Of course, whether that conclusion is open on the evidence must be considered in the light of the whole of the evidence, including the other surrounding circumstances.
Reference was made by both counsel to the decision of this Court in Myall.[5] Although Myall involved a charge of receiving stolen goods, central to the decision in that case was the question whether or not the wife of a co-defendant who was driving a car in which she was a passenger, was in possession of goods found in the car.
[5] (1986) 43 SASR 258.
Both husband and wife were convicted, but on appeal the conviction against the wife was quashed on the basis that the trial judge had wrongly rejected a submission of no case to answer as against her. It was held that the evidence could not sustain the conclusion that she had joint control, “still less exclusive control” of the goods.[6]
[6] Ibid Matheson J at 262.
It is not unimportant to note that there was no appeal against the conviction of the husband. So that the case is an example of the owner and driver of a car being held to be in possession of goods found in it.
The recognition in Myall of the element of control as being an important, although not the sole criterion in determining questions of possession, is to be considered against the definition of “possession” in the Controlled Substances Act 1984, which provides that “‘possession’ of a substance includes control over the disposition of the substance”.[7]
[7] S4(1).
It is unnecessary for present purposes to embark on an extended analysis of the case law relating to the concept of possession.[8]
[8] See, for example, Kranz (1989) 151 LSJS 178 (Legoe J); Broock v Whitbread [1966] SASR 310; Moors v Burke (1919) 26 CLR 265; Twining v Samuels (1971) 2 SASR 50; David (nee Keearnsley) (1990) 50 A Crim R 55; Bowne v Samuels (1979) 21 SASR 591; Frangos (1979) 21 SASR 31; Curlija [1967] SASR 1..
It is sufficient to observe that in this case the circumstances were such that it was clearly open to the jury to find that the appellant was knowingly in possession of the drugs. Not only did the mere fact that the drugs were found concealed in the car owned and driven by the appellant amount to a strong circumstantial case, but an extra dimension to that case was provided by the appellant’s action in handing his wallet containing a substantial sum of money to his son as the police approached, and his subsequent action in attempting to destroy the notebook containing telephone numbers. It was open from those circumstances for the jury to draw the inference that the appellant not only had a connection with the drugs in the car, but that the connection was, in turn, associated with a trading activity involving them, which necessarily connoted “control over the disposition” of them.
Furthermore, the quantity of the drugs the subject of both counts was in excess of the prescribed amount possession of which gave rise to a presumption that the drugs were in the appellant’s possession for the purposes of sale or supply to another person, in the absence of proof to the contrary.[9] The appellant did not give or call evidence in an endeavour to satisfy the onus of proof on the balance of probability that the statutory presumption did not apply, and the jury was clearly entitled to reject his argument that the mere fact that some of the implements which were found could have been used for personal consumption was sufficient to discharge that onus.
[9] See Controlled Substances Act 1984 s32(3).
So that looking at the matter as it stood, following completion of the evidence adduced by the Crown, unanswered by any evidence adduced by the appellant, it was open to the jury to convict.
The contention now advanced that the verdict cannot be supported by the evidence must be rejected.
The matter does not rest there. So far I have confined myself to an analysis of the proceedings in the court below and the submissions put by the appellant in support of this ground of appeal. But following the entry of the conviction and during the course of submissions on sentence, another item of evidence emerged which casts a different complexion on the matter.
The appellant’s legal advisers arranged for the appellant to be examined at the Adelaide Remand Centre on 17 April 1998 by a forensic psychologist, Mr Alan Fugler. He furnished a reported dated 19 April 1998 which was subsequently put before the learned trial judge by counsel for the appellant on 4 May 1998, during the course of submissions on sentence.
In the report, Mr Fugler refers to the history which he obtained from the appellant. He states, inter alia:
“Mr Evans told me he had been residing with an acquaintance and that the drugs were for his personal use.”
It seems to me that if there was to be a re-trial of this matter, it would be open to the prosecution to lead evidence of the admission made to Mr Fugler. True it is that it would support a conclusion of possession for the appellant’s own use rather than possession for sale, but it would destroy any possible hope that the appellant might have of persuading the jury to accept the case which he mounted that he was not in possession of the drugs.
When, during the argument on appeal, the attention of counsel for the appellant, Mr Apps, was drawn to the contents of Mr Fugler’s report, he submitted that the appeal should nonetheless be determined strictly on the basis of the course of the trial, and that in effect this Court should ignore the admission made to Mr Fugler.
In my opinion, it would be quite wrong to turn a blind eye to such a damaging admission made by the appellant after the trial.
While it was perfectly proper at the trial for the appellant to remain silent and to put the Crown to proof of the offence, it is another thing altogether to suggest to an appeal court in the circumstances as they have now emerged, that it should ignore that evidence and allow the matter to go back for a re-trial. In view of this course of events, I would have struck out as an abuse of process ground 1 of the grounds of appeal which asserts that there was a “lack of any evidence as to the accused’s possession of the drugs”.
The matter could be approached another way. If it was otherwise proper to order a re-trial, the evidence contained in the report of Mr Fugler would go to the question whether any substantial miscarriage of justice had occurred such as to justify the application of the proviso to s353(1) of the Criminal Law Consolidation Act 1935.
While it must be accepted that there is a difference in law between possession for one’s own use and possession for sale, the appellant chose to take his chance before the jury and base his case principally upon a defence that he was not in possession of the drugs. He did not concede that he had possession of them, albeit for his own use.
The administration of criminal justice is not a game to be played out by an accused in such a manipulative fashion as would result if this Court accepted his present contention that his admission to Mr Fugler should be ignored.
I would dismiss this ground of appeal.

2...... “The learned trial judge erred in giving the jury a direction based on R v Weissensteiner[10]
[10] (1993) 178 CLR 217.

During the course of his summing up, the learned trial judge said:
“You are to remember that if one of the parties to a legal proceedings does not make use of an opportunity to place before the court evidence of facts which must be within his knowledge and which would explain or contradict the evidence which has been given against that person on critical issues, the court - in this case you, the jury - may, if it wishes, more readily accept that uncontradicted evidence. ........
Yet another consequence which emanates from the decision of the accused not to give or call sworn evidence is that in the absence of at least some evidence in support of them, hypotheses or explanations which may otherwise be thought to be consistent with innocence or inconsistent with guilt may cease to be rational or reasonable when the evidence in support of them, if existing at all, must be within the knowledge of the accused and has not been given by or on his behalf. You are entitled to bear that in mind, ladies and gentlemen, in the course of your deliberations before deciding whether or not the prosecution case has been strengthened to any extent by the failure of the accused to give or to call evidence.”
Mr Apps did not take any point as to the terms in which the learned trial judge delivered that direction, but he contended that such a direction should not have been given.
His submission was linked to his argument as to ground 1, in the sense that he contended that the deficiencies which he referred to in the Crown case in the context of his argument on ground 1 were such that his client was entitled to rely on them, and he could not be criticised for failing to give evidence.
It is true that in Weissensteiner, the majority (Mason CJ, Deane and Dawson JJ) observed:
“.... silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case: it cannot be used as a make weight.”[11]
[11] Ibid at 229.18.
But in my opinion, for the reasons which I have given, the Crown case was not deficient in the respects contended for by Mr Apps. Furthermore, this was a proper case in which the trial judge might give the Weissensteiner direction, as it has come to be called.
In Weissensteiner Mason CJ, Deane and Dawson JJ explained the test for the giving of such a direction in the following way:
“His (the accused) failure to give evidence was, therefore, capable of strengthening the prosecution case by enabling the jury, in the absence of any explanation by him, to accept the inferences for which the prosecution contended as the only rational inferences from the evidence.”[12]
[12] Ibid at 230-231.
In my opinion, the circumstances as disclosed by the Crown case cried out for an explanation from the appellant. Absent such an explanation, the inference that he was not only in possession of the drugs found in the car, but that his possession of them was for the purposes of sale was clearly more easily drawn.

3...... The learned trial judge erred in allowing exhibit P1 to be sent to the jury room

Exhibit P1 was an envelope containing the fragments of the note book containing telephone numbers, which was rescued from the appellant after he began to chew them up. Mr Apps complained that to allow the exhibit into the jury room during the course of their deliberations would be “likely to exercise a disproportionate weight in the jury’s deliberation and be unduly prejudicial to the accused”.[13] He further contended that the exhibit contained prejudicial material which had not been addressed by the evidence. In particular there was a reference to various types of chemicals within the exhibit which might be thought to be associated with drugs.
[13] Written outline of argument, citing Bradshaw (1978) 18 SASR 83.
In my opinion, there is no substance in this complaint.
It appears that during the course of the voir dire hearing when objection was taken to the admissibility of various items of evidence, the question of the proposed tender by the Crown of the fragments of the note book was referred to. Counsel for the Crown at that stage indicated to the learned trial judge that it was the appellant’s behaviour “in relation to” the documents which gave it its “probative value”. There was no reference at that stage to the fact that the fragments contained a reference to types of chemicals.
The exhibit was tendered during the course of the evidence of one of the investigating police officers, Detective Hand. During the course of his evidence, he described the note book and the appellant’s conduct with respect to it, and was then asked to identify an envelope containing the pieces of the note book which was salvaged. The contents of the envelope were then tendered without any objection at that stage.
If counsel for the appellant had thought that the reference to the chemicals in the note book was prejudicial, the time to raise the matter was when the envelope was tendered. It would not have been a difficult matter for the reference to chemicals to have been removed from the envelope and the remaining fragments tendered, if counsel for the appellant had raised and made good an objection at that stage.
Counsel for the appellant raised with the trial judge, after the completion of the summing up, the question whether the exhibit should go out to the jury room. At first, the learned trial judge acceded to the submission by the appellant’s counsel that the fragments of the note book should not go to the jury. But soon after the jury had retired to consider its verdict, the judge received a request that they wished to have the exhibit, following which he allowed it to go into the jury room.

At that stage he brought the jury back and had this to say to them:
“I want to say this, and I want you to remember this when considering that particular exhibit. The document was initially in the possession of the defendant. The evidence that you heard is that the police officer viewed the document and returned it to the defendant upon being requested that it be made available to him because it contained, amongst other information, the name and/or the telephone number of the solicitor whom he wished to contact. A telephone call was, in fact, made.
The defendant was observed tearing up and attempting to chew the bits of paper representing that document. The evidence before you is that bits of papers were retrieved and are now Exhibit P1.
You have already seen P1; the document was shown to you in the course of the trial, and you did note that there were some names and other telephone numbers on some bits of paper. What I want you to now remember and understand is that there is absolutely no evidence before you as to what the meaning of those numbers and/or names may be, and you must not speculate as to what they might be simply because there is no evidence, so you have evidence that the piece of paper was torn, that the defendant attempted to chew it, that the pieces were retrieved and they are now before you. That’s the evidence before you, but as to what the meaning of the names and numbers may be, there is no evidence and you must not speculate. Please remember that.”
That direction was unduly favourable to the appellant. Furthermore, I am unable to accept the argument that the jury’s access to the exhibit during the course of their deliberations gave rise to any impermissible prejudice.
The ordinary practice is that all exhibits go into the jury room subject to the limitations of size, security or convenience.[14] No doubt there is a discretion to withhold an exhibit from the jury room if it is of such a nature as to be likely to be given disproportionate weight in their deliberations, although if the jury sends out a message asking to see the excluded exhibit, the judge will no doubt reconsider his decision.[15]
[14] See Driscoll (1977) 137 CLR 517 at 542, Bradshaw (1978) 18 SASR 83 and Stephenson (1978) 18 SASR 381.
[15] See Stephenson (supra) per Bray CJ at 387 and per King J at 401.
But there was, in my opinion, nothing about this exhibit which brought it within the discretion to withhold it from the jury.
The appellant argued one other ground of appeal, namely, that there was an inaccuracy or ambiguity in directions given by the learned trial judge as to the ownership of some of the items in the car. But the ambiguity was cleared up with the jury after the point had been raised by counsel for the appellant. There is nothing in that ground.
I would dismiss the appeal as to conviction.

APPEAL AS TO SENTENCE

The appellant contends that the sentence was manifestly excessive.
While the penalty was substantial, the appellant was charged with two offences each of which carried a maximum penalty of a $200,000 fine or 25 years imprisonment or both.[16]
[16] Controlled Substances Act 1981, s32(5)B(b)(ii).
The appellant, who is now aged 38 years, has a record of convictions dating back to 1990. They include a number of drug related offences, including possessing cannabis, and possessing the same drug with the intention to sell or supply it.
The sentence imposed was within the appropriate range,[17] and has not been shown to have been manifestly excessive.
[17] See Mangelsdorf, Perre and Richards (1995) 66 SASR 60.
I would dismiss the appeal as to sentence.
In my opinion, both appeals should be dismissed.

Millhouse J

I agree

Nyland J

I agree with the reasons of Perry J. I would dismiss the appeals against both conviction and sentence.

[1998] SASC 6798

20 August 1998