R v Feutrill
[2010] SASCFC 48
•5 November 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FEUTRILL
[2010] SASCFC 48
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
5 November 2010
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - WHAT CONSTITUTES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appellant found guilty of trafficking in a commercial quantity of methylamphetamine and of cocaine possessing a firearm without a licence - items found in the rear seat and cargo area of a motor vehicle - consideration of trial judge's summing up regarding possession - whether jury were properly directed a to exclusive possession - whether jury properly directed as to knowledge or mere acquiescence insufficient for possession - in the circumstances of the case the trial judge's directions were sufficient - appeal dismissed.
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IRREGULARITIES IN RELATION TO JURY - MATTERS AVAILABLE TO JURY IN JURY ROOM
After summing up jury requested the transcript - foreperson requested further clarification of the use of circumstantial evidence - trial judge provided a transcript of the general direction on circumstantial evidence as he had given it - whether document related to jury's request - in the circumstances the trial judge properly provided the portion of transcript - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32; Firearms Act 1977 (SA) s 11, referred to.
R v GNN (2000) 78 SASR 293; R v Tulisi (2008) 258 LSJS 428; R v Thompson (2008) 21 VR 135; R v Muir [2009] SASC 94; R v Dunn (2006) 94 SASR 177; R v Radford (1986) 133 LSJS 110; R v Petroff (1980) 2 A Crim R 101, considered.
R v FEUTRILL
[2010] SASCFC 48
DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Bleby J. There is nothing that I wish to add.
BLEBY J.
Introduction
The issues on this appeal are twofold:
(1)The adequacy of the Trial Judge’s directions to the jury as to what constitutes possession by an accused of controlled drugs and a firearm, and
(2)Whether a miscarriage occurred because of the distribution to the jury of the trial Judge’s written directions concerning the nature of circumstantial evidence.
The appellant was found guilty by a jury of the following offences:
Count 1 – Trafficking in a commercial quantity of methylamphetamine, contrary s 32(2) of the Controlled Substances Act 1984 (SA).
Count 2 – Trafficking in cocaine, contrary to s 32(3) of the Controlled Substances Act.
Count 3 – Possessing a firearm without a licence, contrary to s 11(1) of the Firearms Act 1977 (SA).
All the offences were alleged to have occurred on 11 April 2008 at Marleston.
The methylamphetamine the subject of count 1 was found in the shirt pocket of the appellant, in a green canvas bag in the rear cargo area of a four wheel drive motor vehicle (the 4WD) and in a blue tub on the rear seat of the 4WD. The cocaine, the subject of count 2 was found in the blue tub on the rear seat of the 4WD. The firearm, the subject of count 3 was found in a blue tub in the rear cargo area of the 4WD.
The Evidence Led at Trial
The summary of the evidence which follows is based on a summary conveniently provided to this Court by counsel for the DPP and which was not disputed by the appellant.
All three offences related to items found in the 4WD which was parked at the rear car park of some units on Richmond Road, Marleston. The appellant owned a laundromat immediately adjacent to where the 4WD was parked. He did not own the 4WD but used it for approximately three weeks out of every four. Other items belonging to him were found in the 4WD.
At about 12.15pm on 11 April 2008 police officer Hannam was parked in the rear car park and had the 4WD under surveillance. His evidence was that he had with him a photograph of the appellant that he had printed from the police system at a nearby police station prior to attending at the car park.
Officer Hannam observed a person who he said was the appellant exit from the rear door of the laundromat and place a green canvas bag in the rear cargo area of the 4WD. The appellant closed the door and returned to the laundromat.
Officer Hannam then made radio contact with other police officers and told them what he had seen. Mr Hannam remained at the car park.
Approximately 25 to 30 minutes later officer Hannam observed the appellant, a female and two other males exit from the laundromat and approach the 4WD. He saw the appellant go to the passenger side door of the 4WD, and one of the other males go towards the driver’s door and get into the driver’s seat. Officer Hannam was aware that other police officers were about to come to the car park. He slid back into the seat of his car so he could not be seen and lost sight of the four persons for about 15-20 seconds. He did not see anyone go to the rear cargo area of the 4WD apart from the person he identified as being the appellant when he placed the green canvas bag in the cargo area and closed the door.
Officer Hannam’s reliability as a witness was the subject of attack by defence counsel at the trial.
Within the 15-20 seconds that officer Hannam lost sight of the four persons, officers Baldwin and Wilden came to the car park and parked their police vehicle behind the 4WD and approached the four persons. Officer Baldwin saw the accused at the driver’s side of the 4WD and about to get into the driver’s seat. He saw a male in the passenger’s seat of the 4WD and two other persons, a male and a female, at the front of the vehicle. Other officers also attended at the scene directly behind officers Baldwin and Wilden.
Officer Baldwin requested identification from the appellant who directed Baldwin to a wallet on the dash board in front of the driver’s seat behind the steering wheel of the 4WD. The wallet contained the appellant’s driver’s licence and $1,375 in cash.
Searches were then conducted by the police. Officer Baldwin located in the accused’s shirt front left breast pocket the sum of $1,500 in cash, comprised of three $100 notes and 24 x $50 notes. He also founding the same pocket a Peter Stuyvesant cigarette packet containing a small deal bag containing methylamphetamine slipped in to the sleeve of the cigarette packet. On analysis the methylamphetamine weighed 0.70 grams.
The search of the 4WD revealed the following items in the rear cargo area:
(1)A canvas bag that contained the green canvas bag that was found to contain:
(a) a plastic bag containing 419.1 grams of methylamphetamine;
(b) a square plastic container containing 65.8 grams of methylamphetamine;
(c) a rectangular plastic container containing 103.4 grams of methylamphetamine;
(d) a plastic bag containing 8.48 grams of methylamphetamine;
(e) a round plastic container containing 101.3 grams of methylamphetamine;
(f) a spatula that bore traces of methylamphetamine and cocaine on the blade;
(g) electronic scales that bore traces of methylamphetamine and 3-4- methylenedioxymethamine (MDMA);
(h) a “Glad” sandwich bag dispenser that contained plastic sandwich bags;
(i) a blue spoon; and
(j) a plastic press seal bag containing a quantity of J-bags;
(2)A blue tub that contained a semi-automatic pistol chambered for .22 long rifle rim fire ammunition. The pistol contained a removable magazine which held a maximum of ten cartridges.
Elsewhere in the 4WD the following further items were located:
(1) On the rear driver’s side back seat a blue tub that contained:
(a) a Peter Stuyvesant cigarette packet containing 9.88 grams of methylamphetamine slipped into the sleeve of the cigarette packet and 2.32 grams of cocaine slipped into the sleeve of the cigarette packet;
(b) a plastic resealable bag containing $3,000 in separate bundles of $1,000, all in $50 notes;
(c) a red and black note book;
(d) a small black 2007 diary;
(e) documents in the appellant’s name, including a motor registration document, a receipt, a CBA Mastercard, various ANZ Bank documents and a bundle of membership cards;
(f) a taser in the driver’s side door map pocket;
(g) a combat hatchet in the front passenger door map pocket;
(h) a black note book on the front passenger’s seat;
(i) a note pad on the front driver’s seat; and
(j) a small press seal plastic bag containing 5 x .22 calibre bullets. The bullets were capable of being fired from the automatic pistol located in the rear cargo area of the 4WD.
The laundromat was searched and a set of electronic scales was located in the kitchen. Further procedures later carried out on the appellant revealed traces of methylamphetamine on his right hand.
The appellant submitted to a procedure to obtain a sample of his handwriting comprising three documents. The samples were compared with the handwriting in the red and black notebook, the 2007 diary and the note pad. A forensic scientist expressed the opinion that there was moderate support for the view that the accused wrote the entries in the notebook, the diary and the note pad.
The red and black note book, the diary and the note pad contained numerous handwritten notes which, according to the evidence of Detective Brevet Sergeant Bentley, were consistent with the records kept by those engaged in the drug trade.
Of the other persons present in the car park at the time, one was J E. He was seated in the passenger’s side of the 4WD. He was not charged. He had been a friend of the accused for about four or five years. The other male was D F, which was an alias for his true name which was BRB. He was standing at the front of the 4WD and was not charged. He is the nephew of the accused and was unable to be located by police. The female standing next to BRB was his girlfriend. She was not charged.
The 4WD was registered in the name of a company of which another person was the proprietor.
The black note book was submitted to fingerprint examination and one finger print located on the book matched the fingerprint of the appellant. Other items were submitted for fingerprint analysis, but no fingerprints of any person were found. The firearm was submitted for DNA analysis, but there was insufficient DNA for profiling.
The Trial Judge’s Directions as to Possession
Each of the three offences required proof that the appellant had “possession” of the relevant drugs and firearm.[1]
[1] Controlled Substances Act 1994, s 32(5); Firearms Act 1977, s 11(1).
In the course of his summing up the trial Judge explained to the jury what constitutes possession in the following terms:
Possession, members of the jury, does not mean ownership. Obviously you can possess something without necessarily being the owner of it. Nor does possession necessarily require in the eyes of the law actual physical custody of something. So what then does possession mean for the purposes of all these three charges? This ingredient of all offences requires you to be satisfied beyond reasonable doubt that the material in question was knowingly in the possession of the accused. Possession means the power and the intention to exercise control over something.
Let me illustrate that if I can by reference to a very simple example. Your wallet, members of the jury, or your purse may well be in your pocket in the jury box as you listen to these directions right now, or they may be in the jury room or they may even be in the glove box of your car if you drove here today and parked it somewhere, or you may have left your wallet or your purse on the bedside table at home. In each of those instances, members of the jury, all of the requirements of legal possession would be met because in each instance you have still retained the power and the intention to exercise control over your wallet and purse, although it may not be immediately on your person and may, in fact, be in the jury room, in your car, or have been left at home.
The other word which you would have noticed in this ingredient is the word “knowingly”. The power and intention to exercise control over something necessarily implies that you are aware of the existence of that thing. If material is planted in your pocket, your purse, your glove box or your hose unbeknown to you, the material then could not be said to be in your possession in any relevant sense.
Let me try to give you another simple example which I hope will help you understand this. Let us say you are on a bus or a tram and a person alights and happens to leave a parcel or even a wallet or a purse on the seat next to you. You pick it up with the intention of taking it to the police or to give it to the bus driver or tram driver or hand it over. In that situation, of course, the purse or the parcel or the wallet would be in your physical possession while you have got it before you hand it over. But it would not be in your possession in the legal sense, members of the jury, because you did not intend to exercise control over it.
Suppose also that the parcel or wallet or purse happened to have illegal drugs in it when you picked it up. You would not in that situation be in the knowing possession of that drug, simply because you had no knowledge of that drug being there in the first place. It was simply left there by the person on the bus or the tram. You would not be in possession of it in the eyes of the law because you had no intention of exercising control over it. Indeed, your only intention was to hand it over so it could be retained and hopefully returned to the rightful owner.
I hope this simple example as well gives you an illustration of both the necessity to have possession in the way the law requires it, and to have knowledge of the contents in the way the law requires it to be.
The Judge then summarised the facts relied on by the prosecution to prove possession on the part of the appellant and gave a direction on circumstantial evidence to which further reference is made below. He then pointed out weaknesses in the prosecution case relied on by the defence.
It was common ground at the trial that the only real issue with respect to each charge was the question of possession, and the jury was so directed.
The Appellant’s Criticisms
The appellant argued that there was a failure on the part of the trial Judge to direct the jury that they must be satisfied that the drugs and the gun were in the exclusive possession of the appellant, and they would have to exclude the reasonable possibility of exclusive possession of each item by one or more of the other three persons in the vicinity of the 4WD at the time, and the reasonable possibility of joint possession by the appellant and one or more of the others present.
The appellant also argued that there was a failure to direct the jury that knowledge of the presence of the drugs and the gun in the vehicle were not enough, and that acquiescence by the appellant in some other person or persons having the drugs and the gun in the vehicle was not enough.
Consideration
I deal with the second of these arguments first. The criticism was founded on what the Chief Justice, with whom Prior and Olsson JJ concurred, said in R v GNN[2] in what was said to be an analogous situation.
[2] [2000] SASC 447; (2000) 78 SASR 293.
In that case, the appellant had been charged with two counts of possessing heroin for sale. She was found guilty of one count and not guilty of the other.
The charges arose from a police raid on a house at which a number of visitors, some of whom had just arrived from interstate, were present. The heroin of which the appellant was found guilty of possession consisted of two separate finds of packages of heroin concealed in different places in the kitchen. The heroin in relation to which the appellant was found not guilty consisted of a package of heroin in a bedroom which the appellant shared with another. The only other regular occupants of the house, apart from the appellant, were her young children. On chemical analysis, the batches of heroin the subject of the two charges were not related. There was nothing in the house to link the packaging of the heroin with anything in the house. Although a substantial amount of cash was found in the appellant’s handbag, its presence was explicable by the fact that she was conducting a restaurant business.
Doyle CJ made observations as to some of the requirements for directions to the jury in the circumstances of that case:[3]
First it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury’s part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who were at the house that night. Thirdly, it was necessary to emphasise the requirement to prove physical control over the heroin and an intention to exercise control over it. It was necessary to relate these matters to the facts, in a practical way, to avoid the risk of the jury convicting on an unreliable basis. It was necessary to give directions that dealt adequately with the possibility that the heroin was in the possession of one of the men found in the house.
[3] Ibid [20]; 296.
Those requirements were pertinent to the circumstances of that case. In identifying the shortcomings in the Judge’s summing up in that case the Chief Justice said:[4]
It was particularly important to identify the circumstances which, if proved to the jury’s satisfaction, would establish that the heroin was in the possession of Ms GNN as distinct from being in the possession of one or other of the men found in the house. The judge’s direction does not really grapple with that issue. It is an issue which cannot be resolved solely by reference to the knowledge of Ms GNN. It required some further explanation of the practical application of the concept of control. It was not a case that required further general discussion of the nature of the relevant concepts, but rather an explanation of how they were to be applied. The jury needed further guidance on the issue of control because, in this case, it was quite possible that the heroin had been brought into the house by one of the men, but with the knowledge and acquiescence of Ms GNN. The judge’s directions gave no assistance on that issue, other than by referring to the concept of custody or control. As well, in my opinion the directions that the judge gave might have misled the jury in two respects. First, the judge referred to a person possessing an object which was in a place such as a person’s home, and said that in that situation although the person did not have immediate control of the object, the person could still claim an exclusive right or power over it. There is a risk of the jury interpreting this as meaning that their satisfaction that Ms GNN knew the heroin was hidden in her kitchen was sufficient to constitute possession. As well, in the circumstances of this case I consider that the emphasis on knowledge might have caused that to assume undue importance in the jury’s mind. Of course, knowledge was a critical issue, but in the circumstances of this case so was control, and so was the issue of whether the jury were satisfied that Ms GNN, and not some other person, was exercising the relevant control or had an intention to assert control. In particular, the judge did not tell the jury that to convict Ms GNN they would have to exclude the possibility that she had merely acquiesced in one of the men hiding the heroin in the kitchen, in the sense of merely permitting him to conceal his heroin in her house.
Those complaints related particularly to the circumstances in which the drugs were found in that case.
[4] Ibid [25]; 297-298.
The trial Judge in this case did not direct the jury in as many words that knowledge of the presence of the items was not enough. It might have been better if he had. However, the direction as a whole made it clear that possession required the exercise of intention to control – a direction lacking in GNN. If the jury were satisfied of that intention, as it appears they were, they must have been satisfied that the appellant had more than mere knowledge of the presence of the items.
The trial Judge did not direct the jury that acquiescence by the appellant in the presence of the items in the 4WD was not enough. Again, it might have been better if he had, but the same comment applies as in the previous paragraph. In addition, in the course of discussing the defence case on possession, and in particular on the presence and role of the other persons in or near the vehicle at the time, the Judge said:
If it is a reasonable possibility that one or both of those drugs or the gun belonged to, or were in the possession of one of those people, or [JE] in particular, you would have to give Mr Feutrill the benefit of that doubt and acquit him.
The directions to the jury required, if they were to convict, exclusion of the possibility of possession or ownership by others and required knowledge and an intention to exercise custody and control on the part of the appellant. Those concepts exclude acquiescence and mere knowledge of the presence of the items in the vehicle.
I turn to the argument that there was a failure to direct that there was a requirement for proof of exclusive possession on the part of the appellant and exclusion of the possibility of joint possession by the appellant and one or more of the others present.
Once again, there was a failure so to direct in as many words. However, that failure must be examined against the way the trial was conducted.
It was conceded by counsel for the DPP on the hearing of the appeal that counsel for the respondent, early in the trial, informed counsel for the appellant that the Crown case was based on sole and exclusive possession by the appellant. The case was indeed presented in that fashion with no suggestion at any stage that the appellant was acting in concert with anyone else, particularly with any of the other three persons seen in the vicinity of the 4WD.
Counsel for the DPP, in his opening address to the jury, gave a brief explanation of the concept of possession and referred in passing to the possibility of joint possession of an object. However, before embarking on an explanation of the facts he said:
That possession means the item is in the person’s physical custody and control to the exclusion of all others, unless those others are acting together with the accused. At the end of this trial, in my closing, I will ask you to infer that the accused was in possession of those drugs containing methylamphetamine because…[There followed an explanation of the evidence to be led.]
When referring to the facts, the prosecutor made clear at all times that the Crown case was that it was the appellant who was, at the material time, in possession, as he had explained it, of the items in question.
In his closing address to the jury he reminded the jury of the elements required to be proved and embarked upon a discussion of the evidence pointing to possession of the items by the appellant and of the various factors pointing to control of the vehicle and of the items by the appellant, not by others. He contrasted that evidence with evidence of possible possession by others in the group, particularly JE. In respect of each count he addressed the facts relevant to possession by the appellant and by no-one else. There was no hint of any suggestion of joint possession with anyone else.
In his address, to the jury, counsel for the appellant attacked various aspects of the police evidence tending to identify the appellant as being in possession of the items. He analysed the evidence to see whether it had been established that the appellant had the items in his possession. His case to the jury was in essence a negative one, namely that possession by the appellant had not been established on the evidence. He raised the question for consideration by the jury as to whether there was a reasonable possibility that the drugs and the gun belonged to someone else. At no stage did he advert to the possibility of either the drugs or the gun being in the joint possession of the appellant and one or more of the others.
The possibility of the appellant having possession of any of the items jointly with another member or members of the group around the 4WD was not adverted to at any stage of the proceedings, either in evidence or in the addresses of counsel. In the circumstances it was not necessary for the Judge to direct the jury on the possibility of joint possession or the corresponding need to be satisfied of the appellant’s exclusive possession. From the directions that were given and the way that the trial had been conducted, the jury would naturally have assumed that the requirements for proof of possession given by the judge related to the accused and to him alone. In the circumstances, the only possibility which had to be and which was addressed was the possibility that the drugs or the gun were in the possession of someone else in the group.
In the circumstances, I do not consider that there was a misdirection on the grounds argued by the appellant.
The Written Directions on Circumstantial Evidence
At the conclusion of his instruction to the jury on the elements of the offences and his summary of the prosecution case, the trial Judge gave a conventional and non-controversial direction on the nature of circumstantial evidence. That included the need for the jury to be satisfied that the inferences to be drawn from such evidence must exclude any reasonable explanation consistent with innocence, and that the primary facts leading to an inference of guilt must be proved beyond reasonable doubt.
After the jury had retired for two hours, they made a request, not relevant to any ground of appeal, to see a document which had not been tendered in evidence. That request was appropriately dealt with.
After having retired for almost five hours, the judge allowed the jury to separate overnight before returning the next day. During the next morning the jury made another request in the form: “We request your summation transcript”.
After a brief discussion with counsel the jury returned, and in relation to their note the Judge said:
Members of the jury, before we make a decision about that, I am wondering if we might be able to help you a bit more. Mr Foreman, is there some particular aspect of the matter which is troubling you more than others, or which you want clarification, or is it the whole lot, do you think?
FOREPERSON: We are just after more clarification on the use of circumstantial evidence.
HIS HONOUR; Is it that topic and that topic alone, that is your focus, is it?
FOREPERSON: Yes.
After hearing further submissions from counsel, the Judge decided to provide to the jury a transcript of his non-controversial general direction on circumstantial evidence as he had given it, comprising a little over two A4 sheets of double spaced typing. After approximately a further 3¾ hours without further interruption the jury returned with their verdicts.
The thrust of the appellant’s case on appeal is that the written document did not relate the law to the circumstantial evidence presented at the trial, and that there could be no assurance that that was what the jury wanted.
The time has long passed since a judge’s charge to a jury was required to be exclusively oral. Written aids are now commonplace, particularly as to the elements of complex offences and as to the questions which the jury might ask themselves in a complex decision making process involving alternative verdicts. In many cases they are a necessary aid to a satisfactory decision making process.[5] Research suggests that juries find such written aids helpful.[6] Likewise, it is not unusual, nor in my view is it inappropriate, that in some cases the jury be provided with a transcript of the evidence.
[5] See R v Tulisi [2008] SASC 306, [54];(2008) 258 LSJS 428, 436.
[6] R v Thompson [2008] VSCA 144, [103]; (2008) 21 VR 135, 155; R v Muir [2009] SASC 94, [68].
Conventional directions as to the nature of circumstantial evidence and its application to a jury’s decision making process are, to the uninitiated, reasonably complex. When heard for the first time, they can be somewhat bewildering. To the first time listener there is no doubt about their importance and significance to the jury’s process. It is not surprising that a conscientious jury might want to hear them again, and maybe even to study them. In those circumstances I can see no objection to providing a written transcript of what the judge has said on the topic as a supplement to the oral directions. It was unlikely, in this case, to detract from what the Judge had also said by reference to the circumstantial evidence on which the prosecution relied.
I do not suggest that this can be used as a substitute for oral directions. Oral directions and the need to rephrase or explain them if, to the judge, the jury appears bewildered must always be of primary concern.
The argument in this case is that there was some uncertainty in the foreperson’s answer to the Judge’s question, namely that the jury wanted “more clarification on the use of” circumstantial evidence. Without further clarification there is room for some argument as to precisely what was meant by that phrase, and whether it required relating the principles of circumstantial evidence to the facts of the case. The request was certainly capable of being met by the written material that the Judge supplied. If it did not meet their requirements, the jury was capable of making a more detailed request. During the course of their retirement they had not shown any reluctance to make such requests.
After the supply of the written copy of the Judge’s oral direction there was no further request during the jury’s further retirement of in excess of 3¾ hours. In those circumstances there is a compelling inference that the jury’s request had been satisfactorily complied with. There was no miscarriage in the supply of the written directions.
Conclusion
For these reasons I would dismiss the appeal.
GRAY J.
Introduction
The defendant and appellant, Paul John Feutrill, following a trial in the District Court, was found guilty by unanimous jury verdict and convicted of two counts of drug trafficking and of possessing a firearm without a licence. This is an appeal against those convictions.
The factual history is set out in the reasons for judgment of Bleby J. I agree with that history and only address the facts insofar as is necessary for an understanding of my reasons.
As Bleby J has pointed out, two issues arise for consideration on the appeal; the adequacy of the direction to the jury as to what constitutes possession, and the adequacy of a written memorandum given to the jury in answer to a question from the jury following their retirement to consider their verdict.
I agree that the appeal should be dismissed. My reasons follow.
The Directions Regarding Trafficking
The two counts involving trafficking in a controlled drug alleged that the offending occurred on the same occasion, at Marleston, on 11 April 2008. The first count related to methylamphetamine and alleged that the defendant knowingly trafficked in a commercial quantity of that drug contrary to section 32(2) of the Controlled Substances Act 1984 (SA). The second count concerned knowingly trafficking in cocaine contrary to section 32(3) of that Act.
It is convenient at the outset to refer to the relevant provisions of the Controlled Substances Act. Sections 32(2) and 32(3) provide:
32—Trafficking
…
(2) A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
(3) A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
“Traffic” is defined in section 4 as follows:
traffic in a controlled drug means—
(a) sell the drug; or
(b) have possession of the drug intending to sell it; or
(c) take part in the process of sale of the drug;
At trial there was no dispute that a commercial quantity of methylamphetamine was involved. The issue on the counts of trafficking was whether the defendant was in possession of the drugs the subject of those counts.
The prosecution opened a case of exclusive or in the alternative joint possession, but by the time of final addresses, did not refer to an alternative case of joint possession. The complaint on appeal was that the Judge should have directed the jury that the prosecution had not excluded a reasonable hypothesis consistent with innocence, namely that the defendant was in joint possession of the drugs with another person or persons.
The question before the jury was whether the defendant was trafficking in controlled drugs. The case put against him was one based on possession. The prosecution case was ultimately addressed as one of sole or exclusive possession. If the members of the jury were of the view that the defendant was in possession, but jointly with some other person or persons, they were entitled to bring in a verdict of guilty. The issue of exclusive possession or joint possession was a matter of particularity. If either circumstance was established beyond reasonable doubt the defendant was guilty as charged.
If it were to be accepted that notwithstanding the prosecution address the evidence did leave open for consideration joint or non-exclusive possession, the question becomes; what should have occurred. In my view the Judge should have directed the jury to consider that if they were satisfied beyond reasonable doubt that the defendant was in possession of the drugs either exclusively or alternatively jointly, that on either view of the facts, they were entitled to return verdicts of guilty. The only reasonable possibility which had to be excluded by the prosecution was possession of the drugs by someone other than the defendant.
In any event, I consider that the question of joint possession was a matter of pure speculation. The evidence of the defendant’s association with the drugs within the bag he placed in the vehicle and within the vehicle of which he was a driver, was overwhelming. This was a case of proven exclusive possession.
The Jury Question and Written Answer
Turning to the second matter of complaint, two matters arise; whether it was appropriate for the Judge to provide a written answer to a question posed by the jury, and whether that written memorandum addressed or answered the question posed.
The Judge, in the course of his summing up, provided a conventional direction concerning the nature of circumstantial evidence and addressed the jury as to the application of his direction to the evidence in the trial. The question posed by the members of the jury related to the use of circumstantial evidence, and was as follows:
HIS HONOUR: Members of the jury, I have your second note: ‘We request your summation transcript.’
Members of the jury, before we make a decision about that, I am wondering if we might be able to help you a bit more. Mr Foreman, is there some particular aspect of the matter which is troubling you more than others, or which you want clarification, or is it the whole lot, do you think?
FOREPERSON: We are just after more clarification on the use of circumstantial evidence.
HIS HONOUR: Is it that topic and that topic alone, that is your focus, is it?
FOREPERSON: Yes.
HIS HONOUR: The summing up is quite lengthy and I did not want you trawling through things that are not troubling you. I did not want to put any more on your plate than you need to have.
I will have a word with counsel and I will send a message in or bring you back in when we sort the matter out. So if you could retire again, please, and I will consider that issue.
The Judge directed:
HIS HONOUR: I direct that a copy of my summing up, from the last two lines on p.32 through to the first paragraph at p.35, be sent into the jury. What I will do is I will have that copied and pasted into a separate document which I will mark separately and initial and date it this day and I will provide a copy to both counsel as well as the jury.
The written text as sent to the jury was simply a transcription word for word from the summing up of the Judge’s explanation to the jury of the meaning and nature of circumstantial evidence. The document was in the following terms:
Members of the jury, the Crown case, in many respects, is of course based upon what is commonly called circumstantial evidence. This is really the united force or the culmination of all the circumstances about which [counsel for the prosecution] constructed the case for the prosecution.
Circumstantial evidence is to be distinguished from direct evidence because direct evidence, of course, is the evidence of a person who is actually at the scene and witnesses certain things, like the police did when they arrived.
Circumstantial evidence, however, as its name suggests, is evidence of the surrounding circumstances from which the prosecution ask you to infer beyond reasonable doubt that the accused committed the offences and, in this particular case, particularly with the focus being on knowingly in possession.
To speak of circumstantial evidence in a case does not imply though in any sense that such evidence is necessarily weak or that it is necessarily unsatisfactory. Indeed, circumstantial evidence can afford very secure grounds for a conclusion of guilt. Many crimes that come before the court, members of the jury, are committed in secret. Circumstantial evidence is therefore no stranger at all in the criminal court. Nevertheless, I have to give you some careful directions of how you should approach circumstantial evidence.
The amount of circumstantial evidence that will suffice to prove a charge beyond reasonable doubt varies very much from case to case and the individual circumstances. The number of circumstances proved can vary enormously and so can the weight of the various circumstances that are so proved.
A case which depends on circumstantial evidence is sometimes likened to a rope and the many strands which go to make up that rope. A rope has the combined strength of all its strands even though the individual strands might be quite weak or quite fragile and, indeed, quite thin. But when they are all intertwined together they produce a total effect and strength which is far greater than the strength of any one of the individual strands. Now, that is really just a matter of commonsense, isn’t it?
So, therefore, the weight of the case depends very much circumstantially in the result on the combined strength of all the facts that are proven to your satisfaction or, to put it another way, the combined strength of all the strands of evidence that are proven to your satisfaction.
On the other hand, you cannot return a verdict or verdicts of guilty unless the circumstances exclude any reasonable explanation consistent with innocence. In other words, before you can be satisfied that the accused is guilty of one or more of the offences, you must be satisfied not only that his guilt is a rational inference on the combined strength of all the evidence, but that it is the only rational inference in circumstances you find proven, enable you to draw.
It is also important, members of the jury, to understand how you should approach circumstantial evidence. In effect, it requires two steps or stages. First, you must look at the facts you accept as being established by the evidence. Then you must consider what inference or inferences you are prepared to draw from all those facts, that you do find established. This second step requires you to put all the facts together and to consider the combined strength of the established facts. Remember too that the inferences drawn against the accused must be the only rational inference which the established facts enable you to draw.
As I have said already, you cannot return a verdict of guilty unless the facts exclude any reasonable explanation consistent with innocence. Moreover, before you can use any fact leading to an inference of guilt, that is one which leads you to an indispensable step in the reasoning process towards a conclusion of guilt, that fact must be first proven to your satisfaction beyond reasonable doubt.
The reach of the jury question in the present proceeding was not entirely clear. It is not unreasonable to infer that the jury were requesting the Judge’s assistance, not with respect to the definitional nature of circumstantial evidence, but rather as to the use they might make of the evidence in the trial. Such a request would necessarily involve the identification of the circumstantial evidence in the trial and assistance given to the jury on how they might use that evidence. The written memorandum provided to the jury did not specifically address the jury’s request for clarification on the use of circumstantial evidence.
The provision of written materials to a jury is now commonplace.[7] A common justification for providing a jury with written material is the complexity of the matter that requires explanation.[8] In this regard, some jurors may absorb and understand written directions more clearly than corresponding oral directions.[9] There are a number of inherent risks associated with the provision of written memoranda. For example, the written material may be given excessive weight and impede the jury’s concentration,[10] may add complexity or confusion,[11] or there may be a risk that jurors will not properly apply the stated principles to the facts.[12] However, the authorities make clear that it is a matter for the trial judge as to what use is made of written memoranda in the course of a trial.
[7] R v Dunn (2006) 94 SASR 177 at [36] (Bleby J, with whom Sulan and White JJ agreed); R v Muir [2009] SASC 94 at [38] (Sulan J, with whom Vanstone and Layton JJ agreed).
[8] See for example R v Radford (1986) 133 LSJS 110 at 137.
[9] See for example R v Thompson (2008) 21 VR 135.
[10] R v Petroff (1980) 2 A Crim R 101 at 127 (Roden J); see also, R v Tulisi (2008) 258 LSJS 428 at [55] (Duggan J, with whom Vanstone and David JJ agreed).
[11] R v Petroff (1980) 2 A Crim R 101 at 129 (Roden J).
[12] R v Dunn (2006) 94 SASR 177 at [42] (Bleby J, with whom Sulan and White JJ agreed).
In the present proceeding, the transcript of the oral direction given on circumstantial evidence being provided to the jury in response to their question, was not inappropriate. Many of the risks inherent in the provision of written material did not arise in the present proceeding, particularly when it is borne in mind that the written material was a replication of a general oral direction already given to the jury. The particular issue that arises in this proceeding is whether the question of the jury was in fact addressed by the written memorandum.
In the present trial, on the Judge proceeding by way of written memorandum, any possible confusion could have been avoided by the Judge presenting the jury with the written memorandum in open court and inviting the jury to return, if, having considered the written memorandum, their question had not been adequately addressed.
To my mind, the real issue in the present appeal is whether, in all the circumstances, the jury received adequate directions through the summing up, and in particular whether the jury received the assistance necessary to arrive at fair and just verdicts. I am not prepared to infer that they did not receive such assistance. It was open to the jury to ask further questions if still left in any confusion following consideration of the written memorandum. They did not do so. I do not consider that there is any risk of a miscarriage of justice arising from the way in which the jury were directed.
Conclusion
I would dismiss this appeal.
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