R v Feutrill - [2010] SASCFC 48

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Feutrill

Details

AGLC: R v Feutrill [2010] SASCFC 48
Case: [2010] SASCFC 48
Decision Date: 5 November 2010

CaseChat Overview and Summary

The appellant, Paul John Feutrill, was convicted in the District Court of trafficking in a commercial quantity of methylamphetamine and cocaine, and of possessing a firearm without a licence. These convictions followed a jury trial. The drugs and firearm were discovered in a motor vehicle that the appellant frequently used. The appellant appealed these convictions.

The appeal raised two primary legal issues. Firstly, whether the trial judge's directions to the jury regarding the concept of possession were adequate, particularly concerning the distinction between mere knowledge or acquiescence and actual possession, and whether the jury was properly directed on the possibility of joint possession. Secondly, the appeal questioned the propriety of the trial judge providing a portion of the trial transcript to the jury in response to their request for clarification on the use of circumstantial evidence.

The court considered the appellant's argument that the trial judge's directions on possession were insufficient, referencing the principles established in *R v GNN*. In *R v GNN*, it was held that mere knowledge of the presence of drugs and acquiescence in their possession by another were not sufficient to establish possession. The court in *Feutrill* noted that the circumstances of *GNN* were distinct, particularly concerning the potential for exclusive possession by others. The trial judge in *Feutrill* had directed the jury that knowledge alone was insufficient and that physical control coupled with an intention to exercise control was required. The appellate court found that, in the context of the evidence presented, these directions were sufficient to adequately address the issue of possession and the possibility of joint possession, and that the prosecution had not been required to exclude a hypothesis of joint possession. Regarding the jury's request for a transcript, the court found that the judge had provided a relevant portion of his summing up on circumstantial evidence, and that the jury's subsequent lack of further requests indicated their satisfaction with the provided information.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

BLEBY J (dissent) GRAY J (dissent)

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. 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.

Ratio Decidendi

Legal Principle Established

Established by:

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.