R. v Graham Harris File No. SCCRM 92/547 Judgment No. 3623 Number of Pages 10 Criminal Law and Procedure

[1992] SASC 3623

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA FULL COURT King C.J.(1), Olsson(2) and Mullighan(3), JJ.

CWDS
Criminal law and procedure - Possession of heroin for purpose of sale - heroin in accused's car in which alleged accomplice a passenger -whether in possession of appellant - whether defence adequately put to jury in summing up - verdict not unsafe - appeal by accused against conviction dismissed.
Evidence Accomplice - corroboration - facts capable in law of amounting to corroboration - effect of appellant giving evidence admitting such facts and giving explanation which, if accepted, would render them non-incriminating - facts possessing tendency to confirm accomplice's evidence not deprived of corroborative quality by such evidence of accused.

HRNG ADELAIDE, 17 September 1992 #DATE 17:9:1992
Counsel for appellant:             Mr D.H. Peek
Solicitors for appellant:         Jon Lister
Counsel for respondent:             Mr S.A. Millsteed
Solicitors for respondent :         Director of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING C.J. The appellant was charged jointly with one Gregory John Simmonds with possession of heroin for sale. 2. Simmonds pleaded guilty and gave evidence for the prosecution at the trial of the appellant. The appellant pleaded not guilty but was found guilty by verdict of the jury. He has appealed to this court against that conviction. 3. On the night of 28 July 1990, police officers were observing premises occupied by one Milan Santalab. They observed the appellant and Simmonds in a motor car in the vicinity of those premises. Their observations were summarised by the learned trial judge in his summing up as follows:
    "The essential movements which those observations reveal are
    that the man, John Santalab" - and I interpose, that was the son of
    Milan Santalab - "entered the unit at about 9.23 p.m., that Simmonds
    came to the unit about 9.34 p.m. and after about five minutes
    returned to Mr Harris' car, in which Mr Harris was seated behind the
    driver's seat, and together they then drove off. They returned
    about 10.09 p.m., Simmonds left the car, went to the door of the
    unit, returned to Mr Harris in his car and they both then entered
    the unit. Over an hour later, about 11.16 p.m., Simmonds returned
    briefly to the car, leant through the driver's side window and then
    returned to the unit. At 11.34, about a little more than a quarter
    of an hour later, John Santalab, Simmonds and the accused all left,
    Santalab driving off in one vehicle and Simmonds and the accused
    driving off a little later, about 12.10 a.m., again with Mr Harris
    driving. About 20 minutes later Mr Harris' car came back and drove
    past the unit, it was about 12.30 a.m. Ten minutes later again,
    about 12.40, a black Ford sedan car arrived at the unit and the
    man, now known as Milan Santalab, alighted and went in. At 1.15
    a.m. Simmonds and Mr Harris returned in Mr Harris' vehicle and
    entered the unit. Ten minutes later Mr Harris, alone, emerged and
    sat in the driver's seat for a short time and then went back into
    the flat. Five minutes later, at 1.30 a.m., Harris and Simmonds
    together emerged from the flat and went back to Mr Harris' car in
    which he drove off, that is, Mr Harris drove off, with Simmonds as a
    passenger. Shortly afterwards the car was stopped on West Lakes
    Boulevard. Secreted under the dashboard, just left of the steering
    column, was a plastic bag of white powder containing just over three
    grams of heroin, which had been cut to a total weight of about 14
    grams. When Mr Harris was searched, on being taken out of the car,
    there was a wallet in his pocket which contained a piece of paper,
    ... which had on it the telephone number and address of Milan
    Santalab." 4. I should mention that when the car was searched the police also found a pair of scales, which are the property of the appellant, under the driver's seat of the car. When the police subsequently searched the Santalab premises they found a piece of paper with the appellant's phone number written on it. 5. As I have said, Simmonds gave evidence for the prosecution. He said that he had been friendly with the appellant for a few years. He, Simmonds, was a user of heroin. He was in the habit, at one stage, of purchasing his heroin from a woman, Carol Wolters. He gave evidence that at one point during the friendship the appellant told him that he supplied the heroin to Carol Wolters and that he engaged in heroin transactions. Simmonds claimed that he offered to assist the appellant in his dealings and that he in fact did so. Included in his activities was the collection of money for the appellant. Simmonds said that his purpose in joining in the appellant's activities was to gain access to heroin to feed his own addiction. Simmonds said that five or six days prior to the 28th of July, he and the appellant were introduced to Milan Santalab. Santalab said that he had access to a source of heroin in Sydney and there were negotiations for him to obtain heroin for sale to the appellant. Simmonds said that subsequently the appellant told him that he had paid $4,000 to Santalab to obtain half an ounce of heroin and that it was his intention to process that in a way which would produce an ounce of material for sale. Simmonds claimed that on the morning of the 28th of July he was contacted by the appellant. The appellant expected Santalab to return from Sydney on that day and to obtain delivery of the heroin. An arrangement was made by which the appellant and Simmonds were to go to Santalab's unit at 7 o'clock that evening to collect the heroin. Simmonds said that the appellant indicated that the reason for his wish that Simmonds accompany him was that Simmonds, being a user of heroin, could inject himself and thereby test the quality of the heroin. 6. Pursuant to their arrangements, the appellant, so Simmonds said, picked him up in the appellant's car and the appellant drove him to the vicinity of the unit. Milan Santalab did not arrive at the unit as expected and after the comings and goings observed by the police, Simmonds and the appellant went to Simmonds' flat and a phone call was put through to Santalab's unit. The appellant and Simmonds went back to the unit in the appellant's car, the appellant driving, and went into the unit. Simmonds' evidence was that heroin was produced, and he injected himself with some heroin and pronounced it to be of good quality. He went out to the car but by that time the appellant was already in the car. Simmonds claimed that he did not actually see the bag of heroin in the car, nor the scales before the police stopped the car. 7. In summary therefore, on Simmonds' evidence, the appellant and Simmonds were jointly involved in an enterprise to obtain the heroin and to sell it, although Simmonds claimed that his only interest in the outcome was to obtain some heroin for himself. 8. The appellant gave evidence in his own defence. He denied that he was involved in heroin trading or that he had ever told Simmonds that he was. His account of how the two persons came to be at Santalab's unit differed radically from the account given by Simmonds. The appellant said that he was an occasional user of cannabis. He knew that Simmonds had sources from which he could obtain that drug and he indicated to Simmonds that he was interested in obtaining some cannabis for his own use. He said that on the 28th of July, Simmonds told him that he could "score" some cannabis and arranged for the appellant to drive him to Santalab's unit in the appellant's car. The appellant said that although he was in the unit he was not in the same room as Santalab and Simmonds for part of the time and that he did not see any drug transaction take place. He claimed that he was totally unaware of the presence of the bag containing heroin in his car. He admitted that the scales were his, but said that they came to be at the premises because Simmonds had asked to borrow them in order to be able to weigh the cannabis which he was obtaining from Santalab. 9. The appellant denied that he was in any way involved in the possession of the heroin or in any proposed transaction for its sale. 10. Simmonds, of course, was an accomplice, on his own evidence, to any offence which the appellant might have committed and the trial judge was, therefore, required to warn the jury of the danger of convicting upon the uncorroborated evidence of the accomplice. 11. In compliance with the legal requirement, the learned trial judge directed the jury that it was dangerous to convict upon the uncorroborated evidence of an accomplice and he directed them that Simmonds was an accomplice within that rule. 12. He left to the jury as evidence capable in law of amounting to corroboration certain evidence which he described in the following passage:
    "The evidence capable of corroboration in this case, that is
    the evidence which is open for you to find that amounts to
    corroboration, if you accept it beyond reasonable doubt, is the
    circumstantial evidence led by the Crown insofar as it stands
    independently of the evidence of Mr Simmonds and insofar as you are
    prepared to accept it. That evidence is the presence of the accused
    on several occasions in his car near Mr Santalab's unit. His entry
    into the unit on two occasions, the second after Mr Santalab had
    arrived. His action in going alone or returning alone to his car
    from the unit at about 1.25 a.m. Mr Santalab's possession of Mr
    Harris's telephone number. Mr Harris's possession of a piece of
    paper containing Mr Santalab's telephone number and address. The
    presence of the scales under the driver's seat of the accused's car.
    The presence of the bag containing heroin under the dashboard of the
    car while Mr Harris was driving it away from Mr Santalab's
unit." 13. Mr Peek has criticised that direction on two principal grounds. He has submitted that the matters left to the jury as capable in law of amounting to corroboration depend, or depend at least in part, for their incriminating features upon the evidence of the witness to be corroborated. 14. He also submitted that the jury is or at least might have understood that his Honour was directing them that each of the matters mentioned could, in isolation, be capable in law of amounting to corroboration and that some of the matters mentioned were themselves incapable of incriminating or tending to incriminate the appellant. 15. I do not read the passage referred to in the way which Mr Peek suggests it should be read. It is to be remembered that each of the matters mentioned by his Honour were matters observed by the police and were not disputed by the appellant. His Honour was, therefore, entitled to sum up upon the assumption that those matters, being undisputed, would be accepted by the jury. This was not a case in which there was a risk that the jury might accept evidence establishing one or more matters of corroboration, but not accept evidence establishing other suggested matters of corroboration. 16. The matters mentioned by his Honour, as it seems to me, were quite independent of the evidence of the witness to be corroborated and did not depend upon his evidence for their validity or their incriminating character. They were matters, in my opinion, which taken as a whole were quite capable of establishing that the appellant was in possession of the drug and, together with what was known about the quantity of the drug, and the fact that the appellant was not a user, were capable of establishing that his possession was for the purpose of sale. 17. That being so, they were capable in law of corroborating Simmonds's story that the appellant was a party to the transaction to obtain the heroin and to take possession of it for the purpose of subsequently effecting a sale. The matters mentioned were not deprived of their potentially corroborative character by the fact that the appellant admitted them and gave in evidence explanations which, if accepted, would render them non-incriminating. Their potentially corroborative character derives from their tendency to establish that the appellant was a party to the possession of heroin for sale and, therefore, their tendency to confirm Simmonds' evidence to that effect. The weight of the evidence as corroboration was for the jury and would depend to large extent upon the weight which they were prepared to attach to the appellant's exculpatory explanations. 18. I think that the learned judge was quite right to leave the evidence to the jury in the way in which he did leave it as evidence capable in law of amounting to corroboration. 19. Mr Peek made a number of understandable criticisms of the accomplice and his evidence and he complained that these matters had not been put with sufficient clarity or force to the jury and that, therefore, the learned trial judge had not put the defence properly to the jury. 20. There were cogent reasons for distrusting the evidence of Simmonds in the absence of convincing corroboration. He had a bad criminal record and, of course, he was admittedly guilty of the present crime. He had not been sentenced, so he had something to gain from pleasing the authorities and appearing to co-operate with them, and he had in particular something to gain from shifting the blame for this transaction from himself to the appellant. 21. It is a pity, I think, that it was not possible for Simmonds to be sentenced before he gave his evidence. Wherever it is practicable, the better practice is for an offender who it is intended will give evidence in a subsequent trial against alleged co-offenders to be sentenced before he gives that evidence. It is appropriate to recall what was said by Napier C.J. in R v Bailey (1956) SASR 153 at 154-155:
    "We think that there is much to be said for the old-fashioned
    view that a witness should 'give his evidence with a mind free from
    all the corrupt influence which the fear of impending punishment and
    the desire to obtain immunity to himself at the expense of the
    prisoner, might otherwise produce'. Winsor v The Queen (1866) LR 1
    QB 289, at 312." 22. That old-fashioned view, to use his Honour's expression, I think ought still to be the view which informs the current practice with respect to offenders who it is intended will give evidence against alleged co-offenders at a trial. 23. I can understand in the present case that that was not practical because, apparently, Simmonds changed his plea at a late stage when the trial had already been fixed and was ready to proceed. But the fact that he had not been sentenced is a reason for scrutinising his evidence with particular care. 24. Moreover, Simmonds had made a prior inconsistent statement. When first questioned by the police, he took the whole blame for this incident and said that the appellant had nothing to do with it and was quite unaware of the heroin transaction. 25. I am, however, unable to agree with Mr Peek's submission that the learned judge failed to put these matters to the jury with sufficient clarity so that he had fairly put the defence case on the subject. He said:
    "In the case of Mr Simmonds, you are entitled to have regard
    to what he has admitted he said to the police and the fact that it
    was a very different story from that which he has sworn to in this
    court in giving his evidence before you. You can have regard to
    that in determining what you make of his evidence. In deciding
    whether you accept as true beyond reasonable doubt the whole or any
    part of his evidence you must allow for the fact that he has given
    completely different accounts to the police, on the one hand, and
    this court on the other. In assessing his evidence, you must, of
    course, also take into account his admitted criminal record and the
    fact that he has pleaded guilty to this charge. You may well
    consider that he feels that he has something to gain in the first
    place by giving evidence and, in the second place, by giving an
    account now which, if accepted, would make Mr Harris the central and
    dominant participant in the transaction. As Mr Millsteed told you,
    the law is that a person is given credit for pleading guilty and for
    co-operating by giving evidence. But you still have to ask
    yourselves, at the end of the day, whether you believe that he is
    now telling the truth." 26. I think that that passage accurately put the position with regard to Simmonds's evidence and the motives which might have operated on his mind to tell a false story and that that issue was fairly left to the jury. 27. Mr Peek also complained about the direction which his Honour gave concerning the witness Carol Wolters. I have already referred to that lady and the role which she had in the evidence of Simmonds. She was called as a witness for the defence and she denied a number of the matters which had been deposed to by Simmonds. In particular, she denied that she had ever sold drugs to him. 28. His Honour said in his summing up:
    "Mr Harris called, as a witness of fact, Mrs Carol Wolters.
     You must evaluate her evidence and reach a view as to her
     truthfulness. If she is speaking the truth, some of what Mr
     Simmonds maintained were events and circumstances preceding the
     night in question would not have occurred, and much of that part of
     Mr Simmonds' evidence would then fall away. However, it is fair to
     say that her evidence does not impinge on the evidence of the
     events on the night in question insofar as they comprise the
     various matters observed to have occurred then." 29. I think that was a perfectly correct observation. Mr Peek complained that his Honour should have gone further and drawn the jury's attention to the point that if they accepted her evidence, or thought that it may be true, it would cast doubt not only on Simmonds' evidence as to events preceding the night in question, but on his general credibility, including the events of that night. 30. That is a point which, of course, could have been put by the learned judge, but it was a matter for his judgment as to whether he should make that observation on the facts. It is a point, a common sense point, really, which I would think would have occurred to the jury, in any event. I do not think that there is any real substance in that criticism. 31. Mr Peek argued that a direction which the learned judge gave to the jury relating to an alternative route by which they might reach their verdict was fallacious. The learned judge directed the jury that as an alternative to reliance upon the evidence of Mr Simmonds, they should consider whether the evidence, which he described as circumstantial evidence, of the police observations satisfied them beyond reasonable doubt that the appellant had committed the crime. 32. In the course of his summing up, his Honour said:
    "In this case, even if at the end of the day you do not accept
    Mr Simmonds' evidence beyond reasonable doubt, or even if you reach
    a positive finding that it is untrue, you must go on to consider
    whether the evidence which you do accept beyond reasonable doubt,
    apart from Mr Simmonds' evidence, may nonetheless satisfy you beyond
reasonable doubt of the accused's guilt." 33. I can see no fault in that summing up. If the jury rejected Simmonds as a credible witness and decided not to act upon his evidence they, nevertheless, had to consider the other evidence in the case. 34. The matters which the learned judge left to the jury as evidence capable of corroborating Simmonds' evidence also fell to be considered in themselves as a body of evidence tending to prove the charge. The fact was that the police had observed, in the appellant's own car while he was driving it, the heroin, which is the subject of the charge. That fact, together with the other matters mentioned in his Honour's direction, was capable of supporting the charge, particularly taken in conjunction with the knowledge that the appellant was not himself a heroin user, and the quantity of the drug which was involved. That being so, it was necessary for the jury to consider that body of evidence, even if they rejected the evidence of Simmonds. Indeed, this case might be looked upon as a case which depended primarily upon the fact that the drug was found in the appellant's car and in which the evidence of the accomplice was more, rather, in the nature of supporting evidence than of being the central feature of the case for the prosecution. 35. However that may be, certainly, the evidence of the police observations fell to be considered as a body of evidence capable of supporting a conviction in itself and apart from the evidence of Simmonds. 36. Mr Peek also challenged the directions which were given to the jury on the question of possession. Possession of the drug, of course, was an essential element of the charge. There is the statutory provision in s.32(3) of the Controlled Substances Act that where a person is knowingly in possession of more than the prescribed amount of a drug he shall, in the absence of proof to the contrary, be deemed to have that drug or substance in his possession for the purpose of the sale or supply of that drug to another person. I should mention at this point that the quantity of the material in the bag was 13.9 grams and that it contained just over 3.06 grams of pure heroin. 37. His Honour gave the jury the following direction:

    "The first of the elements you consider is whether the accused
    had possession of a substance. It is not essential that you should
    find that the accused had joint possession of a substance with Mr
    Simmonds. It is sufficient if you find that Mr Harris had
    possession of it either jointly with Mr Simmonds or in his own
    right. The particular substance, of course, is the small plastic
    bag containing white powder found under the dashboard of the car." 38. Mr Peek contended that because it was alleged in the Information that Simmonds and Harris knowingly had a quantity of heroin in their possession for the purpose of selling it, that it was necessary for the prosecution to prove that the possession was joint possession and that possession by the appellant to the exclusion of Simmonds would not be sufficient to found a conviction. 39. I am unable to agree with this submission. In my opinion, the charge, being a charge of possession for sale, could be supported by evidence showing that the appellant was in possession of the drug for the purpose of sale and that that would be so whether that possession was joint with that of Simmonds or was to the exclusion of Simmonds. I think that the learned judge correctly directed the jury on that point. 40. His Honour went on:
    "There is possession of a thing when the accused has physical
    custody or control of the thing and is consciously aware of that
    physical custody or control, and is assenting to being in custody or
    control of it. You must look at all the circumstances in
    determining whether the accused had possession of the plastic bag
    containing white powder under the dashboard. If he was aware it was
    under the dashboard of the car, or even if he was aware it was
    somewhere in the car, and if he had consented to it being there, and
    if in all the circumstances he had the power to exercise control
    over it as against others, either on his own or jointly with Mr
    Simmonds, then it is open for you to find that he was in possession
    of it." 41. Subsequently, his Honour said:
    "You put the question whether, either with the assistance of
    Mr Simmonds' evidence or without it, are you satisfied beyond
    reasonable doubt that Mr Harris had possession of the heroin and, as
    I've explained, it does not matter whether it was jointly with
    Simmonds or not, whether he had possession on his own. It was
    undoubtedly under the dashboard when he was driving the car, if he
    knew it was there and intended to sell it himself or if he was
    assisting Mr Simmonds to transport it for sale, either wholly or in
    part, that would be enough to bring you to the conclusion that he
    was knowingly in possession of it for the purposes of sale." and subsequently his Honour further said:
    "I think it is fair to say that he was correct (that is to
    say, the Crown Prosecutor was correct) in putting that in its
    simplest terms the case comes down to the questions did Mr Harris
    know that the heroin was under the dashboard of the car and, if he
    did know that, either because he put it there or because he allowed
    Simmonds to put it there, then he would be knowingly in possession
    of the heroin. He asked you, not only to answer those questions
    positively, but to find that he was going to sell it himself, the
    drug that is, or knew that Simmonds was going to sell it, or part of
    it, and that accordingly, as the Crown puts it to you, there was
possession for sale." 42. Mr Peek argued, somewhat ingeniously, that a number of hypotheses, or a number of possible scenarios might be supposed, and it is impossible to know precisely what basis the jury acted upon. He, therefore, argued that there should have been a number of directions as to the bearing of the law of possession on various possible alternative factual scenarios. 43. In my opinion, the judge correctly directed the jury as to the law of possession, and directed them sufficiently, having regard to the facts of this particular case. Every summing up must be framed in the light of the issues which emerge at the trial. There, of course, are factual situations in which a much more subtle and refined direction as to the law of possession would be required. But in this case, the factual issue was very simple. The appellant owned the car and he was driving the car. The drug was found in his car, and close to the steering column of the car while he was in the driver's seat. His explanation was very simple, namely, that he did not know it was there. And that being the central factual issue in the case on the question of possession, it was unnecessary for the learned judge to give the jury the sort of directions for which Mr Peek argued. 44. I think that his Honour was perfectly correct in pointing out to the jury that the real issue to be determined on the question of possession was whether the appellant knew that the bag containing the drug was on the floor of the car and whether he knew that the bag contained the drug. 45. His Honour directed the jury as to the reversal of the onus of proof contained in s.32(3). The prescribed amount under that section is 2 grams and, therefore, the reverse onus came into operation. The appellant himself gave no evidence which would be capable of discharging that onus, and there was nothing in the other evidence in the case which would be capable of discharging the onus. If possession was proved the presumption that the drug was for sale, applied. 46. Mr Peek argued that the verdict was unsafe and unsatisfactory and ought, therefore, to be set aside as a verdict which was unreasonable or could not be supported, having regard to the evidence. He laid particular stress, of course, on the unsatisfactory character of the witness Simmonds and contended that there was insufficient other evidence in the case to render a conviction safe. 47. I have already pointed out that the evidence of the police observations was capable of amounting to very strong corroboration of the evidence of Simmonds that the appellant was a participant in the crime. It did not lose its character as corroborative evidence by reason of the fact that the appellant gave evidence, seeking to explain that evidence in a way which would render it innocuous. The question of the weight to be attached to the evidence capable of amounting to corroboration was, of course, for the jury and it was for them to decide whether it did, indeed, corroborate Simmonds' evidence. The weight which they would attach to that evidence would depend, no doubt, upon their view of the weight which ought to be attached to the evidence of the appellant giving his explanations. 48. Quite apart from the corroborative quality of that body of evidence, it did, as I have already said, quite apart from the evidence of Simmonds, amount to a body of evidence, very strongly and cogently pointing to the commission of this offence by the appellant. As I have said, it was his car and he was driving it. The prohibited drug was found in that car and in close proximity to him. Moreover, the jury had before them the evidence of the police observations as to his movements and presence in and near the unit occupied by Santalab and also the fact that he had in his possession Santalab's telephone number and address. And on the question of his intentions with respect to the drug, there was the quantity of the drug, plus the admitted fact that he was not himself a heroin user. 49. I think that that evidence, even putting aside the evidence of the accomplice altogether, was a strong Crown case against the appellant. The weight to be attached to his explanations, as I have said, was a matter for the jury, but I cannot see any reason to apprehend that there has been any miscarriage of justice. In my opinion, therefore, the appeal should be dismissed. The order of the court is appeal against conviction dismissed.

JUDGE2 OLSSON J. I agree.

JUDGE3 MULLIGHAN J. I agree.