R v HUGHES

[2006] SASC 305

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HUGHES

[2006] SASC 305

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Layton and The Honourable Justice David)

29 September 2006

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - PROOF AND EVIDENCE

Appeal against conviction - appellant convicted by jury of possessing methylamphetamine for sale - charge arose from police attendance at a motel room with which two other people were associated - appellant was found in motel room next to a quantity of methylamphetamine - other evidence relating to the charge was found in the appellant's car which was outside the room - whether trial Judge erred in permitting the prosecution to lead evidence of the value of the methylamphetamine given that possession was the central issue - held that evidence of value was relevant to the issue of possession - whether trial Judge erred in finding that there was a case to answer - held that there was a case to answer - whether the trial Judge misdirected the jury by failing to relate the concept of possession to the facts of the case - whether the trial Judge misdirected the jury by failing to identify clearly that if a reasonable possibility remained that the methylamphetamine was possessed by another person, the jury could not be satisfied beyond reasonable doubt that the appellant was in possession - held that the trial Judge correctly directed the jury - appeal against conviction dismissed.

Controlled Substances Act 1984 s 32(1)(e), referred to.
Question of Law Reserved on Acquittal (No 2) (1993) 61 SASR 1; R v Bilick & Starke (1984) 36 SASR 321, applied.
R v GNN (2000) 78 SASR 293, distinguished.

R v HUGHES
[2006] SASC 305

Court of Criminal Appeal:       Sulan, Layton and David JJ

1. SULAN J: This appeal yet again raises the issue of possession of a prohibited substance. The appellant was convicted of possessing methylamphetamine for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984. The offence took place on 31 August 2003 at Kent Town.

2. The first ground of appeal is that the trial Judge was in error in permitting the prosecution to lead evidence of the value of the methylamphetamine the subject of the charge.  The second and third grounds relate to whether the prosecution had established that the appellant was in possession of the drug and whether the trial Judge had misdirected the jury on the issue of possession.

   Background facts

3. On the morning of Sunday, 31 August 2003, police attended a motel room at Flinders Lodge Motel at Kent Town.  A young female named Ms Bronwyn Barnett, aged about 16 or 17 years, opened the door.  There were two bedrooms in the unit.  The appellant was in a room described as the front bedroom.  In the rear bedroom the police officer observed a large amount of female clothing.  Some of the clothing belonged to Ms Barnett.  Other clothing belonged to a Ms Debbie Ann Burton.  The unit had been rented in her name.  The evidence disclosed that Ms Burton had produced a driver’s licence to the motel manager when she rented the unit.  The date of birth on the driver’s licence was recorded as 10 August 1972.  Ms Burton appeared to have given her residential address as a unit at Marden.  There was evidence that a Ms Burton had rented a different room at the motel some eleven days earlier and given a residential address at Hectorville. 

4. Police observed the appellant, who was fully clothed, lying on a double bed in the motel room.  On the bedside table was a Tupperware container with white paste inside.  That paste was later analysed and found to weigh about 17 grams, containing 12.52 grams of pure methylamphetamine, which is commonly known as speed.   The value of the methylamphetamine paste contained in the container was between $37,000 and $70,000, depending on the purity and the number of amounts sold.  The prosecution case was that the appellant had it in his possession for the purpose of sale.  The police searched the appellant who had $1700 in bank notes on his person.

5. Police officers observed a number of syringes in the motel room, both in the front bedroom and in the kitchen area of the unit.  Some of the syringes were new and some had been used.  One of the syringes had a cloudy coloured liquid in it.  The substances in the syringes were analysed and some of the syringes had traces of methylamphetamine in them.

6. Ms Burton was located asleep in a car in the motel car park at the rear of the car park.  When asked by police if she had rented a room that evening, she denied having done so and said that she had merely parked in the car park.

7. There was a motor vehicle parked outside the unit, which the appellant agreed was his vehicle. The appellant had given them the keys to the car.   Between the driver’s seat and the car door there was a syringe that had liquid in the canister.  There was a kitchen knife found in the front right-hand side of the car which had a residue of methylamphetamine.   A set of electronic scales, which were later examined and found to have traces of methylamphetamine on them, was found in the boot of the car.  Also in the boot of the vehicle were seven syringes containing liquid.  Six of them contained brown liquid and the seventh contained a clear liquid.  A black, soft pouch was also found in the boot, which contained two syringes filled with a clear liquid.  Both syringes were later shown to contain methylamphetamine.  An additional syringe was found which was later shown to contain methylamphetamine.  Glad snap-lock bags, containing smaller resealable plastic bags, were found in the boot and on the rear left and front left passenger floors of the vehicle.  Additional new and used small resealable plastic bags were found in the front right compartment of the vehicle.  Some of the bags were found to have traces of methylamphetamine in them.

8. There was evidence that the bags that were found in the boot and in the car were the type of bags that are often used to contain small amounts of methylamphetamine for sale in small lots. 

   Submission of no case to answer

9. At the conclusion of the prosecution case, counsel for the appellant submitted that the evidence was incapable of establishing that the appellant was in possession of the methylamphetamine contained in the Tupperware container.  It was conceded that the materials found in the appellant’s car were evidence that he was a person who had an interest in methylamphetamine, and that the evidence pointed to him being a user of the drug.  Counsel submitted that, as to the methylamphetamine found in the unit, it was reasonably possible that either Ms Burton or Ms Barnett were in possession of the subject drug and the accused’s mere presence in the room was insufficient to establish that he was in possession of the drug.

10. The prosecution submitted that the evidence of the appellant’s proximity to the container and the items found in the appellant’s vehicle supported the prosecution case that, at the very least, he was in joint possession of the drugs.

11. In reply, counsel for the appellant submitted that if it was reasonably open to conclude that Ms Barnett or Ms Burton were the true possessors of the drug to the exclusion of the appellant, then there was no case to answer and the jury should be directed to acquit. 

12. The trial Judge rejected the application.

13. The appellant did not give evidence.  He called an analytical chemist.  It is not necessary to deal with that evidence, as it is not relevant in the appeal.

14. The issue in the trial was whether the prosecution had proved beyond reasonable doubt that the appellant was in possession of the drug.

    Should evidence of the value of the drug have been excluded?

15. The first ground of appeal is that the trial Judge should have excluded evidence from a detective who was a member of the Drug and Organised Crime Investigation Branch, who gave evidence of the value of the methylamphetamine contained in the Tupperware container.  The trial Judge rejected a submission that the evidence should be excluded.

16. Mr Algie, who appeared for the appellant, submitted that the evidence should not have been admitted by the trial Judge, because it was irrelevant and could only potentially prejudice the appellant by escalating or quantifying the alleged criminality in monetary terms, thereby distracting the jury from what was the central in the case; namely, possession.  Mr Algie submitted that if the jury was satisfied beyond reasonable doubt that the appellant was in possession of the drug, it followed that he was in possession for sale, as the quantity of the drug exceeded the prescribed amount, and the presumption that the possession was for sale would apply. 

17. I reject Mr Algie’s submission.  First, the evidence of the value of the item found next to where the appellant was lying is relevant evidence to the issue of possession.  The defence case was that it was reasonably possible that the drug was in the possession of either or both of the females who had an association with the unit in which the drug was found.  It was relevant for the jury, in considering whether it was reasonably possible that Ms Burton or the younger woman, Ms Barnett, were in possession, to have regard to the fact that a very valuable item had been left in the motel room near where the appellant was located.  If, as in this case, an item was of substantial value, it was open to the jury to use that evidence to support the prosecution case that the appellant was in possession of the item by reasoning that it would be unlikely that a person in possession of it would leave it out of his or her immediate control.  

18. Secondly, the evidence of value was relevant to whether the drug was in the appellant’s possession for the purpose of sale.  The fact that the appellant did not give evidence, and the fact that he did not seek to rebut the presumption, is not a reason for the evidence being excluded.  The evidence was relevant to an element of the charge; namely, whether it was for sale.  The prosecution was required to prove that element and, although the legislation provides that possession of that quantity of the drug presumes a person who is possession of it to be in possession of it for sale, that does not preclude the prosecution from establishing its value as an item of circumstantial evidence in support of the prosecution case that the drug was in the appellant’s possession for the purpose of sale.

19. Although Mr Algie submitted that possession was the central issue in the case, the prosecution has the onus of proving all elements of the offence charged.  The matters in issue in a case may not be identified with certainty until the defence case has been opened.  The prosecution is required to lead all relevant evidence as part of its case.  If evidence is relevant evidence then the prosecution is entitled to lead it, albeit that the issue upon which the evidence is led is ultimately not contested.  The fact that defence counsel may make a concession or an admission in respect of a fact or matter is not, on its own, a reason for rejecting evidence relevant to that fact or matter.

20. Thirdly, the appellant’s submission that the prejudicial effect of the evidence outweighed its probative value must be rejected.  The evidence had clear probative value. A jury properly directed would not presume that, because the container contained a drug worth between $40,000 and $70,000, it follows from that alone that the appellant was in possession of it.

    A case to answer

21. The second ground of appeal is that the trial Judge erred as a matter of law in ruling at the conclusion of the prosecution case that there was a case to answer. 

22. The role of a judge in considering a submission of no case to answer is to consider the evidence at its most favourable to the prosecution case, and to decide whether a reasonable jury, properly directed, could be satisfied beyond reasonable doubt of the accused’s guilt.  In a circumstantial case, the question is whether a reasonable jury, properly directed, could exclude any competing hypothesis as not being reasonably open on the evidence.  See:  Question of Law Reserved on Acquittal (No 2).[1]

    [1] (1993) 61 SASR 1, 5.

23. In R v Bilick & Starke,[2] King CJ affirmed that, on a submission of no case to answer, the court is concerned with the question of whether there is evidence which is legally capable of leading to a conviction, and not with the question of whether the evidence is so lacking in weight that conviction based upon it would be unsafe or unsatisfactory.  King CJ said:

    The case against the appellant Starke was circumstantial in character.  The same test is to be applied to deciding a submission of no case to answer and a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different.  The question to be answered by the trial Judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt.  Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct “evidence” is so incredible as to amount to no evidence.  Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes:  On the assumption that all the evidence of primary facts considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing the mind of a reasonable person’s satisfaction, beyond reasonable doubt, of the guilt of the accused?[3]

    [2] (1984) 36 SASR 321.

    [3] (1984) 36 SASR 321, 337.

24. That is the question which the trial Judge was required to answer in deciding the submission of no case to answer.  In Question of Law Reserved on Acquittal (No 2),[4] the court again considered the principle upon which a trial judge should rule on a submission of no case to answer.  King CJ referred to his judgment in Bilick’s case and then added:

    It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury.  He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution.  It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe.  Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence.  He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.[5]  (References omitted)

    [4] (1993) 61 SASR 1.

    [5] (1993) 61 SASR 1, 5.

25. Mr Algie submitted that the evidence at the conclusion of the Crown case left open as a reasonable possibility that the appellant was a user, that he was present in the room for the purposes of purchasing methylamphetamine, that Ms Burton or Ms Barnett were the vendors and, therefore, a jury could not be satisfied beyond reasonable doubt that the appellant was in possession of the subject drug.

26. If the only evidence in the case was the appellant’s presence in the motel room in the near vicinity of the Tupperware container containing the drugs, then Mr Algie’s argument may have some force.  However, there was other evidence from which a jury could conclude beyond reasonable doubt that he was a vendor and that he was in possession of the drug.  The evidence of the objects found in the appellant’s car, including the scales, the knife and a number of bags of the type used by vendors of drugs in the course of dealing in drugs, is evidence which pointed to the appellant being a seller of drugs.  It was open to a jury to conclude beyond reasonable doubt that he was in possession of the drugs, either to the exclusion of Ms Barnett and Ms Burton or, at the very least, in joint possession with one or both of them.

27. Mr Algie conceded that there were several competing hypotheses from the inferences that could be drawn on the evidence.  The first hypothesis is that the appellant was in possession of the drugs in question.  The second hypothesis is that Ms Barnett and/or Ms Burton were in joint possession of the drug with the appellant.  The third hypothesis is that one or other of the two women was in possession to the exclusion of the appellant.  The final hypothesis is that the two women were in joint possession of the drug to the exclusion of the appellant.  It was open to a jury to be satisfied beyond reasonable doubt of the first or second hypothesis.

28. If there are a number of competing hypotheses in a circumstantial case, it is not for the judge on a submission of no case to answer to prefer one hypothesis to the other.  In a no case to answer submission, the question is whether one or more of those hypotheses is a hypothesis upon which a reasonable jury properly directed could convict.  If there is sufficient evidence upon which a jury could be satisfied beyond reasonable doubt of an accused’s guilt, then it is for the jury to determine whether the evidence satisfies them beyond reasonable doubt. The question of whether there is a reasonable hypothesis consistent with an accused’s innocence and, therefore, entitling the accused to an acquittal, is a matter for the jury. The trial Judge was correct in rejecting the submission of no case to answer.

    The directions about possession

29. The final ground of appeal is that the trial Judge failed adequately to direct the jury on the issue of possession.  In substance, it is submitted that the Judge failed to relate the concept of possession to the facts of the case, and that he failed to identify clearly for the jury that, where a reasonable possibility remains that the methylamphetamine may have been possessed by someone other than the accused, the jury cannot be satisfied beyond reasonable doubt that the accused was in possession of the methylamphetamine.

30. The facts are uncomplicated.  The trial Judge identified for the jury that the main issue in the case was whether it had been proved beyond reasonable doubt that the accused was in possession of the drug.  He told the jury that the real question was what inferences might be drawn from the facts that had been proved.  He gave the following direction:

    I said I would come back to this question of possession.  I repeat that it must be proved that the material in the Tupperware container, because that is what we are talking about in this case, was in the possession of the accused.

    A person has possession of an object if he knowingly has physical custody or control of it.  There must be both physical control and an intention to exercise control over the object.  A person may have an object in his or her immediate possession; for example, in the hand or a pocket.  If I pick up this pen that I have, then I have it in my possession because I have it in my hand and I intend to exercise control over it.  But it is not necessary for you to have something in your hand or pocket before the law says that you have it in your possession.

1. He further directed the jury:

   As you have heard, possession does not have to be sole possession.  The law says that, when two or more persons acting together intend to exercise control over property at a given time, to the exclusion of others, then each is said to be in possession of it at that stage.

   In the present case, it is alleged that the accused exercised control over the contents of the container, which was sitting on the bedside table, while he was lying on the bed.  The Crown points to other aspects of the evidence, including what was found in the accused’s car, to establish a connection between the accused and the property and to support the inference that he was in possession of it at the time the police arrived at the premises.  You know that the prosecution has argued that there is significance in the fact that the traces of methylamphetamine found in the vehicle were, for the most part, according to the Crown case, of approximately the same percentage of purity as the methylamphetamine found in the motel room, and you know what the respective arguments of counsel are in respect of that.

2. The trial Judge directed the jury about the nature of circumstantial evidence and reminded the jury that, before they could convict, they must be satisfied beyond reasonable doubt of the accused’s guilt.  He then directed the jury:

   … So, the case the Crown relies on is the fact that when the police officers arrived at the motel room the accused was lying on the bed in close proximity to the container on the bedside table.  It then points to what was found in the car.  It then points to the analyses and then asks you to take all those circumstances into account in making the inferences which it asks you to make.  For the defence part, they have taken those same circumstances and they argue for a different conclusion which I will refer to in due course.

3. The trial Judge reminded the jury of the facts.  He dealt with the evidence of the analysis of the methylamphetamine in the Tupperware container which showed that it was of 70 per cent purity, which is high.  He also related evidence of the liquid found in some of the syringes in the boot of the appellant’s motor vehicle, which contained a substance with methylamphetamine of 70 per cent purity. 

4. The trial Judge reminded the jury of the defence case and the evidence of the expert called on behalf of the defence.  He reminded the jury of counsels’ submissions.  He directed the jury in the following terms:

   Ladies and gentlemen, I summarise this by saying that I remind you that you cannot convict the accused unless you find him guilty beyond reasonable doubt.  Before you can convict the accused, you must be satisfied not only that his guilt is a rational inference from the proved facts but that it is the only rational inference that the circumstances you find proved enable you to draw.

5. At the conclusion of the summing up, counsel for the appellant sought a further direction to clarify the issue of joint possession.  The trial Judge gave the following direction:

   You will remember that both counsel and I have mentioned this issue of joint possession, and the fact that, in certain circumstances, property may be in the joint possession of people if both of them are wanting to exercise control over it and have custody of it.  To take an obvious example, partners or husbands and wives might be in that situation, but it is not restricted to that situation.

   So, what I add to my direction is this:  that if it is a reasonable possibility that one or other or both of the women who have been referred to in the evidence had possession of this drug to the exclusion of others, then the accused would be not guilty because he would not be part of that joint possession, and, in addition to that, I direct you, as has been suggested to me, but I give you the direction because it is correct, that it is not open to infer joint possession in relation to three people simply because they are in the room at the same time or in the room with the drug.

   Perhaps I can relate that directly to this case, because there was only one of the women in the room at the time.  Simply because the accused and that other woman were in the room at the same time does not necessarily mean that both the accused and her were in joint possession of the drug.  That would be contrary to all the directions that I have given you about the importance, whether it is joint possession or possession by one person, of there being an intention to exercise control, of there being custody in the way in which I have explained, in relation to the item.  Mere presence in the room could not satisfy that, in the circumstances of this case.

6. After the jury had been deliberating for approximately two hours, they sought a further explanation of the legal definition of “possession”.  The trial Judge gave the following further direction:

   Ladies and gentlemen, I have received your note and I understand that you would like a further direction on this concept of possession, and I hope to assist you, perhaps by use of different wording, but I appreciate the concern that people have about this concept, which is not the easiest concept in the law.

   A person has possession of an object if he knowingly has physical custody or control.  Control, in this sense, means that the person considers that he has the right to say where the object is to be put, whether it is to remain in a room, and that he has that power over other people.  If you take it out of the room, take it somewhere else and the like, and it involves not only him thinking that he has that power, or being of that view but that he has got the actual intention to exercise control over it, if necessary.

   He may have the object in his immediate possession;  for example, he can hold it in his hand and intend to exercise control over it, and I demonstrated with this pen, I have got in my hand, and that is a good first step towards possession.  But it would not cover the case, for example, of a visitor going into a private home and picking up a vase to have a look at it.  The person, in those circumstances, would not be intending to exercise custody and control over it, as far as the owner was concerned.

   Secondly, a person may intend to exercise control over something which is in his or her immediate vicinity.  Once again, I illustrated that with objects that I have here about me.  If something else wanted to come and remove the exhibits, I would feel it within my rights to say, ‘No, leave them there’.  I am not holding them in my hand, but it is my intention that they should remain there and, in my view, I have got the right to exercise that control over that object which is on my desk.

   On the other hand, as was explained to you this morning – and I do not suppose this is so relevant to the present case – you could have possession, and you do have possession, of things that are in your house.  You need not be standing over them, so to speak.  If you consider items that you might have in your house, you can test the definition by saying, ‘Yes, I believe that I have got the right to have those things there.  I believe that I have got the right to tell anybody else that they are not to remove them and I intend to exercise that right.  I am not going to let anybody take the laptop away, it will remain in my house.  So, I am intending to exercise control over it and I am actually exercising control over it’.

   And then, as we said this morning, it does not necessarily involve ownership.  It is not the same thing as ownership.  I do not know if the example was given, but it is an example of a person saying ‘I’m going away on holidays.  I would like you to look after this laptop for me.  I don’t want it to be left in my house while I’m away’, so then I agree to do that and I literally take possession of it.  Somebody else is the owner, but I intend now to exercise control over it.  I will say where it goes in my house while the person is away and I will exercise exclusive control over it, because, if my children want to take it down into the playroom or to their room, I will say ‘No, that’s somebody else’s’;  I want it to remain there, exercise effective control over it.

   Now, it is true that two or more people might want to exercise joint control over it and it can be said that they are both in possession of it.  It is known as joint possession.  The test is exactly the same for each of them.  Each of them will say ‘I have got some rights in relation to that and I would like it to be in a particular position’, or ‘I do not want it to be somewhere else’ and, hopefully, those rights will be exercised in the same way by the two people;  there may be some dispute, but we need not worry about that in this case.

   The other thing that I mentioned to you this morning was:  just because an object is in a room and there are other people in a room does not mean to say that they are all in possession of the item.  It sounds almost silly to say that, it is obvious, but, once again, with this book that I have here, I have possession of that because I am exercising control over it and intend to do so.  My tipstaff was kind enough to bring it over for me this morning;  I agreed with that.  If somebody had tried to take it away from him in the street, I hope he would have said ‘No, that has to go over to the court’.  So, there is, in a sense, a joint possession there, we are both separately in joint control over the item, but it would be silly to say that Detective Lea or somebody had possession of it simply because he happens to be sitting in the same room.  That would not answer the test of whether somebody has got control or custody of the item.

   I suppose, if you look carefully at the case, the Crown are saying this is in the possession of this man because, in effect, they are suggesting, I think, that he produced it in the room, but, at all events, while it was in the room, he was the one who was exercising control and custody in relation to it, and that is where one looks at the broader picture and considers, amongst other things, that was found in his car, and whether that helps to establish a connection such that you could say, in the end, ‘Well, I am satisfied beyond reasonable doubt that satisfies the test’.

   On the other hand, Mr Algie has said that the facts are such that it is a reasonable possibility that the accused happened to be just lying there in the room and that the possession was with somebody else, and he has nominated who that might have been.  You will consider that scenario as well.

   In the end, it comes down to the legal test which I have just given you, and you have to really, first of all, work out not only what you think, but what you find, to the required degree of proof, are the facts of the case.  Satisfy yourself in relation to the fact, and then say ‘Now, applying the legal definition which has been given to us in relation to the facts, this is what we conclude’.

7. The substance of Mr Algie’s complaint is that the trial Judge failed to relate the directions to the facts in this case. 

8. Mr Algie relied upon the decision of R v GNN.[6]   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 after the police raided a house at which a number of visitors, some of whom had just arrived from interstate, were present.  There were two packages of heroin concealed in different places in the kitchen.  There was heroin found in a bedroom, which the appellant shared with another.

   [6] (2000) 78 SASR 293.

9. The evidence was that the appellant occupied the house with her young son and daughter.  Police were observing the house because they suspected that a consignment of heroin was being brought to the house from Sydney and that the appellant was involved in dealing with heroin.  Police observed a motor vehicle driven by a male arrive at the house.  About half an hour later another vehicle containing two men arrived at the house.

10. When police entered the house they found three men inside the house, all of whom had come from Sydney.  A fourth man was apprehended outside the house with the appellant.  One of the men inside the house was ascertained to be in a relationship with the appellant.  They shared a bedroom in the house.  Both the cars were searched and police found heroin in the vehicle which had contained the two men who arrived last at the house.  Inside the house the police found two small packages in the kitchen.  They also found heroin in the bedroom in between the mattress and the base of the bed.

11. The prosecution case against the appellant was that she was the occupant of the house. It was argued by the prosecution that it was unlikely that the heroin found in the house had been moved from the car to the house in the period between when the vehicle was observed and when the police attended.  It was ascertained that this was roughly thirteen minutes. 

12. The appellant denied any knowledge of the heroin.  It was her case that any one of the three men could have been responsible for storing the heroin in the house.

13. Doyle CJ, with whom Prior and Olsson JJ agreed, observed that the judge had adequately identified and explained the basic legal concepts of possession, namely, that it required possession, knowledge, custody and control, but he concluded that the judge had not given the jury the assistance that they needed in applying those concepts to the facts of the case.  He said:

    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 (the appellant) 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 was 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.[7]

    [7] (2000) 78 SASR 293, 297-8 [25].

14. Mr Algie submits that the trial Judge did not sufficiently direct the jury in that he failed to relate adequately his instructions on the law to the facts.  Mr Algie does not make any complaint about the general directions on the law and the trial Judge’s direction about control, but he complains that when the jury returned with a question the trial Judge should have again related the facts when directing the jury on the law. 

15. When initially charging the jury, the trial Judge did direct the jury to the issues in the case.  He made it clear to the jury that if they considered it a reasonable possibility that one or other or both of the women who had been referred to in the evidence had possession of this drug to the exclusion of others, then the accused would be not guilty, because he would not be part of that joint possession.  He directed the jury that mere presence in the room was insufficient to infer joint possession.  He directed the jury about the necessity of a person to exercise control and intend to exercise control over the drug before he can be found in possession of it.

16. The factual situation in this case was a very simple one.  Unlike the situation in GNN, a case in which the jury were confronted with a number of people who were present at the house, heroin found in different rooms of the house, and heroin found in a car which had arrived at the house shortly before, this was a simple case in which the drug was found in a room next to a bed on which the appellant was lying.  The evidence of the objects and drugs found in the appellant’s car was evidence from which the jury could draw the conclusion that he was in possession of the drugs found in the room.

17. In my view, there was no risk that the jury were not fully aware of the issues that they were required to consider.  As I have said, the factual matrix was relatively simple.  The trial Judge referred to it during the course of his summing up and explained the elements of possession clearly to the jury.  In his re-direction, he again explained the matters with which the jury would have to be satisfied before they could conclude that the appellant was in possession.  In my view, it was unnecessary for him to reiterate the facts again in his re-direction.

18. The summing up and the directions were adequate.  In my view, it was open to the jury to be satisfied beyond reasonable doubt that the accused was in possession of the Tupperware container and its contents.  I am satisfied that they were neither misdirected nor misled. 

19. I would dismiss the appeal.

20. LAYTON J:          I consider that the appeal should be dismissed, for the reasons given by Sulan J.

21. DAVID J:              I would dismiss the appeal.  I agree with the reasons given by Sulan J.