R v Levy

[2014] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LEVY

[2014] SASCFC 114

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)

30 October 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - WHAT CONSTITUTES

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OF EQUIPMENT AND IMPLEMENTS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - PRESUMPTION OF POSSESSION BY OCCUPIER

Application for permission to appeal against convictions for drug offences. 

After a trial by Judge alone, the applicant was convicted of two counts of trafficking in a controlled substance contrary to s 32(3), Controlled Substances Act 1984. The applicant was the sole occupier of premises in which methylamphetamine, cash, and paraphernalia commonly associated with drug trafficking were located, and stated to police that all items in the premises belonged to her. She applied to a single Judge for permission to appeal against each conviction on grounds that the trial Judge failed to have regard to all of the elements of possession, and failed to have proper regard to the reasonable possibility that possession of the drugs resided in a third person, Mr Hughes, who stayed with her occasionally. That application was dismissed and she now applies to this Court.

Held per Peek J (Kourakis CJ and Blue J agreeing) refusing permission to appeal:

1.  The trial Judge correctly delineated the relevant legal principles and correctly directed himself as to the elements of possession both generally and as applied to the particular facts of this case. [18] 

2.  The trial Judge explicitly stated on a number of occasions that he had considered the question of “possession” in the light of the defence contention that Mr Hughes may have been in possession of the drugs to the exclusion of the appellant. [22]-[24] 

3.  It was clearly open to the trial Judge to reject the submission that Mr Hughes was in possession of the methylamphetamine to the exclusion of the applicant and instead find on the evidence that the charges were proven beyond reasonable doubt. [26]-[27]

Controlled Substances Act 1984 s 32(3), referred to.
R v Levy [2014] SADC 101, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"possession", "methylamphetamine", "premises", "occupy"

R v LEVY
[2014] SASCFC 114

Court of Criminal Appeal:  Kourakis CJ, Peek and Blue JJ

1. KOURAKIS CJ.   I gratefully adopt the recitation of the evidence given in the reasons of Peek J.  There was no real dispute at trial, nor on appeal, that the methylamphetamine was in the applicant’s physical custody.  The primary factual dispute concerns the adequacy of the evidence to prove a culpable mental state.

2. As the reasons of Peek J demonstrate, the evidence that the applicant knew the drug was in her unit was overwhelming and the Judge expressly considered the appellant’s knowledge of its presence. 

3. On proof of knowledge of the presence of the drug, the further question which arose for decision was the applicant’s intention to exercise control of the drug either to the exclusion of all others, including Mr Hughes, or jointly with him, to the exclusion of others.  The Judge also adverted to this issue.  Again, the evidence left no room to doubt that the applicant intended to exercise control over the drug to the exclusion of others, either on her own account, or jointly with, Mr Hughes. 

4. It follows that the verdict was not unreasonable.  Nor has there been a miscarriage of justice.  I would refuse permission to appeal.

5. PEEK J.   Application for permission to appeal against convictions.

6. The applicant was convicted after a trial by a Judge sitting alone of two counts of trafficking in a controlled drug, methylamphetamine, contrary to s 32(3), Controlled Substances Act 1984.  She sought permission to appeal against both convictions on the following proposed grounds:

   1.   The learned trial Judge erred in failing to have regard to all the elements of possession.

   2.   The learned trial Judge erred in failing to have proper regard to the reasonable possibility that possession of the drugs resided in a third party, namely that of Mr Hughes.

7. A single Judge refused permission to appeal; her Honour considered that the case was overwhelming and that neither of the grounds were genuinely arguable.  The applicant renews her application to this Court for permission to appeal on the same proposed grounds.

   The evidence

8. On 5 July 2012, police officers were maintaining observations of a unit at 4/61 Buller Terrace Alberton, the home of the applicant (the unit).  At about 5:30pm, they observed a vehicle leave the unit, stopped it, and identified the driver as a Mr Hughes.  His wallet was searched and inside was found a small amount of methylamphetamine in a small press seal bag.  In the vehicle was found a set of house keys which were seized by police.

9. Police then searched the unit, and the keys that had been seized were found to fit the front door.  The keys were later given to the applicant by the police.  The applicant was the sole lessee of the unit and was the only person present when police arrived.  The unit had two bedrooms but only one of those was set up as a bedroom.  The second was set up as a spare room.  The applicant told the police that no-one else lived at the premises but also said:

   QBut you’ve got a is it a male … that was a male that was um stopped in a vehicle near your address?

   A     Yeah, yep.

   Q     Who’s that?

   A     Just a friend of mine.

   Q     So he doesn’t live with you, doesn’t stay or anything?

   A     Oh he stays occasionally, we’re adults, been locked up for a while.

10. During the search, police located in the lounge room:[1] inside a silver cigarette tin, six press seal bags which contained a total of 6.1 grams of powder with 2.66 grams of pure methylamphetamine (count 1) and inside a matchbox, a further nine press seal bags containing 4.49 grams of powder with 2.63 grams of pure methylamphetamine (count 2). 

    [1]    There may be some uncertainty whether these items were found in the lounge room but it is to the advantage of the applicant that they were, since the lounge room might be envisaged as more of a “common area” than, say, the applicant’s bedroom.

11. The police also located the following items commonly associated with trading in drugs:

    ·17 unused press seal bags inside the upholstered lid of an ornamental box in the lounge room, and a further 128 unused press seal bags in a shoe box on the floor of the same room.

    ·A calculator, mortar and pestle, and a marble chopping board together on a coffee table in the lounge room.  It was alleged that this was set up as a “cutting area”.

    ·A set of scales (which were functioning) capable of measuring to a 0.00 of a gram which had traces of methylamphetamine on the weighing surface and a DNA profile from the buttons matching the applicant with a likelihood of 50 billion to one.  The scales were beneath the coffee table identified as the “cutting area”.

    ·Four new unused syringes in a blue cooler bag on the floor of the applicant’s bedroom.

    ·Four mobile phones, three of which were charged and operational.  Two of these were in the applicant’s bedroom.

    ·$4,675 in cash inside a blue pencil case on the floor of the lounge room.

    ·$545 in cash and the applicant’s driver’s licence inside a white “Guess” brand wallet near a mattress in the lounge room.

    ·A matchbox containing a press seal bag in turn containing three press seal bags that each contained a brown paste later analysed and found to contain methylamphetamine.  The matchbox also contained a further press seal bag which contained another press seal bag containing a cream paste later analysed and found to contain methylamphetamine.

    ·A white cylindrical plastic tube with a screw-on cap that looked like an inhaler, containing three plastic bags, one within another, with one containing a cream paste later analysed and found to contain methylamphetamine, and three further bags each containing a cream paste also later analysed and found to contain methylamphetamine.

    ·A gold coloured paper envelope containing a press seal plastic bag containing a cream paste later analysed and found to contain methylamphetamine.

    ·Further bundle of two press seal bags, one containing 57 small new unused press seal bags and the other 71 small new unused press seal bags.  These were located in a black shoe box on the floor of the applicant’s lounge room.

12. Evidence was given that the methylamphetamine the subject of the two counts in its then state was worth between $4,320 and $9,150; however, it was of unusually high purity and if further diluted, it could have been sold for as much as $42,500. 

    The applicant’s version of events

13. The applicant did not give evidence at trial but did answer questions during a police interview.  The applicant then stated that she lived at the unit.  She said that all the items in her house were her belongings, but said that until recently, many of her belongings had been in storage for approximately eight years; she had recently retrieved the items because the friend who had been storing them had passed away.  In relation to the drug paraphernalia, the applicant said that it would be hers as she had been charged with drug dealing in the past.  She said she knew nothing about the methylamphetamine, but thought that that would be something to do with her, for the same reason.  She agreed that she still used methylamphetamine, the last time being only a couple of days before; she had gone to the trouble of obtaining and storing a number of jars of frozen urine to provide drug free samples in accordance with her conditions of parole, which police located in the freezer.  In relation to the various items found on the coffee table, the applicant said that she had “just unpacked” the calculator, scales, pestle and mortar and chopping board.  She agreed that “without a doubt” it looked like a “prep area”.  She said that she was sorting the things out and putting everything together, to put into boxes and get rid of.

    Demeanour and credit findings

14. There was no contest as to the credibility or reliability of the police witnesses.

15. As to the applicant’s interview, the Judge found the applicant was “a person trying to come up with something to explain away what was found, rather than a person honestly telling police that it was all a big mistake and that she really did not know the drugs were there”.  He found that the applicant’s explanation of the coincidental positioning of the various items said to amount to a “cutting area” was “particularly unconvincing”.

16. At trial, the applicant called a witness who stated that she had paid the applicant $3,300 in cash for lingerie and adult items on 2 July 2012, 13 days before the search.  The applicant’s case was that this amount was part of the cash located by police.  With reluctance, the Judge accepted that evidence as a possibility, but of course it left an amount of cash unexplained.

    The Judge’s reasons concerning proof of the charges

17. While a Judge sitting alone is obliged to give reasons, the reasons need not be of the same order or contain the same level of detail or reference to the law as a summing up to a jury.  The Judge should state the conclusions underpinning the verdict in a way that indicates to the parties why the decision was made and allows them to exercise their appeal rights.

18. Here, the Judge correctly delineated the applicable principles and content of the law.  His Honour correctly directed himself as to the elements of possession generally, and as particularly applied to the facts of this case.  He stated:

    Simply finding drugs in someone’s house in insufficient to prove possession in a legal sense, as for possession the person needs to know the drugs are there and also have control over them.[2]

    [2]    See R v GNN (2000) 78 SASR 293.

19. Further, the Judge was correct in his approach to circumstantial evidence.  He had regard to the combined force of all the evidence and circumstances in assessing the prosecution case, which included:

    ·that the applicant was in possession of a large quantity of drug paraphernalia which she said she was unpacking after a long period of storage elsewhere; but

    ·that paraphernalia was set out on the lounge room coffee table in a way that suggested it was about to be, or had been recently used, and the drugs were located in the same room; and

    ·that the applicant’s DNA was found on the electronic scales upon which were found traces of methylamphetamine; and

    ·that the applicant was in possession of cash, a portion of which was unexplained.

    A possibility of possession of the drugs by another party?

20. The main contention of Mr Doyle SC, counsel for the applicant, was that while the Judge directed correctly in a general way concerning the required elements of possession, his Honour erred in that he did not “attempt in the reasoning to analyse the evidence through the prism that that requires, namely a consideration of its significance as being probative of the possession by my client as opposed to Mr Hughes.”

21. That is an elegant way of putting the argument and I would agree that if the Judge had directed himself on the elements of possession (as he did correctly) but had not referred to the topic of Mr Hughes as a matter to be taken into account when considering whether possession by the applicant had been established, Mr Doyle would have been on firm ground.

22. However, the fact is that the Judge did specifically consider whether it was possible that the drugs had been left in the house by another party in circumstances not amounting to possession by the applicant (with or without the knowledge of the applicant of their presence) and he did specifically consider the position of Mr Hughes in that particular context.  His Honour stated:

    … I have given close consideration to defence counsel’s submissions and suggestions as to other reasonable hypotheses consistent with innocence.  In particular, notably the possibility of the drugs indeed being left over from an earlier time unbeknownst to the accused, or another possibility that the man who was apprehended leaving the premises may have been the one who possessed or was involved with the drug, or simply that even if the accused knew about the drugs she may not have had legal possession of them in the sense they were not hers to exclude others from.

    (Emphasis added)

23. Of course, “the man who was apprehended leaving the premises” was Mr Hughes, and it is quite clear that the Judge focussed (through a prism or not) on the evidence concerning Mr Hughes and had regard to the contention that it raised two possibilities.  These were first, that Mr Hughes had secreted the subject drugs in the house without the knowledge of the applicant and was in possession of them at all times or second, that Mr Hughes had brought the drugs to the house and remained in possession of them at all times, despite the fact that the applicant may have known that he had them there.

24. The above passage in his Honour’s judgment is therefore critical.  The effect of its inclusion is that the applicant’s complaint about the judgment is reduced from what might have been a qualitative complaint as to the content of the reasons to merely a quantitative complaint about the precise number of the items potentially relevant to Mr Hughes’ role that the Judge did, or did not, specifically mention in his judgment.  But the fact is that the Judge did explicitly state on a number of occasions that he had considered the totality of the evidence in the light of the submissions by counsel and it was unnecessary to repeat each and every piece of evidence that he had considered in that manner.  The Judge did specifically refer to the facts that:

    ·Mr Hughes had a number of previous offences relating to the production or possession for sale of controlled substances.

    ·“The accused was the sole lessee and occupant of the unit, although the man apprehended leaving Mr Hughes had a set of house keys as well.”

    ·There was an absence of items in the house of such things as cutting agents or tick lists.

25. It was complained that the Judge failed to make specific reference to the fact that there was at least one mattress on the floor of the lounge room, and that this was suggestive of occupation by another person, which could have been Mr Hughes.  However, in light of Mr Hughes’ very casual association with the premises as described by the applicant - that he was a friend who stayed “occasionally” - it is unsurprising that his Honour did not consider that he was prevented from finding beyond reasonable doubt that the applicant was in possession of the drugs.  The Judge did refer on a number of occasions to the fact that Mr Hughes was found with the set of keys fitting the front door and there is no reason to think that he did not take that matter, and associated matters, into account.

26. The applicant also complains that the Judge failed to refer to any authorities concerning the need to exclude possession by a third party.  However, his Honour demonstrated by his statements referred to above that he was aware of the correct legal principles.  That being so, the question for the Judge became primarily factual rather than legal.

27. Ultimately, on the overwhelming evidence to the contrary, his Honour rejected the applicant’s submission that Mr Hughes may have been in possession of the drugs to the exclusion of the applicant.  It was clearly open for his Honour to do so.

28. I would refuse permission to appeal.

29. BLUE J.    I agree with Peek J.