R v Nguyen No. Sccrm-98-131 Judgment No. S6985
[1998] SASC 6985
•1 December 1998
R V NGUYEN
[1998] SASC 6985
Court of Criminal Appeal: Cox, Prior and Olsson JJ
COX J. Appeal against conviction in a drug case.
The circumstances of this appeal are described in the judgment of Olsson J. Briefly, the police chased a man named Truong into a hotel bedroom that was jointly occupied by Truong and his nephew, the appellant Minh Tan Nguyen. They found a commercial quantity of heroin under the mattress of a bed on which the appellant was lying asleep. Truong said in evidence that he had been putting the heroin under the mattress when the police entered the room, but the police officer who was close behind him said that this was highly improbable. It was the Crown case that Truong was trying to take the heroin from its hiding place in order to dispose of it. Truong and the appellant were tried in the District Court for possessing heroin for sale and they were both convicted. Truong told the jury that he was a heroin addict and that all of the heroin in the room was for his own personal use. He agreed that he and the appellant had used heroin in the room. He expressly denied any intention of selling heroin. The appellant did not give evidence. He complains of errors in the summing up and says that, in any event, the conviction was unsafe.
The learned trial judge directed the jury quite early in his summing up about the elements of a charge of possessing heroin for sale. Apropos of the element of possession he said -
“Thirdly, it must be proved that the substance was in the possession of the particular accused. Let me give you some directions about that. A person has possession of an object if he knowingly has physical custody or control of it. Control includes the power to dispose of the object. He may have the object in his immediate possession, for example in his hands or in his pocket. Alternatively, he may have it in a place where, although he does not have immediate control of it, he has the exclusive right or power to place his hands upon it. For example, if you had something in your house and you were outside of your house, you may not have it in your immediate possession but nevertheless you would possess it.
You will see that possession is something different from ownership. It is not necessary to own an object in order to possess it, and you will bear in mind that I have used the word ‘knowingly’. A person is not to be regarded as being in possession of a substance for the purposes of this offence, unless he knows of its existence. For instance, if one person slips an object into the pocket of another without the knowledge of that other person, then the latter cannot be said to be in possession of it. In other words, there must be both physical control and an intention to exercise control over the object.
In the present case, it is alleged that both accused had possession, because on the Crown case the heroin was in the room occupied by both of them, and the Crown asks you to say that it has been proved that they both knew of the existence of that heroin in that room, as [sic] they occupied and both had physical control over it. That’s the third element.”
This direction uses the common terminology of the doctrine of physical possession in the criminal law and no objection was taken to it on the appeal. However, neither at that point in the summing up nor later when he summarized the evidence did the learned judge apply the technical terms he had used, such as “custody” and “control” and “exclusive right or power”, directly to the evidence. The first two words are of somewhat elusive or shifting meaning and I should not myself take it for granted that a jury could always apply them accurately without some help. That may not have mattered very much had this not been a case of the article allegedly possessed being found in a room that was jointly occupied by the appellant and another man. That meant that the jury needed to have a clear understanding of what the term signified in this trial. The Crown’s case was that the heroin was in the joint possession of both men and that they were intending to sell at least some of it - in short, they were running a heroin business. According to Truong’s evidence, he alone had possession of the heroin. No-one was saying that the heroin might have been in the exclusive possession of the appellant. His defence was simply that the Crown had not proved its case against him. In those circumstances I think that it would have been better, at the least, had the learned judge related the terminology of possession expressly to the case that the Crown was putting before the jury. However, as I have said, no complaint was made about this part of the summing up but its sparseness is relevant, I think, to an understanding of the later passages that are impugned by the appellant.
The judge directed the jury on other legal matters and then summarized the evidence in the trial. He turned to the defence cases and noted the evidential support that Truong gave the appellant as to when the heroin was put under the appellant’s mattress - whether the appellant knowingly possessed the heroin. His Honour said -
“I point out to you very carefully; there is no onus on Minh to prove his case so, therefore, even if it is reasonably possible that Mr Truong is telling the truth on that topic, namely that he put the heroin under the bed, that will be enough to support the case of Minh, and the case for Minh appears to be, from his counsel’s submissions, that it has not been proved beyond reasonable doubt, when you look at all of the evidence including the evidence of Truong, that he knowingly knew of the existence of that heroin under the bed, and if that has not been proved beyond reasonable doubt then the element of possession, namely knowing he had possession, will not have been proved, and if that element will not have been proved he must be found [not] guilty of all charges. As the defence put it; true, it is under the bed when the police arrived but that is not the same as him knowing it was there when he was on the bed or in the room, and for that they seek support from the evidence of Mr Truong.”
His Honour summarised the final addresses. The appellant’s counsel had emphasized the aspect of knowledge -
“She said that you heard evidence from Truong about he knew about the heroin and he intended to exercise control over it and you have to consider whether the situation pertains to Minh. She says the question of knowledge is the important factor in the case concerning Minh. It is not just a matter of having something near but knowingly having something in your possession.
She said it was not enough to prove that he was merely lying on the heroin. The Crown has to prove that he knew that those drugs were at the base of his bed and I, of course, endorse that and, of course, that is the law as I’ve directed you on it. She says if you look at all of the evidence it cannot be proved beyond reasonable doubt that Minh knew of the drugs and intended to control them.”
Finally his Honour identified the issues so far as the appellant was concerned -
“In relation to Minh you’ve heard my directions on the law; how the first four elements of the charges must be proved beyond reasonable doubt and especially the question of possession and the aspect of knowing that the heroin was under his bed has to be proved beyond reasonable doubt.
The Crown ask you to infer on all of the facts, especially the fact that it is found under his bed when he was asleep, that he knew that the heroin was there. I tell you, as a matter of law, this is in relation to the case against Minh, that you have to find it proved beyond reasonable doubt, firstly, that the heroin was under the mattress and, secondly, you have to find it established beyond reasonable doubt that the only inference open to you from that fact was that he knew it was there.
That would appear to be the main issue as far as the case against Minh is concerned...”
While an intention to control is mentioned in one of these passages, the emphasis generally here is on the matter of the appellant’s knowledge.
After the jury had retired, the appellant’s counsel sought a redirection on the knowledge issue - that it would not be enough that the jury could possibly draw an inference that the appellant knew the heroin was under the mattress if there were other inferences open on the evidence as well. So the learned judge brought the jury back and said on this subject -
“Finally, in relation to my final remarks about Mr Minh, I said that if it has been proved beyond reasonable doubt that the heroin was under Mr Minh’s mattress when he was lying on it, and the only inference you draw from that, the only conclusion you draw from that is that he knew it was there, then you could find that knowledge is present, only if the only inference you find from that is that he knew it was there. But, of course, I want to make it clear, you might not find that you can draw that inference that because it was under his bed, you can draw the inference that he knew it was there. That is a matter for you. Do you understand that? Of course, that must be proved beyond reasonable doubt. The heroin is there under his mattress. For you to infer that because it is there he knew about it is something that has to be proved beyond reasonable doubt, and if you have got a reasonable doubt that you can draw that inference then, of course, you won’t draw that inference.”
The jury convicted both men.
I think that all of these supplementary directions on knowledge, with only a passing reference in one of them to any intention to control, had the effect of watering down the orthodox but unelaborated instruction on possession the judge gave at the beginning of the summing up so that the charge as a whole was misleading. There was a considerable danger that by the time the jury retired for the second time they would think that the only real issue in the case against the appellant was whether he was aware that the heroin was under the mattress. Knowledge was an important issue, of course, but it was not the only issue. The case of a jointly occupied room was the very situation in which the custody or control requirement had to be made very clear as well. A man will often know that his room-mate possesses something in the room with respect to which he himself makes no possessory claim at all, and there was nothing inherently implausible about that being the situation here. The jury could well have believed in the end that they should convict the appellant if they were satisfied that he must have known that the heroin was under the mattress. That would have been a serious error.
The case against the appellant was a strong one but I do not think that it is a matter for the proviso.
I would allow the appeal, set aside the conviction and order that the appellant be tried again.
PRIOR J. I agree with the reasons given by Justice Cox. The appeal should be allowed, the conviction set aside and the appellant remanded for trial.
OLSSON J. This is an appeal against the conviction of the appellant, by verdict of a jury, of the offence of possessing heroin for sale.
The appellant was charged with this offence jointly with his uncle, particulars of the offence being that, on 6 July 1997 at West Croydon, they knowingly had heroin, a prohibited substance, in their possession for the purpose of selling it to another person.
Both the appellant and his uncle are of Vietnamese nationality.
The evidence led before the jury disclosed that the appellant had initially booked a single room (Room 3) at the Challa Gardens Hotel on 27 June 1997. Having stayed in that room for several days he then rebooked in Room 2 on 30 June 1997. He stated that he wanted an extra person to stay with him. Room 2 had twin beds. At that time he paid in advance for the room, up to and including the night of 6 July 1997.
At about 9.20 a.m. on 6 July 1997 two plain clothes detectives in an unmarked police car were in the vicinity of the hotel. They observed the appellant's uncle seated in the driver’s seat of a motor vehicle parked directly in front of the hotel. He was talking to another person, also apparently of Vietnamese nationality, who was standing alongside the driver's door. The appellant's uncle was known to the police officers, who parked their vehicle near his.
After the other Vietnamese person moved away both the uncle and the police officers got out of their respective vehicles. He obviously became aware of their presence and ran in through the front door of the hotel, with the detectives in hot pursuit. They chased him in through the foyer and up a stairway to room No. 2. He ran in through the door, which was not locked, and flung it back towards the closed position. The pursuing police officers pushed the door open again almost immediately and went into the room. They were, more or less, hot on his heels.
When the police officers entered the room the uncle was by the end of one of two beds. The appellant was lying in that bed with his eyes closed, as if asleep. He was underneath the covers. The police officers called for reinforcements and then searched the room. Under the mattress upon which the appellant had been lying the officers found a yellow serviette which had 16 pieces of rock heroin wrapped in it. Elsewhere a total of four syringes were found. A number of pieces of paper bearing writing in the Vietnamese language were found. There was also some English on them.
One of the pieces of paper had six telephone numbers on it. Two pieces of paper bore messages suggesting that anyone who wanted to see "me" should go to a particular location in the hotel.
The cross-examination of the police witnesses confirmed that they had entered the room very closely behind the uncle. They testified that, when they entered the room, the uncle was bending down at the foot of the bed occupied by the appellant and he was seen to fumble around with his hands. However his hands had not actually touched the bed itself. The essential thrust of their evidence was that it was highly improbable that the heroin later found could have been placed in position - about a third of the way under the mattress - just prior to the police entry. Rather, it appeared that the uncle was about to retrieve the heroin from under the bed in order to dispose of it.
At one point after the uncle had been brought down from Room 2 to the foyer, he was seen to flick an object away near a pot plant. When this was retrieved it proved to be a small parcel of heroin, like that found under the appellant’s mattress.
At trial the uncle gave evidence on oath. The appellant did not. In the course of his evidence the uncle (who admitted to a personal heroin addiction) asserted that the heroin found by the police officers had belonged to him and not the appellant. He also said that it was he who had put the drugs under the mattress whilst the appellant was sleeping. By consent, a Weissensteiner direction was not given to the jury.
Notwithstanding a strong submission, by counsel for the appellant, to the effect that there was no satisfactory evidence, let alone any direct evidence, associating the appellant with the heroin, the jury returned a unanimous verdict of guilty in relation to him.
Against that background the appellant seeks to impugn the verdict on the following grounds –
The jury was misdirected by the learned trial judge in relation to the element of possession, both generally and in relation to the appellant's case;
The learned trial judge erred in failing to direct the jury as to the evidence led about heroin use by the appellant and his co-accused and, in particular, in failing to give a direction prohibiting the jury from reasoning that a proven criminal propensity made the accused's guilt more likely
The verdict of the jury was unsafe and unsatisfactory.
Detailed particulars of the first and last of those grounds were pleaded in the notice of appeal. I will come to them in considering each of such grounds.
In support of the first ground of appeal it is asserted that the direction and re-direction given by the learned trial judge on the topic of possession were confusing. It is also complained that the learned trial judge failed to relate the directions in respect of possession to the specific evidence in the case and the appellant’s contentions, so that each of the factual and legal issues on the topic of possession were adequately presented for consideration by the jury.
There can be no doubt that the issue of whether or not the prosecution had proved beyond reasonable doubt that the appellant was in possession of the heroin found under his mattress was a central issue in relation to the Crown case against him. It was therefore incumbent on the learned trial judge both to give the jury a direction as to what, in law, constitutes possession and also then link that concept to the evidence in the case.
In my opinion he satisfied both of these requirements.
First, he gave a clear and comprehensive general direction as to the concept of possession and distinguished it from the notion of ownership. He then went on to make the point that the Crown alleged that both accused had possession, because the heroin was in a room jointly occupied by them, both had physical control over it and both had knowledge of its presence and of its nature.
On several occasions he stressed that it was essential that the jury be satisfied, beyond reasonable doubt, that the appellant knew of the presence of the heroin, as that had developed as a significant issue during the trial.
On the hearing of this appeal counsel for the appellant drew a distinction between the concepts of possessorial intent on the one hand and mere knowledge of the existence of the heroin on the other. It was argued that the learned trial judge focused on the latter, but did not leave the jury with a clear direction to the jury as to the former.
In my opinion this assertion is unfounded. The learned trial judge quite specifically spoke of knowledge in two contexts. He said that a person could not intend to exercise control over something if he did not know of its existence. He subsequently went on, quite separately, to emphasise the need to know that the heroin was a drug to which the statute applied. However, he very clearly spelt out the concept of intent to exercise control as being the critical feature of the overall concept of possession; and he directed specific attention to the arguments which had been advanced by counsel for the appellant in that regard.
Although, in a sense, this topic was dealt with in a somewhat fragmented fashion during the summing up and re-direction, this was, in reality, no more than a reflection of how the trial and the salient issues within it, as raised by counsel for the appellant, had developed. In part he was merely reflecting the arguments which had been developed by counsel. At the end of the trial the jury cannot, I consider, have remained in any doubt as to either the legal concept of possession, or the issues which had, on the evidence, developed in relation to it.
In my view there is no substance in this ground of appeal.
As already appears, the second ground of appeal complained that the learned trial judge ought to have given a direction that the jury must not reason that the appellant’s criminal use of heroin made his guilt more likely.
The fact that the appellant was a heroin addict was not led by the Crown. It emerged from the evidence of his uncle. That evidence was focused on the fact that the heroin said to have been used by the appellant and his uncle was part of the same batch as that found in Room 2.
As counsel for the respondent pointed out, no relevant direction was requested by the appellant’s counsel at trial - no doubt because such a direction had the potential to undermine the appellant’s defence that he was not in possession of the heroin, by highlighting the uncle’s evidence that the appellant had consumed some of the same batch of heroin on the day prior to his arrest.
The core issue was that of possession, so far as the appellant was concerned. It is difficult to perceive how the jury would have misused the evidence of the uncle, absent some propensity direction. The learned trial judge did, however, emphasise to the jury the argument of counsel for the appellant that the fact that his client was a drug user did not mean that he knew that the heroin was under his mattress, or that the Crown had proved beyond reasonable doubt that he was in possession of it.
Once again I do not consider that there is any substance in this ground. Any greater emphasis on the matter would, in fact, have been to the appellant’s disadvantage.
There remains the appellant’s assertion that the verdict of the jury is unsafe and unsatisfactory. The appellant particularises this ground by pleading that the circumstantial evidence from which the jury were invited to conclude the appellant’s knowing possession of the drug was weak. It was said to have been contradicted by the sworn evidence of the appellant’s uncle, who admitted sole and exclusive possession of the heroin. It is argued that the paucity of the evidence against the appellant, coupled with erroneous and/or confusing directions in relation to possession and the absence of a propensity direction, combined to make the verdict weak and unsatisfactory.
It seems to me that any contention that the circumstantial evidence against the appellant was unduly weak cannot withstand serious scrutiny.
As the respondent pointed out, the evidence of the finding of the heroin under the appellant’s mattress did not stand alone. The evidence revealed that -
(a) Two Asian men came to the hotel on 27 June. One of them (who was the appellant) booked a room and paid for it in cash;
(b) .. On 30 June 1997 the appellant re-booked another, twin, room and paid cash for it;
(c) ........... It was in that room that the heroin was found, under the mattress on which the appellant was lying;
(d) .. During the previous week persons had come to the hotel looking for the appellant; and
(e) ........... Loan documents were found in the room. These indicated that $13,000 had recently been borrowed by the appellant. (The Crown said that this was to finance heroin purchases.)
True it was that the jury needed to assess the weight of the uncle’s assertion that he was the sole possessor of the heroin. But that is not to say that there was not ample evidence on which the jury would fairly conclude that, at the very least, the appellant and his uncle were in joint possession of the drug. The evidence strongly indicated that it was not placed in location by the uncle when he ran into the room - that it had been under the appellant’s mattress before the uncle returned to the location.
Such a situation gave rise to an obvious inference in relation to the appellant, which he did not dispel by giving evidence on oath. That was, of course, his right but, even absent a specific Weissensteiner direction, it was, as a matter of plain common sense, more readily open to the jury to adopt an obvious inference which naturally arose.
The jury verdict clearly indicates that the uncle’s sworn evidence was not considered credible. It was entirely a matter for the jury to assess what weight, if any, ought to be attributed to that evidence. In this regard an important consideration was that it became evidence in cross examination that the uncle had changed his story, in an important respect, over time. There was an obvious basis for the jury to regard him as a non credible witness.
I have already indicated that the directions as to possession were clear and adequate and I do not consider that any propensity direction was required in the circumstances.
In the course of the summing up the learned trial judge stressed to the jury that, if they concluded that it was reasonably possible that the evidence of the uncle was true, then they should acquit the appellant. The obvious practical corollary to that direction was that, if they did not either accept his evidence or that what he said was reasonably possible, the evidence pointed unerringly to the appellant’s guilt. This was the practical situation in a nutshell, in absence of any evidence from him. There was, as I have said, good reason for the rejection of the uncle as a credible witness.
Having carefully examined the material in this case and the summing up read as a totality, I am not satisfied that there is any substance in this ground. It is trite to say that, to succeed on this type of plea the appellant must be able to demonstrate that the jury, acting reasonably, must have entertained a reasonable doubt about the accused’s guilt (M v R (1994) 181 CLR 487). In my opinion he has not done so. On the contrary there was an obvious sound basis for the verdict.
I would dismiss this appeal.
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