R v Nguyen & Truong

[1994] QCA 389

IN THE COURT OF APPEAL [1994] QCA 389

SUPREME COURT OF QUEENSLAND

C.A. No. 227 of 1994 C.A. No. 228 of 1994

Brisbane

[R. v. Nguyen and Truong]

THE QUEEN

v.

Ba Thi NGUYEN and Nho Van TRUONG

Applicants

Macrossan CJ
Pincus JA

Ambrose J

Judgment delivered 06/10/1994
Each member of the Court delivering separate reasons,

Concurring as to the Orders made.

A PPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCES REFUSED.

CATCHWORDS: CRIMINAL LAW - sentence - effect of S57(c) Drugs Misuse Act on sentencing process - whether knowledge deemed for sentencing purposes - whether sentencing judge must establish all relevant facts on balance of probabilities - Sargent C.A. 99 of 1993, 19 August 1993 discussed.

Counsel:  Mr T. Glynn for the Applicants

Mr D. Bullock for the Crown

Solicitors:Robertson O'Gorman for the applicants

Director of Prosecutions for the Crown

Hearing Date:24/08/1994

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered: 06/10/1994

Ambrose J. has reached the conclusion that these applications for leave to appeal against sentence should be refused. I agree with that conclusion and desire to add some further observations on the point argued particularly, as I understood it, for the male applicant, Truong. The submission was that he should have been sentenced only on the basis of presumed involvement by reason of the statutory prescription in s.57(c) of the Drugs Misuse Act and not on the basis that he had possession in fact of the drugs. The argument on appeal ranged widely enough to claim the benefit of a somewhat similar point on behalf of the female applicant but it appears to have been thought that it could be urged more forcibly on Truong's behalf.

Under the general law some mental element is a necessary ingredient in the case of a person regarded as having possession of a thing. The precise nature of this mental element has been examined in a number of cases but I do not find it necessary to carry this general inquiry further in the present case.

In R. v. Sargent C.A. No. 99 of 1993 unreported, delivered 19 August 1993, this Court decided that s.57(c) of the Drugs Misuse Act in cases when it applied, resulted in a conclusion by virtue of statute that the person involved had the drug in his possession unless he showed the lack of knowledge and reason to suspect that the subsection mentions. That is, the Court in Sargent did not consider that the statutory conclusion of possession by virtue of the subsection involved also a statutory attribution of actual knowledge to the offender in question. Rather it bypassed the need for the prosecution to prove and the Court to find that the offender had knowledge of the existence of the thing in question and an intention concerning the control of it.

Notwithstanding some unresolved reservations expressed by the President and Cullinane J. in the subsequent case of Symes v. Lawler C.A. No. 204 of 1993 unreported, judgment delivered 19 October 1993, I consider, with respect, that the conclusion stated in Sergent is correct: see also my own observations in Symes v. Lawler.

Interesting and important as the effect of the statutory presumption is, it does not mean that the applicant Truong can derive any advantage from it on the present application. Even if it cannot be taken that under the statutory presumption Truong had any particular mental attitude involving the drug or knowledge of its whereabouts, it was still open to the sentencing judge to find that he was equally culpable with the female applicant and therefore should appropriately be dealt with by the imposition of a similar head sentence.

When it came to sentencing, the judge had to come to his own conclusion on the degree of Truong's involvement and relative culpability. The statute did not determine that for him. The subsection was relevant only to the adequacy of the basis for conviction and no appeal is maintained in respect of the conviction. Therefore it has to be taken that within the words of the exception in s.57(c) Truong had not shown that he neither knew nor suspected that the heroin was in the house or more exactly in the bedroom. To carry the matter forward from this point, the judge had to reach a conclusion for himself on the further facts relevant for sentencing purposes and he was required to do this on the balance of probabilities having in mind the seriousness of the issues for decision: J (Jnr) (1989) 41 A.Crim.R 466 and R. v. Nardozzi C.A. No. 33 of 1994 unreported, judgment delivered 13 July 1994.

There was a fully sufficient basis for the conclusion at which the judge has clearly arrived, namely that the two applicants were equally involved in the possession and were equally culpable. When the reason for the arrival of the police at the house was understood, Truong spoke in Vietnamese to Nguyen. She hurried to the bedroom closely followed by a police officer where she was immediately seen holding the container of heroin in her hand and endeavouring to protect her possession of it. The drug had obviously been in an accessible spot in the bedroom rather than elaborately hidden. It could safely be concluded that both of the ordinary occupants of the bedroom would have been aware of the existence of the drug in that room, an impression which would have been strengthened rather than weakened by the obviously collaborative nature of the discussion between the two applicants in Vietnamese immediately before Nguyen left her baby on the floor of the lounge room and hurried to the bedroom. Truong's later protestations of ignorance of the presence of the drug did not dispel the impression of collaboration between the two and the existence of a joint possession or alternatively of possession by one to which the other was accessory, with the result, in either case, that an equal and substantial head sentence could be imposed. The inference of relevant culpable knowledge and involvement in possession on the part of the female applicant was probably stronger but certainly no weaker.

The applications for leave to appeal should be refused.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 227 of 1994. C.A. No. 228 of 1994.

Brisbane
[R v. Nguyen and Truong]
BeforeMacrossan CJ
Pincus JA

Ambrose J

T H E Q U E E N

v.

BA THI NGUYEN and NHO VAN TRUONG

Applicants

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 06/10/1994

I have had the advantage of reading the reasons of Ambrose J. As his Honour explains, each applicant was convicted of having unlawfully been in possession of a dangerous drug. An appeal against conviction has been dismissed. The principal argument advanced on sentence was that since the Crown relied upon s. 57(c) of the Drugs Misuse Act 1986 in order to obtain a conviction, it was not established that either applicant knew that he or she was in possession of heroin.

In my opinion there was evidence from which the sentencing judge was entitled to infer that the applicants were aware that the heroin was in the bedroom, and I agree with what Ambrose J has said on that subject. I also agree with his Honour's view that the sentencing judge was entitled to find that the heroin was held in possession for commercial purposes; that proposition derives some support from a decision of this Court (by a majority) in Nardozzi (C.A. No. 33 of 1994, 13 July 1994).

The effect of s. 57(c) and the related question of proof of the accuseds' knowledge have been the subject of decisions of this Court, discussed below. As reference to those cases illustrates, there is ample room for differences of view on these points, but it is undesirable that successive decisions of the Court treat the relevant problems as unaffected by past authority.

In Sargent (C.A. No. 99 of 1993, 19/08/93) there was expressed the view that where s. 57(c) applies it "makes evidence as to the state of mind of the person mentioned in the paragraph, with respect to the drug deemed to be in his possession, irrelevant" (p. 3 reasons of Pincus J.A.). It was said of the person charged:

"That person is not, by operation of the presumption, deemed to have knowledge; unless he shows one of the matters mentioned in the exception, it does not matter whether he had knowledge or not". (4)

In the President's reasons in that case his Honour said of

s. 57(c):
"That subsection gives rise to a statutory presumption of

possession of a dangerous drug in the circumstances specified unless an accused shows that he did not know or suspect that the drug was in or on the place where it was located. Proof of an absence of knowledge or reasonable suspicion may rebut the presumption. Literally and logically, the opposite is not true. Neither presumed possession nor a failure to prove an absence of knowledge or reasonable suspicion establishes that knowledge exists".

Demack J said in Sargent that it was submitted that

s. 57(c):
"...presumed possession from the mere presence of the

dangerous drug. What s. 57(c) did not do was raise a statutory presumption of knowledge of the existence of the drug.

This is correct".
Sargent's case is therefore authority for the proposition that
the operation of s. 57(c) is not such as to impute knowledge of
any relevant fact to a person who is, by operation of the
provision only, deemed to have a drug in his or her possession.

In Symes v. Lawler (C.A. No. 204 of 1993, 19/10/93), a s. 57(c) case, there was expressed a reservation about the question whether "the statutory concept of possession includes knowledge". In my respectful opinion it does not. I think the intended effect of s. 57(c) in respect of Part II offences of which possession is an element is to deem "possession" to exist, but in a special sense. For the purposes of such charges that presumption should not be taken further against the accused than the terms of the provision require; it is sufficient to treat it as having the effect that, where the presumption arises and is not rebutted, the element of possession in the charge is taken to be satisfied. With respect to convictions based on s. 57(c), it is necessary for the sentencing judge to form his or her own view as to whether the Crown has shown knowledge, and if so, what kind of knowledge - whether knowledge that the substance in question was a dangerous drug, or knowledge of what specific type of drug it was.

The third unreported decision to which reference should be made in this connection is Clare (C.A. No. 367 of 1993), in which the relevant High Court decisions were analysed. It was held that where the charge is one of possession of a dangerous drug, then leaving aside s. 57(c), the Crown must show that the accused knew he had the relevant substance in his possession, but need not show that he knew it to be a drug; the case is also authority that:

"Sections 23 and 24 of the Code, the latter as modified by s. 57(d) of the Drugs Misuse Act, have particular application to an offence under s. 9". (per Davies J.A. at p. 5)

It should be noted that in that case Fitzgerald P remarked of s. 57(c) that it "...merely operates in specified circumstances to create a presumption of possession, including knowledge..." (25).

The position which arises as a result of these decisions, on a charge of possession of a dangerous drug, differs according to whether or not the Crown bases its case on s. 57(c). If it does, then the statutory presumption arising from that provision does not entitle the Crown to have the offender sentenced on the basis that there was any relevant knowledge; that point will remain for decision by the judge on the evidence which has been adduced, and such other material as it is proper for the judge to consider (see Clayton (1989) 2 Qd.R. 439). If s. 57(c) does not apply, then the Crown need show no more, to support a conviction, than knowledge on the part of the accused that he had the relevant substance in his possession; if the accused thought the substance (being a narcotic) was not a narcotic, he may escape liability under s. 57(d).

It was suggested during the hearing in this Court that it would be odd if in a s. 57(c) case the offender, being deemed to be in possession of a large quantity of heroin, were lightly sentenced because the Crown could not establish any guilty knowledge. But that possibility appears to me to follow from the very terms of the provision: if the evidence shows that a dangerous drug was found in the accused's residence and that the accused did not know it was there, but had reason to suspect its presence, he must be sentenced as one having only reason to suspect, not knowledge.

I agree that the applications should be dismissed.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 227 of 1994 C.A. No. 228 of 1994

Brisbane
[R v. Nguyen & Or]
Before Macrossan CJ

Pincus JA Ambrose J

T H E Q U E E N

v.

Ba Thi NGUYEN and Nho Van TRUONG

(Applicants)

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered: 06/10/1994

These are applications for leave to appeal against sentences imposed upon the applicants when each was convicted on 8 October 1993 of having unlawfully in possession a dangerous drug, namely heroin. A circumstance of aggravation in respect of each of the charges was that the drug exceeded that specified in the third schedule of the Drugs Misuse Act 1986.

The applicants defended the charge and each was convicted of committing the offence charged with the circumstance of aggravation.
Each applicant was sentenced to imprisonment for six years.
However, in respect of the applicant Ba Thi Nguyen it was

recommended that she be considered for parole after serving two

years imprisonment.

The applicants appealed against conviction and as well sought leave to appeal against the sentences imposed. However, when the matter was called on for hearing they abandoned their appeals against conviction and those appeals were dismissed.

At all material times the applicants were husband and wife, jointly occupying a house at Durack. On 8 October 1993, police officers went to the house to execute a search warrant. Two approached the front door of the house and another waited at the back of the house to keep watch. The Crown case, based upon evidence from the policemen involved in the execution of the search warrant, was that upon entry into the house both applicants were informed in English of the purpose of the visit and were formally detained under the provisions of the Drugs Misuse Act, whereupon the female applicant and the male applicant had a conversation together in Vietnamese and the female applicant then hurried away and entered a bedroom which was the bedroom normally occupied by both applicants. Shortly after she moved towards this room, a police officer followed her and moments after she entered the room he entered behind her to see her holding by hand a plastic bag containing a jar which was resting on a double bed.
Upon examination the jar was found to contain 128 aluminium foil satchels of a white substance, which upon analysis was found to contain heroin.

The police officer concerned asked the female applicant what was in the container under her hand and she said that she did not know and that somebody had thrown it through the window as she walked into the bedroom. She declined to hand it to the police officer voluntarily and it had to be taken from her.

The police officer at the rear of the house keeping watch heard the sound of running feet in the house, but did not then or at any other time observe any person outside the bedroom window of the house or anywhere in the vicinity of the house or in the yard next door. He did not see anybody throw a package through the bedroom window. That window was only partly open (about 1 inch or thereabouts) and the package the first applicant had her hand on when observed by the police officer was too large to pass through that small opening in the window.

The glass in the window was unbroken.

It emerged at the trial that the female applicant had a number of young children in her charge and it was for this reason that the learned sentencing Judge made a recommendation that she be eligible for parole after serving two years of the six year sentence imposed.
The male applicant, Nho Van Truong, said that he knew nothing of the container of heroin which his wife was holding on the double bed when the police officer entered the bedroom. He said that he had assumed the correctness of what his wife had claimed: that somebody had thrown it through the bedroom window leading his wife to place her hand upon it only moments before the police officer entered the room to make this observation.

The Crown relied upon the evidentiary provisions of s.57(c) of the Drugs Misuse Act upon the trial of each applicant. Section 57(c) provides:

"Proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person's possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place"

At the trial neither applicant gave evidence. The explanation of the female applicant for being found with her hand upon the bag of drugs in the bedroom was given in a videoed record of interview put in evidence by the Crown. As well, the explanation of the male applicant that he knew nothing of the drugs and simply accepted what his wife said was also in a video record of his interview with the police. Not surprisingly perhaps, the jury rejected the rather implausible explanation advanced by the applicants and each was convicted of the offence charged with the circumstance of aggravation.
Upon appeal it was contended that, although there was evidence against the female applicant upon which a jury might be satisfied beyond reasonable doubt that she knowingly had possession of the heroin upon which her hand was resting, there was no such evidence against the male applicant. It was contended in fact that he had made no admission of knowledge of the heroin found under his wife's hand, and that he merely accepted the explanation she gave to the investigating police officers.

In imposing sentence, the learned sentencing Judge

observed:
"There is no actual evidence of what you intended to do

with these drugs, no evidence of any cash pay-out or whether you bought it on credit or whether you intended to dilute it, to cut it, or to on-sell it as it is."

The evidence disclosed that 21.526 grams of pure heroin were contained in 41.94 grams of powder found in the 128 separate foils in a jar in a plastic bag. The heroin was of very high quality and its value was estimated to be in the vicinity of from $30,000 to $40,000.

On appeal it was contended on behalf of both applicants that the sentences were manifestly excessive.
However, in respect of the male applicant, Nho Van Truong, it was contended that applying the principle enunciated in R v. Sargent C.A. No. 99 of 1993 (delivered on 19 August 1993 and unreported), the Crown was unable to rely upon the provisions of s.57(c) of the Drugs Misuse Act to show that the male offender had any knowledge of the presence of that heroin in the house at any time material to the charge. The principle upon which the male applicant relied was said to be stated in the judgment of Pincus JA at p. 3:

"Where possession is charged, the effect of s.57(c) is to create a presumption which, unless rebutted, compels a conclusion in the Crown's favour on that issue. Further, by necessary implication, where it applies, the presumption makes evidence as to the state of mind of the person mentioned in the paragraph, with respect to the drug deemed to be in his possession, irrelevant; the terms of the exception ('unless he shows that he then neither knew nor had reason to suspect that the drug was in or on that place') suggest that when the presumption operates it renders unnecessary any evidence that the person charged knew of the existence of the drug. That person is not, by operation of the presumption, deemed to have knowledge; unless he shows one of the matters mentioned in the exception, it does not matter whether he had knowledge or not."

His Honour continued a little later:

"It is my view that the s.57(c) presumption, in its application to charges of possession, does not create a deemed possession with a particular state of mind, but merely a deemed possession in relation to which the accused's state of mind is irrelevant.

The President of the Court of Appeal agreed with the views expressed by Pincus JA and added:

"That subsection (s.57(c)) gives rise to a statutory presumption of possession of a dangerous drug in the circumstances specified unless an accused shows that he did not know or suspect that the drug was in or on the place where it was located. Proof of an absence of knowledge or reasonable suspicion may rebut the presumption. Literally and logically, the opposite is not true. Neither presumed possession nor a failure to prove an absence of knowledge or reasonable suspicion establishes that knowledge exists."

Demack J agreed with the views expressed by the President and Pincus JA and observed:

"What s.57(c) did not do was raise a statutory presumption of knowledge of the existence of the drug."

The first thing to note about the decision in Sargent is that it dealt with the effect of s.57(c) of the Act upon a charge of producing the drug cannabis. The Crown in that case sought to rely upon the "possession" by the accused of the same kind of drug as that being produced on a property a short distance away from that occupied by the accused and not therefore within his possession by virtue of the provisions of s.57(c) of the Act, as a circumstance supporting an inference that the accused was producing cannabis on the nearby property not occupied by him.

The ratio of that case is that s.57(c) of the Act has the effect of raising the presumption of possession only upon charges where possession is an element of the offence and such statutory "possession" does not involve a presumed statutory knowledge, which may be regarded as a circumstance from which guilt of an offence under the Act not involving possession as an element may be inferred.

When reading what was said in Sargent it must be kept in mind that the court was not then dealing with the evidentiary effect of s.57(c) upon a charge of which possession of a dangerous drug was an element. It was dealing with the effect of s.57(c) when the charge dealt with was one not involving possession, but involving production in a place to which s.57(c) had no application. Reference to authorities dealing with the elements of "possession" of a drug in the absence of statutory provision of the sort found in s.57(c) makes it clear that apart from such a statutory provision, "possession" involves knowledge of the thing possessed although not necessarily its nature. In this respect I refer to Warner v. Metropolitan Police Commissioners [1969] 2 AC 256 and R v. Hussain [1969] 2 QB 567.
In Sargent's case reference was made to R. v. Bilick and Starke (1984) 36 SASR 321 to support the proposition that s.57(c) applied only upon a trial of offences of which possession was an element.

It was contended on behalf of the applicant that, having regard to what was observed in Sargent, any "possession" proved under s.57(c) of the Act is a sort of "statutory possession" not involving the possessor, having knowledge of the nature of the substance found under his control and proved to be a drug. As a logical consequence of this proposition, "possession" under s.9 of the Drugs Misuse Act, if that term be defined to involve knowledge or some "mental element" as well as physical custody as suggested in Warner, cannot be proved by the application of s.57(c) of the Act. Alternatively, if it can be so proved possession within s.9 does not require that a person with a drug under his control have knowledge of that fact.

When pressed, counsel for the male applicant, went so far as to contend that in a case of possession of a dangerous drug proved only by reliance upon s.57(c) and with the absence of other evidence, from which knowledge can be inferred, it would always be unjust to impose any sentence upon conviction. The logical consequence of this contention is that in the absence of some evidence from which actual knowledge could be inferred a person convicted of possession solely by the use of s.57(c) of the Act should be dealt with on the basis that the "possession" proved was not shown to involve any moral turpitude on his part and in that event it would be appropriate to convict and discharge him without the imposition of any punishment.

Such a result would be ludicrous and a careful examination of the logical process leading to it is required.
It is convenient at the outset to consider the development of the law in cases where possession was an element of the offence and there was no statutory evidentiary provision of the kind of s.57(c).

In Warner v. Metropolitan Police Commissioner [1969] 2 AC 256, the House of Lords considered the elements to be proved upon a charge under the Drugs (Prevention of Misuse) Act 1964, s.1 which provided, inter alia:

"1. ... It shall not be lawful for a person to have in his possession a substance for the time being specified in the schedule to this Act unless ..."

In that case a jury had been directed that if the accused had control of a box which turned out to contain amphetamine sulphate, the offence was committed and it was only mitigation that he did not know the contents of the box.

It was held in that case (Lord Reid dissenting) that the Act under consideration came within a class of Acts which created "absolute" offences and that whether an accused person possessed them with an innocent or guilty mind or for a laudable or improper purpose was immaterial, and possession of the drugs without lawful authority constituted an offence under the Act.
In the course of considering the ordinary meaning of "possession" their Lordships differed as to the nature of the offence created by the Act, the majority holding that the offence upon the face of the legislation was committed by a person "in possession" of the drugs even if he had no knowledge of the content of the box in his possession. However, all their Lordships gave consideration to what "possession" involved.
Lord Reid, who dissented from the proposition that on its face the legislation intended to exclude "the general rule that
mens rea is an essential element in every offence" said at
p.280:

"So we have to determine what is meant by having a thing in one's possession. The problem here is whether the possessor of a house or box or package is necessarily in possession of everything found in it, or, if not, what mental element is necessary before he can be held to be in possession of the contents. This problem has given rise to a great deal of legal discussion and the numerous authorities are not at all easy to reconcile.

I shall not attempt that task. I think the best approach to this case is to suppose that an innkeeper is handed in ordinary course a box or package by a guest for safekeeping. He has no right to open the box - it may be locked. If he is told truthfully what is in it, it may be right to say that he is in possession of the contents. But what if he is told nothing or is told that it contains jewellery and it contains prohibited drugs? ... As a legal term "possession" is ambiguous at least to this extent: there is no clear rule as to the nature of the mental element required. All are agreed that there must be some mental element in possession but there is no agreement as to what precisely it must be. Indeed the view which prevailed in Reg v. Ashwell (1885) 16 QBD 190 and was approved in Rex v. Hudson [1943] KB 458 went so far that a person who received a sovereign thinking it to be a shilling was held not to possess the sovereign until he discovered the mistake."

His Lordship then referred to an observation of Lord Parker CJ in Lockyer v. Gibb [1967] 2 QB 243 at p.248:

"In my judgment it is quite clear that a person cannot be said to be in possession of some article which he or she does not realise is, for example, in her handbag, in her room, or in some other place over which she has control. That I should have thought is elementary; if something were slipped into your basket and you had not the vaguest notion it was there at all, you could not possibly be said to be in possession of it."

His Lordship said:

"I entirely agree. But that destroys any contention that mere physical control or custody without any mental element is sufficient to constitute possession under that enactment. If something is slipped into my bag I have as much physical control over it as I have over anything else in my bag. I can carry it where I will and I can transfer the whole contents of my bag to some other person without ever realising that this particular thing is included."

Lord Morris of Borth-Y-Gest at p. 286 observed, inter alia:

" ... On this basis I think that the notion of having something in one's possession involves a mental element. It involves in the first place that you know that you have something in your possession. It does not, however, involve that you know precisely what it is that you have got."

His Lordship then referred to what Parker LCJ had said in
Lockyer v. Gibb, to which reference has already been made and
continued at p.287:

"In the present case there is no suggestion that any package got inadvertently or surreptitiously into the appellant's hands. There may be situations in which on particular facts a jury would have to determine whether some parcel or package was in a man's pocket or bag or house or motor-car without any knowledge on his part that it was there. No such question arises in this case."

At p.289, his Lordship continued:
" ... The question resolves itself into one as to the nature and extent of the mental element which is involved in "possession" as that word is used in the section now being considered. In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it: they need not prove that in fact he had actual knowledge of the nature of that which he had. In Lockyer v. Gibb Lord Parker, at p.248, gave the illustration of something being slipped into a person's basket. While the person was unaware of what had happened there would be no possession. But in such circumstances, on becoming aware of the presence of the newly discovered article, there would be opportunity to see what the article was: whether the opportunity was availed of or not, if the article was deliberately retained there would be possession of it. So also in the illustration given by Alderson B. in 1846 in Reg v. Woodrow, 15 M and W 404, 418. Something is placed in a man's stable without his knowledge. He is not in possession of it.

If he goes to his stable and sees the unexpected presence of the article, then, according to the particular circumstances, he might with knowledge so act as to assume control of it. He would then be in possession of the article."

Lord Wilberforce, in concluding that s.1 of the Drugs (Prevention of Misuse) Act 1964, established "an absolute offence", made observations at pp.309-311 concerning the elements of possession.

Lord Pearce after concluding upon the authorities that there was "some limited element of knowledge in the word

"possession" at p. 307 said:

"It would, I think, be an improvement of a difficult position if Parliament were to enact that when a person has ownership or physical possession of drugs he shall be guilty unless he proves on a balance of probabilities that he was unaware of their nature or had reasonable excuse for their possession."

It seems not unlikely that the draftsman of the Drugs Misuse Act 1986 sought to give effect to the suggestion made by Lord Pearce in 1969.

In R v. Hussain [1969] 2 QB 567, a seaman who allowed other people to conceal packages in his cabin was convicted of being knowingly concerned in "the prohibited import of goods". His appeal against conviction on the inadequacy of the direction given as to possession and control of the goods was allowed on the ground that there was no sufficient direction as to the "mental element" of possession as required in Warner's case (supra).
Irrespective of other offences defined in Part 2 of the Drugs Misuse Act 1986-1991 to which s.57(c) may or may not apply, it is clear that it does apply to s.9 of the Act which makes it an offence to possess dangerous drugs unlawfully.

There is nothing to suggest that the provisions of s.23 of the Criminal Code have no application to a charge under s.9 of the Drugs Misuse Act. Upon that basis it could not be contended that s.9 of the Act created an offence of the sort considered by the House of Lords in Warner's case. In this respect I refer to Widgee Shire Council v. Bonney (1907) 4 CLR 977 at p.981-2 per Griffiths CJ, Irving v. Nishimura (1907) 5 CLR 233 at p.237 per Griffiths CJ and Lawrence v. Lake (1921) QWN 30 per Shand J.

Unless s.9 of the Drugs Misuse Act be construed to create "an absolute" or regulatory offence not involving moral culpability then it ought be assumed to proscribe conduct which the legislature regards as blameworthy. This view is reinforced by the maximum penalties provided for commission of an offence under s.9. - sentences of imprisonment which (depending upon the circumstances) vary between 15 and 25 years.

To construe s.57(c), which on its face is merely an evidentiary provision as having the effect of changing the nature of the "possession" proscribed by s.9, the proof of which that evidentiary provision is expressly designed to facilitate, would be to impose such a constraint upon the use of s.57(c) in a prosecution of a s.9 charge as to deprive it to a significant effect of its utility.
"Possession" of a dangerous drug within s.9 of the Drugs Misuse Act involves knowledge of the offender of the nature of the substance under his physical control or, at the very least, "a mental element" concerning the substance which he has under his physical control.

In Sargent consideration was given to the "statutory possession" contemplated by s.57(c) of the Act, if possession under Part 2 of the Act was sought to be established. The observations in Sargent were not made in a case where the evidentiary section was used to prove an offence under s.9 of the Act, but rather to prove possession as one circumstance relevant to the proof of an offence under some section other than s.9.

The observations made by this Court in Sargent's case can have no application where an offence against s.9 of the Act is proved by relying upon the evidentiary provisions of s.57(c). The contrary view for which the applicants contend would render the assistance given to the Crown by the evidentiary provisions of s.57(c) nugatory. In the absence of other evidence from which possession (with the attributes of "knowledge" or "other mental element" referred to in Warner's case) might be inferred, a conviction of an offence under s.9 by reliance upon s.57(c) would not justify the imposition of a penalty which might be justified by a possession with knowledge or a possession accompanied by some mental element involving moral culpability.

Upon the facts of this case, there is evidence from which the learned sentencing Judge could properly infer, that the male applicant did have knowledge of the heroin found beneath the hand of the female applicant shortly after their house was entered by police officers. While that evidence may not be strong, it was sufficient upon the facts of this case upon sentence to justify the inference that the male applicant did have knowledge of the heroin located by the police officer under the hand of his wife in their bedroom. The facts supporting such an inference are these:-

1.Shortly after the applicants had been notified of the search and detained under the provisions of the Drugs Misuse Act, the male and female applicant together had a discussion in Vietnamese which none of the investigating police officers could speak or understand.

2.Immediately upon this discussion terminating, the female applicant ran from where she was standing with the male applicant talking to the police officers, towards the bedroom used by her and her husband. Moments after she ran off a police officer followed her.

3.When he reached the bedroom that police officer found the female applicant standing over the double bed in the bedroom with her hand on a plastic bag resting on the bed inside of which was a jar containing the 128 sachets of powder containing heroin.
4.The female applicant offered an absurd explanation as to how the material came to be under her hand upon the bed and vigorously resisted the police officer taking it off her to inspect it.
5.It was open to the learned sentencing Judge to infer that the
drugs had been on or near the double bed used by the
applicants when the police arrived at the house.
The learned sentencing Judge could, on the balance of

probabilities, infer that both applicants were aware of the heroin located that morning in their bedroom. In a video-record of interview the female applicant repeated her improbable explanation. The male applicant adopted his wife's explanation as to how the material came to be found under her hand. It was open to the learned sentencing Judge, upon the material to which reference has been made, to conclude on the balance of probabilities, that each of the applicants knew the nature of the substance found under the hand of the female applicant in their bedroom at the time of the police search.

Furthermore, quite apart from the facts proved to support an inference of knowledge on the part of both applicants, the "possession" referred to in s.9 of the Drugs Misuse Act, under which both applicants were charged and convicted, connotes physical control together with at the very least, a mental element of the sort to which the House of Lords in Warner's case and the Court of Appeal in Hussain adverted.

Having regard to the amount of heroin and the way it was packaged when discovered in the house occupied by the two applicants, it was reasonably open for the sentencing Judge to find that it was held in possession for commercial purposes. Although the learned sentencing Judge observed that there was "no actual evidence of what you intended to do with these drugs", the various hypotheses he then formulated all connote possession for commercial purposes as distinct from possession for personal use.
In my view, the sentences imposed upon the applicants were within the appropriate range of sentences for offences of this gravity involving possession of dangerous drugs for a commercial purpose, which of course requires a possession of drugs with knowledge of their nature. No error has been shown in the exercise of the sentencing discretion against which application for leave is sought.

The applicants' leave to appeal against sentence should be

refused.