R v Nikolic - [2019] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v NIKOLIC
[2019] SASCFC 32
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)
5 April 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
The appellant was convicted by a jury in the District Court of one count of Trafficking in a Commercial Quantity of a Controlled Drug, contrary to section 32(2) of the Controlled Substances Act 1984 (SA). The appellant gave evidence at trial whereby he admitted to taking hold of the drugs but indicated that he did so in order to discard of them.
Whether the primary Judge erred in her directions on possession - whether the primary Judge erred in failing to leave simple possession as an alternative verdict - whether the trial Judge erred in directing the jury on a factual basis that was not alleged by the prosecution - whether the primary Judge erred in failing to give the jury a "unanimity" direction.
Held, per Lovell J (Kourakis CJ and Stanley J agreeing), dismissing the appeal:
1. The primary Judge's directions as to possession were factually and legally correct.
2. The decision of the primary Judge not to leave simple possession as an alternative verdict was neither an error of law nor productive of a miscarriage of justice.
3. The alternative pathway to guilt arose from the appellant's own evidence. The primary Judge's directions on the issue did not result in any unfairness to the appellant.
4. An unanimity direction on possession was not necessary in the circumstances of the case.
Controlled Substances Act 1984 (SA) ss 4, 32, referred to.
R v Boyce (1976) 15 SASR 40; R v Baftiroski [2018] SASCFC 83; Twining v Samuels (1971) 2 SASR 50; Martin v Osborne (1936) 55 CLR 367; R v Franco (2003) 227 LSJS 368; R v Solomon [1980] 1 NSWLR 321; James v R (2014) 253 CLR 475; Lane v R (2018) 357 ALR 1; R v McCarthy (2015) 124 SASR 190 , considered.

R v NIKOLIC
[2019] SASCFC 32
Court of Criminal Appeal: Kourakis CJ, Stanley and Lovell JJ

KOURAKIS CJ: I dismiss the appeal. I agree with the reasons of Lovell J.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Lovell J.
LOVELL J: Zoran Nikolic (‘the appellant’) was tried before a jury in the District Court of one count of Trafficking in a Commercial Quantity of a Controlled Drug contrary to section 32(2) of the Controlled Substances Act 1984 (SA) (‘CSA’). The appellant was convicted and sentenced to imprisonment for six years with a non-parole period of three years and four months. He now appeals his conviction on a number of grounds including that the primary Judge erred in her directions on possession; that she erred in failing to leave simple possession as an alternative verdict; that she erred in directing the jury on a factual basis not alleged by the prosecution and that she failed to give the jury a “unanimity” direction.
Background
Early on the evening of 1 September 2014, police undertook surveillance on a property in Prospect (‘the Prospect property’). Police held a suspicion that illegal drug activity was occurring at that location.
This suspicion was based on intercepted telephone conversations between the appellant and another man, BB. The conversations included phrases that the prosecution alleged were consistent with the appellant ordering drugs from BB, such as “double yesterday plus one”. Information obtained from the intercepted telephone calls suggested to police that the appellant would attend at the Prospect property for the purpose of obtaining drugs; however, BB would not be there.
At 6.05pm on 1 September 2014 a car entered the Prospect property, and then left at 6.06pm. On the prosecution case, this car was delivering the drugs the appellant had requested. The appellant arrived at the Prospect property at 6.55pm and entered the driveway. He left at 7.03pm. The police followed the appellant as he drove away from the Prospect property, and subsequently they pulled him over. The police officers asked the appellant to exit the car, and commenced a body search. During the search, one of the officers noticed something under the appellant’s jumper. The appellant pushed the police officers out of his way and fled the scene on foot. During the subsequent chase, the appellant was observed to throw an object with his left hand. The police apprehended the appellant and the object thrown by the appellant was recovered.
The discarded object was a plastic resealable bag that contained five further plastic resealable bags. In total, the bags contained 138.5 grams of crystals, of which 106.2 grams were pure methylamphetamine.
The defence case at trial
The appellant gave evidence at trial. He said that at the relevant time he was working in Western Australia for four weeks out of every five, and that he was living with a man, Z. The appellant said that Z had performed mechanical work on the car that he was driving on 1 September 2014, the implication being that Z had placed the package of drugs in the car.
The appellant gave further evidence that at the time of the alleged offending he was a member of the Hells Angels, and that the phone conversations intercepted by the police related to the organising of catering and strippers for a Hells Angels event. They were not, he said, related to the purchase of drugs. He said that he thought BB was going to the Hells Angels “shindig” on 1 September 2014, and so had stopped by the Prospect property that evening to see if he was on his way.
The appellant said that he was on the way to the Hells Angels party when he was pulled over by the police. He said that when the police asked for his driver’s licence he opened the console of the car. It was then that he saw a bag inside the console. The appellant said that he had never seen the bag before; he had not put it in the console himself. He said he knew when he saw the bag that it contained drugs of some kind, and he knew that this would not look good to the police. He said that he put the package down the front of his jumper because he knew that if the police found the drugs he would be in trouble. The appellant gave evidence that when the police started patting him down, he ran away because he didn’t want to get arrested, and that he threw the drugs away as he ran.
Arguments on appeal
Grounds 1 and 3 overlap. The gravamen of the complaint on these two grounds is that the primary Judge directed the jury that the appellant “on his own account” admitted possession (Ground 1) and that this direction led to a further direction to the jury that, as possession had been established, unless the appellant could discharge the onus cast upon him by the presumption (given the quantity of the drug) he could be found guilty of the offence of “trafficking” (Ground 3).
Was the appellant, on his own evidence, in possession of the drugs?
On the issue of possession, the primary Judge directed the jury that a person possesses an item if they intentionally have the item in their custody or under their control, with the intention to exercise control over the item to the exclusion of all others. The primary Judge gave the jury several examples of situations that would amount to “possession” of an item that were factually distinct from the case at hand. The primary Judge then said:
In order to prove the element of possession the prosecution must prove that [the appellant] knowingly had the methylamphetamine in his possession, on the Crown case here, between the time he left Da Costa Avenue and the time he disposed of it on Vaughan Street. Or alternatively, that he realised it was in his car and he took control of it by putting it in his jumper and then running down the street and disposing of it. On either scenario, you may think that he had been in possession, even if on the second scenario it was for a short time.
(Underlining added)
The appellant contended that, on his evidence, he was not in possession of the drugs as he always intended to discard them. That is, he did not have an intention to exercise custody and control of the drugs at the time he picked up the drugs and hid them under his jumper.
The appellant relied on the remarks of Bray CJ in R v Boyce[1] where Bray CJ observed that actual physical custody or control of a drug together with knowledge that it is a prohibited drug does not necessarily constitute the offence of having possessed the drug. Bray CJ gave the example that when a jury takes a drug exhibit into the jury room, it is not committing an offence even though it has physical custody of the item and knowledge of the item. Bray CJ also observed that on the facts of the case before him this problem did not need to be addressed.
[1] (1976) 15 SASR 40.
At common law, possession refers to the power and intention to exercise control over something to the exclusion of all others (unless joint possession is alleged). Section 4 of the CSA states:
possession of a substance or thing includes—
(a)having control over the disposition of the substance or thing; and
(b)having joint possession of the substance or thing;
The question of whether the “included” meaning in paragraph (a) restates the common law or provides a wider definition of possession has not been considered by this Court.[2] This appeal was conducted based on the more restricted common law definition; I do not need to consider whether a wider and less favourable definition for the appellant applies.
[2] R v Baftiroski [2018] SASCFC 83 per Nicholson J at [31].
Possession is a question of fact and in determining whether someone is in possession, the whole of the circumstances must be looked at and assessed as a matter of practical common sense.[3] The circumstances to be considered include all the facts and matters which form “constituent facts or ingredients of the transaction itself, or to explain or make intelligible the course of conduct pursued”.[4]
[3] Twining v Samuels (1971) 2 SASR 50.
[4] Martin v Osborne (1936) 55 CLR 367.
It is not necessary for me to consider the problem raised by Bray CJ as, on the facts of this matter, it does not arise.
The appellant submitted that he only had in his mind that he would discard the drugs and if that was his only intent he could not be in possession of the drugs. The evidence does not support that submission. The appellant did not say that he took control of the drugs to discard them. On the appellant’s evidence, on noticing the drugs in the console, he hid the drugs under his jumper. At that time, he clearly had no intention to discard the drugs. It was only after the police informed him that they intended to conduct a body search that he fled the scene with the drugs. It was during the chase that he discarded the drugs.
The act of hiding the drugs from the police by putting them under his jumper, followed by his decision to flee, proves that he had control over the disposition of the drugs to the exclusion of any other person at the time and that he intended to exercise that power.
The appellant accepted in his submissions that the existence of control may only be temporary. A temporary possession, liable to almost immediate termination, is still possession. The appellant’s submissions conflated his motive with his intention. To put that another way, on the appellant’s own evidence he was motivated to put the drugs under his jumper to avoid “problems” with the police. It was that motivation that led him to take possession, hide the drugs, and then flee. Although his possession was of very short duration it was still possession.
I would dismiss Ground 1.
Should the primary Judge have left an alternative pathway to guilt?
Ground 3 follows on from the primary Judge’s direction that the appellant’s own evidence proved possession. The prosecutor in his final address disavowed any reliance on the appellant’s evidence relating to possession. That is the prosecutor, in urging the jury to convict, only did so on the factual basis that the appellant had picked up and come into possession of the drugs at the Prospect house. The prosecutor did not rely on the presumption if the jury accepted the appellant’s evidence as a reasonable possibility.
Having given the jury a direction about the importance of determining the facts, the primary Judge directed as follows:
It may be immediately apparent to you why it is so significant that you make findings of fact in relation to how he came into possession of these drugs. How he came into possession of the drugs will inform you of his intent in relation to the drugs.
On the one hand, if he came into possession of the drugs at [BB’s] house, the law deems that he had these drugs in his possession for the purpose of selling them or taking part in the sale of them and he has not, by his evidence, sought to rebut that presumption. In all likelihood, you would find him guilty of the charged defence.
On the other hand, if he came into possession of them in the way he said in evidence, by discovering them in the console of his car and then panicking and disposing of them and if you find that amounts to possession then the law presumes that he had them in his possession for the purpose of sale or taking part in the sale. However, in all likelihood, he would have satisfied you by his evidence that it is more likely than not that he did not have any intention to sell them, nor was he taking part in the sale of the drugs in the way in which I have already described and you would therefore find him not guilty of the offence with which he is charged.
So a consideration of this case comes down to this: are you satisfied beyond reasonable doubt that the prosecution have proven that he collected the drugs from [BB’s] house and then had them in his possession for the purposes of selling that himself or taking part in the process of sale by transporting them on behalf another seller?
The primary Judge returned to the question of inferences later in the summing up. Again, she directed the jury that to find the appellant guilty of the offence they had to be satisfied beyond reasonable doubt that he collected the drugs from the Prospect property and that he was in possession of the drugs with the intention of selling them or transporting them on behalf of another person. However, the primary Judge returned to the topic of the appellant’s evidence. She stated:
If you cannot draw the inferences suggested by the prosecution from all of the evidence then the prosecution would not have proved that [the appellant] came into possession in that way beyond reasonable doubt. If so, then there must be a reasonable possibility that he came into possession of the drugs in the way that he says, that is, finding them in the console of the car when he had been previously unaware of them and you will then consider the direction that I have given you in relation to the presumption that it is for sale and the need for him to prove that it is more likely than not that he did not have them for sale.
This direction, unlike the earlier directions, did not suggest that the appellant’s own evidence of how he came into possession, if accepted, would in all likelihood rebut the presumption that he intended to sell them.
The appellant submitted that the primary Judge erroneously advanced to the jury an alternative path to guilt based on the appellant’s evidence, a pathway never embraced by the prosecution. This, it was submitted, deprived the appellant of a fair trial.
I have already found that the primary Judge’s directions on the question of possession were factually and legally correct. In this case the alternative pathway to guilt arose simply from the appellant’s own evidence. That is the appellant was in possession of the drugs on his own evidence. The directions of the primary Judge on this issue need to be seen in that context.
Mr Press SC for the respondent submitted that the summing up ensured a consistency of approach with respect to the directions on possession but also stayed true to the way the prosecution had opened and closed its case. He submitted that the directions ultimately given by the primary Judge were favourable to the appellant as there was nothing untoward about the appellant’s evidence being used against him to prove possession. It followed that the appellant then had the onus of proving on the balance of probabilities that he did not have an intention to sell the drugs. Mr Press SC observed that the primary Judge had directed the jury on no less than eight occasions that the crucial issue for them was whether the prosecution had proved beyond reasonable doubt that the appellant collected the drugs from the house at Prospect.
Further he observed that the primary Judge did direct the jury that if it was a reasonable possibility that the appellant found the drugs in the console then he would have satisfied the onus placed on him. To the extent that the directions inform the jury to acquit if they were not satisfied beyond reasonable doubt that the appellant collected the drugs from the Prospect property, such a direction was legally favourable to the appellant and any error contained therein was not productive of a miscarriage of justice.
Finally, Mr Press SC noted that the appellant was represented by Senior Counsel at trial and that when the issue was raised by the prosecutor at the end of the primary Judge’s summing up, he had observed that the directions were fair and that the crucial issue for the jury to decide was clearly conveyed to the jury.
The raising of an alternative path to conviction for the first time in a summing up may result in unfairness whereby a miscarriage of justice cannot be excluded. An important consideration is the question of unfairness and whether an accused has had an adequate opportunity to test the relevant evidence.[5] That is was the accused placed at a tactical disadvantage? The question on appeal is whether what occurred has worked an unfairness to the accused.[6]
[5] R v Franco (2003) 227 LSJS 368.
[6] R v Solomon [1980] 1 NSWLR 321, 327.
I agree with the submissions of the respondent. The alternative pathway arose, not in the prosecution evidence, but because of the appellant’s own evidence. The primary Judge’s directions on the law were correct. The primary Judge made it clear that to convict the appellant the jury had to be satisfied beyond a reasonable doubt that he took possession of the drugs at the Prospect property. When the summing up is looked at in its entirety, the primary Judge identified the crucial issue for the jury and in effect directed the jury that the alternative pathway would lead to an acquittal. No unfairness has been demonstrated.
I would dismiss this ground of appeal.
Could the jury use the appellant’s evidence of possession when considering the prosecution evidence?
The appellant further contended that the primary Judge erred in directing the jury that the appellant’s admission, that he knew the item in the console contained drugs, could be used by it in proving his knowledge on the prosecution allegations. That is, his belief was separated in time, place and circumstance from the “possession” postulated by the prosecution. The admission, it was submitted, was not referrable to the charged offence.
I reject the basic premise of the appellant’s submission. The evidence of the appellant’s admission as to what he believed the item contained could clearly be used by the prosecution to establish his knowledge of the contents at an earlier time. The fact that the appellant claimed his belief came at a different time to that alleged by the prosecution is no bar to the jury considering his state of knowledge at the earlier time. On his own testimony, the appellant had a capacity to recognise methylamphetamine. His testimony was therefore an item of circumstantial evidence available to be used by the jury in relation to the element of knowledge of the contents of the package as at the time the prosecution alleged he first took possession.

The primary Judge did not direct the jury that the admission proved that element of the offence. She directed the jury that the prosecution had to prove knowledge at the time he took possession. The primary Judge’s direction was appropriate on the facts. I would dismiss Ground 2.
Should the primary Judge have left “simple possession” as an alternative verdict?
The appellant further contended that the primary Judge erred in failing to leave simple possession as an alternative verdict. This submission runs counter to the appellant’s submission in relation to Ground 3. That is, it was an error to leave an alternative pathway to guilt not relied on by the prosecution.
The appellant acknowledged this inconsistency. He accepted that the submission was only relevant if he was unsuccessful on Ground 3. That is, if an alternative pathway to guilt could be left to the jury then simple possession should have been left as well.
The High Court in James v R[7] rejected the proposition that all alternative verdicts must be left in every case. The court accepted that a fair trial may require that an alternative verdict be left even if an accused disavows reliance on it. A trial judge’s duty with respect to instruction on alternative verdicts is an aspect of the duty to secure the fair trial of an accused. French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ stated (Gageler J dissenting):
The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court’s assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel.[8]
[7] (2014) 253 CLR 475.
[8] James v R (2014) 253 CLR 475 at [38].
Forensic choices made by counsel are not determinative of the issue. The duty to secure a fair trial may require that an alternative verdict be left despite defence counsel’s objection.
As discussed earlier, the primary Judge, correctly in my view, highlighted the main issue at trial as being whether the appellant obtained the drugs at the Prospect house. The effect of her directions was that if the jury considered the appellant’s evidence was a reasonable possibility, they should acquit him of the offence of trafficking in the drug. Senior Counsel for the appellant at trial did not request that the alternative verdict of simple possession be left. That forensic choice was clearly open to counsel and indeed, to invite the primary Judge to direct on the alternative offence may well have jeopardised the appellant’s chances of an outright acquittal. In my view fairness to the appellant did not require that the alternative verdict be left. The decision not to leave the alternative was neither an error of law nor productive of a miscarriage of justice.
I would dismiss Ground 4.
Was an unanimity direction required?
Finally, the appellant contended that the primary Judge erred in failing to direct the jury that they had to be unanimous in their deliberations as to the factual basis on which they could find possession proved. The appellant submitted that the prosecution alleged possession of the drugs when he collected them from the house whereas the appellant’s case was that he only possessed the drugs when he picked up the item from inside the console of the car (accepting for the argument that he did possess the item). The appellant submitted that the alternative bases upon which possession may have been proved were separated in time, place and nature and could not be regarded as one transaction. In that sense, the alternative bases upon which possession may have been found by the jury were “mutually destructive”. In those circumstances, the appellant submitted, the primary Judge should have given a “unanimity” direction as to the factual basis for possession.
The appellant relied on the decision of the High Court in Lane v R[9] to support his argument. In Lane, a case where the accused was charged with murder, the accused and the deceased became involved in a physical altercation. The deceased fell to the ground twice but the evidence suggested that the second fall was caused by a forceful blow from the accused. The forensic evidence was that death may have arisen from injuries caused by either fall. The prosecution case, as left to the jury, was that there were two discrete acts which were said to have been deliberate and to have caused the death. Each may have been sufficient to establish murder or manslaughter and were therefore an alternative factual basis of liability. The jury could not convict of murder or manslaughter unless they were agreed as to whether one or both of those acts was a criminal act of the appellant. The New South Wales Court of Appeal held that in those circumstances an unanimity direction was required. A majority of the court however applied the proviso and dismissed the appeal. On appeal to the High Court, the question was the applicability of the proviso. The High Court accepted that an unanimity direction was required. Kiefel CJ, Bell, Keane and Edelman JJ stated:
The absence of a specific unanimity direction in relation to the actus reus that caused the death of the deceased, coupled with the trial judge’s direction that it was open to the jury to convict on the basis that a deliberate act of the appellant caused the death of the deceased if it found that either fall was caused by the appellant, means that it cannot be assumed that the jury was unanimous that it was the appellant’s actions leading up to the second fall that established his guilt beyond reasonable doubt.[10]
[9] (2018) 357 ALR 1.
[10] Lane v R (2018) 357 ALR 1 at [42].
In R v McCarthy, [11] Kourakis CJ stated:
It is the cardinal principle of Australian criminal law that a charged offence must be proved to the satisfaction beyond reasonable doubt of the tribunal of fact. In my respectful opinion, the test which is most consistent with that principle is to ask – are the alternative bases mutually destructive? The extended jury unanimity issue arises because juries are multi – member tribunal is a fact. The principle of logic which has spawned the concept of extended jury unanimity is essentially that a jury, as an institution, cannot be satisfied of guilt beyond reasonable doubt if some of its members, or some of the statutorily prescribed majority of its members, find the offence proved a factual basis which precludes them from assenting to a verdict on the factual basis found by the remaining members of the jury.[12]
[11] [2015] SASCFC 177.
[12] R v McCarthy (2015) 124 SASR 190 at [5].
The appellant contends that a unanimity direction was required on the question of possession. I proceed to consider this ground on the premise which I rejected in [33] above, that despite the Judge’s directions, some jurors may have convicted the appellant on a finding that he first took possession after his car was stopped by the police. On this premise, whilst the evidence supported two cases on possession, those alternative cases were not mutually destructive. The possession of the drugs at the house would necessarily continue to include possession of the drugs in the car when the appellant was stopped by police. Even if some jurors were only satisfied of his possession of the drugs in the car when stopped by the police, the other jurors had already found he was in possession of the drugs from the time at the house and including his time in the car. Thus, the jury would be unanimous on possession in the car even though they may have arrived at the finding in different ways.
In my view, an unanimity direction on possession was unnecessary.
In any event the primary Judge gave, as discussed earlier, very clear directions that unless the jury were satisfied beyond a reasonable doubt of the prosecution allegations, including obtaining possession at the Prospect property, they should acquit the appellant. To put that another way, the effect of the directions was to leave only one pathway to guilt that was alleged by the prosecution. In those circumstances, as the respondent submitted, the direction given had the same effect as an unanimity direction. When the primary Judge’s directions are read in their entirety, it is clear that the jury must have reasoned to guilt by accepting the prosecution allegations.
I would dismiss Ground 5.
Orders
I would dismiss the appeal.