R v Perfili - [2006] SASC 321

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PERFILI
[2006] SASC 321
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
18 October 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL COUNTS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS
Application for leave to appeal against conviction - appellant was charged with possessing cannabis for sale (count 1) and two counts of unlawful possession of money (counts 2 and 3) - appellant and co-offender were arrested en route to Melbourne - count 1 related to 5.5 kilograms of cannabis found in bag of co-offender - count 2 related to $450 found in pocket of co-offender - count 3 related to $2672 found in pockets of appellant - appellant and co-offender were said to be engaged in a joint enterprise - appellant was charged with co-offender who pleaded guilty to counts 1 and 2 - no application made to sever charges of unlawful possession - whether failure of trial Judge to exercise discretion to sever counts 2 and 3 from count 1 caused a miscarriage of justice - held, unlawful possession requires consideration by jury of complex legal concepts - held, in exercising discretion to order separate trials, it is necessary to ensure that the process of reasoning that the jury must undertake is not unnecessarily complicated - held, in circumstances of present case, failure to sever did not cause a miscarriage of justice.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE
Whether directions given in relation to joint possession and joint enterprise led to a miscarriage of justice - held, distinction between joint enterprise and joint possession and their application to count 2 were insufficiently addressed by the trial Judge - held, appeal dismissed in relation to counts 1 and 3, allowed in relation to count 2 - conviction on count 2 set aside with no order for retrial.
Controlled Substances Act 1984 (SA) s 32(1)(e); Summary Offences Act 1953 (SA) s 41; Criminal Law Consolidation Act 1935 (SA) s 278; Police Act 1917 s 71; Police Act 1936 s 93, referred to.
Bridgeland v Zanker (1992) 166 LSJS 471, applied.
Lenthall v Newman [1932] SASR 126; Dent v Hann [1949] ALR 271; Kotz v Police (1999) 205 LSJS 176; Carling v O'Sullivan [1956] SASR 203, discussed.
Raynal v Samuels (1974) 9 SASR 264; Simpson v Correia (1995) 13 WAR 525; R v T (1996) 86 A Crim R 293; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Tillott (1991) 53 A Crim R 46, considered.

R v PERFILI
[2006] SASC 321
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J. I agree with the orders proposed by Sulan J and I agree with his reasons for decision.
I add these remarks in respect of count two which involved an allegation of joint possession.
In order to establish that the appellant jointly possessed the $450 which was found in the pocket of Ms Brown’s coat, the prosecution had to prove that he knew of the existence of the money; that both he and Ms Brown had joint control over it; and that the appellant intended to exercise control over it.
The prosecution case on the joint possession of the money was that it was to be used for the purpose of furthering a joint enterprise to sell cannabis. If the appellant and Ms Brown intended to use the money in the course of a planned illegal drug activity and both had power to deal with the money there would be a foundation for joint possession of it: cf. Carling v O’Sullivan [1956] SASR 203 at 209. However, as the facts of that case demonstrate, more is required than the fact that the alleged offenders were part of a joint criminal enterprise. The property which is the subject of the allegation of joint possession must be available for use by both parties in the furtherance of the joint enterprise and in circumstances such that both exercise control over it.
When discussing the case against the appellant in relation to the money found in Ms Brown’s possession, the trial judge explained the relevance of a joint criminal enterprise between the two, but said little about the features of the joint enterprise which could be relevant to joint possession. There was a danger in these circumstances that the jury would have understood a joint criminal enterprise to sell drugs as necessarily involving joint possession of the money being carried by Ms Brown.
There was a further complication in that the trial judge gave the following direction to the jury:
Concerning counts 2 and 3, the prosecution case really is this: so far as count 2, it is that Ms Brown was acting as the mule, the courier, for the drugs and that that money was in her possession because of a fee that she was paid for her work or, alternatively, it was joint money, in effect, of both of the because of their joint possession and their joint plan that they were operating on that night.
The reference to the first alternative may have arisen because the investigating police officer put it forward as one of the bases for his suspicion that the money was obtained by unlawful means. However, if the first alternative was a reasonably possible view of the facts and the money was given to Ms Brown in payment for her service as a courier, the appellant could not be said to be in joint possession of it. In my view, the jury should have been instructed accordingly. The direction which was given may well have been understood as implying that the prosecution was claiming the appellant could be found guilty on either basis.
SULAN J: This is an application for leave to appeal against conviction.
The applicant was charged with three offences. The first count was possessing cannabis for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA). The second and third counts were unlawful possession, contrary to s 41(1) of the Summary Offences Act 1953 (SA). The applicant pleaded not guilty to all counts and was tried before a jury in the District Court. He was found guilty of all counts. The counts of unlawful possession were of money. An amount of $450 (Count 2) was found in a coat worn by Shauna Lea Brown, who was also charged with the three offences. The prosecution alleged that the applicant was in joint possession with Ms Brown of that money. An amount of $2672 was found in pockets of clothes worn by the applicant (Count 3).
Leave to appeal against the convictions was refused by a Judge of this Court. The applicant seeks leave to appeal to this Court.
Background
The applicant was charged together with Ms Brown. She pleaded guilty to the charge of possessing cannabis for sale, and unlawful possession of $450. The count of unlawful possession of $2672 was not pursued against her. The trial proceeded against the applicant.
The prosecution case was that the applicant and Ms Brown were involved in a joint enterprise. At Crafers, the applicant and Ms Brown boarded a Firefly bus travelling to Melbourne. Both tickets had been purchased earlier that day by Ms Brown, who had used a false name. Evidence was led at trial to establish that persons involved in drug trade sometimes board interstate buses at Crafers in order to avoid the sniffer dogs that are commonly present at the Franklin Street Terminal at Adelaide.
Police attended the Crafters bus stop and asked the applicant and Ms Brown to leave the bus and identify their luggage. In a bag identified by Ms Brown as belonging to her, the officers found 5.5 kilograms of cannabis, packaged in one-pound bags. Ms Brown also had $450 in $50 notes in her possession in a pocket of her coat. The applicant was found to have $2672 in his possession. An amount of $95 was found in one pocket and the remainder of the money was found in another pocket. The applicant also had in his possession five mobile telephones.
The houses of both the applicant and Ms Brown were searched. At Ms Brown’s house, a vacuum sealer was found on which the applicant’s DNA was detected. Electronic scales and plastic bags were also found on which traces of cannabis were detected. At the applicant’s house, police found disposable gloves, cryovac plastic bags used for vacuum sealing, shopping bags of the same colour as those in which the cannabis was packed and some other similar plastic bags to those in which the cannabis was packed.
The applicant gave evidence at the trial denying any knowledge of the cannabis. It was his testimony that he commonly travelled to Melbourne for business purposes, but on the day in question was travelling to meet his wife, who was returning from overseas that night, and to meet with his family in Melbourne. The applicant’s evidence was that Ms Brown had suggested to him that afternoon that they travel together to Melbourne and that she would continue on to Sydney.
The applicant gave evidence that it was Ms Brown’s idea to board the bus at Crafers and that they had taken a taxi to the Crafers bus stop. The applicant said that the money in his possession was for use in his business and that he had used the vacuum sealer on which his DNA was detected to wrap expensive bottles of wine to send interstate.
Grounds of appeal
The applicant sought leave to appeal on six grounds.
The first was that Count 1 (possession of cannabis for the purpose of sale) and Counts 2 and 3 (unlawful possession) should have been severed. The joinder of the count alleging possession for sale of cannabis with the counts of unlawful possession was said to have caused a miscarriage of justice. Counsel for the applicant submitted that the factors which gave rise to the miscarriage of justice were, first, that the “reverse onus of proof” which applied to the charges of unlawful possession rendered the trial unfair. Secondly, it was argued that the effect of the joinder was to deprive the applicant of his right not to give evidence in relation to Count 1. Finally, counsel submitted that, had Counts 2 and 3 been severed from Count 1, the applicant would have been able to decline to give evidence and, instead, been able to rely on the prosecution not having proved its case beyond reasonable doubt.
The second ground of appeal was that the verdicts of guilty were unsafe and unsatisfactory and that there was a miscarriage of justice as it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.
The third ground of appeal was that the learned trial Judge misdirected the jury as to the onus of proof in relation to Counts 2 and 3 and misdirected the jury as to how a conviction on these Counts could be used by the jury in their consideration of Count 1. Counsel submitted that the directions given by the learned trial Judge were confusing and prejudicial and that the applicant had thus been deprived of a fair trial.
The fourth ground of appeal was that the learned trial Judge misdirected the jury by failing to give any or adequate warning not to engage in propensity reasoning in considering Count 1 if they found the applicant guilty of Counts 2 and 3.
The fifth ground of appeal was that the learned trial Judge misdirected the jury by failing to give any or adequate direction to the jury that evidence on Counts 2 and 3 was not cross-admissible, as it did not have the high requisite degree of probative value required by Pfennig v The Queen.[1]
[1] (1995) 182 CLR 461.
The sixth ground of appeal was that the learned trial Judge misdirected the jury by failing to identify or to identify adequately the use that could be made by the jury of the evidence relating to Counts 2 and 3 in considering Count 1.
A single Judge refused the applicant leave to appeal.
In relation to Ground 1, the Judge observed that charges of unlawful possession of money associated with drug dealing were commonly associated with charges of possession of drugs and that no application had been made at the trial for severance of the charges. He referred to Kotz v Police[2] for the proposition that a single trial for multiple charges is not necessarily unfair merely because the accused bears an onus in relation to one charge and not another. In relation to the particular facts of the case, the Judge noted that evidence of possession of large sums of money was relevant and admissible to a charge of possessing a drug for sale. He also observed that the applicant carried an onus to establish that the drug was not possessed for the purpose of sale. Count 1 alleged possession of a quantity of cannabis greater than 100 grams. Therefore, the applicant had to satisfy the jury that he did not possess the cannabis for the purpose of sale.
[2] (1999) 205 LSJS 176.
The Judge concluded that Ground 2 was based upon Ground 1 and must, therefore, fall with Ground 1.
The remaining grounds alleged that there had been a misdirection by the learned trial Judge. The Judge considered that an analysis of the summing up led to the conclusion that Grounds 3, 4 and 6 were not reasonably arguable. He also found that Ground 5 was not reasonably arguable on the basis that the evidence as to Counts 2 and 3 was clearly cross-admissible.
The submissions of the applicant
Counsel for the applicant submitted that the joinder of Count 1 with Counts 2 and 3 introduced an unnecessary level of complication into the jury’s reasoning. In particular, he referred to the need for additional directions to the jury about the use of evidence. For example, there was no dispute that the money that was the subject of Counts 2 and 3 could be admissible in relation to Count 1. However, there was other evidence led in relation to Counts 2 and 3 which would not have been admissible in relation to Count 1, if Count 1 were tried alone. In particular, the evidence as to the suspicions held by the police officers was not admissible on Count 1. It was therefore necessary for the trial Judge to direct the jury as to the differing uses to which the evidence could be put when considering the different charges. Similarly, an additional direction was required in relation to the applicant’s right not to give evidence, in order to explain the juxtaposition between that right and the reverse onus of proof arising from the unlawful possession charges.
Counsel did not argue that there was any identifiable error in the directions given by the trial Judge. Rather, he submitted that there should have been no need to give such complex directions. He submitted that this was a case in which, had the discretion been properly exercised, and the relevant factors properly weighed, the trial Judge should have ordered a separate trial for Count 1. This was due to the applicant’s contention that the directions became so complex that it was unreasonable to expect a jury to be able to reason correctly to a verdict.
Counsel also submitted that it was never put to the applicant that he was in joint control or possession of the money found in the possession of Ms Brown. It was the applicant’s contention that the prosecution had submitted that an explanation for Ms Brown having $450 was that it was a payment to her by the applicant for her participation in the joint enterprise. If the monies in Ms Brown’s possession were a payment to her for assisting the applicant to transport cannabis to Sydney for sale, then that was not consistent with Ms Brown and the applicant being in joint possession of that money, as it belonged to her. If that was the case, then the applicant was not in possession of that money, as he no longer had any control in respect of it.
Ground 5 was abandoned.
Submission for the Director of Public Prosecution
The Director of Public Prosecutions (“DPP”) contended that there was cross-admissibility between the counts. The circumstances that gave rise to the suspicion of the police officers, which was an element of the unlawful possession charges, were also relevant to the charge of possessing cannabis for sale. It was only the existence of the suspicion that was not admissible in relation to Count 1. Counsel for the DPP submitted that the trial Judge had given a clear direction to the jury that this suspicion could not be used in considering Count 1. Counsel submitted that the issue on appeal was whether the failure to sever had caused a miscarriage of justice and, in this case, there was no miscarriage.
As to Count 2, counsel submitted that the prosecution case in respect of all three counts rested on there being a joint enterprise between the applicant and Ms Brown. Counsel conceded that joint possession and joint enterprise were not the same concept, and that it may have been desirable for there to have been a more comprehensive direction about what amounted to possession, but she contended that the trial Judge had given an adequate direction about possession.
Joinder of unlawful possession to other charges
Section 278 of the Criminal Law Consolidation Act 1935 (SA) enables multiple charges arising from the same facts to be joined in the same information. It was not disputed that the charges of unlawful possession could be joined to the charge of possessing cannabis for sale. The question was whether the trial Judge should have ordered a separate trial for the charges of unlawful possession, in exercise of the discretion conferred by s 278(2).
Did the trial Judge’s failure to separate the counts give rise to a miscarriage of justice in the present case? Before considering that question, it is necessary to consider the nature of unlawful possession charges, and their joinder to other charges, more generally.
Section 41 of the Summary Offences Act 1953 (SA) provides:
(1) A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.
(3) If personal property is proved to have been in the possession of a person, whether in a building or otherwise and whether the possession had been parted with before the hearing or not, it will, for the purposes of this section, be taken to have been in the possession of that person.
It has long been recognised that s 41 of the Summary Offences Act and its antecedents creates an unusual offence. This is due to the inclusion of “reasonable suspicion” as an element of the offence, and the onus of proof that is placed on the defendant once the existence of such a suspicion is established amongst other factors.
In Lenthall v Newman,[3] the Court observed the care that must be taken in convicting a person of an offence of unlawful possession. The defendant was charged with unlawful possession, contrary to s 71 of the Police Act 1917, which provided:
Any person having in his possession … any personal property whatsoever which … may … have been reasonably suspected of having been stolen or unlawfully obtained … shall, if he does not give an account to the satisfaction of [a] Special Magistrate … as to how he came by such personal property be deemed to be guilty of a misdemeanour …
[3] [1932] SASR 126.

The central issue in the case was whether a person could be convicted of unlawful possession if (as the defendant contended) the police held a belief rather than a suspicion that the property was stolen, or considered that there was a prima facie case for a more serious crime, such as larceny or receiving.[4]
[4] This issue was re-examined in Raynal v Samuels (1974) 9 SASR 264.
The Court allowed the prosecutor’s appeal against the dismissal of the charges by the Special Magistrate, but it cautioned that the provision was susceptible to being abused, as the reverse onus of proof provided a mechanism by which the prosecutor could more easily secure a conviction than if a more serious charge was laid. The Court said:
We see nothing in the Act which justifies the Courts in refusing to give effect to the intention of the Statute upon the ground that the prosecutor has, or should be able to procure, the evidence to support a charge of larceny or receiving. But, on the other hand, the scope and language of the section, and the history of the legislation, convey a strong impression that the procedure was not designed for use in ordinary cases presenting no difficulties of proof. It is very difficult to believe that Parliament intended that the section should be used merely for the purpose of depriving defendants, in plain straight-forward cases, of their rights to a trial by jury, and to the benefit of the ordinary presumptions of innocence. If the circumstances make it apparent that the special procedure is being used for that purpose, we may be required to give effect to the intention of the legislation by refusing to countenance a clear abuse of the provisions of the Statute … If the evidence given upon a charge of a simple offence discloses a serious offence, which ought to be prosecuted in the ordinary way, the Court of summary jurisdiction should have the power, and, indeed, it should be required, to refrain from any further hearing upon the minor charge.[5]
[5] Lenthall v Newman [1932] SASR 126, 130-3. These “words of caution”, and subsequent cases in which they have been cited, were discussed in Simpson v Correia (1995) 13 WAR 525, 529-30.
In Dent v Hann,[6] an issue arose in the context of a charge under s 93 of the Police Act 1936 as to the standard of proof required for the facts upon which the “reasonable suspicion” was based. Napier CJ stated:
This is a drastic provision, and I think that it is essential that the conditions calling upon the defendant to account for his possession of the property should be strictly observed.[7]
[6] [1949] ALR 271.
[7] [1949] ALR 271, 272.
More recently, in Bridgeland v Zanker,[8] Cox J observed:
Section 41 is a very drastic provision … It allows the police to make out a case on a reasonable suspicion based upon a lot of hearsay material, and then it throws the burden on the defendant of proving on the balance of probabilities that he obtained the property honestly. In those circumstances, the room for excusable error in the reasoning that leads to a defendant’s conviction must be small indeed.[9]
[8] (1992) 166 LSJS 471.
[9] (1992) 166 LSJS 471, 474.
That was a case in which the appellant had been convicted by a Stipendiary Magistrate of one charge of unlawful possession. Cox J allowed the appeal and set aside the conviction.
In Kotz v Police,[10] Martin J found that, in a trial with several charges, the mere fact that the accused bore an onus in respect of only some of the charges did not render the trial unfair. That was a case in which unlawful possession was charged on an information with charges of larceny and receiving. The appellant claimed that the magistrate had impermissibly relied upon evidence to convict on the larceny and receiving charges that was only admissible in relation to the unlawful possession charges. Martin J allowed the appeal. He concluded that a presumption that the magistrate knew the law and had applied it correctly was insufficient where “a number of complicated questions arise that involve the use of highly prejudicial evidence”. He noted that the dangers of misuse of evidence were greater in trials by jury. Kotz’s case demonstrates the difficulties inherent in unlawful possession charges being tried alongside other charges, and suggests that these difficulties may be more significant when the trial is before a jury rather than a magistrate.
[10] (1999) 205 LSJS 176.
The authorities indicate the importance of ensuring that a correct process of reasoning has been followed in convicting a person under s 41 and indicate that the process of reasoning required can be complex. The nature of the reverse onus and the existence of a reasonable suspicion are difficult concepts. The process of reasoning becomes more difficult where the charge of unlawful possession is included on the same information as other offences. In such cases, the process of reasoning is complicated by the juxtaposition of the elements of unlawful possession against the elements of another offence. A finder of fact in such cases may be required, as was the case in the applicant’s trial, to apply different onuses of proof in evaluating each element of the separate charges, as well as applying different standards of proof between elements. As a consequence, it is highly undesirable for a charge of unlawful possession to be joined with other charges, particularly in a trial by jury.
There are various factors which are relevant to the exercise of the discretion to order separate trials, including the potential for prejudice caused by the admission of evidence which is not cross-admissible in relation to one or more of the charges. There is also the need to ensure that the process of reasoning which the jury must undertake, having regard to the nature of each charge, its elements and the corresponding burdens and standards of proof, is not unnecessarily complicated. This is particularly so when a charge of unlawful possession is included on the information, which, as Cox J observed, is a very drastic provision in which the room for excusable error must be very small.
After the jury had retired to consider its verdict, it sought clarification of the unlawful possession charges. The trial Judge expressed the opinion that the uncertainty had been caused by the inclusion of the unlawful possession charge on the information. Although the evidence of the possession of the cash was relevant to Count 1, he remarked to the jury that it was unusual for a jury to be directed about unlawful possession.
No application had been made on behalf of the applicant for an order for separate trials. That factor does not necessarily preclude the applicant from submitting that the failure to order separate trials caused a miscarriage of justice.[11] A miscarriage of justice can occur even where the trial judge was justified in refusing to order separate trials.[12]
[11] R v T (1996) 86 A Crim R 293.
[12] R v Collie, Kranz and Lovegrove (1991) 56 SASR 302, 310 (King CJ): R v Tillott (1991) 53 A Crim R 46.
Was there a miscarriage of justice in the present case?
There were two central issues in the appeal before this Court. First, did the joinder cause a miscarriage of justice? Secondly, were the directions on joint possession in respect of Count 2 sufficient?
Several of the grounds of appeal related to either the desirability of the joinder, or the appropriateness of the directions given to the jury in light of the joinder of the charges. It is necessary, therefore, to consider the directions that were given to the jury. In summing up, the trial Judge drew a clear distinction between the use that could be made of the police officer’s suspicions in relation to Counts 2 and 3, and the fact that use of the suspicion was impermissible in relation to Count 1. In the context of discussing the police officer’s evidence that the appellant’s failure to provide an explanation was one factor giving rise to his suspicion in relation to Count 3, the trial Judge made clear that the appellant was not obligated to answer police questions in relation to any count. The directions were complicated by the distinction that was drawn between the direction that a police officer’s suspicion is not proof of anything, and the direction that, for Counts 2 and 3, the existence of the suspicion was “part of the proof of the charge itself”. The trial Judge stated that this distinction had to be drawn because of the various types of charges that had been laid. He explained the accused’s right to silence. The trial Judge repeatedly emphasised that the ordinary requisite standard of proof was proof beyond reasonable doubt. In this case, the reverse onus of proof applied to all counts although, as it turned out, the central issue in Count 1 was possession rather than whether the accused could establish that the cannabis was not for sale.
Significantly, the circumstances that gave rise to the suspicion of the police officers were coextensive with those in which the cannabis was found. Consequently, the only evidence relating to Counts 2 and 3 that was not admissible in relation to Count 1 was the evidence of the police officers’ suspicions. The trial Judge directed that this evidence could not be used in relation to Count 1. Despite the difficult process of reasoning that the jury were required to undertake, the directions of the trial Judge in respect of the reverse onus on each count and the relevant evidence to be considered were clear. It cannot be said that, in this case, there was a risk that the jury would have misused the evidence relevant to unlawful possession in considering the case in respect of the count of possessing cannabis for the purpose of sale.
Joint enterprise/joint possession
The directions given in relation to joint possession and joint enterprise present greater difficulties. The trial Judge gave a standard direction regarding joint enterprise. He directed the jury, when referring to Count 1:
If they were in it together, possession for the purpose of the law is with both of them, no matter whose baggage it was in.
The trial Judge went on to say:
If the drugs were there – and there seems little doubt they were there – and the two of them were acting pursuant to a joint plan, then the possession by one is possession by both for the purpose of the law.
In the context of describing the elements of possession of the cannabis, the Judge explained the meaning of possession in terms of physical custody or control. He directed the jury as follows:
It is appropriate that I say something about what is meant by ‘possession’. A person has possession of an object if he knowingly has physical custody or control over it. ‘Control’ includes the power or ability to dispose of the object. He may have the object in his immediate possession, for example in his hand, or he may have it in his pocket, or he may have it in a bag which is slightly removed from being directly in his hand. Alternatively, an accused person may have it in a place where, although he has not got immediate control over it, he has the exclusive right or power to place his hands on it, for example a bag or a satchel nearby, or even in his house. Or it could be, of course, that you have got the right or power to deal with something in conjunction with somebody else with whom you are acting.
You may not be aware of it, but it may nonetheless be relevant for the purpose of this case, that even though you are sitting here in court, you are currently legally in possession of items back at your home, locked in your case, or in a satchel or bag that is nearby you in the jury box. You may not be in exclusive possession of some of those items, but you can still be in possession of something, even though you are physically removed from it. It may be, so far as possession is concerned, that there are other members in your family, or partners, who are also in possession of objects with you, but you may well certainly be one of the people in possession of certain objects in your house or in your car.
So you will see, members of the jury, that the concept of possession is something quite different from ownership. It is not necessary to own an object to possess it. Let me just give you an everyday example of that. If you borrow someone’s car on the weekend to go to the dump because their car has got a tow bar on the back and you want to hire a trailer and take some rubbish to the dump, you are in possession of that car but you do not own it; legally you are in possession of it. Some drug laws, particularly the ones with which we are now concerned, contain an allegation of an offence whereby the person ‘possesses’ the drugs. The prosecution does not have to prove that the person owned it, just merely that he possessed it knowingly for a certain purpose.
He dealt with the elements of unlawful possession. As to Count 2, he said:
I want to move now to the consideration of counts 2 and 3 on the information. They are counts of what is referred to simply as ‘unlawful possession’. Those two counts refer to possession of separate amounts of money.
You will see, so far as count 2 is concerned, that it refers to the $450 that was in Ms Brown’s pocket and, count 3, the $2,672 found in the accused’s possession; $2,500 odd in one pocket and $95 in another pocket.
Concerning count 2, and bearing in mind that this is what was in Ms Brown’s pocket, the only way the accused might be guilty of unlawful possession of that money in her possession is if they were working pursuant to a joint plan such that they both possessed whatever money she had.
You will see, so far as the particulars of count 2 are concerned, after the reference to ‘Crafers’, it is ‘had in their possession personal property, namely $450’, so it is in her pocket, as it were, but it is alleged legally to be in the possession of both of them.
What I was putting to you a moment ago, from a practical point of view, was that the only way really the accused might be guilty of count 2 is if they were in a joint plan because, in that situation, depending on your view of the case, what was in her possession was legally then in his possession.
In respect of Count 2, the summing up also referred to the prosecution’s alternative contention that the money was a payment by the applicant to Ms Brown for her participation in the joint plan. The trial Judge stated:
Concerning counts 2 and 3, the prosecution case really is this: so far as count 2, it is that Ms Brown was acting as the mule, the courier, for the drugs and that that money was in her possession because of a fee that she was paid for her work or, alternatively, it was joint money, in effect, of both of them because of their joint possession and their joint plan that they were operating on that night. Then, so far as count 3 is concerned: a large amount of cash and prosecution case as I have touch [sic] upon already, and that that money was, in effect, part of the stock in trade of someone who is involved in selling drugs.
The trial Judge, in summing up on the element of reasonable suspicion for Count 2, noted that the police officer gave evidence that he suspected the $450 may have been payment for couriering the drugs or payment for the drugs themselves.
In relation to Count 3, the trial Judge noted that the accused had acknowledged his possession of the money.
The summing up was based upon the manner in which the prosecution case was presented: that the applicant and Ms Brown were in joint possession of the cannabis and the money pursuant to a joint plan.
After the jury had been considering their verdicts for approximately two and a half hours, they requested further directions about unlawful possession. The trial Judge referred to Count 1. He then gave a further direction in the following terms:
Let us deal now with counts 2 and 3, because they are the ones you particularly wanted to know about. If I can just pick up the third dot point because it relates to the $450.
Mr Perfili, in his evidence, said he knew nothing of the $450 that Ms Brown had in her possession or, should I say, the police said that Ms Brown had in her possession. So essentially he denies all knowledge of any money that she had in her possession. I think I said to you earlier on that, from a practical point of view, the only way in which it could be said that that $450 in her coat pocket is in his possession is, looking at the particulars, if that money was in “their possession” because they were acting pursuant to a joint plan. So if you were to take the view that they were not acting pursuant to a joint plan – what was in his pocket was his, what was in her pocket was hers and they did not have a joint possession of what each other had – then you should acquit on count 2. But I will still go through the ingredients of count 2.
…
… They are different in the sense that, so far as count 2 is concerned, he said ‘I know nothing about the money’. So he says ‘We weren’t in joint possession of it’, it was not in their possession, he would say. That is basically his answer to count 2. It is not a question of him showing how he came by that $450 lawfully, because he claims to know nothing about it.
The position in relation to count 3 is different because he acknowledges possession of the money …
In responding to the jury’s questions, the trial Judge distinguished between Counts 2 and 3 on the basis that Count 2 related to money that was found in the possession of Ms Brown and thus it was necessary to determine whether it was in their joint possession. This involved a line of reasoning which was not applicable to Count 3.
As to Count 2, the elements of joint possession should have been more clearly articulated to the jury and distinguished from elements of joint enterprise. The trial Judge in summing up the prosecution case enunciated two alternatives, namely, that the money could have been payment to the Ms Brown for her involvement, or that it was joint money held in joint possession pursuant to their joint plan or enterprise. Both of these scenarios are consistent with there being a joint enterprise to transport cannabis for sale, but only the latter would necessarily lead to the conclusion that the appellant was in joint possession of the $450. The jury should have been directed on this distinction. The trial Judge directed on the nature of possession, and gave examples of joint possession, but did not stipulate that what was required before joint possession could be established was that the applicant was able to exercise control in respect of the monies found in Ms Brown’s coat pocket.
If the jury accepted as a reasonable possibility the prosecution’s alternative contention that the money was a payment to Ms Brown for her involvement in transporting the cannabis, then the directions did not make it clear that the applicant could not be convicted of Count 2 unless the jury were satisfied beyond reasonable doubt that he continued to exercise, either alone or jointly with Ms Brown, control over those monies.
Conclusion
I would grant leave to appeal on all counts.
The joinder of the unlawful possession charges with the charge of possessing cannabis for sale complicated the reasoning process of the jury in a way that was undesirable. For reasons previously stated, this did not result in a miscarriage of justice.
The distinction between the concepts of joint enterprise and joint possession and their application to Count 2 were insufficiently addressed in the trial Judge’s summing up.
As to Counts 1 and 3, for the reasons I have given, I would dismiss the appeal. As to Count 2, I would allow the appeal.
As the appeal has been dismissed in respect of Counts 1 and 3, I consider that it would be unfair to require the applicant to face a re-trial in respect of Count 2, in particular, having regard to the way in which the prosecution presented the case to the jury in the alternative to which I have earlier referred. I would set aside the conviction on Count 2 and make no order for a re-trial.

As a consequence, the sentence must be set aside. I would hear the parties as to sentence on Counts 1 and 3.
DAVID J. I would dismiss the appeal on counts 1 and 3. I would allow the appeal on count 2. I agree that the sentence should be set aside for the reasons given by Sulan J.