R v PERFILI

[2006] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v PERFILI

[2006] SASC 187

Judgment of The Honourable Justice Perry

29 June 2006

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

Application for leave to appeal against convictions in the District Court on a charge of possessing cannabis for sale and two counts of unlawful possession of money - held that none of the proposed grounds were reasonably arguable - application dismissed.

R v PERFILI
[2006] SASC 187

Criminal

1. PERRY J.             This is an application for leave to appeal against the conviction recorded against the applicant in the District Court following a trial before a judge and jury on one count of possessing cannabis for sale and two counts of unlawful possession of money. The applicant was convicted by a unanimous verdict of the jury, on all three counts.

2. Initially, the applicant was charged jointly with a co-accused, Shana Lea Brown. She pleaded guilty to the charge of possessing cannabis for sale and one of the counts of unlawful possession, following which she was remanded for sentence with respect to those counts.

3. The trial then proceeded against the applicant only.

4. The offences were said to have come to light when police attended at the interstate bus stop at Crafers where the applicant and the co-offender were seen to board a Firefly bus bound for Melbourne. Although a police sniffer dog did not locate any cannabis, the applicant and the co-offender, who appeared to be travelling together, were asked to leave the bus and obtain their bags.

5. Inside a bag said to belong to the co-offender, the police officers found 5.5 kilograms of cannabis, packaged in 12 one-pound packages. The packages were laced with a substance to hide the smell.

6. At first the applicant denied knowing the co-offender, but later he stated that she was his girlfriend.

7. He was found to have on his person over $2,500 in his right front trouser pocket, and $95 in his rear trouser pocket, said to comprise a total of $2,672 in cash. This was the subject of the second of the two counts of unlawful possession.

8. The co-offender had $450 in $50 notes and about $70 in a purse. The $450 was the subject of the first of the two unlawful possession charges.

9. There was a number of mobile phones in a briefcase in the possession of the applicant.

10. When the houses of the applicant and the co-offender were searched, a vacuum sealer was found at the house occupied by the co-offender, with DNA attributable to the applicant on it. Mail for the applicant was found at her address. Also found at the co-offender’s house were electronic scales and plastic containers on both of which there were traces of cannabis. As well, there were some disposable gloves and cryovac plastic bags used for vacuum sealing.

11. In the applicant’s house there were shopping bags of the same unusual colour as those used to pack the drugs; and as well as the distinctively coloured shopping bags, there were some other plastic bags similar to those in which the cannabis the subject of count 1 was sealed.

12. Both tickets for the bus trip were bought on the same occasion. Ms Brown used a false name.

13. It was the Crown case that the applicant and the co-offender were acting in concert, as part of a joint enterprise.

14. There was evidence that persons involved in the drug trade sometimes boarded buses at Crafers rather than at the Franklin Street main terminal, in the hope of avoiding the sniffer dogs which are commonly deployed at the Franklin Street terminal.

15. The applicant gave evidence. He said that he often travelled to Melbourne on business, but the particular reason for him undertaking the trip on the day in question was to meet up with his wife, who was coming back from overseas that night, and as well he was going to meet up with the rest of his family who were in Melbourne.

16. He said that the co-offender had suggested to him that afternoon that as she was going to Sydney, they could perhaps both travel to Melbourne, and she would go on from there to Sydney.

17. He said it was the co-offender’s idea to go to Crafers to get on the bus. They took a taxi to the bus stop at Crafers. He denied any knowledge of the cannabis.

18. He said he had used the vacuum packing machine to wrap expensive bottles of wine to send interstate.

19. The money which he had on him was, according to him, for use in his business.

20. I will deal now with the proposed grounds of appeal.

    Ground 1

21. The applicant complains that the joinder of count 1 with counts 2 and 3 produced a miscarriage of justice. The applicant argued that he was deprived of the opportunity of exercising his right not to give evidence on the charge of possessing cannabis for sale, because he was saddled with the reverse onus with respect to the two counts of unlawful possession, which more or less obliged him to give evidence.

22. No application was made by the applicant’s counsel at the trial for the severance of count 1. It was properly joined. Charges of unlawful possession of money said to be associated with drug dealing are often joined with charges of possession of drugs. Such a course is unexceptional.

23. Evidence of possession of large sums of money is relevant and admissible on a charge of possessing a drug for sale.

24. In any event, possession of more than 100 grams of cannabis meant that it was incumbent upon the applicant to satisfy the jury that it was not in his possession for sale, so that on count 1 he also carried an onus.

25. Remarks by Martin J in Kotz v Police,[1] in which he observed that it cannot be said that a single trial on multiple charges is necessarily unfair because the accused bears an onus with respect to one charge and not another, is apposite.

    [1] [1999] SASC 399.

26. This ground is not reasonably arguable.

    Ground 2

27. In this ground the applicant complains that the verdicts are “unsafe and unsatisfactory” in that it “was not reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the applicant”. This ground is based upon ground 1, and must fall with ground 1.

    Grounds 3, 4, 5 and 6

28. These relates to alleged misdirections by the trial judge.

29. In ground 5 it is suggested that the trial judge misdirected the jury by failing to direct them that the evidence as to counts 2 and 3 was not cross-admissible on count 1. It was clearly cross-admissible and this ground is not reasonably arguable.

30. Ground 6 alleges that the trial judge misdirected the jury by failing adequately to identify the use to which the jury could put the evidence on counts 2 and 3 in its consideration of count 1. I have carefully considered the summing up and I am of the view that this ground is not reasonably arguable.

31. In count 3 the applicant complains that the directions as to the manner in which a conviction on counts 2 and 3 might be put in the jury’s consideration of count 1, were confusing and prejudicial to the applicant.

32. In ground 4, the applicant asserts that the judge misdirected the jury in failing properly to warn the jury not to engage in “tendency or propensity” reasoning as to count 1, if they found counts 2 and 3 proved.

33. Again, after a careful consideration of the summing up, in my view, the directions given by the trial judge as to those matters were clear, and grounds 3 and 4 are not reasonably arguable.

34. I note that none of the matters now sought to be raised by the applicant were raised at the trial by his counsel, who was a very experienced criminal trial lawyer.

    Conclusion

35. I would dismiss the application.