R v Trotter

[1999] NSWCCA 90

CITATION:	R v Trotter [1999] NSWCCA 90
FILE NUMBER(S):	CCA 60348/98
HEARING DATE(S):	12 APRIL 1999
JUDGMENT DATE:	30 April 1999
PARTIES :	Regina v Gary Frederick Trotter
JUDGMENT OF:	Wood CJ at CL; Hidden J; Smart AJ

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0736
LOWER COURT JUDICIAL OFFICER:	Mahoney DCJ

COUNSEL:	C.K. Maxwell QC J.C. Papayanni
SOLICITORS:	R. Gray for Crown Jeffreys & Asociates for Appellant
CATCHWORDS:	CRIMINAL LAW - appeals - appeal against conviction - offence of supply prohibited drug.; CRIMINAL LAW - directions to jury - sufficiency of directions in relation to possession - sufficiency of directions concerning evidence of appellant - whether trial judge erred in directions given concerning extent to which Crown can rely on inferential and indirect evidence.; CRIMINAL LAW - verdicts - whether verdict unreasonable or not supported having regard to the evidence, within s 6(1) Criminal Appeal Act 1912.
ACTS CITED:	Drug Misuse & Trafficking Act 1985 ss 25(1), 29 Criminal Appeal Act 1912 (NSW) s 6(1)
DECISION:	Appeal dismissed;; Conviction and sentence confirmed.

IN THE COURT OF
CRIMINAL APPEAL

No. 60348/98

WOOD CJ at CL
HIDDEN J
SMART AJ

FRIDAY 30 APRIL 1999

REGINA v GARY FREDERICK TROTTER

The appellant was convicted of the supply of a prohibited drug under s 25(1) Drug Misuse & Trafficking Act 1985 , and sentenced to an eighteen month minimum term of imprisonment, with an additional term of six months. The weight of the prohibited drug exceeded three grams, and on that basis he was charged with its deemed supply (s 29 Drug Misuse & Trafficking Act ).

He appealed against the conviction on the following grounds: insufficiency of directions given in relation to the element of possession; insufficiency of directions given in relation to the appellant’s evidence; error in directions given concerning indirect or inferential evidence; and finally, unsafe and unsatisfactory verdict.

HELD (dismissing the appeal and confirming the conviction and sentence):

Sufficiency of directions on possession - leave refused to argue these grounds
The directions were clear and succinct and complied with the case law. Furthermore no objection was taken at trial to the directions.
He Kaw Te (1985) 157 CLR 523; Saad (1987) 61 ALJR 243, considered.

It does not follow from the decision in Williams v Douglas , that the trial judge should direct the jury that they had to be satisfied that the appellant had hidden the drugs. Such a direction would have raised an immaterial issue and imposed on the Crown a burden it did not have to accept.
Williams v Douglas (1949) 78 CLR 523 at 526-7, considered.

The Crown did not seek to rely on joint possession in this case. It was therefore necessary for it to exclude, as a reasonable possibility, possession by some other occupant of the flat. In this regard, his Honour made it clear in his directions that the Crown had to prove the appellant’s intention and ability to exercise control and ownership over the drugs “to the exclusion of all other people”.
Filipetti (1978) 13 A Crim R 335; Bazeley (NSWCCA, 23 March 1989), Sobolewski (NSWCCA, 21 April 1998), considered.

Sufficiency of directions concerning appellant’s evidence - leave refused to argue these grounds
(4) There is no requirement at law that a trial judge give a direction that the appellant’s explanation for his admission had to be negatived beyond reasonable doubt. The appropriate direction, given in clear and unequivocal terms in this case, is the conventional one requiring proof of the essential elements of the offence charged beyond reasonable doubt.

(5) The suggested direction that evidence of the accused should be placed in a special category, subjected to less critical assessment by the jury, is erroneous.

Directions concerning extent to which Crown can rely on inferential and indirect evidence relating to appellant’s possession of a large sum of money, as well as other indicia of supply of drugs - leave granted to argue this ground, but finding that it has not been made good
The directions were to the effect that the jury must be very certain that the inference should be drawn, and also certain that there is no other contrary inference that can reasonably be drawn. The directions were adequate, and did not suggest that any lesser onus rested on the Crown.

The submission that the finding of a large sum of money and other indicia of supply was incapable of proving possession, has a weight of authority against it. Evidence of this kind has been regarded as relevant and admissible on charges of deemed supply. Moreover, the Crown is not required to elect whether to rely on the statutory presumption of possession for the purposes of supply, or upon evidence tending positively to establish that purpose.
Ellis (NSWCCA, 27 February 1987), Donohoe (NSWCCA, 2 August 1993), applied; McMahon (NSWCCA, 23 June 1978), distinguished; Hughes & Curtis (1982) 10 A Crim R 125, considered.

(8) In this case, proof that the appellant, a pensioner and regular heroin user, had in his possession a considerable sum of money along with indicia of supply, were relevant and capable of supporting admissions made by him.
Unsafe and unsatisfactory verdict
(10) The simple fact is that the drugs were found in the room in which the appellant slept, and he made admissions concerning both their nature and their ownership immediately upon their discovery. The jury were entitled to conclude that these admissions were true. Furthermore, a review of the transcript reveals material inconsistencies in the appellant’s account. In these circumstances, the jury were entitled to find the appellant guilty beyond reasonable doubt.

ORDERS PROPOSED

Appeal dismissed;
Conviction and sentence confirmed.

IN THE COURT OF
CRIMINAL APPEAL

No. 60348/98
NSWCCA 90
WOOD CJ at CL
HIDDEN J
SMART AJ

FRIDAY 30 APRIL 1999

Regina v Gary Frederick TROTTER

JUDGMENT

1 WOOD CJ at CL: The appellant was convicted, following trial in the District Court, of the supply of a prohibited drug, methylamphetamine (S 25(1) Drug Misuse & Trafficking Act 1985). He was sentenced to a minimum term of imprisonment for eighteen months, and to an aditional term of six months. The weight of the prohibited drug allegedly found in his possession exceeded three grams, and on that basis he was charged with its deemed supply. (S 29 Drug Misuse & Trafficking Act) He now appeals against that conviction.
The Crown Case
2 It was the Crown case that the premises in which the appellant, a pensioner, lived, together with Steven Moore, Danielle Knopp and her children, were searched with his consent, after he was spoken to at the Advance Loan Office at Newtown, and found to be in possession of $1230 in cash. During the search of the living room, a clear resealable plastic bag containing white powder (heroin) was found under a cushion on the lounge. The appellant was asked whose it was and he said that it was his. He was then asked what it was and he replied “heroin”.
3 A plastic bag containing a beige coloured powder (methylamphetamine) was found a little while later at the base of a pot plant sitting on a low cupboard behind the lounge suite. When police asked the appellant what it was, he said that it was “speed”. When asked whose it was he said “that’s mine and the heroin’s Steve’s”.
4 Later at the police station, when the methylamphetamine was weighed and found to be over the 3 grams that attracted the deeming provision, the appellant said that “the speed” was not his but the heroin was. An ERISP followed, in the course of which he admitted that the white powder was heroin, which he had for his own use. He also admitted knowing that the brown powder was “speed”. He said that it was owned by Steve, although he acknowledged telling police earlier that it had belonged to him. When asked why he had said that, he replied, “because I thought that would be lesser than heroin. You know speed isn’t looked on as a hard core drug such as heroin is...”
5 Other items recovered during the search included a large quantity of small multi-coloured balloons, clear resealable plastic bags, a set of electronic scales that were in working order and were plugged into a power point, and two other sets of scales. The appellant did not admit that the balloons were his. He said that they were for the children of Ms Knopp to put water in. The plastic bags he said were his, and were kept for re-use after he had scored. The electronic scales he said were also his, and had been given to him as a present. When asked in the ERISP as to what use they were put he replied that they were just “an ornament”.
6 A matter of some importance that arose in the trial was the time at which Ms Knopp returned to the flat, relative to the finding of the methylamphetamine. Senior Constable Stanley, who was directing the search and who spoke to the appellant, was certain that she arrived at the flat after the living room area had been searched and the drugs had been found, and after the relevant admissions had been made. Earlier, he said, her two children, who were being minded by a person who was introduced as a neighbour, were in the bedroom. They were moved out of that room only when the search which had begun in the living room, and which was conducted by Constables Martin, Hanna and Davies, had moved on to this part of the premises. His notes supported this sequence of events. Constables Martin and Hanna were unable to remember when it was, relative to the finding of the methylamphetamine, that Ms Knopp arrived at the premises. Constable Davies said that this occurred about two thirds of the way through the search but she was also unable to remember whether that was before or after the speed was found.

The Defence Case
7 The appellant gave evidence at his trial. He said that Ms Knopp and Steve shared a bedroom with the children, and that he slept in the lounge. He said that the money found at the Loan office represented savings from his pension, and that Ms Knopp had them in her purse that day for safekeeping. It had been his intention to go on to Bondi to purchase an airline ticket to Manilla, so that he could visit his wife.
8 He denied that the methylamphetamine found in the unit was his, or that he knew it was there. The reason he had admitted to its ownership, he said, was because of the concerns that Ms Knopp had expressed about the police taking her children from her, and her obvious distress. In his words, she said “what are you doing to me Gary? What are you doing to me? They’re going to take my kids.” This affected him, he said, because he would have felt responsible if the police had taken the children away from her.
9 It was his evidence that Ms Knopp had arrived at the flat within a few minutes of his arrival with the police, i.e. before the methylamphetamine was found and before he made any admission concerning it. That substance he said was not his. He had no knowledge of it being there. The heroin, however, he acknowledged was his He said that he had been a heroin addict for twenty years.

Grounds 1, 2 and 3
10 Each of these grounds relate to the sufficiency of the directions given, in relation to the element of possession. In this regard his Honour instructed the jury:
“The law says this, that possession does not necessarily mean ownership. Possession involves these two concepts: first that whatever the Crown is alleging is possessed must knowingly be in the accused’s physical custody or be at some place under his physical control and the second component of this word possession is that the accused must have the intention and ability to exercise control and ownership over the particular property in question, to the exclusion of all other people if he wants to.”
11 His Honour gave examples of two situations in which a person might be found to be in control of, and hence in possession of property, although it was not in his immediate presence and then repeated what it was that the Crown had to prove in relation to the appellant’s knowledge. These directions were clear and succinct and they complied with the law as declared in He Kaw Te (1985) 157 CLR 523 and Saad (1987) 61 ALJR 243.
12 They were followed by the direction that one of the essential elements the Crown had to prove beyond reasonable doubt, in this case, was that the appellant was in possession of the beige powder. When dealing with the defence case his Honour explained that no onus of proof rested upon the appellant, and that he was neither required to prove or to disprove anything.
13 Having regard to the form which the summing up took, and the absence of any complaint by trial Counsel, there is no reason to suspect that the jury were left with any understanding other than that the Crown had to prove that the accused had possession of the methylamphetamine in accordance with the principles that were explained in the passages earlier cited.
14 Not only was there no objection taken at the trial to these directions, it is evident from an exchange that occurred at the end of the summing up, that the direction on possession was formulated with the assistance of defence Counsel.
15 The first complaint made, upon appeal, is to the effect that his Honour should have identified as an issue for the jury, whether the appellant had hidden the methylamphetamine under the pot plant. In advancing this submission, reliance was placed upon an observation in Williams v Douglas (1949) 78 CLR 523 at 526/7, that while the expression “possession” did not extend to constructive possession, it was:
“wide enough to include any case where the person alleged to be in possession, has hidden the thing effectively so that he can take it into his physical custody when he wishes and where others are unlikely to discover it except by accident.”
16 That statement was made in the context of the observation that the de facto possession, of which the relevant section spoke, was a concept “much more extensive than that of physical custody”. It was not intended as a definitive statement of what is required for de facto possession; it was merely an example of it that was relevant for the case under appeal.
17 In Douglas it was alleged that the accused had hidden a quantity of gold in the bathroom of a hotel which was some distance from his room, and which was shared by other patrons. When first spoken to about the gold, the appellant denied knowledge of it. Later he said “It’s no use beating about the bush, it’s my gold”. The issue that arose for consideration was whether it was necessary for the prosecution to prove that had actual possession of the gold or exclusive possession or control of the place where it was found.
18 The Full Court of the Supreme Court of Western Australia remitted the matter to the Local Court with a direction that possession or control had been sufficiently established. Special leave to appeal was refused by the High Court. In those circumstances, the decision does not stand as authority for the proposition sought to be advanced. The observation relied upon is taken out of context. It cannot be elevated to a statement of principle. It is plain that in reaching the conclusion it reached the Full Court was of the view that the magistrate drew the wrong deductions from the facts, and that the admission made was important in deciding the factual issue.
19 The present case was not one where the Crown sought to rely on joint possession. For the reasons discussed in Filipetti (1978) 13 A Crim R 335, Bazeley (Court of Criminal Appeal New South Wales 23 March 1989) and Sobolewski (Court of Criminal Appeal New South Wales 21 April 1998), it was necessary for the Crown to exclude, as a reasonable possibility, possession by some other occupant of the flat.
20 In this regard his Honour had made it clear, in the direction noted earlier, that the Crown had to prove that the appellant had the intention and ability to exercise control and ownership over the methylamphetamine “to the exclusion of all other people” if he wanted to. In support of that element it had available the immediate admission by the appellant that he knew what the substance was, and that it was his; additionally it had evidence that it found was in the room where he normally slept. The case was not one, however, where there was evidence from Ms Knopp or “Steve”, of the kind available in Burns (Court of Criminal Appeal New South Wales 19 August 1998), negativing possession by them.
21 For his Honour to have directed the jury that they had to be satisfied, in this case that the appellant had hidden the methylamphetamine under the pot plant, so that the other occupants of the flat were unlikely to discover it except by accident, would have been to raise an immaterial issue, and to have imposed upon the Crown a burden that it did not have to accept. It was not necessary for the Crown case that the drug had been hidden. Moreover, knowledge by the other occupants of its existence or of its location would not have been inconsistent with possession by the appellant.
22 The case was effectively conducted as a single issue case, namely whether the admission made by the appellant was true. If the jury were satisfied beyond reasonable doubt of that, then possession was proved. As no objection was taken to the directions at the trial, and as the relevant issue was appropriately raised, I would refuse to grant leave under rule 4 Criminal Appeal Rules, to argue these grounds of appeal.
Grounds 4 and 6
23 These grounds relate to the sufficiency of the directions given concerning the evidence of the appellant. They can be conveniently dealt with together.
24 First it was submitted that his Honour should have directed the jury that the appellant’s explanation for his admission had to be negatived beyond reasonable doubt. There is no requirement at law for such a direction to be given. The appropriate direction was the conventional direction requiring proof of the essential elements of the offence charged beyond reasonable doubt . That direction was given more than once and in clear and unequivocal terms.
25 Next it was submitted that his Honour erred in law when directing the jury that they should treat the evidence of the appellant in the same manner as that of the other witnesses. Further, it was submitted that when referring to the appellant’s evidence, his Honour did so in terms which invited the view that an onus rested upon him to make good the explanation he had offered for the admission.
26 Neither submission has merit. No complaint was made at the trial. His Honour said, relevantly for the matters now sought to be raised:
“Now the accused, as Mr. West said to you, was under no obligation even to go into the witness box. He could have sat over there in the dock. In fact he did not even have to bring Mr. West into court to appear for him. He could have said right, the Crown will never be able to prove this, let them go their hardest, to use the everyday expression. But, in addition to saying well the Crown has to prove its case, the accused has said I want you, the jury, to hear my version of the events, so he has come along and he has given evidence in the case too and what you do is you assess his evidence, just exactly the same way as you assess every other witness’ evidence in the case.
You will remember at all times that he is not required to discharge any onus of proof. He is not required to prove anything. He is not required to disprove anything. But he said I want a chance to give you my version of events and he has given you his version of events. Mr. West has said to you when you take into account his version of events could you be satisfied beyond reasonable doubt that the Crown has made out its case?”
27 This was an entirely correct direction. The suggested direction, implicit in the first leg of this submission, that the evidence of an accused person should be placed in a special category, and subject to less critical assessment by the jury than that of the other witnesses, would be erroneous in law.
28 The second leg of the submission draws upon an observation made by his Honour, following reference to the evidence of the appellant, and of the police witnesses concerning the finding of the drugs, and the entry into the room of Ms Knopp and the children:
“..you take these matters into account in determining whether or not to accept the accused entirely or in part only, to dismiss his evidence right out of hand, or you might say to yourself well, some of this evidence at least ties in with some of the Crown evidence.”
29 Read in the context of the summing up, as a whole, this passage cannot fairly be understood as suggesting any reversal of the onus of proof. I would again refuse leave to argue these grounds.
Ground 5
30 It was next submitted that his Honour erred in the directions given concerning the indirect or inferential evidence relating to the possession by the appellant of a sum of money that it was unlikely that he as a pensioner and heroin user could have accumulated by way of savings from a pension, and his possession of the accoutrements or indicia of the supply of drugs. No objection was taken at the trial to evidence being led in relation to these matters, a tactical decision having been made by defence Counsel that the full circumstances of the incident should be placed before the jury in order to lend credence to the explanation offered by the appellant.
31 In relation to the extent to which the Crown could rely on inferences in its case, his Honour said, early in the summing up:
“So that when you are asked to draw an inference in a criminal trial you have got to be very certain that the inference should be drawn and you also have to be certain that there is no other contrary inference that can reasonably be drawn from those circumstances.”
And
“I have given you a variety of examples about the way you have got to be careful when the Crown prosecutor invites you to draw inferences. You can only draw them if you are certain that it is the proper inference to draw and if you are certain that there is no other reasonably available competing inference to be drawn from those facts.”
32 When dealing with the particular matters that were identified as indirect or inferential items adding to the Crown case his Honour said:
“Remember what I said to you yesterday, I will not go back over it again. When the Crown asks you to draw inferences you have to be very careful and you have to be satisfied that it is the only rational, reasonable inference that is able to be drawn.”
33 It was submitted that those directions risked leaving the jury confused as to what matters they needed to be certain about, and as to whether the essential elements of the offence charged had to be proven beyond reasonable doubt. To my mind the directions were adequate, and did not invite any gloss on the requirement of proof beyond reasonable doubt, or suggest that any lesser onus rested upon the Crown. Counsel at the trial saw no fault with them. I would refuse leave to argue this ground.
34 Additionally, it was submitted that it was inappropriate, in a case opened as one of deemed supply, for his Honour to have permitted the Crown to rely upon the finding of the money and the other items as indirect proof, and for him to have summed up accordingly. In broad terms, it was submitted they were incapable of proving possession.
35 The weight of authority is against the appellant on this point. Moreover, the argument overlooks the existence of the exception to the deeming provision contained in S 29(a) of the drug Misuse and Trafficking Act, where the accused:
“proves that he or she had the prohibited drug in his or her possession otherwise than for supply.”
Although, ultimately no case was advanced by the appellant relying on this provision, the Crown was not to know, in advance of calling the evidence, whether he would or would not change his tack once again, and similarly to the heroin, claim it was for his personal use.

36 In any event, evidence of this kind has been regarded as relevant and admissible on charges of deemed supply, eg Ellis (Court of Criminal Appeal New South Wales 27 February 1987) and Donohoe (Court of Criminal Appeal New South Wales 2 August 1993). In each of these decisions McMahon (Court of Criminal Appeal New South Wales 23 June 1978) was distinguished, on a factual basis referrable to the physical separation of the items in Ellis ; and upon that basis and also upon the basis that the defence had raised a S29 issue in Donohoe .
37 It has, additionally, been held that the Crown is not required to elect whether to rely upon the statutory presumption of possession for the purpose of supply or upon evidence tending positively to establish that purpose: Hughes & Curtis (1982) 10 A Crim R 125. The Crown may rely upon the presumption and upon actual evidence tending to establish the fact to be proved. As the Full Federal Court observed, at 132, this kind of case is:
“not an averment case. It is a case where there is a statutory presumption intended to facilitate proof of the relevant purpose. We know of no case in which it has been held that a party bearing the onus of proof may not rely on a presumption and upon actual evidence tending to establish the fact to be proved.”
38 In the present case I am of the view that proof that the appellant, a pensioner and regular heroin user, had in his possession a considerable sum of money along with the indicia of supply, were relevant and capable of supporting the admission. In this regard, there was no rational occasion for him to retain a quantity of plastic bags, or to have a set of electronic scales plugged into a power point, in connection with his use of heroin. As he said that he did not personally use “speed”, the presence of these items in close proximity to the methylamphetamine was capable of supporting the Crown case, and was properly left on that basis.
39 Although I would grant leave to argue this ground of appeal, it has not, in my view, been made good.

Ground 7
40 Finally it was submitted that the verdict was unsafe and unsatisfactory, within the meaning of S 6(1) Criminal Appeal Act 1912, ie it was one which was unreasonable or could not be supported, having regard to the evidence.
41 I am not persuaded that the case is one in which, after this Court has made its own independent assessment of the evidence, it should conclude that a jury ought to have entertained a reasonable doubt about the guilt of the appellant. The simple fact is that the methylamphetamine was found in the room in which the appellant slept, and he made admissions concerning both its nature and his ownership immediately upon its discovery. The jury were well entitled to have concluded that such admission was true, particularly as it was the evidence of Senior Constable Stanley that the conversation concerning the speed occurred before Ms Knopp arrived. On that basis, there was no reason for the appellant making the admission in order to protect her and the children, as he suggested.
42 Counsel for the appellant accepted that his account revealed a number of inconsistencies. A review of the transcript reveals that they were not immaterial inconsistencies.
43 In summary, the evidence reveals that:
(a) at the flat, the appellant initially admitted that the heroin was his, but then while still at the flat (according to police) or at the police station (according to him) he said it was Steve’s; at the trial he returned to admitting that it was his;
(b) at the police station, he withdrew his earlier admission as to the ownership of the methylamphetamine and said it was “Steve’s”. It was the evidence of Senior Constable Stanley that this occurred after the brown powder was weighed. The accused in chief agreed that he had changed his mind as to what he was going to say to police “because Officer Stanley told me it was a supply charge … a gaol sentence probably”;
(c) In the ERISP when asked why he had said the heroin was Steve’s, and that the speed was his, he gave the explanation “because I thought that would be lesser than heroin. You know, speed isn’t looked on as a hard core drug such as heroin is.”
(d) there was absolutely no suggestion to police, at this stage, that the reason for the earlier admission as to ownership of the methylamphetamine was that offered at the trial, namely because of concern for Ms Knopp and her children;
(e) there was little logical basis in the reason offered at trial for his initial acceptance of ownership of the speed, but not of the heroin, it being unclear why the position of Ms Knopp, the partner of Steve, was in any way improved by his assertion that the “speed” was his, but the heroin was Steve’s, particularly if he believed that possession of heroin was more serious than possession of methylamphetamine;
(f) at the trial, the appellant initially said that he had no knowledge of the methylamphetamine being in his premises, yet in his ERISP he said that he knew Steve had it hidden there;
(g) the appellant gave contradictory accounts concerning the reason for his possession of the plastic bags, suggesting, at one stage, that he had them so that they could be re-used (ie re-washed to recover any heroin residue), and at another stage suggesting that they had already been rewashed.

44 While the admissions were enough to support the conviction, and to exclude possession of the methylamphetamine by the other occupants, there was support for it in the finding of the indicia of supply, and in the fact that the other persons were acknowledged to have been only temporary residents of the flat.
45 In these circumstances, I am quite unpersuaded that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt.
46 I would propose that the appeal be dismissed ,and that the conviction and sentence be confirmed.
47 IN THE COURT OF
CRIMINAL APPEAL

No. 60348/98
NSWCCA 90
WOOD CJ at CL
HIDDEN J
SMART AJ

FRIDAY 30 APRIL 1999

Regina v Gary Frederick TROTTER

JUDGMENT

HIDDEN J: I agree with Wood CJ at CL.

IN THE COURT OF
CRIMINAL APPEAL

No. 60348/98
NSWCCA 90
WOOD CJ at CL
HIDDEN J
SMART AJ

FRIDAY 30 APRIL 1999

Regina v Gary Frederick TROTTER

JUDGMENT

SMART AJ: I agree with Wood CJ at CL.
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