R v Wood - [2017] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WOOD
[2017] SASCFC 100
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
10 August 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Application for permission to appeal against convictions for trafficking in cannabis, trafficking in methylamphetamine, and unlawful possession. Application referred by single Judge. Whether the directions on possession were adequate – whether the verdicts could be supported by the evidence.
Held (Vanstone J, Kourakis CJ and Nicholson J agreeing): Permission to appeal is refused. The directions on possession were clear and sufficiently instructed the jury on the issues for decision, namely whether the applicant was in possession. The verdicts were open to the jury.
R v GNN (2000) 78 SASR 293, considered.

R v WOOD
[2017] SASCFC 100
Court of Criminal Appeal: Kourakis CJ, Vanstone and Nicholson JJ

KOURAKIS CJ: I would refuse permission to appeal for the reasons given by Vanstone J.
VANSTONE J.
After a trial by jury in the District Court, Bradley Grant Wood was convicted for trafficking in cannabis (count 1), trafficking in methylamphetamine (count 2), and unlawful possession of $840 (count 4). His application for permission to appeal on grounds raising the adequacy of the directions about possession, and the capacity of the evidence to support the verdicts, was referred to this Court by a single Judge.
Background
On 7 August 2014, acting on information, police attended a residential premises at Findon. The applicant was at home and answered the door to them. Two other men were present. Benjamin Rush was seated in the living-room. Joel Higgins was found in the main bedroom, “entirely underneath a quilt”.
Brevet Sergeant Watkins noted items on the coffee table in the living-room. He announced, “There is about an ounce of [methylamphetamine] on the table. We need to get everyone out”. Another officer then said, “What else have we got?”. The applicant responded, “That’s all there is”.
The police search of the unit revealed, on the coffee table, four resealable bags of cannabis (count 1), a bowl of cannabis, digital scales showing traces of methylamphetamine, two pipes, plastic bags, three mobile telephones, a notebook with what the prosecution alleged was a “tick list” and the tub of methylamphetamine in crystal form referred to by Sergeant Watkins (count 2). In an entertainment unit in the living-room was found a bag containing 8.3 grams of cannabis (count 3) and digital scales showing methylamphetamine traces.
Two lots of cash were found. There was $930 in a small safe in the living-room, and $840 in a bag along with the applicant’s driver’s licence, on the sofa in the living-room. Both amounts were the subject of count 4, unlawful possession. When the jury delivered its verdicts, it made plain that it convicted the applicant only for the sum of $840.
Messages retrieved from the applicant’s mobile telephone were alleged by police to be indicative of cannabis trafficking.
The applicant did not give or call evidence. Indeed, the only witnesses at trial were police officers. His defence appeared to be that, while he was a lessee of the unit, and his comment, “That’s all there is” portrayed an awareness of drugs being present, there was no proof that he possessed the drugs or either amount of money.
Proposed ground 1 – directions on possession
The applicant argues that the directions on the concept of possession were inadequate. It is said that, here, in order to prove that the applicant was trafficking in drugs, the prosecution had to prove that the applicant was in possession of the cannabis, methylamphetamine and $840 and that, while the general directions on possession were unexceptional, the Judge failed to adequately link those directions to the facts. In particular it is put that the Judge should have specifically told the jury that the applicant’s acquiescence in the drugs being in the unit was insufficient to prove possession; that proof that one of the other men had brought the drugs to the house with the applicant’s knowledge, but without his intending to take control of them, did not prove any offence. It is submitted that the Judge should have and did not discuss with the jury what aspects of the evidence could point towards, or away from, the applicant being in control of the drugs and generally link his directions to the facts of the case.
Mr Mead SC, for the applicant, particularly relied on the decision in R v GNN (2000) 78 SASR 293, especially at [25], where Doyle CJ, speaking for the Full Court, said this:
It was particularly important to identify the circumstances which, if proved to the jury’s satisfaction, would establish that the heroin was in the possession of Ms GNN as distinct from being in the possession of one or other of the men found in the house. The Judge’s direction does not really grapple with that issue. It is an issue which cannot be resolved solely by reference to the knowledge of Ms GNN. It required some further explanation of the practical application of the concept of control. It was not a case that required further general discussion of the nature of the relevant concepts, but rather an explanation of how they were to be applied. The jury needed further guidance on the issue of control because, in this case, it was quite possible that the heroin had been brought into the house by one of the men, but with the knowledge and acquiescence of Ms GNN. The Judge’s directions gave no assistance on that issue, other than by referring to the concept of custody or control.
The former Chief Justice went on to say in the same paragraph:
Of course, knowledge was a critical issue, but in the circumstances of this case so was control, and so was the issue of whether the jury were satisfied that Ms GNN, and not some other person was exercising the relevant control or had an intention to assert control. In particular, the Judge did not tell the jury that to convict Ms GNN they would have to exclude the possibility that she had merely acquiesced in one of the men hiding the heroin in the kitchen, in the sense of merely permitting him to conceal his heroin in her house.
In his initial directions the Judge instructed the jury about the concept of possession in terms I shall set out. For convenience I have numbered each paragraph of these and some further directions.
1Third, the prosecution must prove that the accused was in possession of the substance to which the particular charge relates, either in his own right or jointly with some other person or persons.
2The accused would be in sole possession of any one of the relevant substances if he had exclusive control over its disposition in the sense that he was aware of its existence and that he had both the intention and the power to exercise control over it to the exclusion of all other people.
3When your wallet is in your pocket or your handbag, it is in your possession in the sense that because you know it is there and you intend to exercise control over it and do what you want to do with it, to the exclusion of all other people, and you have the power to do so.
4You can also possess something even if it is not in your immediate custody. If you leave your wallet at home, it is still in your possession because even though you are not carrying it about with you, you are nonetheless still aware of its existence and you still retain the intention to exercise control over it and do what you want to do with it, to the exclusion of all others and you still retain the power to do so.
5Similarly, and for more or less the same reasons, your television remains in your possession at all times even though it never leaves your premises.
6For these purposes, possession does not mean ownership. You can possess something without actually owning it.
7The accused would be in joint possession of any of the relevant substances, that is to say the substance to which each charges relates, if he and another person or persons were parties to an agreement or arrangement for them to collectively exercise control over the disposition of the substance in the sense that each of them was aware of its existence, each had the power to exercise control over it and they had agreed that they would exercise control over it on behalf of themselves and each other to the exclusion of all others. Such an agreement does not have to be in existence for very long and it can be formed as as a result of conversations or a tacit agreement with an old-fashioned expression ‘on the nod’ without a word being spoken. If you and some other person live in the same premises, then some of the property in the premises could well be in joint possession of both of you in this sense, in that you are both aware of its existence, a television set, for example, you both regard it as your joint property and you both have the intention and power to exercise control over it to the exclusion of all others. I imagine you can also see how other examples of inclusive possession can be easily adapted to illustrate joint possession.
When the jury retired, neither counsel raised any complaint about the directions given. After deliberating for about 40 minutes the jury returned with several questions, one of which concerned proof of possession. I set out the redirection given by the Judge:
8Now your second question is: ‘Can you please explain the standard of proof required to establish possession or joint possession? Is mere access enough? Does the prosecution have to prove that there was an actual agreement explicit or implied?’. Ladies and gentlemen, in order to establish exclusive possession or joint possession, the prosecution is required to prove it beyond reasonable doubt. The prosecution must prove exclusive possession beyond reasonable doubt or it must prove joint possession beyond reasonable doubt. Mere access is not enough.
9If someone visits your house and leaves their car keys on your coffee table, you are not in possession of the car keys, even though you have access to them because the owner nonetheless retains the ability to control what is done with them.
10Similarly, if you simply acquiesce in someone bringing something into your house, it is not in your possession. Similarly again, if someone hides something in your house without your knowledge, it is not in your possession. And I trust that is perfectly plain.
11As far as proof of joint possession is concerned, there has to be some form of express or tacit agreement before something is in the joint possession of two or more people. The prosecution do not have to point to a particular spoken agreement and it does not necessarily have to point to an exchange of looks, or nods, or gestures which give rise to the inference that there is an agreement jointly to possess some item.
12The circumstances of a particular case may be such that the only inference that is open to the exclusion of all other possibilities was that a substance is in the joint possession of two or more people even though there is no agreement that can actually be pointed to.
13The mere fact of the circumstances in which an object is found might satisfy you beyond reasonable doubt that it is in the possession of two or more people, even though there is nothing specific by way of evidence of an agreement, and I trust that is plain. But at the end of the day, the prosecution has to prove exclusive or joint possession beyond a reasonable doubt.
In my view the directions on possession were clear and comprehensive, plainly setting out what was required in order to prove possession, sole or joint. The directions at the paragraph labelled 2 clearly set out what was required to prove sole possession, linking the ideas of proximity and intention to exercise control. Paragraph 3 gave a relevant example. In paragraph 7 the Judge explained joint possession, linking the notions of agreement, awareness, and control exclusive to the joint possessors. Again, relevant examples were given.
The redirections at paragraph 8 reiterated the standard of proof and explained that access alone was insufficient. Paragraph 10 emphasised that mere acquiescence was not enough. In paragraphs 11 to 13 the Judge expanded on how an agreement to jointly possess might be established.
The questions asked by the jury both on this and other topics were incisive. They showed that the topics under discussion were highly relevant. However, that there were questions on the topic of possession emanating from one or more jurors does not in my mind adversely reflect on the Judge’s original directions.
Returning to the applicant’s complaints, the Judge’s redirections made it plain that even if the applicant acquiesced in drugs being brought into his unit, that did not prove that he possessed those drugs. The same direction was implicit in the original directions at paragraphs 2 and 7; but in the later direction the Judge instructed on what would not suffice. Again, the emphasis for which the applicant argued on the requirement to prove that he intended to exercise control over the drugs – even if brought to the house by another – is found both in the original direction at 7 and in the redirections at 8 and 9.
In relation to the perceived lack of discussion by the Judge about what evidence might point towards or away from the appellant having control of the items, there was the example at paragraph 9 of the keys left behind by a visitor. This was apt to illustrate that the occupier did not assume possession simply because of access and physical proximity. I consider the Judge was wise not to descend to his own examination of what aspects of the evidence could point to an exercise of control over the relevant items. If that were to be done it was best left to a summation of counsel’s arguments, which the Judge undertook in the course of his directions. Examples far removed from the facts of the case at hand are usually preferable in terms of illustrating a principle.
The passage in GNN relied on does not prescribe a particular approach to directing juries on possession. Certainly there is material there which Judges may well find helpful in drafting directions suitable for the particular case before them. But each case turns up different facts and different issues. Generally speaking, the main requirement in terms of the elements of an offence is to clearly explain what is required in terms of proof. If that is done then it will not usually be necessary to provide a catalogue of what is not sufficient. Of course, if issues are muddied by counsel, or if the issue for determination can be honed by sweeping away some red herrings or straw men, then it may be helpful to dispose of those issues by directing that certain matters cannot prove the charge. It is true that the concept of possession, and particularly joint possession, can be a difficult one for jurors, who do not customarily think in such terms. For this reason examples are helpful. However, in the circumstances of this case, having considered the evidence and the directions, I am of the view that the legal issues were clearly laid out.
Proposed ground 2 – verdicts unsupported by evidence
Counsel argues that the evidence was incapable of excluding the reasonable possibility that the drugs had been brought to the unit by either or both of Rush or Higgins, and, even if the applicant knew that, there was nothing to say that he intended to exercise control over them. It was put that there was no evidence from the applicant’s telephone linking him to methylamphetamine as there was on Higgins’ mobile telephone; there was no DNA or fingerprint evidence, and pseudoephedrine was found in close proximity to Higgins.
However, it was proved that the applicant was a co-lessee of the premises, the other lessee being absent. His driver’s licence was found in the bag containing the $840, part of the money the subject of the unlawful possession charge, a matter potentially of great significance. As well, there was his answer to police, “That’s all there is”, which could be interpreted as indicative of some authority in relation to the drugs. In addition, the finding of the drugs, bags, and scales readily at hand in the living-room could suggest recent activity in the weighing and packaging of drugs for sale.
In all of the circumstances I consider that the evidence justified the verdicts returned.
Conclusion
The directions on possession were clear. They sufficiently instructed the jury on the issues for decision. The verdicts were open to the jury.
I would refuse permission to appeal on both grounds.
NICHOLSON J: I would refuse permission for the reasons given by Vanstone J.