The Queen v Jury

[2009] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

CA650/2008
CA699/2008
[2009] NZCA 116

THE QUEEN

v

TRACEY ROBIN JURY

Hearing:31 March 2009

Court:Robertson, Gendall and Keane JJ

Counsel:A G Speed for the Appellant

M A Woolford for the Crown

Judgment:6 April 2009 at 10 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

Introduction

[1]       The appellant was convicted of possession of the Class A controlled drug methamphetamine for the purpose of supply and was sentenced to three years imprisonment.  She appeals against her conviction.

Evidential background

[2]       The Police undertook a search of the dwelling occupied by the appellant and located in a bedroom 27.2 grams of methamphetamine and $1,020 in cash, mostly in $50 notes.  They also located in the house two methamphetamine pipes, electronic scales and “point” bags which contained remnants of a crystalline substance.  Personal items of the appellant were located in the bedroom, which included clothes, cosmetics and other articles.  She told Police Officers at the scene that she used the room not as a bedroom but:

… basically just a wardrobe with my clothes in it.

[3]       She said to the Police that no-one else used the room as a bedroom.  She said the money was hers, but explained that some of the cash had been given to her by her son to buy presents for his daughter.

[4]       Defence counsel conducted their case on the basis that the drugs and drug related items at the house were owned by associates of the Headhunters gang (the appellant’s partner being a member of that gang) and that the Crown could not establish that she was in possession of the methamphetamine found together with her belongings in the bedroom. 

[5]       The appellant did not give evidence at the trial, but there was evidence that a number of people associated with the gang were connected with the address.  The defence case was that the Crown had not excluded the possibility that she knew nothing of the methamphetamine, as she stated to the Police Officers. 

Appellant’s contentions

[6]       Mr Speed contended that Crown counsel in her closing address unfairly alleged that the presence of cash indicated that the appellant had been involved in selling drugs.  That comment was referred to by Cooper J in his summing up as follows:

The money that was found in the drawer was alongside a female watch, lip balm, a hairbrush.  Then she invited you to note that the accused accepted that all the money was hers and she submitted that possession of that money was an indication that she may have been dealing in drugs.  She invited you to consider the location of the money that was found …

[7]       Mr Speed’s submission was that the Crown Prosecutor in fact had said that the presence of money equals someone selling drugs and that this was unfair, inappropriate and prejudicial, and not supported by the evidence.  Mr Speed argued that the Prosecutor had not dispassionately and fairly presented the case, and the submission that was made, he said, went beyond permissible bounds.   He also complained that the Judge repeated this submission in a more bland way and did not correct what counsel says was the incorrect impression.

[8]       An essential part of the Crown’s case was that the appellant had possession of the methamphetamine for the purpose of future supply.  Because of the quantity of methamphetamine, the presumption applied.  That did not mean that the Crown could not present evidence, and make submissions, about items of significance pointing towards an intention to supply, quite separately from the application of the statutory presumption.  So, for example, the Crown adduced evidence as to the presence of electronic scales and point bags, which alone might mean nothing.  But in conjunction with the substantial quantity of methamphetamine found together with the cash could be seen as indicating commerciality. 

[9]       Obviously, the Crown invited the jury to accept that the substantial amount of cash found in association with the methamphetamine and other drug related items may have arisen from the sale of drugs or it may have been a capital fund held to acquire future supplies.  Those proven facts left open a number of inferences for the jury.

[10]     Counsel’s endeavour to equate the money with past selling may have put that proposition at too high a level.  But the Judge, in his directions to the jury, made it quite clear that the Crown were inviting the jury to treat the possession of that amount of money as an indication that she may have been dealing in drugs. 

[11]     There is no doubt Mr Speed in his final address to the jury emphasised that that conclusion could not be drawn, given what he said was the unchallenged explanation (or rather a claim she made to the Police Officer) about the source of the cash. 

[12]     We are not satisfied that there was improper conduct on the part of the prosecuting counsel so as to unfairly prejudice the accused.  The large amount of cash and other indicia of commerciality in association with drug related items was prejudicial to the appellant and harmful to her defence, but it was not illegitimately so.  It was not incumbent upon the Crown to leave unanswered, without some submission, the appellant’s claim to the Police seeking to explain the source of her funds. 

[13]     The appellant’s case in the High Court was that she was not in possession of the methamphetamine.  Accordingly possession of the significant amount of money, admitted by her, was relevant and counsel’s submission as to a possible connection between drugs and money was not improper.  This was not a case where a different basis for liability was advanced as against the appellant.  The crucial issue was one of possession.  If proven, it brought into play the presumption, and the jury could not have been distracted from that issue by the Crown’s suggestion that drugs may have been sold in the past.

[14]     We do not accept the Judge left unchecked improperly prejudicial material or that any miscarriage of justice could have arisen as a result of the Prosecutor’s comments.

Cooper J’s directions as to possession

[15]     The second ground of appeal advanced was that the trial Judge’s directions on the issue of possession were inadequate.  Counsel contended the Judge failed to direct on the issue of intention to exercise some degree of custody or control over the methamphetamine.  In dealing with the essentials of possession the Judge said:

In order to establish possession, the Crown must prove beyond a reasonable doubt that the accused knew the methamphetamine was there, she knew that what it was and she had the ability to exercise some degree of custody or control over it, whether exclusively or with other people.  So, this is the first thing that the Crown must prove beyond a reasonable doubt – that she had possession of the methamphetamine in the sense that I have indicated. 

[16]     Counsel for the appellant said that proof of intention to exercise control is an essential ingredient of the crime and the Judge erred in not directing to that effect.  He relied on R v Iese CA188/03 6 November 2003 which applied R v Cossey (1990) 6 CRNZ 185 (CA).  Both Cossey and Iese were concerned with situations where the Crown case was that appellants were in joint possession of controlled drugs for the purpose of sale or supply.  In delivering the judgment in Iese, Tipping J said:

[10]     In a case where the alleged possessor has physical custody or control, it may be possible to infer, indeed is sometimes self evident from the nature of that custody or control, that the person in question has the necessary knowledge and intention.  But where, as here, immediate physical custody or control is in the hands of another person and the possession of the person in question is alleged to be jointly with that other person, the Crown must prove clearly that the alleged joint possessor had both knowledge of the other’s possession and an intention to exercise custody of or control over the items in question in conjunction with that other.

[11]     The appropriate legal direction should always call attention to the need for the requisite intention, albeit in some circumstances the absence of such a direction may not ultimately matter if the presence of that intention is self evident or not an issue.

[17]     Clearly where something is found in the common area of a house, occupied by more than one person, only those who intend to exercise possession of it can be liable, although others may know of its presence, and it was in a place where they could have exercised control over it.  So where there is common or joint possession, proof of the intention to exercise control is required.

[18]     In the present case the Crown’s contention was that the appellant had possession of the methamphetamine in the room used by her and associated with her personal belongings.  Her explanation was that she did not know it was there and knew nothing of it.  But she said to the Police that no-one else used the room as a bedroom and it was just a wardrobe with her clothes in it.  It was a case where it was self evident that possession of the methamphetamine in association with the appellant’s money and personal objects carried with it not only the ability to exercise control, but implicitly the necessary intention to do so. 

[19]     While the Judge did not specifically direct on the element of intention to exercise control, in the circumstances of this case that was self evident.  The Judge did not direct that mere knowledge of the presence of methamphetamine would suffice.  Nor was it a case where there was an evidential basis that there may have been joint possession with someone else.  Whilst it may have been counsel’s submission that the methamphetamine was in the possession of members of the gang, that was purely a submission upon which no direct evidence existed.  The appellant’s comments were not to the effect that the others had possession, but that she “did not know” or “wouldn’t have a clue” who owned or possessed any of the drug items, including the methamphetamine. 

[20]     We are satisfied that the direction as given by the trial Judge was adequate and appropriate in the circumstances of this case.  It was clear and concise and the case turned solely upon proof of possession by the appellant which, once established, required rebuttal of the presumption, which the appellant chose not to do.  The case did not turn upon any contention, or evidential basis put forward to support the proposition that the appellant had joint possession with someone else, and that she had no intention to exercise control over it.

Result

[21]     The jury could not have been left in any doubt as to what was required to be proved in the circumstances of this case, and there is no basis to conclude that its verdict was unsafe.  The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington