Citation: Regina v Thompson [2000] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 5 July 2000
Judge(s): Mason P, James J, Whealy J
Background
The appellant was convicted in the District Court after a jury trial on one count of supplying a prohibited drug, namely MDMA (methylenedioxymethylamphetamine), contrary to the Drug Misuse and Trafficking Act. Judge Morgan sentenced him to 350 hours of community service rather than a custodial term. The conviction rested on constructive possession: the Crown argued the appellant was guilty of supply by virtue of possessing not less than the trafficable quantity of the drug.
The drugs were found during a police search of a terrace house in Drummoyne, a property owned by the appellant's grandparents and occupied primarily by his childhood friend Jack Anslow. The 18 tablets were located inside a glass spectacle case bearing the appellant's name, which was on the dining room table. The appellant denied any knowledge of the drugs and suggested Anslow was responsible.
At trial, the appellant gave evidence that he stayed at the premises only one or two nights per week and that after his arrest he tracked down Anslow and told him to "sort it out." His post-arrest statement to police similarly pointed away from himself and toward another person as the owner of the drugs.
Legal Issues
- Whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant possessed the prohibited drug found in his named glass case
- Whether the jury could rationally exclude the hypothesis that police officers who did not give evidence at trial had planted the drugs in the appellant's case to frame him
- Whether the absence of certain police witnesses (Arahill, Rawson, and Walker) from the Crown's case gave rise to an unreasonable verdict
Decision
The central challenge on appeal was whether the jury could exclude a reasonable hypothesis of innocence: specifically, that one of the police officers who did not testify at trial had found the drugs elsewhere in the house and dishonestly placed them in the appellant's glass case. James J examined the evidence carefully and concluded the jury was entitled to reject this hypothesis.
The court noted several features of the evidence that supported the jury's verdict. Detective Sergeant Keegan's entry into the dining room was spontaneous and unplanned, occurring after she believed she had finished her search of the premises. There was no evidence to suggest any other officer could have anticipated her decision to conduct that further search, making it implausible that a planting scheme could have been orchestrated to coincide with her finding.
As for the absent police witnesses, uncontested evidence at trial explained the absence of Arahill (suffering from post-traumatic stress disorder and unlikely to return to duty) and Rawson (residing in the United Kingdom). No Jones v Dunkel direction was sought or given in respect of those absences. Importantly, the appellant's own trial evidence provided information about both Arahill and Rawson that the court found the jury could reasonably have treated as diminishing any reasonable inference of planting by those officers.
The court also noted that the jury was entitled to take a dim view of the appellant's credibility. His evidence about the frequency of his stays at the house appeared inconsistent, and the jury could have concluded he was more regularly present than he acknowledged. All three judges agreed the appeal should be dismissed.
Orders Made
- Appeal against conviction dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a jury is entitled to reject a hypothesis of police planting where the evidence discloses no realistic opportunity for the alleged misconduct to have been orchestrated.
- A conviction based on constructive possession of a trafficable quantity of a prohibited drug can stand where the prohibited substance is found inside an item bearing the accused's name, even without fingerprint evidence directly linking the accused to the drugs.
- Where the absence of Crown witnesses is explained by uncontested evidence at trial, and no Jones v Dunkel direction is given or sought, that absence does not automatically undermine the safety of a conviction.
- An accused's own trial evidence can cut against their credibility and, paradoxically, against the very hypothesis of innocence they advance, if that evidence provides information that the jury could use to assess the plausibility of the alternative scenario.
- Sufficient evidence existed to support the jury's finding of guilt beyond reasonable doubt, notwithstanding that three police officers who participated in the search did not give evidence for the Crown.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25 (offence of supplying a prohibited drug)
Cases:
- Jones v Dunkel (the "uncalled witness" inference rule, referenced in the context of whether a direction should have been given regarding absent police witnesses)