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Court of Criminal Appeal 14 August 2003

REGINA v WAN

[2003] NSWCCA 225

Also reported as 140 A Crim R 513
Drugs
POSSESSION OF PROHIBITED DRUGS WHETHER SOLE OR JOINT APPROPRIATE DIRECTIONS CHANGE OF PROSECUTION CASE WHETHER DEFENCE PREJUDICED

Citation: Regina v Wan [2003] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 14 August 2003
Judge(s): Wood CJ at CL, Simpson J, Adams J

Background

The appellant was convicted in the District Court of possessing approximately 14 kilograms of heroin found secreted in a one-bedroom apartment he occupied. The heroin was discovered in a shoebox, a suitcase, and a shopping bag. The appellant's fingerprints were found on packaging inside two of those locations, and tape used on one package matched a roll found in the kitchen.

The appellant's defence was that the drugs belonged to a co-occupant, David Wang, and that he had no knowledge of their presence until Wang directed him by telephone to retrieve a bag from the unit. The prosecution's case was that Wang had nothing to do with the drugs and that the appellant had arranged to deliver a portion of them on the day of his arrest.

At trial, a jury question prompted the trial judge to direct the jury on the legal significance of joint possession. The appellant was convicted and appealed on the grounds that the jury directions on possession were erroneous and inadequate.

  • Whether the trial judge's directions on possession were legally correct, given the evidence that another person may have had access to the drugs
  • Whether it was appropriate to direct the jury that joint possession (acting in concert) could ground a conviction, when the prosecution's primary case was one of sole possession by the appellant
  • Whether the late introduction of the "acting in concert" direction caused prejudice to the defence

Decision

Adams J (with Wood CJ at CL and Simpson J agreeing) dismissed the appeal. The core finding was that a person can be in possession of drugs even if another person also has possession of them at the same time. Joint possession is legally sufficient to establish the offence. It followed that, if the jury found the appellant possessed the heroin, the mere fact that Wang might also have had possession did not require an acquittal.

On the question of the directions, the Court found that the trial judge had correctly identified that there was no evidence Wang was acting in concert with the appellant. The judge directed the jury that, if they could not determine between Wang and the appellant who had possession, they must acquit. In substance, this was the very direction the appellant's counsel contended should have been given.

Regarding the "fourth scenario" (acting in concert) which arose from a jury question, the Court found no error. The trial judge introduced it because it appeared to underlie the jury's query, then immediately told the jury there was no evidence to support that scenario. The Court was satisfied the jury would have understood this as a direction of law, not a mere suggestion of fact. Significantly, senior counsel for the appellant at trial sought no redirection after being invited to do so.

On the question of prejudice from the change in the prosecution's framing, the Court found none. The defence had always been that Wang, not the appellant, possessed the drugs, and no alternative conduct of the trial was identified that could have produced a different outcome. The only disadvantage proposed was the possibility the appellant might have pleaded guilty to obtain a discount, which the Court did not accept as a form of prejudice requiring a different result.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Joint possession of prohibited drugs is legally sufficient to sustain a conviction: a finding that another person also possessed the drugs at the same time does not require an acquittal.
  • Where a prosecution case is primarily put as one of sole possession, a trial judge may still direct the jury on joint possession if the evidence and jury questions make it relevant, provided there is an evidential foundation.
  • No error arose from the trial judge raising and then excluding the "acting in concert" scenario in response to a jury question, where the judge made clear there was no evidence to support it.
  • The Court of Criminal Appeal confirmed that a change in the framing of the prosecution's case does not prejudice an accused unless the defence can identify specific tactical disadvantage in how the case was actually conducted, drawing on the principles from R v Solomon [1980] 1 NSWLR 321 and R v Whitfield [2002] NSWCCA 501.
  • A failure by trial counsel to seek redirection, despite an express invitation, was treated as consistent with an understanding that the judge's direction carried the force of law.

Legislation and Cases Referenced

Legislation
- Section 233B, Customs Act 1901 (Cth)

Cases
- R v Dib (1991) 52 A Crim R 64
- R v Solomon [1980] 1 NSWLR 321
- R v Whitfield [2002] NSWCCA 501