Citation: R v Matthews; R v Williams [2004] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 4 August 2004
Judge(s): Simpson J (primary judgment), Sperling J, Bergin J
Background
Two appellants, a truck driver and his passenger, were convicted in the District Court following a six-day jury trial on two drug charges each: supply of not less than the commercial quantity of cannabis leaf, and supply of not less than the traffickable quantity of methylamphetamine. The charges arose from a police operation on the Sturt Highway at Hay, NSW, in March 2001. When police stopped the semi-trailer and deployed a drug detection dog, officers discovered more than 33 kilograms of cannabis leaf, with an estimated street value of up to $1.65 million, concealed in boxes and drums in the trailer.
A separate search of the cabin uncovered a leather pouch hidden in an air vent containing 9.65 grams of methylamphetamine. Both appellants admitted ownership of the drugs found in the cabin but denied any knowledge of the cannabis in the trailer. At trial, neither disputed that the cannabis was physically present in a vehicle they occupied; the sole issue in contest was whether each of them knew the cannabis was there.
Both appellants appealed their convictions on the cannabis supply charges only. They did not challenge the methylamphetamine convictions.
Legal Issues
- Whether each appellant had the requisite knowledge of the cannabis in the trailer to establish possession under the Drug Misuse and Trafficking Act 1985
- Whether the trial judge's directions to the jury on knowledge of the cannabis were adequate and correct
- Whether the trial judge's direction on tendency or coincidence reasoning (under s 97 and s 98 of the Evidence Act 1995) was sufficient
- Whether the trial judge's direction on the legal concept of possession was adequate
- Whether the jury's guilty verdicts on the cannabis charges were unreasonable or unsupported by the evidence
Decision
The Court of Criminal Appeal dismissed both appeals. Simpson J, with whom Sperling and Bergin JJ agreed, worked through each ground of appeal in turn and found none to be established.
On the knowledge issue, the Court affirmed the principle from He Kaw Teh v The Queen (1985) 157 CLR 523 that mere physical possession of a prohibited drug is insufficient for a conviction under s 25(2) of the Act. The Crown must also prove beyond reasonable doubt that the accused knew of the existence of the drug. The trial judge's directions were assessed against this standard, and the Court found that the directions adequately conveyed the requirement of knowledge to the jury.
On the tendency and coincidence direction, leave to argue this ground was refused. The Court found that the summing-up had accorded with the applicable principles, and the relevant passages identified by Sperling J confirmed no error warranting intervention.
On the unreasonable verdict ground, the Court held that it was open to the jury to infer, from all the evidence, that each appellant knew the cannabis was in the trailer. The Crown's case was essentially circumstantial, directed at eliminating the possibility that a third party had loaded the cannabis without the appellants' knowledge. The Court found that if the cannabis had been loaded before the trip, it was open to infer that those responsible would have informed at least the driver, and that the driver would in turn have informed his passenger given the risks of the enterprise. Participation in transporting the cannabis with knowledge constituted legal possession sufficient to support the verdicts.
Orders Made
- Appeal dismissed in the case of each appellant
Key Takeaways
- A conviction for supply of a prohibited drug under s 25 of the Drug Misuse and Trafficking Act 1985 requires the Crown to prove, beyond reasonable doubt, that the accused knew of the existence of the drug. Physical presence in a vehicle carrying drugs is not, by itself, sufficient.
- The Court of Criminal Appeal confirmed the principle in He Kaw Teh v The Queen (1985) 157 CLR 523 that knowledge of the drug's presence is an essential element of possession in this context.
- Where a Crown case on knowledge is circumstantial, a jury may draw inferences from the totality of the evidence, including the manner in which drugs were loaded and transported, to conclude that an accused had the requisite knowledge.
- Sufficient evidence existed here for the jury to find joint possession: active participation in transporting the cannabis, including sharing driving duties, was capable of establishing legal possession once knowledge was also inferred.
- In dismissing both appeals, the Court found no material error in the trial judge's directions on knowledge, possession, or tendency and coincidence reasoning.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Evidence Act 1995 (NSW), ss 97, 98
- Crimes Act 1958 (Vic), s 47A
Cases:
- He Kaw Teh v The Queen (1985) 157 CLR 523
- KRM v The Queen [2001] HCA 11; 206 CLR 221
- M v The Queen (1994) 181 CLR 487
- R v Filippetti (1978) 13 A Crim R 335
- The Queen v Myall (1986) 43 SASR 258
- R v Duong [2003] NSWCCA 55
- R v Anderson (unreported) NSWCCA, 15 December 1983
- R v Bazley (unreported) NSWCCA, 23 March 1989
- R v Burns (unreported) NSWCCA, 19 August 1988