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Court of Criminal Appeal 16 November 2007

DAVIES v REGINA

[2007] NSWCCA 316

Drugs
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST CONVICTION PARTICULAR OFFENCES DRUG OFFENCE POSSESSION OF PROHIBITED SUBSTANCE

Citation: Davies v Regina [2007] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 16 November 2007
Judge(s): Mason P, James J, Howie J

Background

The appellant was convicted in the District Court of supplying heroin. The charge arose from a police search of a North Gosford home unit on 8 January 2005, where officers discovered a locked blue box inside a locked bedroom. The box contained 9.4 grams of heroin, nearly $10,000 in cash, cheques made out to the appellant, and jewellery receipts bearing her name.

The unit's legal occupier was the appellant's aunt, Lorraine Studeman, who stated that she alone lived there. The appellant visited the unit regularly but was not the leaseholder. Because the quantity of heroin exceeded the trafficable threshold under the Drug Misuse and Trafficking Act 1985, proof of possession was sufficient to deem the possessor a supplier.

Both Ms Studeman and the appellant's son were called as Crown witnesses and declared unfavourable, allowing the Crown to cross-examine them on prior inconsistent statements. The appellant exercised her right to silence and did not give evidence at trial.

  • Whether the verdict of guilty was unreasonable having regard to the evidence, given that the Crown's case was entirely circumstantial
  • Whether the jury was entitled to be satisfied beyond reasonable doubt that the appellant possessed the heroin, in circumstances where the unit was occupied by another person
  • Whether the evidence left open a reasonable possibility that someone other than the appellant owned or controlled the blue box and its contents

Decision

Mason P (with whom James J and Howie J agreed) applied the well-established principle from R v Amanatidis that criminal possession requires both physical control or custody of an item and knowledge of that control. Crucially, custody shared with other persons must be to the exclusion of everyone else. The mere fact that multiple people had access to a space does not, without more, establish possession by any one of them.

The Crown built its circumstantial case around four main pillars: the appellant's ready access to the unit and her aunt's bedroom (supported by personal belongings and medication found there); casino cheques made out to the appellant found inside the locked box; jewellery receipts bearing her name inside the same box; and Ms Studeman's statement to police, captured on video, that the box belonged to "Marie." Mason P found it open to the jury to reject the competing explanations offered by defence witnesses, including Ms Studeman's later claim that her remark had referred only to the methadone.

The defence pointed to Ms Jasmine, a witness who said she had seen the blue box open in the lounge room on an earlier occasion when the appellant was not present, and to unidentified items in the box that could not be attributed to the appellant. Mason P rejected both arguments. The unexplained items were characterised as simply neutral, and Ms Jasmine's evidence was found to do very little to displace the inference that the appellant owned and controlled the box at the critical time.

The Court concluded that the totality of the evidence permitted the jury to be satisfied beyond reasonable doubt of the appellant's guilt, and that the jury should not have been left with a reasonable doubt. The appeal was dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Criminal possession requires both physical control or custody of an item and knowledge of that control; access to a space shared with others does not, by itself, establish possession by any individual occupant.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a circumstantial case can sustain a conviction for possession of prohibited drugs even where the legal occupier of the premises is a different person.
  • Under section 29 of the Drug Misuse and Trafficking Act 1985, proof of possession of heroin above the trafficable quantity gives rise to a presumption of supply, making possession the central factual question at trial.
  • Where Crown witnesses are declared unfavourable, the jury may reject their exculpatory testimony at trial in favour of earlier inconsistent statements made to police, including statements captured on video.
  • Neutral or unexplained evidence (such as unidentified items found alongside the accused's belongings) does not, of itself, generate a reasonable doubt about ownership of the primary items in dispute.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 29

Cases:
- R v Amanatidis [2001] NSWCCA 400, 125 A Crim R 89
- He Kaw Teh (1985) 157 CLR 523 (cited within Amanatidis principles)
- Filippetti (1984) 13 A Crim R 335 (cited within Amanatidis principles)
- Dib (1991) 51 A Crim R 64 (cited within Amanatidis principles)