R v Rees [2006] ACTSC 27 (10 April 2006)

Last Updated: 22 May 2006

R v GWYN ALUN REES [2006] ACTSC 27 (10 APRIL 2006)

CRIMINAL LAW - trial by judge alone - drug offences - possession of prohibited substances for sale or supply - exclusive possession - drugs found in bedroom occupied by accused - circumstantial evidence of exclusive possession and knowledge - no reasonable possibility of access by other persons - finding of guilt in respect of first count.

Drugs of Dependence Act 1989 (ACT), ss 164(2), 164(8), 169(1), 171(1), Div 11.3

Supreme Court Act 1933 (ACT), s 68C

R v Rees [2005] ACTSC (23 September 2005)

R v Tran [2003] ACTSC 53

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

The Queen v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89

R v Filipetti (1984) 13 A Crim R 335

No. SCC 254 of 2004

Judge: Gray J

Supreme Court of the ACT

Date: 10 April 2006

IN THE SUPREME COURT OF THE )

) No. SCC 254 of 2004

AUSTRALIAN CAPITAL TERRITORY )

R

v

GWYN ALUN REES

ORDER

Judge: Gray J

Date: 10 April 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The accused is guilty in respect of the first count on the indictment.

2. It is unnecessary to make a finding of the second count.

3. The accused is acquitted in respect of the third count on the indictment.

1. On 1 August 2004, Gwyn Alun Rees (the accused) pleaded not guilty to charges that:

(1) on 14 November 2003 at Canberra in the Australian Capital Territory he possessed a traffickable quantity of a prohibited substance, namely 3,4 - methylenedioxy-N,alpha-dimethylphenylethylamine (MDMA) for the purpose of sale or supply;

(2) on 14 November 2003 at Canberra aforesaid he possessed a prohibited substance, namely 3,4-methylenedioxy-N,alpha-dimethylphenylethylamine (MDMA);

(3) on 14 November 2003 at Canberra aforesaid he possessed a drug of dependence, namely cocaine.

These are offences under ss 164(2), 171(1) and 169(1) of the Drugs of Dependence Act 1989 (ACT) respectively.

2. The accused elected for trial by judge alone.

3. A pre-trial hearing took place as to the admissibility of evidence obtained as a consequence of a police search of premises occupied by the accused and the admissibility of a conversation between police officers and the accused. On 23 September 2005 I ruled that the evidence obtained as a consequence of the search was admissible but the evidence of the conversation was not (R v Rees [2005] ACTSC 91 (23 September 2005)). Also, the parties requested that a witness give evidence by way of a voir dire hearing as the witness had not been called at the committal.

Directions

4. On 21 March 2006, the trial proceeded before me. As a trial by judge alone, the procedures are those set out in s 68C of the Supreme Court Act 1933 (ACT). My findings are to have the same effect as a verdict of the jury. My judgment is to include the principles of law that I apply and the findings of facts upon which I rely.

5. I give myself the following general directions:

The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

(See R v Tran [2003] ACTSC 53 at [4] and [5].)

The general course of the proceedings

6. There was no dispute as to the evidence upon which I am called upon to act. Various matters which had been evidence in the pre-trial hearing were admitted by consent. In addition, the evidence of the owner of the property which was called on the pre-trial hearing at the accused's request was also relied upon. That evidence was not called at committal but was not the subject of cross-examination by the accused for reasons that will become apparent.

7. The accused did not give evidence. In effect, the prosecution were put to proof, that is that a consideration of the whole of the evidence adduced by the prosecution did not establish beyond reasonable doubt that the accused could be said to be in possession of the drugs. In that regard, the fact that the accused did not give evidence is not a matter that can effect my consideration of whether the prosecution has made out its case or be used or make weight in considering whether the prosecution has proved the charges beyond reasonable doubt. The onus of proof is always on the prosecution to establish its case beyond reasonable doubt and, as a general rule, there cannot be an expectation that an accused give evidence at trial (cf Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at 64).

The third charge

8. In respect of the third charge, no analyst's certificate was tendered to support that charge. That was, as I understand it, because the certificate could not go beyond indicating a trace of the substance the subject of the charge. In that circumstance, there was no evidence to support the charge and accordingly, at the close of the case for the prosecution, I ordered that the accused should be acquitted of that charge.

The prosecution case

9. The prosecution case relied upon evidence obtained as a consequence of a search by the Australian Federal Police on 14 November 2003 in the execution of a search warrant granted pursuant to Division 11.3 of the Drugs of Dependence Act 1989. That search warrant was directed to premises at 5 Lewin Street, Lyneham. As it subsequently appears, the accused was an occupier of those premises. During the search of one of the bedrooms in the premises, police located a number of items, one of them being a sunglasses case which was inside a suitcase by the bed in that room. Inside the sunglasses case were a number of items inside a large clipsal bag. In that bag there were six tablets found to contain MDMA and there were six smaller clipsal bags with distinctive blue star markings on them. In respect of five of those clipsal bags, there were a number of tablets each containing MDMA. The total number of tablets found was 43. An analysis of the tablets found showed a total weight of pure MDMA of 2.1 grams. In the bedroom the police also found the sum of $1,800.00 in cash (all in $50.00 notes) in a book on the dressing table. There were also several small plastic bags identical to those located in the sunglasses case also on the dressing table. They were identical in the sense that they also exhibited the distinctive star pattern. Personal papers in the name of the accused were also located in the bedroom.

10. The accused was not the owner of the premises. The premises were owned by a company whose principal was Mr Brett Morgan. For reasons that have not been adequately explained, Mr Morgan was not called to give evidence at the committal. His evidence was taken on the voir dire and was admitted on the trial with the consent of both parties. His arrangement with the accused was that, in return for the accused looking after his house and dog, the accused could have the run of the house. Mr Morgan retained a bedroom in the house which he used from time to time. The accused had a bedroom in which Mr Morgan said the accused kept all his personal belongings. This he identified as the bedroom in which the police found the drugs. He said that none of the items seized by the police were his.

11. Mr Gill, who appeared as counsel for the accused, relied particularly upon the following passages in Mr Morgan's evidence:

Was there anyone else living at the premises in November 2003?---Yes - beside myself and Gwyn?

Yes?---Living there? No not living, but people were coming and going in that house. There would've been people coming and going but no one actually living. The arrangement with Gwyn was basically he could use the house whilst I was away. There was no rent agreement, but I had no problems with people staying over or that sort of thing, so. No one living there, but I was away so there could be people staying there, so.

So you were away - - -?---I basically let Gwyn run - yes I gave him run of the - he could chose if people stayed over or not. So I didn't, "no one can stay" so I wouldn't know if there were people ... staying or not. I could be wrongly stating that no one else was there because we had barbeques and things where people would stay over in the house and friends staying in the lounge room, so. I have been back there and there's some people there at some stage, you know, watching [telly], you know, that sort of thing.

12. Primarily because of this evidence, Mr Gill submitted that I could not be satisfied beyond reasonable doubt that the accused had possession of the drugs found in his room. He relied particularly upon The Queen v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89. I take up in that case the exposition of what I should apply as a matter of law as to the concept of possession. In that case, Giles JA said, at 90 [9]:

Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody (He Kaw The [1985] HCA 43; (1985) 157 CLR 523 at 537-539, 546, 585-587, 599-600; [1985] HCA 43; 15 A Crim R 203 at 212-214, 219, 248-249, 258-259). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared (Dib (1991) 52 A Crim R 64 at 66-67). It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons - that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in Filippetti (1984) 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred: see also Bazley (unreported, Court of Criminal Appeal, NSW, No 215 of 1988, 23 March 1989) and Sobolewski (unreported, Court of Criminal Appeal, NSW, No 60502 of 1997, 21 April 1998).

13. The gravamen of what Mr Gill put to me on the issue of possession related to the possibility that a person other than the accused could be said to be the possessor of the drugs found by the police and, further, that the prosecution could not show knowledge on the part of the accused of the drugs that the police found. Both those aspects of possession have to be proved beyond reasonable doubt before the accused could be found guilty of the charges.

14. He relied upon Mr Morgan's evidence of people coming and going in the house, staying in the lounge room and the licence given to the accused to choose if people stayed over or not. However, looking at all the evidence, this evidence does not, in my mind, give rise to the reasonable possibility that other persons had such free access to the accused's bedroom for the accused to be said to not be in exclusive physical control of the drugs. This is not a case like R v Filipetti (1984) 13 A Crim R 335 where the evidence showed that the lounge room in which the drugs were found concealed in that case was freely accessed by all six occupants of the house. Nor is it the case like R v Amanatidis (supra) where the accused's car was also able to be accessed by the accused's daughter and the drugs were found in a cigarette packet of a brand she smoked as well as other items of her property being found in the car.

15. The evidence establishes that the drugs were found in a room which was clearly occupied by the accused. The room, particularly as depicted in the photographs tendered by the prosecution, would seem to be the province of a single person as far as Mr Morgan's evidence was concerned, and the only other person occupying the premises other than Mr Morgan was the accused. In that room there were, in plain view, a number of distinctively marked small plastic bags which could fairly be associated with the same marked plastic bags in respect of which the drugs were found. The fact that there was a significantly large sum of money, namely, $1,800.00 all in $50.00 notes, found on the dressing table partially concealed in the leaves of a book is also a factor of some significance. There is nothing to indicate that the clothing and shoes found by the police to be also in the bag containing the glasses case were the property of some person other than the accused. Taking into account the evidence given by Mr Morgan, which does not of itself provide a premise of access by others to the accused's bedroom, I consider that knowledge of the drugs by the accused is the only rational inference available.

16. To me, the clear inference from all of the material that has been put as evidence before me is that the drugs found in the sunglasses case in the bag adjacent to the accused's bed was in the exclusive possession and control of the accused and, on the evidence before me, I am also satisfied beyond reasonable doubt that the accused knew that the drugs were there. The element of possession for the purposes of the offence is made out. The quantity of drugs being in excess of a prescribed amount, the accused is deemed to be in possession of that quantity for the purposes of sale or supply (s 164(8) of the Drugs of Dependence Act 1989 (ACT)). No evidence was offered to rebut that presumption. I find the accused guilty in respect of the first count on the indictment. It is unnecessary to make a finding on the second count. I have already acquitted the accused in respect of the third count.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 10 April 2006

Counsel for the prosecution: Ms M Jones

Solicitor for the prosecution: ACT Director of Public Prosecution

Counsel for the accused: Mr S Gill

Solicitor for the accused: S & T Lawyers

Date of hearing: 21 March 2006

Date of judgment: 10 April 2006