Dzundza v Gale [2010] ACTSC 129 (14 October 2010)

Last Updated: 27 October 2010

PETER DANIEL DZUNDZA v MATTHEW JOHN GALE [2010]

ACTSC 129 (14 October 2010)

EX TEMPORE JUDGMENT

Drugs of Dependence Act 1989 (ACT)

Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 62 of 2009

Judge: Penfold J

Supreme Court of the ACT

Date: 14 October 2010

IN THE SUPREME COURT OF THE )

) No. SCA 62 of 2009

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PETER DANIEL DZUNDZA

Applicant

AND: MATTHEW JOHN GALE

Respondent

ORDER

Judge: Penfold J

Date: 14 October 2010

Place: Canberra

THE COURT ORDERED THAT:

(a) The appeal is upheld.

(b) The finding of guilt, the conviction and the penalty imposed are set aside.

(c) The appellant is not guilty of the offence of possessing methylamphetamine.

Introduction

1. Peter Daniel Dzundza appeals against his conviction on 19 October 2009 for possession of methylamphetamine.

Magistrates Court Proceedings

2. The evidence before Magistrate Fryar was as follows:

(a) The drug concerned was found in clipseal bags at the bottom of a cigarette packet which also contained several cigarettes and a lighter.

(b) The cigarette packet was found in the centre console of a vehicle owned by the appellant, who was driving the vehicle when it was stopped and searched pursuant to a Drugs of Dependence Act 1989 (ACT) search warrant.

(c) Under the cigarette packet was a bunch of keys which the appellant admitted were his but which, he said, were only used towards the end of the week and on weekends – the appellant was stopped by police on a Wednesday.

(d) DNA that seemed highly likely to have come from the appellant was found on the cigarette lighter inside the cigarette packet (the figure given in evidence was that it was 20,000 times more likely to be the appellant’s DNA than that of another unknown unrelated person from the ACT population). No evidence was given that any DNA was found on either the cigarette packet or the bags in which the drugs were found.

(e) The appellant was the only person who had driven the vehicle during the preceding week, but he had given lifts in the vehicle to three or four other people. Sometimes he gave people lifts home after a night socialising at the local tavern. He was not sure if any of his passengers had touched the centre console, and would not necessarily have seen it if they had.

(f) The appellant had given up smoking one to two weeks before the cigarette packet was found in his vehicle. He did not believe any of his passengers had smoked in his vehicle in the preceding week.

(g) He had never seen either the cigarette packet or the lighter before.

3. Her Honour applied the following reasoning process to that evidence:

(a) The cigarette packet containing the drugs was found in the appellant’s vehicle, in the centre console immediately beside the driver’s seat. The only other people in the car during the previous week were in the car when the appellant was driving it, so they had no opportunity to open the centre console and put the cigarette packet in there without the appellant having the opportunity to observe that.

(b) It is inherently improbable (because it flies in the face of human nature) that the owner of the drugs, which were presumably of value, would have left the cigarette packet which contained them secreted, out of sight, in a vehicle to which the owner did not have regular access.

(c) The cigarette packet was easily seen when the centre console lid was opened and it was on top of a set of keys, so it was inherently unbelievable that the defendant had never seen it before.

(d) There is strong and rational inference from these findings that the appellant was the owner of the cigarette packet. Another inference, that another person who was the owner of the cigarette packet left it in the centre console while travelling in the vehicle, is consistent with the evidence but “is not a reasonable hypothesis and can be rejected in its entirety”.

(e) Having found that the cigarette lighter and the cigarette packet belonging to the appellant, it follows that the appellant must have known of the contents of the packet, including the drugs in the clipseal bags. The appellant was therefore in possession of the drugs, and the offence is proven.

The appeal

4. Her Honour’s reasoning process was unobjectionable to the extent that she drew the entirely rational inference that the appellant owned the cigarette packet, knew that it was in his vehicle, and knew that it contained drugs. She could legitimately have been satisfied that it was probable, or even very likely, that the appellant had been in possession of the drugs.

5. However, that is not enough to meet the criminal standard of proof. As her Honour noted, there was another hypothesis to explain the presence of the drugs in the appellant’s vehicle, that being that one of the people who had been in his vehicle during the week had left the cigarette packet and its contents in the centre console.

6. In rejecting that hypothesis as not reasonable, and therefore rejecting the existence of another rational inference that could be drawn from the evidence before her, her Honour relied on several more or less explicit assumptions, including the following:

(a) That no passenger would have been able to put the cigarette packet into the centre console without the appellant having noticed.

(b) That no passenger would have left a cigarette packet containing valuable drugs in someone else’s vehicle to which they did not have regular access.

(c) That the appellant must have opened the lid of the console since the last time he had a passenger in the car.

7. Her Honour also mentioned the DNA evidence that the appellant had touched the cigarette lighter.

8. Both counsel agreed that the position on the use of circumstantial evidence in a case of this sort was set out in the judgment of Dixon CJ in Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 243, where he said:

If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.

9. It is apparent that the three assumptions that I have identified as those on which her Honour’s findings relied do not have a particularly high degree of probability at all.

(a) Her Honour found that no passenger would have been able to put the cigarette packet in the centre console without the appellant having noticed – but a driver who is concentrating on things going on outside the car, which of course any sensible driver should be doing, could easily miss a passenger casually opening the centre console and dropping the cigarette packet in, all the more so if this happened at night.

(b) Her Honour found that no passenger would have left a cigarette packet containing valuable drugs in someone else’s vehicle to which they did not have regular access – but a passenger could easily have left his or her belongings, however valuable, in the vehicle unintentionally; all of us have done that at some time in our lives.

(c) Her Honour assumed that the appellant must have opened the lid of the console since the last time he had a passenger in the car – but unless a particular item that is used regularly is kept there, a driver could easily go for days without opening the centre console on his car.

10. That is, her Honour has relied on the assumptions identified, none of which is in fact indisputable “according to the common course of human affairs”, to exclude an otherwise rational inference consistent with the appellant’s innocence.

11. As for the cigarette lighter, the fact that the appellant had touched it does not prove when or in what circumstances he touched it, or that he had put it into the cigarette packet. His denial of having seen the cigarette lighter could affect his credibility to a minor degree, and may for that reason have influenced her Honour’s attitude to his other evidence, but it goes nowhere near propping up the prosecution case to the extent necessary for the finding of guilt to be sustained.

Findings

12. In those circumstances, the finding of guilt, the conviction and, if necessary, the penalty imposed, are set aside, and a finding that the appellant is not guilty is recorded.

Orders

13. The orders are as follows:

(a) The appeal is upheld.

(b) The finding of guilt, the conviction, and the penalty imposed are set aside.

(c) The appellant is not guilty of the offence of possessing methylamphetamine.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 14 October 2010

Counsel for the applicant: Mr M O’Brien

Solicitor for the applicant: Legal Aid (ACT)

Counsel for the respondent: Ms S McMurray

Solicitor for the respondent: Director of Public Prosecutions (ACT)

Date of hearing: 14 October 2010

Date of judgment: 14 October 2010