Atholwood v The Queen P35/2000 [2000] HCATrans 637 (27 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P35 of 2000

B e t w e e n -

DAVID JAMES ATHOLWOOD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 11.21 AM

Copyright in the High Court of Australia

MR R. RICHTER, QC: If the Court pleases, I appear for the applicant.. (instructed by Pryles & Defteros)

MR S.P. PALLARAS, QC: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions for Western Australia)

McHUGH J: Yes, Mr Pallaras. Yes, Mr Richter.

MR RICHTER: If the Court pleases, the question that arises from the circumstances in the judgment in this case is whether the applicant lost a reasonable or a sensible opportunity of an acquittal by reason of the directions of the trial judge on the issue of the elements of possession. As the case proceeded and as the evidence unfolded, it was clear that what was in issue was the question of whether or not the applicant had knowledge of the buried drugs. That was only one issue. What was in issue was the question of whether or not the applicant was in possession of the buried drugs, and those are two very, very different things.

In my respectful submission, there is a tendency to confuse those two in cases of this type where, in a direction to the jury, a case in which an accused denies knowledge of the substance is simply left to be resolved on the issue of whether or not he knew the substance and the question of possession then follows accordingly.

McHUGH J: But the trial judge's directions, read as a whole, went beyond that, did it not?

MR RICHTER: With respect, no, and the reason I submit that it did not is because the whole emphasis was not on the residual question that arises, if there is knowledge. The applicant gave evidence in which he denied knowledge but he also gave other significant evidence of the existence of another gentleman who had keys, who stayed at his place from time to time and who had drugs there.

McHUGH J: I thought that Mr Holmes had given evidence that only your client had the key - - -

MR RICHTER: He gave evidence that he gave my client the key but he also gave evidence that on a subsequent occasion when he tried to get into the house the lock had been changed. So one is not in a position to say, on the evidence, that there was only the one key and, even if Mr Holmes had not given the evidence that the lock had, in fact, been changed and he could not open it with his key, there would have still been the obvious possibility of a copy being made of the key and supplied to the other fellow. That is why we say that in the way that the case went to the jury, it removed the following possibility, that the drugs were known to have been buried or drugs were known to have been buried in the backyard, in the shed, and that was, by the way, not, of course, the area in which the cannabis was grown in respect to which the applicant pleaded guilty.

There is a possibility that the other gentleman had buried the drugs there and that my client knew that something had been buried there, or even thought that drugs had been buried there, but for all intents and purposes wanted nothing to do with it and had nothing to do with it. This in circumstances where he had given evidence that his occupancy of the house was essentially that of a house-sitter who was put there by this other gentleman to cultivate the cannabis in the garage in circumstances where the other gentleman was paying the rent. He was giving my client the money and the promise of giving him a share of the cannabis crop.

Now, true it is, and we have to concede that it was obvious that when the accused gave evidence, he was shown to have lied on a number of occasions. He was not demonstrated to have lied in court, but he was shown to have lied on a number of occasions. For example, his evidence in court was that he had known this other gentleman since about 1992/93. He was cross-examined about a statement he had made to the police with respect to the death of that gentleman, because he had found him dead at some other place, in which he claimed only to have known him for a short time.

The thrust of the evidence and the upshot of the cross-examination was that the accused did not concede the truth of that statement that he had made for the coronial process. He said that he had obviously not told the truth there because he was concerned that someone might cast some questions with respect to complicity or association with the deceased with regard to the deceased's death, so that he gave an explanation. The state of the evidence, therefore, is not, and was not, that he had agreed that he had only known the gentleman a very short time.

His evidence was that he had known him for a number of years, that the fellow had given him the money to pay the rent, in return for which he was to cultivate or help cultivate the hydroponic cannabis in the garage, and not in the shed, and that he would get some portion of that crop. He claims not to have known that there was anything buried in the shed. The jury obviously disbelieved him.

HAYNE J: There were three possibilities that you say fell for consideration: the accused says, "I did not know they were there"; the accused did know they were there but they were the other man's; the accused knew that they were there and they were his.

MR RICHTER: Yes.

HAYNE J: The case of the accused at trial was, "I did not know they were there".

MR RICHTER: That is right.

HAYNE J: You say the directions of the judge did not sufficiently invite attention to the issue of were they his or the accused's?

MR RICHTER: No. The directions of the judge did not invite attention to the intent required to establish possession in him. That intent - - -

HAYNE J: As to that, what do you make of page 16, lines 34 to 42?

MR RICHTER: Sixteen of the?

HAYNE J: Application book.

MR RICHTER: Application book.

HAYNE J: In particular, the direction to the jury that they had to be satisfied that they, that is, the drugs, were in his custody:

physical custody or under his control or dominion and that he knew he had them - - -

MR RICHTER: That was not in terms of the - "and that he knew he had them"? There was never any question that being buried in the yard, it could be said that he had physical custody if he knew them. The real problem is that the question of actual custody itself imports a state of mind and requires a state of mind. One cannot talk in terms of someone having physical custody without that person having knowledge. That much we know from He Kaw Teh and from the development of the law in that sort of context.

There is a confusion between the intent to exercise dominion and control and the knowledge required to have dominion and control. In other words, if they jury had said, "We do not believe him when he says he did not know that some drugs were buried in the backyard", they would then have been, if the elements had properly been put to them, confronted with the question, "But is it proof beyond reasonable doubt that he had an intention to exercise dominion and control over the drugs?" Or is it the case, as he told the police at the time they came, "I do not know anything about it. It has nothing to do with me". That is what he told the police officers at the time of the search.

Now, that possibility was simply not open to the jury on the directions, as given, because there was a confusion, in my respectful submission, as to the state of knowledge that is required to actually show control and dominion as against the mens rea, which is a broad term capable of covering both states of knowledge and intent, but as against the mens rea which is required by the second element of possession which is the mental element, namely, the intention to exercise some control and dominion or, as was expressed in Lai's Case (1990) WAR which is referred to in our state of authority, exhibiting in some way - and this is at page 155, where Justices Wallace and Nicholson said this:

It is now well settled that such possession requires -

this is a situation in which drugs were hidden in the ceiling of a restaurant of which there were two people who had some connection with it -

either actual physical custody or alternatively, de facto custody in the sense that the accused person may be said to exercise control and dominion over the article in question. That, of course, may follow if it could be established beyond reasonable doubt that the accused person knew of the existence of the package in question in the ceiling over the toilet in his restaurant because it was his restaurant. However, as was decided in R v Solway.....before a person can be said to be in possession of a prohibited plant or a dangerous drug it may be necessary to show that he not only knew of its existence but laid some claim to it or exercised some control over it -

Now, that is, an insight - - -

HAYNE J: As to that, what do you say as to the directions at page 13, lines 36 to 55?

MR RICHTER: As to the meaning of the inclusive definition in the - - -

HAYNE J:

"To possess" includes to control or to have dominion over -

What is missing there?

MR RICHTER: What is missing there is to have the intent to do so, not just a question of actual control and dominion with knowledge, control and dominion in the sense that a jury might understand that, for example, someone who occupies a house might have control by locking it up and precluding others from coming into the back garden. That would not be sufficient. That is why - - -

McHUGH J: But another stage is the judge said two persons can have possession. She explained them. Really, this is an argument that might appeal to a medieval schoolman, but, really, having regard to the summing up, to suggest that there is any miscarriage of justice in this case borders on the preposterous, Mr Richter. It really does.

MR RICHTER: Well, in my respectful submission, the law requires the elaboration of the appropriate elements and leaving them to the jury. When a Court of Appeal has to go to the extent of trying to construe what the judge is, in fact, trying to tell the jury, which is - - -

HAYNE J: That, I fear, is what counsel invite Courts of Appeal to do repeatedly, Mr Richter. They spend their time analysing and parsing.

MR RICHTER: They do that except for this, that one goes back to law school and the first thing that we all learnt about possession, well, at Melbourne University, was that possession came in two parts. One was the control and dominion. The other was the intent to exercise control and dominion.

The problem with this case is that the elements were not left to the jury in those terms, never left to the jury in those terms, and the directions as they were given, and especially the redirection that her Honour gave to the jury when they expressed the concern that they had - they obviously had not understood the definition of "possession" - especially the redirection, created a situation in which it was apparent, in my respectful submission, that the accused never had the chance of being acquitted on the basis of, "We do not believe you when you say you did not know it was there, but we have a reasonable doubt that you had no intention to do anything with respect to those drugs". So it was that opportunity of which he was deprived because in the redirection her Honour says this:

In summary, ladies and gentlemen, you cannot be satisfied the accused was in possession of any of these drugs unless you're satisfied that he had both physical custody or control or dominion over the drugs with knowledge, that is, that he knew they were prohibited drugs and he knew he had them in that ammunition tin in the shed.

That is just too confusing for a jury which has expressed its confusion because what her Honour is there saying is that - and she is using a concept of guilty knowledge - having made that the central focus of the contested issue, which it was, but it is not the central element of possession in terms of intent. It is one of the features. One cannot have an intent to exercise control and dominion over something if one has no knowledge of it. That much, as I say once again, is made clear by the authorities.

There is another aspect to the intent to exercise control and dominion which goes beyond mere knowledge. The result here was that, in consequence of that redirection coming to a confused jury, it is not open, in our respectful submission, to take the Court of Criminal Appeal's interpretation of what her Honour meant to convey to the jury with what was, in fact, conveyed to the jury.

McHUGH J: But this is a case where counsel made no objections, where the accused denied any knowledge of it, and it really was not an issue. True it is that the judge has to give a proper direction, but she spoke about under his control or dominion and that he knew he had them, and she said that more than once. What more is required? Why should this Court interfere and grant special leave to appeal? We do not sit here as a general Court of Appeal.

MR RICHTER: Of course not. The reason it requires special leave is because there is an insidious course of summing up to juries which creeps in when one is talking about charges of possession with intent to sell or supply, and it is this: normally, if a defence is raised of, "I did not know it was there", those directions - and one can see them in Davis' Case, on which the learned Chief Justice relied in this judgment, and in a number of other cases - judges will do what is sensible, and so they ought to be encouraged to do, namely, try and pull the case and give as much law to the jury as it needs to know in order to resolve the issues in the case.

To say that knowledge is sufficient to demonstrate the intent without telling the jury that it is the intent that has to be shown, not the knowledge, in fact, deprives an accused of having the jury in charge of the elements, of determining the elements. So that that is precisely why, in our respectful submission, it is important that this Court lay down as a principle that the operative requirements in a trial where possession is in issue are that the jury be instructed as to the elements. So that in a case in which, even though an accused person disclaims knowledge, where there is a reasonable possibility - and there is a reasonable possibility in this case because the jury was entitled to accept some of his evidence, reject some of his evidence.

McHUGH J: Having regard to their verdict, I do not think they could have accepted any of his evidence.

MR RICHTER: I suspect that is because - I am not quite certain of that, with respect, and we will never know because they were not told that so far as the important issue was concerned, if they had doubt whether or not he intended to exercise any control or dominion, or to associate himself with the contents of the ammunition box, then they should acquit, and that they were never told.

Now, granted that he told lies to a number of people. He explained those lies. The jury took the view that the explanation of those lies did not allow them to accept his utterance that he did not know what was there, or that he did not know it was there, but the other aspect of it was somewhat more reasonable and it became more reasonable having regard to what the jury did know in relation to the cannabis.

There was cannabis there. He pleaded guilty to its cultivation. He was sentenced for it. The jury knew that. The jury also would have known that his function with respect to the cannabis was that of a sitter, as it were, who was being paid, effectively, the money for the rent, who was being promised some of the crop. Now, all that being the case, and the jury knowing all that, had they been directed in terms of the required intention, one cannot say that they would have not entertained a reasonable doubt that what he told them about that was correct.

In other words, the reason why special leave is required, in my respectful submission, is this. In a lot of cases like Clarke and Johnstone and some of the other cases and, in particular, this case, the courts assume that where an accused's defence is, "I did not know it was there", he is simply raising the issue of knowledge as an element. That is not so. He is raising the issue of possession as an element and the knowledge comes in two ways, both as to the actus reus, because you cannot have control and custody of something of which you are unaware - - -

McHUGH J: Yes, I know, but although the judge, if I recollect correctly, did not use the term "intent" at any stage, nevertheless, she did say that if a person has hidden something so that he can take it into his physical custody when he wishes, and where others are unlikely to discover it except by accident, then that is sufficient. What is the matter with that as - - -

MR RICHTER: The very vice of that is precisely the point which requires special leave, in my submission, and the vice is this. It presupposes that knowledge is the same as intent to take control at some stage. In other words, to say that - - -

McHUGH J: No, she said that he had hidden it there so that he can take it into his physical custody when he wishes. What is that other than an intent?

MR RICHTER: It presupposes that he will wish it.

McHUGH J: Yes. Why is it not intention to dispose of it or use it when he wants to?

MR RICHTER: That is a relevant intention and that is a proper intention, but in the context of this summing up, it is not the intention that was demonstrated and not the intention with respect to which the jury was asked to entertain a reasonable doubt because the very point that I am making is, if the jury had been properly directed, they would have asked themselves the question, "With his knowledge that there is something there, did he intend at some stage, or might he have intended at some stage, might he have left the question in abeyance as to when and whether he will take it, to take possession of it, or to take control?".

That is what the problem is here. That is why we say that special leave ought to be granted, because it is an area of the law which is common throughout the jurisdictions in this country with varying degrees of difficulty, but the question of knowledge is wrongly identified as the requirement to be proved.

McHUGH J: But what is wrong with the direction where her Honour said:

he was in some way a party to its hiding and that he had hidden it or been a party to its hiding so that he could take it into his physical custody when he wished to do so.

MR RICHTER: There was not any evidence of that. There was no direction about what that meant.

McHUGH J: No, but that is what the judge put.

MR RICHTER: But there was no direction as to what that meant because being a party to it in terms of the summing up could have meant he knew it was there and that was not enough.

McHUGH J: And no objection was taken.

MR RICHTER: My time is up.

McHUGH J: I noticed that. Yes, we need not hear you, Mr Pallaras.

The Court is of the view that the judgment of the Full Court is not attended with sufficient doubt to warrant the grant of special leave to appeal and the application is refused.

AT 11.43 AM THE MATTER WAS CONCLUDED