Davies v The Queen [2008] HCATrans 311 (26 August 2008)

Last Updated: 5 September 2008

[2008] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S203 of 2008

B e t w e e n -

MARIE ANN DAVIES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 AUGUST 2008, AT 11.05 AM

Copyright in the High Court of Australia

MR R.J. WEBB: May it please the Court, I appear for the applicant. (instructed by Gary George & Co)

MR D.C. FREARSON, SC: May it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J: Yes, Mr Webb.

MR WEBB: Your Honour, the applicant submits that the application - - -

GUMMOW J: You need an extension of time, do you not?

MR WEBB: I do, your Honour.

GUMMOW J: Is that opposed, Mr Frearson?

MR FREARSON: No, your Honour.

GUMMOW J: Very well, you have that.

MR WEBB: Thank you, your Honour. The applicant submits that the questions devolve upon the application of the burden of proof in the context of relevant evidence concerning the possession of a particular thing within a class of things, where the applicant was not seized of immediate physical control of the thing.

The heroin in the tin belonged to the applicant, on the Crown case, because there were other things in the tin, such as the cheques which belonged to the applicant, was on these terms relevant that there were things in the tin which, on the Crown case, were not susceptible of proof as belonging to the applicant as those things that were set out in exhibit L.

KIRBY J: Just explain to me how the cheques or at least one of them was dated to 8.00 pm on the previous night and how was the exact date of the cheque identified?

MR WEBB: At the leagues club, your Honour, the time when the cheque was provided to the applicant was specifically identifiable in terms of the machine copy being produced.

KIRBY J: Is that not a big difficulty that in the tin was found the heroin, but also a cheque made payable to your client which was issued at 8.00 pm on the previous night and she was seen to be leaving the premises half an hour or an hour before the police raid and therefore, by inference, the cheque could not have got into the tin without her involvement and that must have happened within the 24 hours or 12 hours before the tin was discovered?

MR WEBB: The applicant submits, your Honour, that whatever the jury may have made of Ms Studeman’s evidence, whether Ms Studeman was truthful or untruthful, in the wash- up I submit that was not probative of the issue of possession in terms of how it was ultimately that the cheques came to be in the tin or things belonging to the applicant - - -

KIRBY J: Why not? I mean it is true it is not probative by direct evidence because there is no DNA on the heroin or something of that kind, but it is probative or at least it is evidence available to the jury that within a very short space of time your client was in the room, the tin was found locked, in the tin was a cheque which had been issued 12 hours before and when first seen on the police raid, which followed soon after your client left the person – her aunt – said in answer to the question, “Whose tin is that?”, “That is Marie’s.”

So all of these - they are not direct evidence, but the nature of crime is that often there is no direct evidence, therefore, it is a question of available inferences and why is it not an available inference, particularly in the absence of evidence from your client that the jury could act upon that your client had possession of the heroin because she must have had possession of the tin at a time when, by inference, the heroin was in there?

MR WEBB: In my respectful submission, your Honour, the evidence of Ms Studeman, taken at its highest, was that it may have belonged to the applicant and that it later did not belong to anyone that she was aware, did not belong to anyone of whom she was aware. Also, your Honour is asked to consider the evidence of Ms Jasmine. Ms Jasmine gave evidence which was not otherwise in dispute that she had been at the apartment some days prior to the search in the context of the tin being seen to be open, with the accused not being present when that occurred. So that to the extent that that was something which was inconsistent with the aspect of - - -

GUMMOW J: Well, there were pointers either way I suppose, but all this went to the jury.

MR WEBB: That is so, your Honour. Perhaps, your Honour, the issue – if I might raise this – in the judgment of his Honour Mr Justice Mason, his Honour referred to aspects in the tin which were not susceptible of proof as belonging to the applicant as being matters which were neutral insofar as that may or may not be. In my submission, if those matters were neutral then they were not relevant matters. However, in my submission, having regard to the burden and onus of proof the situation was that the heroin was proved to be the applicant’s on the basis of evidence which was essentially
the same, which is to say that there were things in the tin which belonged to her with the heroin. It was relevant, rather than neutral, in my submission, that there were things in the tin which - - -

GUMMOW J: Can you just look at page 121 in the application book, Mr Webb, paragraph 3.21 of your opponent’s submissions:

The only ground of appeal in the CCA was that the verdict was unreasonable and could not be supported . . . The applicant cites no legal or factual error in the CCA’s approach to this case. The issues sought to be raised in this Court essentially seek a further review of the factual circumstances and raise no matter of general importance –

What is the answer to that?

MR WEBB: In my submission, your Honour, an aspect is raised on this application whereby the tribunal of fact was not fairly alerted to what matters were in dispute. For example, Ms Studeman was not relied upon excepting in respect of her utterance that the search video that belonged to Marie insofar as she knew and to what extent Ms Studeman was relied upon concerning the passage of the cheques from the leagues club into the tin was something which was, in my submission, not sufficiently apparent.

Most particularly I would submit, your Honour, that the issue of things in the tin being in a neutral position and your Honour is invited to the view, therefore, an irrelevant position in terms of the making out of the element of physical control and the element of knowledge was insufficiently clear as a rule of practice and procedure at the trial. Subsequently, with respect to his Honour Mr Justice Mason, the things in the tin were not neutral, which were not susceptible of proof as being the applicant’s things. They are my respectful submissions, your Honour.

GUMMOW J: Thank you. We will take a short adjournment to see what course we are going to pursue with this application.

AT 11.14 AM SHORT ADJOURNMENT

GUMMOW J: We do not need to call on you, Mr Frearson.

This application was brought out of time, but the Court has extended time. It is true, as the applicant argued, that there was no direct evidence that the applicant had possession of the 9.4 grams of heroin found in a locked tin in a room to which the applicant had access from time to time. However, there was powerful circumstantial evidence linking the applicant to the tin and to its contents. Most especially there were cheques made payable to the applicant, one of which was shown to have been issued to her at 8.04 pm on the evening prior to the police raid and the discovery of the tin.

The Court of Criminal Appeal was correct in the conclusion it reached. There has been no miscarriage of justice. Special leave to appeal is refused.

AT 11.22 AM THE MATTER WAS CONCLUDED