REGINA v WAN [2003] NSWCCA 225

Reported Decision : 140 A Crim R 513

New South Wales Court of Criminal Appeal

CITATION : REGINA v WAN [2003] NSWCCA 225 HEARING DATE(S) : 4 August 2003 JUDGMENT DATE : 14 August 2003

JUDGMENT OF : Wood CJ at CL at 1; Simpson J at 2; Adams J at 3 DECISION : Appeal dismissed

CATCHWORDS : Possession of prohibited drugs - whether sole or joint - whether alternative cases or prosecution may press both possibilities - appropriate directions - change of prosecution case - whether defence prejudiced LEGISLATION CITED : s233B Customs Act 1901 R v Dib (1991) 52 A Crim R 64 CASES CITED : R v Solomon [1980] 1 NSWLR 321 R v Whitfield [2002] NSWCCA 501 Regina (Respondent)

PARTIES : v

Arthur Kuen Wan (Appellant) FILE NUMBER(S) : CCA 60129/01 COUNSEL : M M Cinque (Respondent) P Byrne SC (Appellant) SOLICITORS : Commonwealth Director of Public Prosecutions (Respondent) Michael Croke & Co (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 99/11/0494 FILE NUMBER(S) : LOWER COURT Tupman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60129/01

WOOD CJ AT CL SIMPSON J ADAMS J

THURSDAY 14 AUGUST 2003 REGINA v ARTHUR KUEN WAN Judgment 1 WOOD CJ AT CL: I have read in draft form the judgment of Adams J. I agree with the orders proposed, and with the reasons of his Honour. 2 SIMPSON J: I agree with Adams J. 3 ADAMS J: The appellant was arrested on 2 March 1999 and charged with supplying heroin. To this charge he pleaded guilty in the presence of the jury panel and was convicted. Shortly after the appellant's arrest, unit 38 in Blues Tower, which he occupied, was searched by police and a substantial quantity of heroin (about 14 kilograms) was found secreted in various places. He was charged with the possession of this heroin under s233B of the Customs Act 1901 and, following a trial, was convicted on 16 October 2000. His defence was, in substance, that he did not know at the material time that there was any heroin in the unit and that the heroin was that of one David Wang, with whom he shared occupation. 4 The appellant appeals from his conviction for possession of this heroin upon the following grounds – 1. The directions given by the learned trial judge on the issue of possession were, having regard to the evidence and the circumstances of the case, erroneous and inadequate. 2. The directions on the element of exclusive possession were erroneous because they introduced for the jury's consideration the notion of people acting in concert with the appellant, where there was no evidence that any person, known or unknown, was acting in concert with the appellant. 5 Unit 38 is an open plan one-bedroom apartment. The heroin in question was found in a shoebox under the kitchen sink, in a blue zippered suitcase in a cupboard near the kitchen area and in a shopping bag next to the sofa bed in the lounge. The appellant said that the suitcase and the bag belonged to David Wang and that he slept on the sofa bed. A fingerprint of the appellant was found on a freezer bag containing one of the blocks in the suitcase. His fingerprint was also found on the packaging of one of the blocks in the shopping bag. The end of a piece of tape wrapped around the package containing the heroin that was in his possession when he was arrested exactly matched the end of a roll of adhesive tape found in the kitchen of the unit. The tape used on one of the packages in the suitcase was also indistinguishable from the roll found. Scientific evidence showed that all the heroin discovered by police on 2 March 1999 was produced in the same South East Asian laboratory and the heroin found at the appellant's arrest, in the shoebox and the shopping bag, all came from the batch. 6 It was not in dispute that persons other than the appellant had access to the unit, in particular one David Wang who had also lived there for a time. The prosecution case was, however, that Wang was also at most only occasionally resident at the unit and was not staying there at the time of the offence. The crucial question in the trial was whether the prosecution had proved the appellant's possession of the heroin found in the unit. 7 Real estate agency records showed that unit 38 had been leased to a David Wan from 30 April 1998 and the appellant had leased unit 108 from 20 September 1998. On 30 November 1998 the appellant informed the agent that he did not need unit 108 any longer and that, as "David" was moving overseas, he would move into unit 38. Accordingly, the agent noted the appellant as the sole lessee from 1 December 1998. A security guard gave evidence that he had seen the appellant in the environs of Blues Point Tower from about August 1998 and that he had occupied the car space belonging to unit 38 from about that time. He had also occupied another car space from time to time and the guard said he had spoken to the appellant in unit 38 one evening in late January 1999 about the spaces. A person whom he knew as "David" had opened the door on that occasion. He had seen this man in the environs of Blues Point Tower about one hundred times in January and February 1999. On the occasions he saw the appellant over that period, he was in the company of "David". Listening devices established that unidentified persons, male and female, were present in the unit on some occasions when the appellant was not there. Police conducting intermittent surveillance over a period of four months did not observe David for the month prior to 2 March 1999 but were unable to exclude the possibility that he may have spent the night before the appellant's arrest in the unit. One Kuo Ming Wang, the Chinese name of David Wang according to the appellant, flew to Australia from Singapore on 6 February 1999 and departed Australia for Taiwan on 2 February 2000. 8 The appellant gave evidence. He said he knew Kuo Ming Wang, known to him also as David Wang, since early 1998. He said that he first rented unit 38 in about April 1998, using the name "David Wan" which he had changed from "Arthur Wan" in 1995. After a few months he moved to unit 108 where he stayed with his girlfriend for about three months. After they broke up he decided to move back to unit 38 as, he said, Wang was due to move out. At the end of February 1999 he moved into unit 38, although Wang continued to live there using the sofa bed. The appellant used the bed. The appellant kept his personal belongings in the bedside chest of drawers and Wang kept his on a cane stand near the sofa and his clothing in cupboards above and next to the kitchen. He also had luggage in the suitcase inside the wardrobe. 9 The appellant said that on 1 March 1999 both he and Wang slept in unit 38. Wang left the unit in the morning. At about 11 am Wang's friend Chun Li called and the appellant suggested they meet for lunch. The appellant had lunch with Chun and another friend of Wang's named Chan. At about 4 pm Wang telephoned the appellant at the latter's office and asked him to get a white bag for Chun from inside a suitcase in the cupboard next to the oven. The appellant left his office shortly after, met some friends of his about business. He was later joined by Chun and Chan. The three men went to Blues Point Tower and the appellant went to his unit whilst the other two stayed downstairs. He got the white bag as instructed but thought something was wrong when he saw the blocks in the suitcase. He took the bag downstairs to Chan and Chun and then travelled with them into the city, where he was going to leave them, whilst he went to dinner with his family. They were arrested at Town Hall station. 10 The prosecution presented surveillance evidence that suggested that the appellant's meetings with Chun and Chan were not accidental but planned and provided good reason to disbelieve the appellant as to this evidence. It would also have been reasonable, in my view, for the jury to disbelieve the appellant's evidence that he did not know of the presence of substantial quantities of heroin distributed in the unit he occupied, even if jointly. 11 The defence case, plainly, was that the drugs were in the possession of David Wang, that the appellant was only aware of the blocks when he opened the suitcase at Wang's direction, that he did not know they were heroin, let alone that other blocks of heroin that were later discovered were also in the unit. The prosecution case, as clearly enough put to the appellant in cross-examination, was that David Wang had nothing to do with the drugs, that they were the appellant's and that he made the arrangements to deliver a portion of them on the day of his arrest. It was, of course, essential that the jury were directed in clear terms as to the meaning of possession for the purposes of the trial. 12 After some general directions about various everyday uses of the word "possession", the learned trial judge said this – "So with those few examples in mind I will just go through the meaning of possession again with particular emphasis on what needs to be proved in this trial and with reference to the evidence that is relied on to prove it. In order for the Crown to prove the element of possession beyond reasonable doubt, they do not necessarily have to prove that the accused in this trial owned the drugs that were found in the unit number 38. Nor do they have to prove that it was on his person, in his pocket or anything like that to prove that he was in possession of the drugs. What they have to prove however beyond reasonable doubt is that the accused knowingly had the drugs at a place under his control and that he had the intention and the ability to exercise control and dominion over those drugs to the exclusion of all persons other than those acting in concert with him . By 'knowingly' in this context what is meant is that the accused knew either of the existence or the likely existence of the drugs and was also aware that they were likely to be narcotic drugs." (Emphasis added.) 13 Her Honour dealt with the evidence of the prosecution concerning the appellant's occupation of unit 38 and then directed the jury – "From all of that evidence the Crown says that you would accept that unit 38 was a placed owned and lived in by the accused and that the drugs having been found in that unit you will accept that they were under his custody and control. The Crown also has to prove that he had those drugs under his control knowingly in the way that I have spelt out in a way that he had the intention and ability to exercise control of them to the exclusion of other people with the exception of those people who might be acting in concert with him as part of this criminal concern ."