New South Wales Court of Criminal Appeal CITATION : R v Matthews; R v Williams [2004] NSWCCA 259 HEARING DATE(S) : 10 March 2004 JUDGMENT DATE : 4 August 2004 JUDGMENT OF : Simpson J at 1; Sperling J at 81; Bergin J at 83 DECISION : In each case, appeal dismissed CATCHWORDS : jointly committed offences - supply of not less than the commercial quantity of cannabis leaf - supply of not less than the traffickable quantity of methylamphetamine - whether each of the appellants knew of the existence of cannabis in the trailer - directions to jury as to appellants' knowledge of the cannabis - direction to jury on tendency or coincidence reasoning - direction to the jury concerning possession - unreasonable verdicts Crimes Act 1958 (Vic) s47A LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 s25, s29, Evidence Act 1995 s97, s98 He Kaw Teh v The Queen (1985) 157 CLR 523 KRM v The Queen [2001] HCA 11; 206 CLR 221 M v The Queen (1994) 181 CLR 487 R v Anderson (unreported) NSWCCA, 15 December 1983 CASES CITED : R v Bazley (unreported) NSWCCA, 23 March 1989 R v Burns (unreported), NSWCCA, 19 August 1988 R v Duong [2003] NSWCCA 55, unreported, 10 March 2003 R v Filippetti (1978) 13 A Crim R 335 The Queen v Myall (1986) 43 SASR 258 Crown - Respondent PARTIES : Rodney James Matthews - Appellant Sahrita May Williams - Appellant FILE NUMBER(S) : CCA 60409/03; 60408/03 COUNSEL : D Woodburne - Crown P Boulten SC - Appellants SOLICITORS : S Kavanagh - Crown J Bettens - Appellants LOWER COURT District Court JURISDICTION : LOWER COURT FILE NUMBER(S) : 02/11/0678; 02/11/0677 LOWER COURT Shillington ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60409/03 60408/03 SIMPSON J SPERLING J BERGIN J Wednesday 4 August 2004 REGINA v Rodney James MATTHEWS REGINA v Sahrita May WILLIAMS Judgment 1 SIMPSON J: On 5 March 2003, following a six-day trial by jury in the District Court, both appellants were convicted on an indictment which alleged, against each appellant, two offences against the Drug Misuse and Trafficking Act 1985 ("the Act"). The first charge against each was one of supply of not less than the commercial quantity of cannabis leaf (s25(2) of the Act). The second was of supply of not less than the traffickable quantity of methylamphetamine (s25(1) of the Act). 2 In relation to all charges the Crown relied upon the provisions of s29 of the Act, pursuant to which a person in possession of not less than the traffickable quantity of a drug is deemed to have the drug in possession for supply in the absence of proof by that person that it was for some other purpose. 3 Each appellant now appeals against the conviction in relation to the supply of cannabis leaf. Neither appeals against the conviction in relation to the methylamphetamine. the Crown case 4 On the Crown case the offences were committed jointly by the appellants on 30 March 2001, at Hay in NSW. The Crown case was that, in the early hours of that day, a police operation was in progress on the Sturt Highway. The first appellant (to whom I will refer as "Matthews") was driving a semi-trailer east on that road. The second appellant ("Williams") was a passenger in the vehicle; (there was a dispute on the evidence as to where she was located in the vehicle at the time of apprehension: a police officer, Senior Constable Mensforth, who participated in the apprehension of the vehicle, gave evidence that Williams, when the vehicle was stopped, was seated in the passenger seat; her own evidence, and that of Matthews, was that she had been asleep in a bunk at the rear of the cabin and was awakened by Matthews after the truck was stopped. The issue does not appear to me to be material.) 5 Senior Constable Mensforth stopped the vehicle and asked Matthews to step down for random breath testing. With the help of a trained drug detection dog police ascertained that a large quantity of cannabis was contained in plastic bags packed into six boxes and some drums in the trailer. Also in the trailer were several pallets of drums and some electrical equipment. Some of the boxes were wrapped in plastic and stacked on drums. On top of some of the boxes was placed the electrical equipment. Altogether more than thirty-three kilograms of cannabis leaf was contained in the bags and boxes and drums. Its street value was estimated at between approximately $666,000.00 and $1.65 million. (A commercial quantity of cannabis leaf is, by s3(1) and Schedule 1 of the Act, 25 kilograms.) 6 When asked about what was in the bags, Matthews leaned over the boxes and replied, "well, dope, obviously". When asked what he meant by dope, he replied "marijuana". He was asked what was in the white containers and said he had no idea. He was invited to have a closer look at the contents of the drums. Having done so, he was asked if he could tell the officer what was in them, and said "marijuana". He denied any previous knowledge of it. Police asked him if there were any prohibited substances in the cabin of the prime mover, to which he replied: "No, put the dog in and see." 7 Police did so and soon located a leather pouch containing, among other things, a quantity of methylamphetamine in powder and tablet form, a brass pipe and a small spoon, concealed in an air vent. In answer to a question by police, Matthews said that the items were his; he identified the white powder as "speed"; when asked about the quantity he replied: "Oh, there's a couple of bags there." He identified the tablets as "duromine". Later analysis established that the quantity of methylamphetamine was 9.65 grams. (A traffickable quantity of methylamphetamine is 3 grams.) The powder and tablets were the subject of the methylamphetamine charges as to which there is no appeal. 8 Also in the cabin was a bag containing a small amount of green vegetable matter which later proved to be marijuana, but this is of no relevance. 9 Matthews and Williams were taken to the Hay Police Station and an electronically recorded interview was conducted with each. Each denied knowledge of the cannabis in the trailer but admitted ownership of the methylamphetamine and cannabis found in the cabin. Each stated that these drugs were for his/her personal use. 10 Williams was found to be in possession of a small bag, which was underneath her tee-shirt, and contained $5,000.00 in cash. She said that the money was her property and that she was saving it to buy a car. A little later, in a second recorded interview, she said that the money was the joint property of herself and Matthews, and again said that it was for the purpose of the purchase of a car. She mentioned that there were newspaper advertisements about cars in the semi-trailer and asked one of the police officers to retrieve them. This was done, and Williams' assertion was found to be correct. 11 Except for the seemingly irrelevant conflict in the evidence about where Williams had been in the truck at the time it was stopped, none of the above was in issue. In opening to the jury at the outset of the trial the Crown Prosecutor stated clearly the way in which the Crown put the case it set out to prove. That was: " … that both accused had the substance in their possession." 12 At the trial the appellants adhered to the position they had adopted when interviewed: that is, they denied knowledge (and therefore possession) of the cannabis in the trailer; they admitted possession of the drugs in the cabin, but denied that the possession was for supply, asserting that it was for their personal use. The solicitor who appeared for both appellants at the trial made an opening statement to the jury. In doing so he identified the issues between the parties. In relation to the cannabis charges, he described the issue as "a very, very simple" one -: "whether each of my clients knew that the cannabis was in the trailer …" This was a correct statement, accurately reflecting the law. Although it was beyond dispute that the appellants, in ordinary language, were in possession of the cannabis, that was not sufficient to establish the guilt of either of an offence against s25(2) of the Act. To sustain a conviction under that section, it was necessary that the Crown also establish, beyond reasonable doubt, that the relevant appellant knew of the existence of the cannabis: He Kaw Teh v The Queen (1985) 157 CLR 523. 13 In order to establish that the appellants knew that the cannabis was in the trailer, the Crown called evidence about the circumstances in which the trailer had been loaded, and the circumstances in which the appellants came to be in possession of the truck. The evidence was directed to eliminating the possibility that somebody else, without the knowledge of the appellants, had loaded the cannabis. The Crown case in this respect was essentially a circumstantial one. 14 The evidence was to the following effect. Matthews was casually employed as an interstate semi-trailer driver by a company, L & M Freightliners ("L&M"), which was based in a town called Two Wells in South Australia. The principal of L & M was a Mr Lewis Magro. Mr Vic Magro (Lewis Magro's father) operated another trucking business, Two Wells Transport, from a different address in the same street. Once a week Matthews drove L & M's truck from Two Wells to Sydney and back. Williams, who herself held a truck driver's licence, accompanied Matthews and shared the driving although she was not paid by L & M. On 29 March 2001 a delivery was to be taken from South Australia to Sydney and Matthews was engaged for the purpose. 15 During the afternoon of 29 March Curtis Magro, a cousin of Lewis Magro, loaded the trailer with goods at an address in Regency Park. The goods were chemicals. Curtis Magro did not load the electrical equipment which was later found to be in the semi-trailer; nor did he load any boxes or drums of cannabis. He returned with the trailer to Two Wells Transport. There was some confusion in the evidence about the time at which he did this. He parked the trailer with its back to a shed and went to work in the shed, from where he could see the back of the trailer. He did not see anybody near the trailer but later saw that it was being moved. He did not see who was driving it. 16 Between 4.00 and 5.00 pm Lewis Magro drove the trailer from Two Wells Transport to his own yard. He observed that a "load angle" (a piece of equipment that is used to stabilise the contents of a trailer) had become dislodged and was protruding through the canvas curtains that form the sides of, and enclose, the trailer. He climbed up the gate to the trailer and repositioned the load angle. He did not, however, open the trailer, and he made no observation of the interior, which was quite dark. Specifically, he was not able to see whether any loose boxes were in the trailer. Lewis Magro did not himself have anything to do with loading the trailer and he did not load any containers of cannabis. 17 About fifteen minutes after Lewis Magro arrived at his own premises the appellants arrived to take delivery of the truck. During that interval Lewis Magro did not see anybody near the truck. After about five or ten minutes the appellants drove off in the truck. the defence cases 18 Both appellants gave evidence. The accounts of the events of 29 March given by them departed in significant ways from that given by Lewis Magro. Matthews' evidence was that the appellants initially went to Lewis Magro's depot to take possession of the truck, but it was not there. They then went to Vic Magro's premises, where Matthews saw Lewis Magro standing on the back of the trailer. The canvas curtains on each side were pulled forwards, to the front of the trailer. Lewis Magro asked the appellants to return to his own depot, which they did. They were accompanied by Matthews' brother and his three-year old son. 19 Matthews gave a detailed account of the journey from Two Wells up to the point at which the appellants encountered the police roadblock. He said that he drove initially for about ten minutes and that Williams then took over the driving, while he slept. They stopped for about half an hour at a roadhouse at Baronga, and then for about an hour at Balranald, after which he drove. Williams slept in the bunk. He said that the truck was fitted with radio receivers and that, through these, and at truck stops, they received information that a police operation was under way at Hay and that police with dogs were looking for drugs and checking logbooks. He described an alternative route that the appellants could have taken in order to avoid the roadblock. This evidence was no doubt given in order to support the defence that the appellants were unaware of the presence of the cannabis in the trailer, and to lay the foundation for an argument, later put to the jury, that, had they been aware of the cannabis, and knowing of the police operation, they could have avoided it by taking the alternative route. (That argument must have lost much of its force in the light of the appellants' acknowledgment that they had possession of a significant quantity of methylamphetamine, but that this did not prompt them to take evasive action such as using the alternative route.) 20 Matthews acknowledged the discovery of the cannabis and methylamphetamine and drug paraphernalia in the cabin of the truck and said that these were for the personal use of both appellants. He expressly denied any intention of selling any of the methylamphetamine. He said that he had the duromine as a reserve; he described it as "a slow-working awareness drug" which could also enhance the effects of methylamphetamine. He said that the $5,000.00 found in Williams' possession was money saved for the purchase of a car. He denied any knowledge of the presence of the cannabis in the trailer prior to the search by police. 21 In cross-examination he agreed that, although he could identify it on a map, he had never taken the alternative route that by-passed Hay, and that he did know that it was an unsealed road. 22 The evidence given by Williams was to similar effect. She also expressly denied any prior knowledge of the presence of the cannabis in the trailer and claimed that the drugs in the cabin were for the personal use of herself and Matthews. 23 If the jury had been satisfied, on the balance of probabilities, that the methylamphetamine was for the personal use of either or both of the appellants, then the effect of s29 of the Act, deeming possession of not less than the traffickable quantity of the drugs to be for the purpose of supply, would have been neutralised. There being no appeal against the methylamphetamines convictions, this can (subject to the issues raised by ground two of the appeals), be put to one side. 24 The factual issues committed to the jury were thus relatively narrow. They were: (i) whether the Crown had proved, beyond reasonable doubt, that each appellant knew of the presence of the cannabis in the trailer; and (ii) whether either appellant had proved, on the balance of probabilities, that the methylamphetamine in the cabin was for his, her or their personal use. 25 Accordingly the judge summed up these principal issues. He gave an appropriate direction on the meaning of "possession" and explained the concept of joint possession. It is appropriate then to extract some passages from the summing up. His Honour said: "Members of the jury, the significant thing is knowledge and, unless knowledge is established in this case with regard to the material in the trailer, you could not be satisfied beyond reasonable doubt of the supply in the circumstances in which I have read it out to you because, unless you are satisfied that they had possession of that material, that is that they had custody or control of it to the exclusion of others but also that they had knowledge that it was there. … What the Crown must prove, as I have said, with regard to the first count, is that the accused, each of them had knowledge that the cannabis leaf was in the trailer, undoubtedly being under their control after they left the yard at Two Wells. How is that possession to be proved, that is, how is their knowledge of the drugs to be proved, that they were in the trailer? Well, members of the jury, that situation could be proved in a variety of ways. Let me take you to what appear to be the possible situations here. First of all that they were told of the presence of the drugs, presumably by Lewis Magro. I am not suggesting that there is any evidence of that here of course. He says that he gave no such information to the accused. Secondly, that they themselves put the drugs into the trailer after it had left the yard. I am only putting the hypothetical possibilities in this case. Thirdly, that they took the trailer elsewhere to some other site after they left the yard and saw someone else put the drugs in the trailer or themselves took part in putting the drugs into the trailer. Those are the possibilities." 26 At the next adjournment break the solicitor appearing for the appellants sought a redirection in relation to what had been said about the possibility that Lewis Magro had told the appellants that the cannabis was in the trailer. After considerable discussion his Honour declined to withdraw what he had said. 27 By their verdicts the jury accepted that the Crown had proved that both appellants knew of the existence of the cannabis in the trailer, and rejected the appellants' defences of personal use in relation to the methylamphetamine charges. Neither appellant appeals against the methylamphetamine conviction. Those convictions are, nevertheless, material to some of the matters raised on the appeal. grounds of appeal 28 Both appellants, who again have common representation, raised the same grounds of appeal. These were framed as follows: "Ground One: His Honour erred in his directions to the jury concerning the possible factual foundations for establishing the guilt of the appellants in relation to count 1; Ground Two: His Honour erred in failing to direct the jury not to use tendency or coincidence reasoning in considering their verdict; Ground Three: His Honour erred in his directions to the jury concerning the appellants' possession of the cannabis; Ground Four: The verdicts on count 1 were unreasonable, or cannot be supported, having regard to the evidence." ground one: directions as to the appellants' knowledge of the cannabis 29 By this ground of appeal the appellants challenge that part of the summing up in which the trial judge said, in the context of directions as to proof of the appellants' knowledge: "Let me take you through what appear to be the possible situations here. First of all that they were told of the presence of the drugs, presumably by Lewis Magro. I am not suggesting that there is any evidence of that here of course. He says that he gave no such information to the accused." 30 The solicitor for the appellants, in seeking the withdrawal of that direction, made his objection plain. It was that the Crown had not conducted the case on the basis that Lewis Magro had told the appellants of the cannabis. Lewis Magro had been called as a prosecution witness and had denied any complicity in the events. It was not, therefore, open to the Crown (or to his Honour) to invite or permit the jury to consider the possibility that Lewis Magro was the source of the knowledge of the appellants, which the Crown had to prove, of the presence of the cannabis in the trailer. 31 In written submissions provided on behalf of the appellants, senior counsel referred to the redirection sought by the solicitor who appeared at the trial. He extracted from the transcript the direction sought, which was in the following terms: "Tell the jury that there is no evidence that either of the accused were told by Lewis Magro that the drugs were on the trailer, and there is certainly no evidence of that." and that: " … there is no evidence that either Lewis or Curtis for that matter, Magro informed the accused that the drugs were on the trailer." 32 Senior counsel in this Court urged that such directions were required as a consequence of his Honour's earlier reference to the first possibility, that is, that the appellants knew of the drugs because they had been told of their presence by Lewis Magro. The difficulty in that proposition for the appellants is that the judge did in fact direct the jury in almost precisely those terms. Having adverted to the theoretical possibility that the appellants had been told of the presence of the drugs "presumably" by Lewis Magro, he immediately went on to say that he was not suggesting that there was any evidence of that in the trial, and referred to Lewis Magro's denial of giving such information to the appellants. A little later in the summing up, again with reference to the need for the Crown to prove knowledge in the appellants of the presence of the cannabis, his Honour referred to the Crown's position which was that both Curtis and Lewis Magro denied putting the drugs into the trailer. There is, of course, a distinction between the denials of both Lewis and Curtis Magro of having themselves put the drugs into the trailer, and their possibly having been the source of knowledge in the appellants of the presence of the drugs, but that is not the present point. The point being made by senior counsel is that, by the first sentence of the impugned direction, the trial judge invited the jury to speculate that Lewis Magro was the source of knowledge in the appellants but that that inference was simply not open on the evidence. Had the direction stopped at the end of that first sentence it may have been that the appellants were on stronger ground, but having regard to the two sentences which follow, the ground is deprived of any potency it may otherwise have had. 33 During the course of oral argument in the appeal the proposition was put to senior counsel that his complaint was that the trial judge did not go on to say: " … but you discount that as a possibility." Senior counsel replied to that in the affirmative. 34 But the second and third sentences of the direction amount to precisely that. That is, although his Honour did not use exactly the words used in submissions by the solicitor at the trial, or senior counsel on the appeal, the tenor of the direction he gave was precisely what was sought and is now contended for. In my opinion this ground of appeal should be rejected. ground two: direction on tendency or coincidence reasoning 35 By this ground it was argued that the circumstances of the case called for an explicit direction to the jury that they should not use "tendency" or "coincidence" reasoning in arriving at their verdicts. 36 On the appeal it was acknowledged that no direction in the form for which senior counsel now contends was sought at trial. Leave, pursuant to Rule 4 of the Criminal Appeal Rules, is necessary if the appellants are to be permitted to raise this ground. 37 The ground arises from the circumstances of the two charges faced by each appellant. Their responses to the two charges were completely different. In relation to the methylamphetamine charges they both freely admitted their possession of the drugs in question and asserted that they had possession for personal use only. In relation to the cannabis counts their responses were complete denials of any knowledge of its existence. 38 The ground as pleaded invokes the concepts underlying the provisions of ss97 and 98 of the Evidence Act 1995. S97 precludes the admission of evidence of: "the character, reputation or conduct of a person, or a tendency that a person has or had ..." for the purpose of proving that: "... a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind ..." unless specified preconditions are met. 39 S98 precludes the admission of evidence: "... that 2 or more related events occurred ..." for the purpose of proving that: "... because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind ..." unless certain specified conditions are met. The Dictionary defines "tendency evidence" and "coincidence evidence" as evidence sought to be adduced for the purposes, respectively, referred to in ss 97 and 98. 40 It is to be noted that there is no suggestion that any evidence adduced in the Crown case was adduced either for the purpose of proving that either appellant had a tendency to act in a particular way or to have a particular state of mind; nor that, because of the improbability of two or more events occurring coincidentally, either appellant did a particular act or had a particular state of mind. No evidence adduced in the Crown case was "tendency evidence" or "coincidence evidence". No evidence was tendered in the Crown case that was or should have been excluded by the application of either of these sections. Nor is that contended. Rather, what senior counsel seeks to do by the formulation of this ground, is to borrow from the policy upon which the prohibitions in the two sections are founded. 41 Senior counsel who appeared for the appellants on the appeal opted not to advance oral argument in support of this ground. Instead, he relied upon the written submissions which had been filed. The submission in support of this ground was brief, consisting of one substantial paragraph only, pointing out the divergence in the defences of the appellants to the two separate charges, and submitting: "The jury should have been told that, if they were to find either one of the offences proved, they could not use tendency or coincidence evidence to assist them in deciding the guilt of the appellants in relation to the remaining count." 42 As I understand what was intended by this ground, it was that there was a potential for the jury to reason, from the appellants' acknowledged possession of the methylamphetamine, that they had a tendency (at least) to possess unlawful drugs; and, in the event that they failed in their defence of the methylamphetamine charges, that they had a tendency to supply unlawful drugs; and to use this in their consideration of the sole issue (knowledge) in relation to the cannabis charge. Likewise, there was a potential for the jury to reason that, because of the improbability that the appellants had custody and control of both the methylamphetamine and the cannabis coincidentally, it was more likely that they were aware of the presence of the cannabis. Alternatively, they might use the evidence of the custody of the cannabis (which could not conceivably have been for any purpose other than supply) to support a conclusion that they had a tendency to supply illegal drugs, and thus to reason towards their guilt on the methylamphetamine charges. Put another way, more simply, there was a danger that the jury might use the evidence in relation to one charge in support of a finding of guilt on the other. Notwithstanding that the proposed direction was formulated on the hypothesis that the jury had reached a conclusion of guilt on one charge (in respect of either appellant), the point, if it had any merit at all, would apply to the use of evidence adduced in relation to either charge, and would not be confined (although it would certainly be stronger) in a circumstance where the jury had reached a positive finding (of guilt) on one or other of the charges. 43 Although no direction in terms of tendency or coincidence was sought, the trial judge nevertheless, in conventional terms, directed the jury to look at each charge – that is, each of the four charges – separately. He reminded the jury of the divergence in the responses made by the appellants to the two charges. 44 I have come to the view that the use of the terms "tendency" and "coincidence" in the ground is apt to mislead. What senior counsel is, in truth, contending for, is a warning, not in terms of the Evidence Act, but of "propensity" as that notion was developed in the common law. 45 Initially, I found the appellants' argument persuasive. However, further reflection dispelled that view. Criminal courts daily deal with trials involving multiple counts against accused persons. A propensity warning in those cases would be highly unconventional. Yet I can see no feature that differentiates this case from those. There is nothing peculiar about the two drug charges faced by each appellant that calls for special treatment. 46 The authoritative answer to the appellants' argument is to be found in the decision of the High Court in KRM v The Queen [2001] HCA 11; 206 CLR 221, to which this Court was referred by the Crown. There, the appellant had been charged with 18 sexual offences, one of which was brought under s47A of Crimes Act 1958 (Vic), which creates an offence of maintaining a sexual relationship with a child under the age of sixteen to whom the person charged is not married and who is under his or her care, supervision or authority. The offence is established by proof of three sexual offences against the alleged victim. The remaining charges alleged specific sexual offences committed against the same alleged victim. 47 On appeal to the High Court it was argued that, when an indictment includes a count under s47A, and counts alleging other sexual offences, it is obligatory for a trial judge to give a direction to the jury that, if they found the accused guilty of maintaining a sexual relationship, they could not use their finding of the acts constituting that offence to reason that the accused was the kind of person who was likely to have committed any of the specific sexual offences charged; or that, if they found the accused guilty of one or more of the specific offences charged, they could not use that finding or findings to reason that he was the kind of person who was likely to have committed the acts the subject of the s47A count; or both such directions. The direction sought was referred to in the judgments in the High Court as "a propensity warning". 48 Four of the five members of the Court rejected that proposition. McHugh J wrote: "4 In my opinion, there is no absolute rule that a judge must always give a propensity warning when the presentment contains a count under s47A or its equivalents in other jurisdictions. Nor is a judge always required to give such a warning in respect of the individual acts that form the basis of a charge under s47A or its equivalents. Ordinarily, no such warning is required. The circumstances of some cases, however, may require the judge to give a propensity warning. But ordinarily, it will be sufficient if the judge directs the jury that they must consider each count and the evidence relating to each count, separately." 49 Later, his Honour wrote: "32 What then is the position when the prosecution charges the accused with a number of sexual offences in the one presentment? If propensity evidence on each count is admissible in respect of the other counts in the presentment, a propensity warning could not be given except in some very limited way. But what is the position if the evidence in respect of each count is not admissible in respect any other count? Must the trial judge give a propensity warning? 33 Hitherto, common law courts have accepted that a propensity warning is not required merely because a presentment contains a multiplicity of counts involving similar offences ... No propensity warning is required, for example, because the accused is charged with several counts of housebreaking or stealing or murder or sexual offences. Counsel for the appellant accepted that, if the presentment in this trial had not contained [the s47A count], the appellant had no right to a propensity warning. 34 ... 35 It seems a reasonable conclusion, therefore, that the experience of the judiciary negates the need for a propensity warning merely because an accused person is charged on a presentment with a number of counts containing the same or similar offences against the same victim and that is so whatever the nature of the charges. 36 It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a 'separate consideration warning'). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. ... 37 Thus, although the evidence on one count may show a propensity to commit crime – even crime of the kind the subject of the other charges – the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract the jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain of reasoning. 38 In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of the count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment. If that risk exists, a judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts. ..." 50 At [69] Gummow and Callinan JJ came to a similar conclusion, as did Hayne J at [131]. 51 It may have been the Crown's reference to KRM that prompted the economy with which senior counsel on appeal dealt with ground two. In any event, on the authority of KRM, I am satisfied that a direction of the kind now proposed was not required. It is of some interest that the appellants were represented at the trial by an experienced solicitor, who clearly did not perceive any "feature of the evidence" (see KRM at [38]) creating a risk that the jury would misuse the evidence and give rise to the need for such a direction. I would refuse leave to argue this ground of appeal but, if leave were granted, I would reject it. ground three: directions concerning possession 52 The direction given by the trial judge concerning possession was in the following terms: "First of all, custody – that is some form of physical possession of it or control, as in this case when it is in the trailer, which is being driven alternatively (sic) by the two accused. So one has that element of custody or control and it is to the exclusion of others. In this case, the law recognises that there may be joint control or joint custody or control and that is the way the Crown puts its case here but, more significantly, with knowledge that one has it in custody or control." [His Honour then gave an illustration of a circumstance in which a person might have custody or control of an object, but not possession in the legal sense because of ignorance of that custody or control.] "Members of the jury, the significant thing is knowledge and, unless knowledge is established in this case with regard to the material in the trailer, you could not be satisfied beyond reasonable doubt of the supply in the circumstances in which I have read it out to you because, unless you are satisfied that they had possession of that material, that is that they had custody or control of it to the exclusion of others but also that they had knowledge that it was there." 53 These directions were described on behalf of the appellants as largely unexceptional. Nevertheless the point that was taken was that the directions failed adequately to advert to the issue of joint possession. In particular, it was argued, inadequate attention was paid to various possible scenarios. One of these concerned the position of Williams. The evidence showed that she was not employed by Lewis Magro to drive the vehicle, and, even though she did drive from time to time, her role was as a companion to Matthews. From this, it was argued, it could be seen that she was not authorised to maintain control over the load in the trailer. 54 A second possible scenario, on the submission, was that one appellant, but not the other, was responsible for the loading and transporting of the cannabis and that the other was quite innocent (presumably meaning "ignorant of the presence of the cannabis"). A third was that while one appellant was criminally responsible for the cannabis, the other, although having knowledge of that fact, played no active role in the criminal enterprise. A fourth is that one appellant was responsible, and that the other, while having knowledge of that fact, "merely acquiesced" in the other's criminal participation. (Quite how this fourth scenario differs from the third is not apparent to me.) 55 The argument was that the directions should have been more expansive to bring these various possible scenarios to the attention of the jury. 56 Should it be correct that these scenarios were, or any of them was, in reality as distinct from in theory, a reasonably possible version of the facts, a significant consequence arises. On the evidence, if it were reasonably possible to conclude that one appellant but not the other was criminally involved, it would not be possible, beyond reasonable doubt, to identify which of the appellants was guilty and which was not. Each would therefore be entitled to an acquittal. However, this ground, as pleaded and argued, concerns directions which it was on appeal (although not at trial) contended should have been given. It was conceded that no such directions were sought and the appellants need leave if they are to be permitted to argue the ground. 57 In my opinion the first of the scenarios can be dismissed readily. The evidence established that both appellants had driven the semi-trailer on part of the journey prior to its interception. In those circumstances, at least during the time he or she was driving, each appellant had, in a physical sense, custody of and control over the contents of the trailer. In saying this I do not mean to imply that the appellant who happened to be a passenger at any particular time could not also be held to have had custody or control at that time; but it is unnecessary to reach a conclusion about that, because, during the time of driving at least, each appellant had the relevant custody or control. I am unimpressed with the proposition that there is a reasonable possibility that Williams "was not authorised to maintain control of the load in the trailer". The summing up accorded with the way the defence was conducted. In counsel's address to the jury it was submitted, as the appellants had asserted to the police and as they asserted in their evidence, that the appellants had no knowledge of the cannabis. No suggestion was made in counsel's address to the jury that the jury might be satisfied that one of the appellants was knowingly in possession of the cannabis but that the jury would not be satisfied that it was either one of them in particular. Yet the directions which it is now submitted should have been given to the jury by the trail judge are variants of that theme. 58 No direction of the kind now sought was sought at the trial. To have done so would have been inconsistent with the way the appellants' case was conducted, in that it would have raised for consideration by the jury the possibility that one of the appellants was knowingly in possession of the cannabis whereas the appellants' case at the trial was that neither was knowingly in possession of it. It was a tactical decision to conduct the appellants' case in this way, carrying with it the implication that both appellants were the innocent victims of wrongful conduct by others. 59 The third and fourth proposed possibilities, even if they are accepted as such, do not assist the appellants. That is because, on the scenarios posited, and for the reasons given above, at least by the time each appellant had taken the controls of the prime mover, that appellant knowingly had custody and control of the cannabis. (The scenario, in each case, postulates knowledge or acquiescence, but with a lower level of actual involvement of one participant vis-a-vis the other.) This question was explored during the course of oral argument. Senior counsel for the appellant argued that, if one driver were given instructions that precluded any interference by that driver with the contents of the trailer, then that driver would not be in control of the contents of the truck. That proposition, to me, has rather more than an air of unreality about it. It is based upon a premise which is almost metaphysical. The premise is that the criminally complicit participant may surrender to the knowing but otherwise uninvolved participant, control of the truck and trailer, but not of the contents of the trailer; and could do so merely by exerting some form of authority or by giving some form of instruction or direction. It assumes a level of authority on the part of a person who, ex hypothesi, is guilty of a criminal offence. More, it assumes some kind of legitimate authority on the part of that person to give directions to the other. It may well be that, as a matter of fact and practicality, the second driver would have complied with any such instruction or direction. But, as was suggested during the course of argument, that is a question of fact, to which, in this case, no evidence was directed. It was not for the Crown to exclude such a remote hypothetical possibility. 60 Senior counsel then postulated a circumstance closer to the facts of this case to support his argument. He proposed a truck travelling from Adelaide to Sydney, the official driver of which was knowingly and intentionally in possession of contraband in the trailer; a passenger who was aware of but indifferent to that possession; and a temporary pause during which the driver asked the passenger to take over the wheel for five minutes. In those circumstances, senior counsel argued, the alternative driver would not become seized of possession of the contraband in the trailer because that driver would not have had exclusive or joint control of that contraband. 61 This argument also fails for essentially the same reasons as the earlier arguments fail. Senior counsel accepted that the scenario postulated raises a question of fact. That issue of fact theoretically could determine the issue of control. But where no evidence was adduced to establish even the possibility of the scenario, it was not something about which directions needed to be given. It is not to be forgotten that this ground is concerned with directions that were, and directions it was contended should have been, given. 62 To support his proposition senior counsel relied upon the decision of the Full Court of the Supreme Court of South Australia in The Queen v Myall (1986) 43 SASR 258. That case, although it bears a superficial resemblance to the present, is, in material respects, quite different. A husband and wife were apprehended in a motor vehicle driven by the husband and in which the wife was a passenger and which contained recently stolen goods. Each was charged with having received goods knowing them to have been stolen. Although police officers had observed part of the operation during which the stolen goods were loaded into the vehicle, there was no suggestion that the appellant (the wife) had taken any active part in that operation. She had been observed, while in the passenger seat of the van, to adjust one of the items to prevent it from moving during transit. 63 Matheson J, with whom Jacobs J agreed, held that there had been no case to go to the jury and that the trial judge should have acceded to an application for a verdict by direction. Olsson J considered that the trial judge was "plainly correct" in rejecting the submission that there was no case to answer, but that, nevertheless, the jury ought to have had a reasonable doubt about the appellant's guilt and acquitted. Pursuant to the principles now stated in, inter alia, M v The Queen (1994) 181 CLR 487, his Honour agreed that the appeal should be allowed and the conviction quashed. 64 A number of passages in the two judgments are relevant to the issues raised in the present appeal. Matheson J, after considering a number of relevant authorities, held that: "The evidence fell short of establishing that she had joint control, still less exclusive control. Her handling, such as it was, was equivocal, and, in all the circumstances, pointed at best, from the Crown point of view merely to acquiescence in her husband's possession." 65 Olsson J wrote: "When one considers the state of the evidence as it stood at the close of the defence case there were a number of aspects which necessarily gave grounds for some disquiet. The first is that there was no real evidence to connect the appellant with any guilty transaction (assuming that there was one) between her husband and the man Nash. She gave an explanation which was not only plausible and not overturned on cross-examination, but which, it is true to say, was not ever strongly attacked by the Crown. It is clear that the jury disbelieved her husband's story and was patently entitled to do so, but one is left with the uneasy impression that the jury may well have found her guilty merely by association with him. It has been pointed out on several occasions that the mere fact that a person happens to be a passenger in a motor vehicle by no means, of itself, implies that such a person is in possession of it (Reg v Fien [[1962] NSWR 134], nor does the fact of mere manual contact with stolen goods necessarily imply possession of them (Hobson v Impett [(1957) 41 Cr.App.R. 138]). The fact that the appellant was the wife of the person found to have received stolen goods also does not necessarily imply joint possession on her part. On the contrary it affords a very reasonable explanation – entirely consistent with the innocence of any receiving – of an innocent presence in the vehicle. This is the more so when her explanatory story was not successfully impeached in cross-examination. Alternatively, at best, (assuming that the appellant had knowledge of the fact that the goods had been stolen) there is simply no substantial basis of evidence for inferring that she was other than an acquiescent wife who was literally 'going along for the ride'." 66 These passages, in my opinion, make it quite clear that Myall was very much decided upon its own facts. The prosecution evidence was simply insufficient to establish to the requisite criminal standard that the appellant was complicit with her undoubtedly guilty husband in the possession of stolen goods. 67 In my opinion, the decision in Myall does not advance the appellants' case. 68 In this case, the trial judge gave directions that were appropriate having regard to the issues that had been raised by the evidence. At no point was it ever suggested, as a matter of fact as distinct from theoretical possibility, that one of the appellants might have had possession of the cannabis with the other, at most, merely acquiescing. Had that been raised as a possibility, joint representation would not have been possible. 69 In any event, the ground represents a departure from the position taken by the appellants at trial. There, it was stated at the outset, knowledge was the issue and the only issue. It was accepted that, if knowledge were proved on the part of either appellant, that appellant was guilty. No issue was ever raised about acquiescence as distinct from participation, nor awareness as distinct from indifference. The ground seeks to make a case different from that made at trial. 70 I would refuse leave to argue the third ground of appeal, but, if leave were granted, I would reject it. ground four: unreasonable verdicts 71 By the final ground it was argued that the convictions on the cannabis charges were unreasonable and could not be supported having regard to the evidence. 72 The foundation for this ground is to be found in a series of decisions concerning alleged possession of prohibited substances, where the evidence did not (or was said not to) permit the exclusion of one or more others as the person or persons in possession of the substance: see R v Filippetti (1978) 13 A Crim R 335; R v Burns (unreported), NSWCCA, 19 August 1988; R v Anderson (unreported), NSWCCA, 15 December 1983; R v Bazley (unreported), NSWCCA, 23 March 1989; R v Duong [2003] NSWCCA 55, unreported, 10 March 2003. 73 Brief reference may be made to the specific facts of these cases. In Filipetti cannabis was found in domestic premises occupied by the appellant with five others. The cannabis was found in a living room to which all occupants had free access and of which they made free use. The appellant had, when police entered, behaved in a manner which might have suggested a consciousness of guilt, but this was held not to be sufficient to establish that the cannabis was in his exclusive physical control. The evidence was insufficient to establish joint possession on the part of the appellant with all or any of the other occupants. 74 In Burns the drug had been found secreted in a wardrobe in bedroom occupied by the appellant and his partner. There was evidence sufficient to support a conclusion (at least on a prima facie basis) that anything found in the bedroom could have been regarded as in the possession of either or both of the appellant and his partner. On that evidence, it was held, the question of the identity of the person in possession "was an open one". It might have been either or both of the appellant and his partner. However, there was also evidence that, in a separate trial of the partner, sworn evidence had been given that the drug was not hers and that she knew nothing about it. That left the appellant as a fairly obvious suspect. 75 In Bazley the appellant and another man (Cruickshank) were present in a house occupied by the appellant. On a table between where the two men were sitting was a quantity of Indian hemp and some of the paraphernalia frequently associated with the use of that drug. The appellant answered some questions put to him by police in a way that incriminated him in relation to the use of the drug, but not the possession of the items the subject of the charge. The court held that the evidence was insufficient to permit a conclusion that the appellant, to the exclusion of Cruickshank, was in possession of the drug. Hope JA, with whom the other members of the court agreed, identified three possible conclusions, these being that, firstly the appellant, secondly Cruickshank, and thirdly the two men jointly were in possession. However, he considered that there was no material which excluded the possibility that Cruickshank alone was the possessor. 76 It will be seen that each of these cases involved an analysis of the evidence in the proceedings. In some cases the evidence was held to fall short of what was necessary to establish exclusive or joint possession in the appellant. 77 Here, the cannabis was loaded into the trailer either before the trip or during the trip. On the evidence, it was open to the jury to infer that, if loaded during the trip, each of the appellants would have known of its presence in the trailer. It was also open to the jury, on all the evidence, to infer that, if the cannabis was loaded into the trailer before the trip and it was loaded by others, each of the appellants would have been informed of its presence if only to ensure that delivery would be safely effected. (In the latter respect, assuming that those responsible for loading the cannabis into the trailer thought it necessary to inform only Matthews as the person who was the contracted driver, it was open to be inferred that he would have informed Williams because of the risk of inadvertent conduct on her part which might otherwise have imperilled the enterprise.) Possession in law was open to be found on the basis of active participation in the transporting of the cannabis with knowledge. In that respect, taking turns in driving the vehicle, with knowledge of the cannabis, was sufficient to provide a basis for that finding. 78 The finding that each of the appellants was in possession was open to the jury and the verdicts were accordingly not unreasonable in the relevant sense. 79 I would reject this ground of appeal. 80 In each case I would dismiss the appeal. 81 SPERLING J: I have read Simpson J's judgment in draft. I gratefully adopt her Honour's review of the course of the trial, including the evidence adduced and the trial judge's summing up. I agree with the orders proposed by Simpson J and with her Honour's reasons in relation to grounds 1, 2 and 4. 82 In relation to ground 3, I agree with Simpson J that leave to argue this ground of appeal should be refused for the reasons provided in the following paragraphs of her Honour's judgment: 52, 57 (from "The summing up accorded …"), 58, and 68 to 70. 83 BERGIN J: I agree with Simpson J. ********** Last Modified: 08/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.