DAVIES v REGINA [2007] NSWCCA 316

New South Wales Court of Criminal Appeal

CITATION: DAVIES v REGINA [2007] NSWCCA 316

HEARING DATE(S): 26 October 2007

JUDGMENT DATE: 16 November 2007

JUDGMENT OF: Mason P at 1; James J at 34; Howie J at 35

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – Appeal and new trial – appeal against conviction – particular offences – drug offence – possession of prohibited substance – presumption of supply – whether verdict unreasonable – circumstantial case – lack of positive evidence on possession of drugs – whether jury should have had reasonable doubt

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: R v Amanatidis [2001] NSWCCA 400

PARTIES: Marie Ann DAVIES REGINA

FILE NUMBER(S): CCA 2007/2951

COUNSEL: Appellant: C Davenport SC/ R Webb Crown: M Barr

SOLICITORS: Appellant: Wright George Lawyers Crown: S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/31/0310

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 9 February 2007

IN THE COURT OF CRIMINAL APPEAL CCA 2007/2951

MASON P JAMES J HOWIE J

Friday 16 November 2007

Marie Ann DAVIES v REGINA JUDGMENT

1 MASON P: The appellant challenges her conviction on the sole ground that the verdict was unreasonable having regard to the evidence. The charge was one of supplying heroin and the quantity involved (9.4g) was such that proof of possession deemed the possessor to be a supplier (see Drug Misuse and Trafficking Act 1985, s29). 2 In R v Amanatidis [2001] NSWCCA 400, 125 A Crim R 89 Giles JA summarised the applicable principles as follows (at [9]): Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody ( He Kaw Teh (1985) 157 CLR 523 at 537-539, 546, 585-587, 599-600; 15 A Crim R 203 at 212-214, 219, 248-259). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared ( Dib (1991) 51 A Crim R 64 at 66-67). It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons – that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in Filippetti (1984) 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred: see also Bazley (unreported, Court of Criminal Appeal, NSW, No 215 of 1988, 23 March 1989) and Sobolewski (unreported, Court of Criminal Appeal, NSW, No 60502 of 1997, 21 April 1998).