English v R

1. [1]

   KIRK JA: The applicant, Michael English, was charged in the District Court with five counts of supply prohibited drug (counts 1-5), one count of dealing with proceeds of crime (count 6) and one count of possessing false identification document with intent to commit the indictable offence of drug supply (count 7). Counts 1 and 2 were in connection with a residence in Mascot. There was a directed verdict of not guilty on count 2 and the jury found the applicant not guilty of count 1. Counts 3-6 related to drugs and cash found in an apartment in St Leonards. The jury found him guilty of those counts, along with count 7. The trial judge, O’Brien DCJ, imposed an aggregate sentence of seven years and six months imprisonment with a non-parole period of five years and seven months.

2. [2]

   The applicant seeks an extension of time and leave to appeal from the conviction on counts 3-6 on the sole ground of unreasonable verdict. He does not challenge his conviction on count 7. His argument is simple. He does not claim that the Crown did not prove he had possession of the drugs and money. But he says that the Crown chose to put its case against him on the basis that he had exclusive possession, and the evidence cannot establish that point beyond reasonable doubt. As his senior counsel put it at the outset of oral submissions, the Crown did not “negative the reasonable possibility that the applicant was in joint possession of the drugs the subject of the counts that led to the convictions”.

3. [3]

   In my view, having carefully reviewed the evidence, the argument is correct. Leave to appeal should be granted, the appeal upheld, and the applicant’s convictions on the three challenged counts quashed with a verdict of acquittal entered instead. He should be resentenced on count 7 in accordance with the indicative sentence identified by the trial judge.

4. [4]

   These reasons are structured as follows:

   1. (1)

      the application for an extension of time to appeal (at [5]-[7]);

   2. (2)

      principles governing an unreasonable verdict appeal (at [8]-[16]);

   3. (3)

      the notion of possession (at [17]-[22]);

   4. (4)

      an overview of the Crown case (at [23]-[38]);

   5. (5)

      the evidence going to exclusive possession (at [39]-[93]);

   6. (6)

      resentencing on count 7 (at [94]-[96]).

Application to extend time

1. [5]

   The applicant was sentenced on 14 April 2023. A notice of intention to appeal was filed on 28 April 2023 but the notice of appeal was not filed until 12 May 2025, over 12 months late. The applicant seeks an extension of time.

2. [6]

   An explanation for the delay was given in an affidavit sworn by the applicant’s current solicitor, Mr Gerard Mitchell. The applicant had been unsuccessful in securing private funding for the appeal until October 2024, in circumstances where it was believed that Legal Aid would not be available. The applicant’s solicitors at the time then appropriately indicated that they were unable to review the matter in reasonable time due to other commitments. In November 2024 the applicant sought to engage another firm of solicitors, which indicated it could review the matter in short order. However, in late March 2025 the applicant discovered that the process of reviewing the matter had barely begun. He promptly withdrew his instructions and engaged Mr Mitchell’s firm. Mr Mitchell retained senior and junior counsel swiftly, and the appeal and submissions were filed on 12 May 2025.

3. [7]

   The Crown did not oppose an extension of time per se, with it noting that the merit of the substantive appeal was a relevant consideration: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The delay is regrettable but it should not be held against the applicant in light of the explanation provided, and taking account of the prospects of success of the appeal. Time should be extended to permit the application for leave to appeal to be brought pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Principles applicable to an unreasonable verdict appeal

1. [8]

   The role of an appellate court considering a conviction appeal alleging an unreasonable verdict was authoritatively stated in the joint judgment in M v The Queen (1994) 181 CLR 487 at 492-495; [1994] HCA 63; see further Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [5]-[17]; R v ZT [2025] HCA 9; (2025) 99 ALJR 676 at [6]-[12]. The question which the court must ask itself is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (M at 493), that question being “one of fact which the court must decide by making its own independent assessment of the evidence” (M at 493). The joint judgment in M also explained (at 494):

2. [9]

   Their Honours said that “full allowance” is to be made for the advantages enjoyed by the jury (M at 494). Those advantages may extend not just to witness testimony but to all of the evidence adduced at trial, “including by the application of the jurors’ collective wisdom and experience of ordinary affairs”: ZT at [9]. The “existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial”: ibid. For example, where the prosecution case is circumstantial and consists mostly of unchallenged testimony, and the accused did not give evidence, then the advantage possessed by the trier of fact may be slight: ibid, referring to Dansie at [17].

3. [10]

   It was explained in ZT at [11] that M:

4. [11]

   Here, both sides focused on the evidence going to the issue of possession. It is that evidence which is determinative of the appeal.

5. [12]

   As the Crown noted, this Court said the following in Barzani v R [2024] NSWCCA 188 with respect to such an appeal in a circumstantial case:

6. [13]

   In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence; neither at trial nor on appeal is such a case to be considered piecemeal: The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46] and [48]. The applicant did not submit that any particular fact in this matter was of such a nature or significance that it was necessary to prove that fact beyond reasonable doubt: cf eg Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 at [74].

7. [14]

   Here, the main evidence going to possession is of a documentary or unchallenged kind. It includes correspondence with respect to the taking over of the lease, video recording of a police search of the premises, photos taken from CCTV footage of the applicant’s presence in the apartment building (but no CCTV video footage), fob usage logs maintained by building management, and unchallenged evidence as to the whereabouts of the keys and fobs associated with the apartment. Witness credit and reliability was not in issue.

8. [15]

   As to the collective wisdom of the jury in making judgments other than of credibility, senior counsel for the applicant submitted that “it’s not got any work to do in this case”, referring to the fact that the case does not depend on an assessment of credibility but rather on objective circumstantial evidence. Counsel for the Crown took a different position, submitting that “that advantage … derives from that diversity, the experience … of 12 members in the community”, saying “that advantage has some work to do”, although “we don’t submit it’s overwhelming”.

9. [16]

   This case is similar to Dansie in that the prosecution had a circumstantial case depending largely on documentary and uncontested evidence. The jury does have the advantage of drawing upon the diverse range of human experience, understanding and judgment of 12 randomly drawn members of the community when making factual assessments: note ZT at [9]-[10]; Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170 at [29]-[30]. But here there appears to have been relatively little scope for that collective wisdom and experience to have had much role to play, and the Crown has not identified any particular special advantage that the jury had beyond its collective nature. It suffices to say, as the High Court did in Dansie, that any advantage held by the jury was slight.

The notion of possession

1. [17]

   Despite the centrality of the notion of possession in the Drug Misuse and Trafficking Act 1985 (NSW), the term is not defined in the Act. This Court said the following of the notion in Huynh v R [2020] NSWCCA 202:

2. [18]

   Similarly, Dawson J said in He Kaw Teh v The Queen (1985) 157 CLR 523 at 599; [1985] HCA 43 that the concept of possession in criminal law “is a basic one involving the intentional exercise of physical custody or control over something”.

3. [19]

   The very notion of possessing something implies that others are excluded from having that thing. Thus the High Court has said of the notion that “exclusiveness is essential”: Moors v Burke (1919) 26 CLR 265 at 271; [1919] HCA 32. But, as the Court immediately went on to say, that “does not mean that several persons may not in concert have and exercise that exclusive possession as against the rest of the world”. Thus the Court did not use the word exclusive to mean truly exclusive, that is, excluding all others. A few people might have joint possession of a thing.

4. [20]

   Justice Beech-Jones, relevantly speaking for this Court in Lee v R [2013] NSWCCA 68; (2013) 232 A Crim R 337, referred to the passage in Moors then said:

5. [21]

   This Court’s decision in that case was overturned in Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, but on other grounds which do not undermine the point quoted (and note further R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89 at [9]).

6. [22]

   As explained below, the notion of exclusive possession invoked by the Crown in this matter was truly exclusive, that is, to the exclusion of all others. The possibility of joint possession was eschewed. Why that forensic choice was taken is not clear. In any case, the reason for the choice is not this Court’s concern. Counsel for the Crown on the appeal properly did not seek to backtrack from the way in which the prosecution case had been put at trial.

An overview of the Crown case

1. [23]

   Whilst the applicant was acquitted on counts 1 and 2, for the purpose of providing context it is convenient briefly to refer to the events at the Mascot premises on 5 February 2020. On that day an ambulance and police attended an apartment in Mascot in response to an incident. It was not disputed that the applicant was the resident of that apartment at the time. Three men were present in the apartment, including the applicant. One of the others was Joshua Proia, who was unwell and ended up being taken away for medical care. While police were there they observed objects suggestive of drug possession and supply, including white powder in two bags and on a piece of paper. The applicant admitted possession of the powder sitting on the paper. Warrants were obtained to search the apartment and the underground carpark. Police found a commercial quantity of heroin in a Ford Ranger ute parked in the car space opposite to the space designated for the occupant of the apartment in question (that being the subject of count 2), and a large commercial quantity of methylamphetamine in an Audi A5 car parked behind the Ford Ranger (that being the subject of count 1). Neither of those vehicles was registered to the applicant. The applicant was taken to the Mascot Police Station on the day but was not detained.

2. [24]

   A pre-trial ruling was made that the evidence supporting counts 1 and 3 was cross-admissible as coincidence evidence. Obviously enough, the Crown has accepted that coincidence reasoning is not available on appeal given that the applicant was acquitted on count 1.

3. [25]

   Counts 3-7 were based on events connected to a two bedroom dwelling, unit 2607 (also referred to as 2607B), on the 26th floor of an apartment building in St Leonards. Unlike with the Mascot premises, there is a real debate as to whether the applicant was the sole resident of, or even resided at, the unit at the relevant times. Evidence that goes to the precise nature of the applicant’s connection with the unit, and control over the drugs and cash found therein, is at the heart of this appeal and will be examined separately below. For present purposes it suffices briefly to outline the Crown case.

4. [26]

   On 12 March 2020 a man named Krikor Gregory Sinian entered into a residential tenancy agreement with respect to the St Leonards unit. He was the sole tenant on the lease.

5. [27]

   On the evidence tendered by the Crown the earliest date that the applicant was seen in the vicinity of the unit was 14 April 2020 when he was depicted in a still image taken from the CCTV cameras in the building lifts as entering the level on which the unit was situated. He was also captured on those cameras on 15 and 17-19 April 2020 travelling to and from that level in the lifts, sometimes alone and the other times with other unknown individuals.

6. [28]

   A receptionist employed by the real estate agency managing the unit gave a statement, which was marked for identification and read out by the prosecutor at the trial. She said that on Sunday 19 April 2020 she received a noise complaint about the occupant of the unit. She forwarded the complaint to the email address Sinian had provided. The next day Sinian told her that a man named Logan Dart would take over the lease. A person identifying themselves as Logan Dart then contacted her. On the morning of Wednesday 22 April 2020 – prior to the applicant’s arrest later that morning – she received purported identification and financial documents from Logan Dart. It is not disputed that Logan Dart was an alias of the applicant.

7. [29]

   On that same day police received information that the applicant was residing in the vicinity of the St Leonards apartment building. The unit had been under surveillance. Police observed the applicant’s BMW (which was registered in his name) parked in the underground carpark and saw the applicant in CCTV footage captured within the building. Police arrested the applicant when he exited the lifts on ground floor, searched him and found a set of keys and forged identification documents in the name of Logan Dart with the applicant’s photo. Later that day police executed a search warrant at the unit, having guarded it in the meantime. No-one else was present inside when they entered the unit.

8. [30]

   It was agreed that police found a plastic resealable bag on the top right shelf of an entertainment unit in the living room containing 996.3 grams of methylamphetamine. It was agreed that police found in the bottom drawer of a workstation in the second bedroom (which was also described as an office or study) four bags of brown powder containing a total of 164 grams of MDMA (it appears that there were also other bags, including containing MDMA, found in this drawer – it may be that the agreed facts should have referred to six bags containing that total amount). It was agreed police found in the same drawer 54x10 blister packs containing a total of 115.2 grams of alprazolam. Alprazolam is also known as Xanax. It was agreed that on that day the applicant was in possession of falsified documentation in the name of Logan Dart, including a driver’s licence, Medicare card, and bank and employment records. Police also found $18,825 in cash in the unit.

9. [31]

   Counts 3-5 of the indictment each alleged that on 22 April 2020 the applicant, contrary to s 25 of the Drug Misuse and Trafficking Act, did supply the following prohibited drugs: not less than a large commercial quantity of methylamphetamine (count 3, under s 25(2)); not less than a commercial quantity of MDMA (count 4; under s 25(2)); and alprazolam (count 5; under s 25(1)). The alleged supply was a deemed supply by reference to the applicant have possessed the drugs, taking account of the quantity in each case. The drug charges thus could only be made out if the Crown established that the drugs were in the possession of the applicant. Count 6 alleged that on the same day the applicant dealt with $18,825 in cash which there were reasonable grounds to suspect was the proceeds of crime, contrary to s 193C(2) of the Crimes Act 1900 (NSW). The term “deal with” in that provision is defined to include “possess”, pursuant to s 193A of the Crimes Act. It was alleged that the applicant dealt with the cash by possessing it.

10. [32]

    The Crown prosecutor said in opening at the trial that at “the heart of the case is the notion of possession”. He went on to say that “this issue of possession involves custody and control to the exclusion of all others”. At the end of the first day of the trial, in the absence of the jury, the trial judge sought to clarify for his own benefit that the “Crown case is that he is the sole – it’s not a case of joint possession”. The prosecutor answered “No”, indicating agreement that the case was not put in terms of joint possession. On the next hearing day the prosecutor reiterated, in the absence of the jury, that “I’m remaining in the position I’m going to have to prove sole possession”, saying “[i]t won’t be joint possession”.

11. [33]

    On 17 November 2022, after the close of the Crown case, the trial judge directed the jury to acquit the applicant of count 2 having concluded that the evidence did not allow the conclusion to be drawn that he had been in exclusive possession of the heroin found in connection with the Mascot premises. His Honour noted in his judgment on the point that “[t]his is a case in which the Crown has opened and has run his case on the basis of exclusive possession, not joint possession”.

12. [34]

    In his closing address the Crown prosecutor said that “we say that he was in possession of those drugs – unlike count 2 – in possession of those drugs in that he was exercising exclusive control in respect to those drugs”.

13. [35]

    In his summing up his Honour directed the jury that “the Crown must prove that the accused intentionally had the substance in his physical custody or control to the exclusion of any other person”, saying that “this is the principal issue with which you must be concerned”. It was implicit that the standard of exclusive possession was also being applied with respect to count 6 relating to the cash (and the Crown did not suggest otherwise on appeal).

14. [36]

    Shortly after the jury retired to consider its verdict it sent the judge two notes, in one of which it said:

15. [37]

    In response, following discussion with counsel, the trial judge directed the jury that the word “exclusive” was an ordinary English word, that he did not propose to interpret it further or give them an example, and that exclusive control was a question of fact for them to decide.

16. [38]

    The jury subsequently returned its verdict of not guilty on count 1 and of guilty on counts 3-7.

The evidence going to exclusive possession

1. [39]

   The appeal involves consideration of all the evidence that went to establishing exclusive possession by the applicant on 22 April 2020 of the drugs and cash found in the unit.

2. [40]

   The Crown sought to rely on evidence indicating that the unit was occupied. That evidence is found in a series of police videos taken during the search. The Crown placed significant reliance upon the videos in its submissions and implicitly invited the Court to watch them (as it did expressly in oral submissions as regards identifying keys). I have watched them. The Crown did not suggest that the jury had some particular advantage in assessing what was shown in the videos, beyond the advantage of their collective experience as already addressed.

3. [41]

   The front door of the unit led into a small hallway, next to which is a small bathroom. There did not appear to be personal toiletries in that bathroom. There appeared to be some clothes on the floor.

4. [42]

   Off the hallway was a small cupboard laundry containing a washing machine and dryer. There was a load of clothes in the dryer, and clothes appeared to be sitting on the washing machine. The nature of the clothes is indistinct. There appeared to be bottles of washing liquids sitting in a sink.

5. [43]

   The next room on the right was a bedroom, containing a built-in wardrobe and what appeared to be a Queen-size bed. The bed had a top and bottom sheet on, with the top sheet tossed back. The bed looks to have been in use. A cardboard box next to the bed contained clothing, while a laundry basket and a bucket next to the bed appeared to contain clothing and bed linen. The built-in wardrobe, which appeared half-empty, contained some linen, clothing in a laundry basket, loose clothing, a heater and a cardboard box. There were clothes on the floor.

6. [44]

   The size of two pairs of shorts found in the bedroom was identified on the videos: some blue shorts were “2XL”, and some black shorts had their size marked as having a 112cm/44inch waist. The Crown submitted that this large size was compatible with the applicant’s build. There was no direct evidence of his waist size, but photos suggest that he was somewhat portly around the waist, so such large sizes are consistent with being his clothing. Photos taken from the lifts depict him regularly wearing shorts.

7. [45]

   Opposite the bedroom was a doorway which led to an open area comprising the kitchen and a living room. There was some food in the kitchen – for example, there were a number of packets of breakfast cereal in the cupboard along with some peanut butter. Many of the kitchen cupboards were empty. Supermarket shopping bags can be seen. A frypan sat on the cooktop, next to which was a toaster and a kettle. In the sink in the kitchen bench was a used bowl, a plastic food container, a drink can, a drink bottle, and some cutlery. Next to the sink was some washing up liquid. There was an open cereal packet on the kitchen bench. There was clean cutlery in a drawer. There was a “Slush Puppie” machine standing next to the kitchen bench. There were food and drinks in the fridge and food in the freezer.

8. [46]

   In the living room area there were two dark grey couches and a small dining table. On the table was some scales, two drink cans, some water bottles, a food bowl, some snack food, and a Lee Child novel. There was also an entertainment unit on which was a TV and a speaker system. A rug was on the floor between the couches and the TV. There were bags, boxes and other items on the floor, including an empty water bottle. The room was messy. The living room connected to a balcony.

9. [47]

   Another room was accessible from the living room to the right of the balcony, which was set up as a study/office (also described as the second bedroom). It contained a grey sofa which was consistent in appearance with an item which the applicant had carried up in the lift with an unknown male on 18 April 2020. There was also a built-in wardrobe containing two shelving units, a desk with an office chair, a rack-style cabinet and a drawer cabinet. There were aftershave bottles on one of the shelves. It was in this room that the MDMA, the alprazolam and the $18,825 in cash was found.

10. [48]

    There was an ensuite attached to this room. In the ensuite was some men’s spray deodorant, nail clippers, a bottle of mouthwash (partially used), an electric toothbrush, an ordinary toothbrush, and two slightly used toothpaste tubes. The toothbrushes were seized for DNA analysis but, by implication, it seems no positive matches were found.

11. [49]

    There was a car space and a storage cage for the unit in the underground carpark. The applicant’s BMW was parked in the unit’s car space, the car key for which was found in the unit.

12. [50]

    Falsified documents and identification cards in the name of Logan Dart – the applicant’s alias – were found on the desk in the study (with, as explained below, the applicant’s DNA on the forged payslips).

13. [51]

    Although the unit was messy, there was strong evidence of it being lived in. For example, the food, the open cereal packet, what was in the sink, the state of the bed, the load of clothes in the dryer, the contents of the ensuite, the aftershave in the study, the novel on the table, do suggest that at least one male had been staying in the unit.

14. [52]

    The Crown submitted that the condition of the unit was consistent with the occupant having moved in recently. That was said to be supported by the limited items in the bedroom and the kitchen. The messy state of the kitchen, bedroom and living room might be explained by the occupant having just moved in, or it could just be that the occupant was a somewhat messy person. However, the mess could conceivably also be explained by a number of people coming and going, without much care for whether the unit was tidy or pleasant.

15. [53]

    Overall, there is a reasonable basis to infer that the applicant had been residing there: the tenancy had been transferred to the applicant’s alias; photos showed him coming and going from the apartment from 14 April 2020 onwards, and moving in the grey sofa found in the study; his false identification documents were there; no-one else was found there; his car key, for his car in the carpark, was in the unit; and he had just exited the apartment when he was arrested, carrying a set of keys for the apartment (discussed below).

16. [54]

    There is no direct evidence of other persons residing in the apartment. It was not suggested, for example, that there were clothes of two different people found there, and there was no bed in the second bedroom/study. That conclusion is subject to the following possible qualifications:

    1. (1)

       Sinian had rented the apartment a month and ten days earlier. His DNA was not identified as having been found on any of the items in there, although it is not apparent from the evidence that his DNA had been obtained or was otherwise on the police database. On the real estate agent’s evidence, the agent approached Sinian at his work on 23 April 2020 and asked him “what happened” – presumably referring to police activity at the apartment on the 22rd – to which Sinian responded “I want to know what happened too … I didn’t live there at the beginning, I only put the stuff in there, you can check the camera”. The “stuff” he was referring to was not identified; in context, it might have been furnishings. At the least, there is nothing to suggest he was residing there on 22 April 2020.

    2. (2)

       Identity documents of three other people were found in the apartment. There was a Liverpool Catholic Club card in the name of Joshua Proia found on top of the fridge in the kitchen – he was the unwell person at the Mascot unit when police had arrived there. It was put to the officer in charge (SC Heather Craig) in cross-examination that Proia had been staying with the applicant for a short while in the Mascot apartment because he had had some difficulties with his partner – a proposition to which SC Craig said “possibly, yeah”. The evidence from SC Craig was that she had tried to speak to Proia after the Mascot incident but she had not been able to locate him, and she understood he had moved to Queensland. In that context there is little basis to infer that Proia was living in the St Leonards unit. Separately, in a small cabinet in the study was found a Queensland driver’s licence in the name of Aimee Farman, and a NSW Safework card and a private health insurance card in the name of Sebastian Dean. The significance of these two people, if any, was not identified. These identity cards suggest it is possible that those individuals had been in the apartment. However, there is nothing otherwise to suggest that they lived there or had means of access to the unit.

    3. (3)

       As noted, two toothbrushes were found in the bathroom, suggesting it was possible two people had been staying there. That said, it is not unknown for individuals to have both an electric and ordinary toothbrush.

    4. (4)

       Although there did not appear to be toiletries in the first bathroom near the entrance, there did appear to be some clothes, the presence of which indicated both bathrooms had been in use. That could suggest that more than one person was residing there.

17. [55]

    Taken as a whole, this evidence supports a conclusion that the applicant was residing in the apartment in the period shortly before, and on, 22 April 2020. There is reason to think he was residing there alone, but the point is not certain.

18. [56]

    That conclusion is consistent with some evidence given by two police officers (SC Natalie Dixon and SC Matthew Cash) that on the morning of 22 April 2020 they spoke with the building manager at the apartment building, who confirmed that the applicant was “residing” in Unit 2706 in the building under the name of Logan Dart. SC Cash indicated that this was said after he had showed the manager an image of the applicant. That said, the basis upon which the manager held that belief was not explained. The two officers each also said that they observed the applicant enter a lift on level 26 that morning to come down to the foyer, where he was arrested by them.

19. [57]

    The Crown submitted that the fact that the drugs and the money were left easily accessible suggested that the applicant was the only person with access to the unit and the drugs. Yet that fact is also consistent with a number of people involved in a drug supply venture having access to both the drugs and cash. There is little doubt, incidentally, that drug supply activities were being carried out at the unit. So much is supported by the presence in the unit and the storage cage not only of the drugs, but also the cash, three money counting machines, plastic bags, numerous weighing scales and five mobile phones.

20. [58]

    The Crown tendered an agreed schedule of DNA evidence summarising trace DNA analysis of various items found in the unit. It cannot be said that the schedule is clear. It does not identify in plain English what item, found where, is being referred to. Nevertheless, as I understand it, the evidence was as follows:

    1. (1)

       The applicant was identified as the major contributor of DNA, amongst at least three persons, on the seal area of the resealable bag of methylamphetamine.

    2. (2)

       DNA of the applicant was on one of the blister packs of alprazolam.

    3. (3)

       He was the major contributor among at least two individuals to DNA on three of the knotted bags containing MDMA. Another of the bags in that drawer (not containing a prohibited drug) had DNA from at least three individuals with the applicant being the major contributor. Another bag in the drawer containing pink tablets (not said to be a prohibited drug) had DNA from two people with the applicant being the major contributor. A further bag in the drawer containing white powder (not said to be a prohibited drug) had DNA from at least three people, and the applicant and another named person “cannot be excluded as contributors”.

    4. (4)

       The applicant and another named person could not be excluded as contributors to DNA from at least two individuals on the inside seal of a small resealable bag containing methylamphetamine found near the drawer cabinet in the study.

    5. (5)

       Also in the study were falsified documents in the name of Logan Dart, including forged payslips, one of which had DNA from at least three individuals. The applicant could not be excluded as the major contributor, with another named person capable of being a minor contributor.

    6. (6)

       The applicant’s DNA was on a small resealable bag containing methylamphetamine found in the ensuite attached to the study.

    7. (7)

       In the storage cage for the unit located in the basement, there were, amongst other things, several ink stamps. The applicant and another named person could not be excluded as contributors among three individuals to DNA on the handle of one of those stamps.

21. [59]

    The implication of this evidence is that the applicant had handled at least some of the prohibited drugs and other items inside the apartment and the storage cage; although, for some of these items, so had (or might have) other people. The evidence of him having handled these items can be said to be supportive of a conclusion that he possessed them on 22 April. But it is by no means conclusive.

22. [60]

    The actual or potential presence of other people’s DNA on some of the evidence from the unit – three of whom were identified by name – shows that other people had or may well have had contact with that evidence (noting there is also the possibility of indirect transfer). The Crown’s expert indicated, as regards one of the other named individuals, that that person could be identified “because he was in the database”, implicitly suggesting some past encounter with police. Presumably the same is true of the other named individuals.

23. [61]

    This reduces the probative force of the DNA evidence in terms of whether or not the applicant had had exclusive possession. But, again, it is far from conclusive. Drug supply often involves successive handling by multiple people, which is not inconsistent with exclusive possession at a particular point in time.

24. [62]

    The DNA evidence thus has some, limited, probative force.

25. [63]

    As explained, possession involves custody or control. The drugs were found in the unit with no-one present. In that context, identification of who held the means of access to the unit was and is a key aspect of considering who possessed the drugs. If the Crown could establish that the applicant had sole possession of the means of access to the unit on 22 April 2020 that would go a significant way towards establishing that he had exclusive possession of the drugs within the unit on that day.

26. [64]

    There was no dispute that it was necessary to use a key to enter the unit itself; that it was necessary to use a fob/swipe token in the lift to gain access to the residential floors, including level 26; and that it was necessary to use a remote control “airkey” to drive into the underground parking in the building. There is no direct evidence as to whether it was necessary to use a fob to use the lift to travel from the residential floors to the ground floor. The fob logs (discussed below) do not record any fob being used around 11:30am on 22 April 2020 when the applicant descended just prior to being arrested. If the timing disclosed on the fob logs is reasonably accurate then that fact suggests that it was not necessary to use a fob to reach the ground level. But the point is not clear.

27. [65]

    A real estate agent gave a statement which, by consent, was read out by the prosecutor at the trial. The agent said that Sinian was given two sets of keys to the unit, two building access swipes (the fobs) and one underground parking access remote control. Photos of those keys, fobs and remote control were tendered as an exhibit at trial. There is one photo of a garage remote control. There is another photo showing two keyrings, on each of which were two keys (one larger and one smaller), an oval shaped fob, a leather tag (brown on one ring and black on the other), and a plastic tag with handwritten information seeming to identify the apartment. It can be inferred that the larger key on each ring was for the front door of the unit. It is reasonable to infer that the smaller key was for something like a mailbox, but the point is not significant. It seems likely it was not for the basement storage cage associated with the unit, given that video evidence shows that the cage was secured by an ordinary padlock (for which the police had no key, and which they broke open).

28. [66]

    There is no evidence as to whether there are any other copies of the apartment keys. However, it is reasonable to infer that the agent and/or the owner would have retained at least one copy. The inference is supported by usage logs for the fobs, which give some basis to infer that “fob 3” was held by the agent or owner (as discussed further below).

29. [67]

    There was evidence that on 24 April 2020 the building manager provided SC Cash with usage logs for all fobs connected with the unit. There are usage logs for three fobs, identified as “fob 1” to “fob 3”, and for the “airkey” for access to the underground parking. Printed usage logs were tendered. All entries for fob 1, fob 2 and the airkey – but not fob 3 – are attributed on the logs to the applicant (identified as Logan Dart) as early as 27 February 2020. The parties accepted that the attribution to such early dates is an anachronism, in the sense that the (false) name the applicant used appears to have been inserted retrospectively by the relevant computer system. The attribution to him for all of the fobs seems simply to reflect the fact that he was recorded in the system as the resident of the unit.

30. [68]

    The unchallenged evidence of SC Dixon and SC Cash was that the latter searched the applicant when he was arrested in the foyer of the building and “removed a set of keys” from him. In cross-examination SC Cash indicated that so far as he recalled there was a fob with the keys. Also in cross-examination, SC Dixon stated that she believed some other officers also did locate some keys within the unit. Neither officer otherwise clarified exactly what keys Cash had removed from the applicant, nor what the other keys were. It can be inferred, however, that the keys taken from the applicant were one of the sets provided by the real estate agent. That is the natural inference given that the applicant had just left the apartment. It is supported by the fact that both officers said they proceeded to level 26 to guard the unit – the implication being that they used the fob and keys taken from the applicant. They do not say that the building manager escorted them up or down, let alone that they had obtained a set of keys and a fob from the real estate agent.

31. [69]

    SC Craig said she believed that at the time of arrest the applicant had one fob, but she did not know who had the other fobs associated with the apartment.

32. [70]

    A question then arises as to who, on the day in question, had possession of the other set of keys provided by the agent to Sinian. The Crown identified a segment of one of the video recordings that showed some keys and a leather keychain in the study room. The leather tag appears to be the same as the brown tag on one of the sets of keys in the photo of keys and fobs sets provided to Sinian. A small key can be seen, which looks to be the same as the (presumptive) mailbox key shown in the earlier photo. There appears to be a small round object next to the keychain. It could be the fob but it is not clear. The bigger key in the earlier photo cannot be seen. It is possible that it was hidden underneath. It appears that the police did not take those keys into custody as an exhibit (there is video of the exhibits officer reading out the exhibit list, and he does not refer to them, whereas he does refer to a BMW key).

33. [71]

    From this video it can be inferred that at least part of the other key set was within the unit on 22 April 2020. But it is not clear that the fob, let alone the door key to the unit, was there. It is hardly unheard of to take keys or fobs off keyrings, perhaps to put them onto another keyring already in use.

34. [72]

    The police did not seize a key piece of evidence, being the keys found on the desk. Of course, the strength of the Crown case is to be assessed as it is, not as it might have been. The practical significance of this gap in the evidence as to whether the applicant had possession (at least in the unit) of the second set of keys has to be understood in the context of the evidence as to lift and fob usage.

35. [73]

    As noted, SC Cash indicated the building manager provided him with logs for all fobs connected with the unit. There are usage logs for three fobs, identified as fob 1 to fob 3, and for the airkey. The usage log for fob 3 is short. It records usage between 27 February and 11 March 2020, then usage on 23 April 2020, with no usage in between. Given that the apartment was leased to Sinian on 12 March 2020, and police arrested the applicant on 22 April 2020, it can be inferred that this fob (and likely any associated keys) was held by the agent and/or owner. Given its complete disuse during the whole period in question it can be set aside.

36. [74]

    In this context it can be inferred that fobs 1 and 2 were the ones provided to Sinian by the agent on the two keyrings. The logs indicate as follows (starting from 12 March 2020 when Sinian obtained the keys):

    1. (1)

       Fob 1 was used on 20, 22, 26, 29 and 31 March, and on 1-3, 8-11 and 14-23 April 2020. On most of those days there were multiple usages, indicating regular use of the lifts.

    2. (2)

       Fob 2 was used on 12, 13, 22, 23, 26, 30 and 31 March and on 1-3, 6-11, 13, 15 and 20 April 2020. Again, most of those days involved multiple usages. On the last of those days, however, it was used only twice – at 8:13pm and 8:39pm.

    3. (3)

       The airkey was used on 20, 22, 23, 26, 30 and 31 March and on 1-3, 7-11 and 14-23 April 2020.

37. [75]

    It is reasonable to infer that fob 1 was the one taken from the applicant when he was arrested, because there is no record of fob 2 relevantly being used after 20 April 2020. Further, there is significant usage of fob 1 on 22 and 23 April 2020, which is consistent with the police making use of it having seized it from the applicant. The airkey was also used a great many times on 23 April 2020. That suggests that the police had obtained it, although there is no direct evidence of that having occurred.

38. [76]

    The applicant tendered a set of CCTV photos of the interior of the lifts, along with a schedule matching the photos to times on the fob usage logs. The applicant is shown in some of the photos, twice in company. But in some photos there are three individuals without the applicant apparently present: a woman of Asian appearance in jeans (who in two photos is depicted with another man who seems to be interacting with her); a man with a pony tail in a black and white t-shirt (who in other photos is depicted helping the applicant bring the grey sofa into the lift); and a man with a cap, glasses and a beard and another man bringing into the lift a Slush Puppie machine (which looks the same as the machine in the unit’s kitchen). Whether the man in the cap had any connection to the machine or use of the fob is unknown. The times shown on the photos are within about one minute of the fob log entries with respect to fob 1.

39. [77]

    The Crown also tendered a set of 26 CCTV lift photos, in all of which the applicant appears, sometimes in company. His earliest appearance in evidence was on 14 April 2020. This set of photos was certainly not suggested to be exhaustive of the times the applicant used the lifts. There are many more fob entries on each relevant day than camera captures of the applicant and there is no evidence as to who used the fobs at those times.

40. [78]

    That the applicant is in company in some photos is of limited significance with respect to the exclusive possession issue. The fact that an occupant of a unit containing drugs has occasional visitors does little of itself to suggest possession was not exclusive.

41. [79]

    What is more significant is that all of the times in the photos in the Crown’s set equate (within about one minute) to log entries for use of fob 1. They do not equate to fob 2 usage. There is one exception, being a photo at 12:07am on 15 April 2020 which does not equate to either fob (or the airkey or fob 3).

42. [80]

    Thus such photographic evidence as there is suggests that the applicant used fob 1 and not fob 2. The photos from the applicant’s set can reasonably be argued to show other people using fob 1.

43. [81]

    The Crown submitted that the photos and fob data had limitations: that evidence does not prove access to the apartment itself, and there is no evidence establishing correlation between the fob entries and CCTV. As to the first point, if others could use the fob there is every reason to accept the possibility that they also had use of the key to access the unit, for if they had one means of access (to use the lifts) it seems reasonably possible that they also had the other means of access (to get into the unit). As to the second point, the Crown is correct in saying that it is not necessarily the case that the times shown in the photos and on the usage logs were accurate or synchronised. As noted, one of the photos show the applicant using the lift at a time which does not correlate to any fob entry. However, that might be some kind of one-off glitch. There is certainly a reasonable possibility that the timing on the photos and the logs was approximately synchronised. The Crown did not establish otherwise.

44. [82]

    On that understanding, it is significant that there are no photos showing the applicant using the lifts at times which correlate with times on the fob 2 log. And yet fob 2 was used reasonably regularly in the period leading up to the applicant’s arrest. Specifically, in the period after the applicant was first shown in the lift photos on 14 April 2020 it was used on 15 and 20 April 2020 (there being ten entries on the former date and two on the latter). It was not used as often as fob 1, and its last usage was about a bit over a day and a half before the applicant was arrested. Nevertheless, this evidence suggests there is a real possibility that some other person or persons possessed and used fob 2, potentially doing so independently of the applicant. And if that was so, the Crown’s case on exclusive possession is significantly undermined, because the unit and its contents would not be in the exclusive custody or control of the applicant. That point gains some further reinforcement from the fact that other people were seemingly using fob 1 without the applicant present.

45. [83]

    If the timing on the photos and logs was not synchronised, then that serves to drive home the point that the Crown did not establish that the applicant was using both fobs in the period leading up to his arrest, in circumstances where it did not suggest that the fob record was so inaccurate that it could not even be understood that fob 2 was being used on the days identified. On the contrary, it appeared to accept that fob 2 had been used on those days. This understanding still leaves open a reasonable possibility that fob 2 was not in the applicant’s possession in the period leading up to his arrest. Further, it is reasonable to infer that at least the man with the ponytail was using one of the fobs associated with the apartment, given the former person was shown in other photos with the applicant. Of course, it is possible that the applicant lent his fob to others on a temporary basis.

46. [84]

    The Crown made the point that two of the photos in its set showed the applicant carrying red containers up in the lift which were of a kind found in the unit. That point assists to link the applicant to the unit; it does little to establish exclusivity of possession.

47. [85]

    The Crown also tendered a set of photos taken from the entrance/exit to the underground carpark. The earliest of the photos is dated 14 April 2020. The photos depict the applicant’s black BMW coming and going, in some of which he can be seen; one photo is said to show him sitting in the passenger seat of a light truck entering the carpark, although that is by no means clear; some photos depict him entering carpark on foot or walking outside of it; and one photo shows him meeting an unknown male outside the carpark. This evidence ties the applicant to the unit, and tends to confirm that he was residing there.

48. [86]

    The discussion above addresses different parts of the evidence, but the evidence must be assessed as a whole and not on a piecemeal basis. The evidentiary threads can be drawn together as follows:

    1. (1)

       The evidence supports a conclusion that the applicant was residing in the apartment in the period shortly before, and on, 22 April 2020. It is not certain that he was residing there alone.

    2. (2)

       The DNA evidence strongly supports a conclusion that the applicant had handled, and had possession of, the drugs. But it does little either way to establish whether the possession was exclusive.

    3. (3)

       The applicant had possession of one of the two available sets of keys (including a fob) when he was arrested. At least part of the other key set is depicted in a video of items found on the desk in the study of the unit. But the evidence does not disclose whether the door key and the fob were still part of that set. There is a real possibility that they were not.

    4. (4)

       The fob usage log suggests that both fobs 1 and 2 were used in the days leading up to the applicant’s arrest, including in the period from 14 April 2020 when he is first depicted being in the building. There is evidence the applicant used fob 1 in that period, including on the day he was arrested. There is a real possibility that other people also used fob 1 in that period. There is no evidence the applicant used fob 2 in that period. Yet there is evidence that fob 2 was used in that period.

49. [87]

    What is at issue is exclusive possession of the drugs and money, not occupancy or possession of the unit. In this case the two cannot really be disentangled. The proposition that the applicant was the sole occupant of the unit was central to the Crown case. If he did not have exclusive access to the unit, it is difficult to see how it could otherwise be established that he had exclusive possession of the contents of the unit, including the drugs and cash. That is so even taking account of the DNA evidence linking him (and others) to some of the drugs. That evidence establishes a link between him and the drugs, but not exclusive possession of them.

50. [88]

    The Crown submitted that “the analysis really should focus on the state of affairs on 22 April”. Yet there is nothing to suggest that anything significant had changed in the period beginning 14 April 2022, when the first evidence places the applicant there, to suggest that the applicant’s access to the unit had become more or less exclusive in that period.

51. [89]

    Tying all of this evidence together, I am satisfied that the applicant was residing in the unit on 22 April 2020, had handled the drugs, and was in possession of the drugs and the cash found in the unit. However, I think there is a reasonable possibility that some other person or persons had possession of, or access to and use of, fob 2 and the associated unit door key in the period leading up to the applicant’s arrest, including on 22 April 2020 itself. The evidence indicates that other people had been coming and going from the unit in the preceding days. It is reasonably possible that at least one of those people had the second door key and fob 2, such as to give them access to the unit, and potential joint custody or control of the drugs and the cash. That conclusion takes account of the facts that fob 1 was used by the applicant, there is a reasonable possibility that fob 1 was used by others, and fob 2 was used in the days before the applicant’s arrest but there is no evidence as to by whom. It is by no means implausible that the drug supply enterprise being undertaken from the unit was a joint one.

52. [90]

    I thus consider that there is a reasonable possibility that the applicant’s possession of the drugs and the cash was not exclusive. In my view, and taking account of the way that the Crown ran its case, it has failed to exclude an inference consistent with non-guilt that was reasonably open.

53. [91]

    The ultimate question is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In considering that question this Court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and must make full allowance for the advantages enjoyed by the jury: see above at [8]-[15].

54. [92]

    The jury appears to have been astute and diligent, as shown in the note they sent to the judge soon after they began their deliberations going to the core issue. As discussed above at [16], I accept that the jury has the advantage of drawing upon its collective experience and wisdom, but consider that given the objective and substantially unchallenged nature of the evidence in this case any advantage enjoyed by the jury was slight, as in Dansie. I do not consider that the advantages of the jury explain or resolve the reasonable doubt identified.

55. [93]

    Having regard to all the evidence I consider that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 3-6 in the manner alleged by the Crown. The applicant should be acquitted of the charges on those counts.

Resentencing on count 7

1. [94]

   The trial judge imposed an aggregate sentence for all of counts 3-7, with the sentence taken to commence on 20 July 2021. It is necessary to resentence the applicant on count 7 alone.

2. [95]

   The indicative sentence his Honour regarded as appropriate for count 7 was 12 months imprisonment. The applicant proposed that this Court impose the same penalty, to commence on the same date. The Crown argued in written submissions that we should approach the question of resentence afresh. However, as counsel for the Crown accepted in oral argument, the applicant has already served more than four years of his sentence and any new sentence on count 7 alone will be for less time, and the period of the new sentence will not make any practical difference. In that context there is no utility in engaging in a detailed resentencing exercise, especially as neither side made any material criticism of the indicative sentence imposed.

3. [96]

   The indicative sentence noted by the trial judge was appropriate, for the reasons given by his Honour. On count 7 the applicant is resentenced to 12 months imprisonment to commence on 20 July 2021, ending on 19 July 2022. There is no sense in setting a non-parole period.

Orders

1. [97]

   The orders of the Court should be as follows:

   1. (1)

      Extend time to appeal to 12 May 2025.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Appeal upheld.

   4. (4)

      Quash the applicant’s convictions on counts 3-6 of the indictment dated 10 November 2022 and a judgment of acquittal be entered in their place.

   5. (5)

      Quash the sentence imposed by O’Brien DCJ on 14 April 2023, and in lieu thereof sentence the applicant on count 7 on the indictment to 12 months imprisonment commencing on 20 July 2021 and ending on 19 July 2022.

2. [98]

   YEHIA J: I have had the considerable benefit of reading the judgment of Kirk JA, in draft. His Honour has conducted a careful and comprehensive analysis of the prosecution’s circumstantial case. It is therefore unnecessary to repeat that analysis here, except to note that his Honour’s conclusions accord with my own.

3. [99]

   As his Honour observes at [22], the prosecution case against the applicant was put on the basis of exclusive possession of the drugs and money the subject of counts 3-6. The possibility of joint possession was eschewed.

4. [100]

   The Crown was obliged therefore to exclude the reasonable possibility that the applicant was in joint possession of the drugs and money and to do so beyond reasonable doubt. It failed to do so in this case.

5. [101]

   Having conducted an independent assessment of the sufficiency and quality of the whole of the evidence, I am of the view that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In coming to that conclusion, I have given “full allowance” to the advantages enjoyed by the jury, noting that given the substantially unchallenged nature of the evidence in this case any advantage enjoyed by the jury was slight.

6. [102]

   Accordingly, I agree with the orders proposed by Kirk JA.

7. [103]

   RIGG J: I am grateful for the detailed consideration of the evidence and issues set out in the judgment of Kirk JA. Having undertaken my own assessment of the evidence, I agree with his Honour’s explanation for why it was not open on the whole of the evidence to be satisfied of exclusive possession beyond reasonable doubt. I agree with the orders proposed by Kirk JA