JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 

TITLE OF COURT	:	THE COURT OF APPEAL (WA) 

CITATION	:	SCAFETTA -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 209 

CORAM	:	McLURE P
BUSS JA
MAZZA J 

HEARD	:	10 SEPTEMBER 2010 

DELIVERED	:	29 OCTOBER 2010 

FILE NO/S	:	CACR 17 of 2010 

BETWEEN	:	ADRIANO SCAFETTA
Appellant
 
AND
 
THE STATE OF WESTERN AUSTRALIA
Respondent 

ON APPEAL FROM: 

Jurisdiction	:	DISTRICT COURT OF WESTERN AUSTRALIA 
Coram	:	MARTINO DCJ 
File No	:	IND 682 of 2009 

Catchwords:
Criminal law - Appeal against conviction - Application of s 11(a) of the Misuse of Drugs Act 1981 (WA) to a person whose liability is for an offence under s 7(b) or (c) of the Criminal Code (WA) - Proper construction of s 11(a) of the Misuse of Drugs Act 1981 (WA) - Whether proviso should be applied - Turns on own facts 
Legislation:
Criminal Code (WA), s 7(b), s 7(c), s 8
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11(a), sch V 
Result:
Appeal dismissed 
Category:    B 

Representation:
Counsel:
Appellant	:	Mr S Vandongen
Respondent	:	Mr D Dempster 
Solicitors:
Appellant	:	Jeremy Noble
Respondent	:	Director of Public Prosecutions (WA) 

Case(s) referred to in judgment(s):

Abbott v The State of Western Australia [2005] WASCA 42
Davis v The Queen [1991] HCA 44; (1991) 103 ALR 417
Dunn v The Queen (1986) 32 A Crim R 203
He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523
Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502
Saad v The Queen (1987) 61 ALJR 243

1	McLURE P:  This appeal against conviction raises the proper construction of s 11(a) of the Misuse of Drugs Act 1981 (WA) (the Act).  The issue is whether, and if so to what extent, s 11(a) applies to a person whose liability for an offence under s 6(1)(a) of the Act is as an aider under s 7(b) or (c) of the Criminal Code (WA) (the Code).  
2		The appellant was charged with three counts of being in possession of prohibited drugs with intent to sell or supply to another, contrary to s 6(1)(a) of the Act.  The State case was that the appellant was in possession of 5.72 g of methylamphetamine (count 1), 88.6 g of methylamphetamine (count 2) and 179 g of cocaine (count 3) with the requisite intent.  The State contended that the appellant was the principal offender in relation to count 1 and the principal offender or alternatively, aided in the commission of the offences the subject of counts 2 and 3.  The appellant was convicted on counts 2 and 3 and found guilty of the alternative offence of possession on count 1.
3		The factual background to the offending is as follows.  Police conducted a search of the appellant's house in Attadale on 10 ‑ 11 March 2008.  They located small quantities of cocaine and MDMA, $25,000 in cash and a 'tick book' recording data consistent with drug dealing transactions concealed in cavities on either side of the toilet in the appellant's ensuite bathroom and a loaded revolver.  The house was fitted with a sophisticated camera surveillance system.  At a factory unit in Myaree leased by the appellant, police located $160,100 in cash and a box of ammunition.  
4		Police conducted a further search of the appellant's house on 24 July 2008.  At that time the appellant was the only person living in the house.  Police located the drugs the subject of count 1 in the appellant's study.  
5		In April 2009 Mr Ivan Roncevic was living at the appellant's house.  At about 10.00 am on 17 April 2009, shots were fired by Mr Roncevic from the appellant's house.  Mr Roncevic left the house before police arrived and cordoned it off.  Police heard banging noises from inside the house at a time when the appellant was its sole occupant.  After the appellant came out of the house it was searched by police.  The police located $149,300 in cash hidden in a roof space and the drugs the subject of count 2.  The drugs were hidden in a drain directly underneath the appellant's ensuite bathroom window.  The wind‑out window mechanism had been broken.  
6		The search of the appellant's house continued on 20 April 2009.  Police located the drugs the subject of count 3 in the range hood above the stove in the kitchen.  
7		The appellant had a lavish lifestyle that was inconsistent with the modest income declared in his taxation returns.  The State case at trial was that at all material times the appellant was a drug dealer.
8		The defence case at trial was that the appellant was a drug user not a drug dealer; that he was in possession of the drugs the subject of count 1 which were solely for his personal use; and that he had no knowledge of the drugs the subject of counts 2 and 3.  Mr Roncevic gave evidence for the defence at trial that he was a drug dealer; that the drugs the subject of counts 2 and 3 were his; and that he had not told the appellant of those drugs or where he had hidden them.
Statutory scheme
9		Section 7 of the Code relevantly provides:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say ‑ 
(a)	Every person who actually does the act or makes the omission which constitutes the offence;
(b)	Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)	Every person who aids another person in committing the offence;
(d)	 … 
10		For convenience, I will refer to the person who actually does the act or makes the omission which constitutes the offence as 'the principal offender'.  The State case on counts 2 and 3 was that the appellant was the principal, alternatively Mr Roncevic was the principal and the appellant aided him in committing the offences.
11		The appellant claimed the trial judge misdirected the jury as to what the State had to prove in order for the appellant to be convicted on the alternative basis as an aider under s 7(b) or (c) of the Code.  The appellant contends that s 11(a) has no application to any matter on which liability under s 7(b) or (c) depends.  
12		Liability under s 7(b) or (c) for the offence of possessing drugs with intent to sell or supply (the offence) requires proof by the State that:
(a)	a person or persons (the principal) has committed the offence;
(b)	the 'aider' had actual knowledge of the facts amounting to the offence committed by the principal;
(c)	the 'aider' did or omitted to do something with the intention of aiding or assisting in the doing of the acts which make up the offence; and
(d)	what the 'aider' did or omitted to do actually aided or assisted the commission of the offence.
13		It was common cause in the appeal that to satisfy the matters in (b) above the State had to prove that the appellant had actual knowledge that Mr Roncevic was in possession of the prohibited drug the subject of counts 2 and 3 and that possession was with intent to sell or supply it to another.  The trial judge directed the jury in those terms.
14		However, the appellant went further and contended that s 11(a) does not apply to proof of (a) above, namely that Mr Roncevic (the principal) had committed the offence in question.  The trial judge did not so direct the jury.
15		Section 6(1)(a) of the Act relevantly provides:
(1)	 … a person who ‑ 
(a)	with intent to sell or supply it to another has in his possession;
a prohibited drug commits a crime.
16		The correctness of the appellant's claim depends upon the proper construction of s 11(a) of the Act which relevantly provides:
For the purposes of ‑ 
(a)	section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug.
17		The quantity specified in sch V for both methylamphetamine and cocaine is 2 g.
18		Under s 11(a), once the fact of possession of at least the prescribed quantity is proved beyond reasonable doubt, the prosecution has no other onus to discharge; the accused then has the onus of establishing on the balance of probabilities that, on the whole of the evidence at trial, he or she did not intend to sell or supply the drug to another: Abbott v The State of Western Australia [2005] WASCA 42 [4].
The scope of s 11(a)
19		The appellant conceded that there is nothing in the language of s 11(a) to positively support the construction for which he contends.  He relied on the (inferred) purpose or object of the provision and the rule of statutory construction whereby any ambiguity in the language of a penal statute is to be resolved in favour of an accused:  see Pearce DC, and Geddes RS, Statutory Interpretation in Australia (6th ed, 2006) [9.8] ‑ [9.10].  The appellant submitted that the legislative purpose of s 11(a) is to place the onus of proving the mental element of the offence in s 6(1)(a) on the person in the best position to know of it, being the person or persons in possession of the prohibited drugs.  
20		Implicit in this submission is acceptance of the proposition that s 11(a) applies to all persons in possession of the drugs at the time of the commission of the offence in question.  That must be so.  The appellant's position was that all such persons would be in joint possession of the drugs and that persons in joint possession must all be principals under s 7(a) of the Code.  It is unnecessary to determine the correctness of that proposition in this case.  Although the trial judge referred in passing in his summing up to joint possession (ts 629), it was not part of the State's alternative case based on aiding that the appellant was also in possession of the drugs the subject of counts 2 and 3.  
21		The language of s 11(a) is not consistent with the appellant's narrow construction.  Section 11(a) exists for the purpose of facilitating proof of liability under s 6(1)(a) of the Act.  Liability under s 6(1)(a) can be established in a variety of ways, including under s 7(b) or (c) of the Code.  A contravention of s 6(1)(a) as an aider requires proof that at least one person (the principal) was in possession of prohibited drugs with the requisite intent.  Proof of possession of the prescribed quantity satisfies the condition which enlivens the application of s 11(a).
22		In my view, s 11(a) is intended to apply to all persons who can be found guilty of contravening s 6(1)(a) under s 7 (or s 8) of the Code provided their liability depends on proving, inter alia, that a person (or persons) was in possession of the prohibited drugs with an intent to sell or supply.  That is clearly the case where claimed liability for a contravention of s 6(1)(a) is based on s 7(b) or (c) of the Code.  
23		The purpose or object identified by the appellant does not provide a sound reason for reading down the language of s 11(a).  A person may be in possession of prohibited drugs without knowing the type or quantity of drug the subject of the charge, it being sufficient to prove that the person knew the goods in his custody were, or were likely to be prohibited drugs:  He Kaw Teh v The Queen (1985) 157 CLR 523; Kural v The Queen (1987) 162 CLR 502; Saad v The Queen (1987) 61 ALJR 243; Dunn v The Queen (1986) 32 A Crim R 203.
24		Moreover, a person charged with contravening s 6(1)(a) of the Act who is not in possession of the prohibited drugs is adequately protected by the State's obligation to prove actual knowledge that the principal was in possession of the prohibited drugs in question with intent to sell or supply them to another.
25		This construction of s 11(a) is consistent with the view taken by McHugh J in Davis v The Queen (1991) 103 ALR 417.  The High Court gave reasons for refusing an application for special leave to appeal from the decision of the Western Australian Court of Criminal Appeal dismissing the applicant's appeal from a conviction under s 6(1)(a) of the Act.  A question arose concerning whether the applicant was charged as a principal or as having aided the commission of the offence.  McHugh J said:
[I]f the applicant had been charged with aiding, s 11(a) would have operated so as to deem only her de facto husband to have possession with intent to sell or supply.  Whether or not the applicant sought to rebut the presumption which s 11(a) raised in respect of the possession of her husband, the Crown still had to prove the applicant's knowledge of the facts which constituted an offence under s 6(1)(a).  Section 11(a) would have no relevance to her state of knowledge.  The offence under s 6(1)(a) consists in having a prohibited drug in possession with intent to sell or supply and, if the applicant had been charged as an aider, the Crown would have to prove her knowledge of those facts.  That s 11(a) deems the principal to have the requisite intention is of no relevance in determining whether the applicant knew that he had that intention.  Her knowledge must be proved by evidence (420 ‑ 421). 
26		The appellant had to succeed on the question of construction of s 11(a) of the Act for the appeal to succeed.  Accordingly, the appeal must be dismissed.  However, for the sake of completeness I propose to deal with the respondent's claim that even if the trial judge had made an error of law, there was no substantial miscarriage of justice.
Proviso
27		It was common cause that the summing up would have left a reasonable jury with the impression that the presumption in s 11(a) applied to proof of the fact that Mr Roncevic had the requisite intent in relation to the drugs in his possession.  If, contrary to my view, the presumption in s 11(a) has no application to proof of Mr Roncevic's intent, it was accepted that the trial judge's direction on the subject constituted an error of law.  However, I am satisfied that any such error did not give rise to any substantial miscarriage of justice.
28		The defence accepted that it bore the onus of establishing on the balance of probabilities that the appellant did not intend to sell or supply the drugs the subject of count 1 which he accepted were in his possession.  The appellant relied on the comparatively small quantity of drugs the subject of count 1 in support of the defence case that the drugs were for his personal use.  In his closing address, counsel for the appellant contrasted the quantity in count 1 on the one hand and counts 2 and 3 on the other.  He said:
But you're looking at the other end of the scale; large quantities.  Clearly, quantities that would persuade anyone that what was on here was possession of a substantial quantity of both methylamphetamine and cocaine, a very strong, powerfully, arguably strong suggestion that they were possessed for the purposes of supply and sale (ts 724).
29		It was part of the defence case that Mr Roncevic was a drug dealer and that the drugs the subject of counts 2 and 3 were in his possession with intent to sell or supply (ts 548, 549, 554, 555, 563, 564, 585, 586, 595).  The trial judge captured the essence of the defence case in his summing up.  He said:
Mr Walmsley submitted to you that it is significant that the amount of drug the subject of count 1 is much less than the weight of drugs the subject of counts 2 and 3.  The amount in 2008 is much less than the amounts in 2009 the subject of counts 2 and 3.
Those amounts in counts 2 and 3 are clearly quantities for sale or supply, and Mr Walmsley submitted to you that it's significant that the one clearly distinguishing factor between 2008 and 2009 is that Mr Roncevic was on 
the scene in 2009, living in the unit in Attadale.  He was not living there in 2008 (654 ‑ 655).
30		Although defence counsel at trial accepted that the presumption in s 11(a) applied to proof of Mr Roncevic's intent to sell or supply the drugs in his possession, his concession went beyond the effect of the presumption.  Moreover, there was no evidence adduced by anyone to contradict the only reasonable inference from the evidence as a whole that if Mr Roncevic was in possession of the drugs, it was with the intention to sell or supply them to another.  The concession was made for sound forensic reasons and was in accordance with the overwhelming weight of the evidence.
31		The appeal should be dismissed.
32	BUSS JA:  I agree with McLure P, generally for the reasons she gives, that the appeal should be dismissed.
33	MAZZA J:  I agree with McLure P.