Allan, Rodney James v Chapman, David Michael
[1998] TASSC 158
•17 December 1998
158/1998
PARTIES: ALLAN, Rodney James
v
CHAPMAN, David Michael
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 18/1998
DELIVERED: 17 December 1998
HEARING DATE/S: 23 November 1998
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal Law - Evidence - Matters relating to proof - Standard of proof - Circumstantial evidence - Reasonable hypothesis consistent with innocence - Generally - Magistrate considered evidence correctly.
Peacock v R (1911) 13 CLR 619; Plomp v R (1963) 110 CLR 234; Thomas v R (1960) 102 CLR 584; Barca v R (1975) 133 CLR 82; Lade and Bishop v R A12/1991, applied.
Aust Dig Criminal Law [449]
Criminal Law - Particular offences - Drug offences - Possession - What constitutes possession.
Lowe v Goodluck A9/1985; Barrett v Broughton [1978] Tas SR 39, applied.
Poisons Act 1971 (Tas), ss3(3), 49(1)(a), 52(1).
Aust Dig Criminal Law [361]
REPRESENTATION:
Counsel:
Appellant: D N Lewis
Respondent: A R Jacobs
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: 158/1998
Number of pages: 5
Serial No 158/1998
File No LCA 18/1998
RODNEY JAMES ALLAN v DAVID MICHAEL CHAPMAN
REASONS FOR JUDGMENT EVANS J 17 December 1998
On 24 August 1998, the appellant was convicted of the following charges.
That between 1 November 1995 and 26 March 1996, at or near Gadds Road, Lemonthyme in Tasmania, he grew prohibited plants, namely, Indian hemp, contrary to the Poisons Act 1971, s52(1).
That between 1 November 1995 and 26 March 1996, at or near Gadds Road, Lemonthyme in Tasmania, he had in his possession prohibited plants, namely Indian hemp, contrary to the Poisons Act 1971, s49(1)(a).
That on or about 5 April 1996 at Sheffield in Tasmania, he had in his possession prohibited plants, namely Indian hemp, contrary to Poisons Act 1971, s49(1)(a).
The appellant was sentenced to seven months' imprisonment. He has appealed against his conviction on charges 1 and 2, and has appealed against the sentence.
The first and second charges against the appellant arose from the discovery of Indian hemp plants at four compounds on or in the vicinity of 204 acres of land owned by the appellant near Gadds Road, Lemonthyme. This is in a remote area of Tasmania, directly south of Gowrie Park.
The appeal against conviction was pressed on two bases.
That the conviction on charge 2 should be set aside as the learned magistrate did not make the required inference or finding that the appellant was in possession of any Indian hemp plants, and such a finding cannot be inferred from his reasons.
That the conviction on charges 1 and 2 should be set aside as the learned magistrate failed to consider and exclude a rational and reasonable hypothesis which was consistent with the appellant's innocence.
A plethora of evidence was before the learned magistrate relevant to whether the appellant had grown and been in possession of Indian hemp plants at the Lemonthyme site. When announcing his decision, the learned magistrate dealt with the relevant evidence and concluded:
"In my view the evidence leading to the conclusion that the defendant was involved in the growing of indian hemp plants in compounds 1, 2, 3, and 4 in the several months leading up to the 26th March 1996 is overwhelming. In my opinion there is no reasonable or rational hypothesis consistent with his innocence.
I find counts 1 and 2 proved. I have already given a similar finding on count 3."
In finding that count 2 was proved, the learned magistrate found that the appellant had been in possession of Indian hemp plants at the Lemonthyme site. On behalf of the appellant it was contended that the finding that "the defendant was involved in the growing of Indian Hemp plants" did not warrant a finding that he was in possession of the plants. That may be so, but the sufficiency of the finding that he was in possession of the plants must be assessed in the light of the whole of the learned magistrate's decision on the facts. The transcript of the learned magistrate's decision runs for twenty pages and in it he details the facts and conclusions which are the foundation for his findings.
As to possession, the Poisons Act 1971 ("the Act"), s3(3), provides:
"Without restricting the generality of the expression 'possession', a substance or plant shall, for the purposes of this Act, be deemed to be in the possession of a person so long as it is on any land or premises occupied by him or is enjoyed or controlled by him in any place or is in his order and disposition unless he proves that he had no knowledge of the substance or plant."
The Act, s3(3), preserves the generality of the expression "possession". Lowe v Goodluck, Underwood J, A9/1985. Adapting the elements of the concept of possession identified by Neasey J in Barrett v Broughton [1978] Tas SR 39 to this case, they are:
(1) whether the appellant exercised physical control over the plants;
(2) whether the appellant intended to exercise physical control over the plants;
(3)whether there was any visible or external sign that the plants were under the appellant's control, having regard to the place and form in which they were found.
As to the term "occupier" in the Act, s3(3), Nettlefold J observed in Allison v Lowe, B13/1988:
"Parliament has not provided us with a definition of the term 'occupier'. Having regard to the multiplicity of the circumstances which may arise, probably Parliament intended to avoid the rigidity of a fixed definition. It intended that, at the end of the day, whether, on the facts of a given case, the accused was an occupier of the premises in question was to be left to the common-sense of the jury subject always, of course, to the overriding duty of the presiding judge to direct the jury whether on the evidence it was open to them to find that the accused was the occupier and, if it was open to them, to direct them concerning the meaning of the term in the Act and the rules relevant to a correct determination in the given case … In any event it is probably not possible to formulate a true definition which will be appropriate in every case which might arise. That reflection is a further factor pointing to the importance of leaving the jury role as unrestricted as is consistent with justice to the accused and any relevant rules of law. Certainly a legalistic approach to the question whether the accused was an occupier is to be avoided. At the end of the day it will be a question of fact and degree whether, on the evidence, the accused can fairly be said to have been the occupier …."
These observations of Nettlefold J are equally applicable to the term "possession". The generality of that term has been preserved. It is well recognised that the legal concept of possession is elusive. Having regard to the multiplicity of the circumstances in which possession may arise, it is probable that Parliament intended to avoid the rigidity of a fixed definition. Possession is a question to be determined on the facts of a particular case. The Act, s3(3), recognises that relevant aspects of the concept of possession include knowledge, occupation of the premises where the plants are found, enjoyment and control.
I draw the following from the learned magistrate's decision.
In July 1995, a witness, Mr Clarke, moved into the appellant's home at Sheffield and stayed there for about two months. During this period the applicant gave Mr Clarke marijuana just about every day, and Mr Clarke saw the appellant sell or give marijuana to others nearly every day. The marijuana was stored in secret compartments in the appellant's home and sold to buyers in sealed one ounce bags. Sales estimated to have a total value of $1,500 - $1,600 were made each week.
In the latter half of December 1995, the appellant took Mr Clarke to 204 acres of land which he owned near Gadds Road, Lemonthyme. Mr Clarke stayed in a shack on the appellant's land for two weeks. (Mr Clarke's evidence was that whilst there, he did what he was told to do by the appellant.) Mr Clarke constructed one of the four compounds in which Indian hemp plants were subsequently found. That compound was referred to in the evidence as compound 3. The appellant visited Mr Clarke every second day and provided a roll of large gauge chicken wire for use in the construction of the compound. The appellant worked with Mr Clarke on the construction of the compound. The appellant told Mr Clarke he wanted to grow a one million dollar crop of Indian hemp. The compound was to be used as a hot house. Plants were to be grown in the hot house and moved to other compounds on the block. An old Bedford truck of the appellant's was left at the site. Mr Clarke assisted the appellant to paint the truck with grey and green paint from the appellant's home. The appellant told Mr Clarke this was so that the truck could not be seen from the air.
On 13 December 1995, the police searched the appellant's home at Sheffield and his motor vehicle. A number of foils of cannabis were found in the motor vehicle and fourteen Indian hemp plants growing in pots were found in the appellant's home. The appellant said he was growing the Indian hemp plants found on this occasion to send his children to Disneyland. The appellant's white Dodge truck was noted to be loaded with rolls of new large gauge chicken wire, plant pots, rakes, hoses, shovels and fertiliser. The appellant said he had been doing some gardening. No signs of recent gardening were observed at the appellant's home.
On 15 February 1996, police officers attended the Lemonthyme site and found a compound referred to in the evidence as compound 4, containing fifty Indian hemp plants. That compound was either on or very near the appellant's land.
On 16 February 1996, police officers attended the Lemonthyme site and found compound 3, the compound the appellant and Mr Clarke had worked on. It contained about one hundred Indian hemp plants. There were signs that some plants in compound 4 had been harvested.
On 26 March 1996, police officers visited the Lemonthyme site. By following foot prints they were able to locate two further compounds referred to in the evidence as compounds 1 and 2. These compounds contained 106 Indian hemp plants.
All four compounds were of similar construction. The same large gauge chicken wire was used in the construction of each. The evidence linked all of the compounds with each other and to the shack on the appellant's land. A fingerprint from the appellant was found on a bottle in the shack and his name was written faintly on the shack door.
Metal spikes were found on the access road on the appellant's land leading to the four compounds and the shack. A set of spikes similar to those found on the access road had been observed in the back of the appellant's white Dodge truck. The spikes were compared with an L-shape rod found at the appellant's home. The diameter of the rod and the spikes was the same, and the angle in the rod was indistinguishable from the angle of the transverse ribs of the spikes. Whilst the spikes prevented vehicular access to the compounds and the shack, they did not hinder access between the compounds and the shack. The only vehicle on the side of the spikes where the compounds and shack were, was the appellant's camouflaged Bedford truck. Tyre marks and other evidence indicated that that truck had been used to move between the compounds and the shack and to transport Indian hemp.
On 5 April 1996, the appellant's home at Sheffield was searched and a significant quantity of Indian hemp was found in a hidden compartment in the kitchen and in a basement room. This discovery was the basis of the appellant's conviction on charge 3, which is not the subject of an appeal.
It is apparent from the above summation of the learned magistrate's decision that the appellant was the instigator and controller of the production of Indian hemp at the site. Plants were found growing at the site. Production was centred around the shack on the appellant's land and his camouflaged Bedford truck had been used to facilitate production. Steps had been taken to preserve control of the site by the placement of metal spikes on the access road. The appellant was found in possession of a substantial quantity of Indian hemp. The learned magistrate's findings formed an ample foundation for the appellant's conviction. In the absence of any evidence from the appellant to explain or contradict the evidence before the learned magistrate, there is no basis for challenging the learned magistrate's conclusion that the appellant was in possession of the Indian hemp plants at the Lemonthyme site. The first basis for the appeal against conviction is rejected.
As recognised by the learned magistrate in announcing his decision, before proceeding to convict the appellant, he needed to exclude any reasonable or rational hypothesis consistent with the appellant's innocence. See Peacock v R (1911) 13 CLR 619, Plomp v R (1963) 110 CLR 234, Thomas v R (1960) 102 CLR 584 and Barca v R (1975) 133 CLR 82.
There was evidence before the learned magistrate that on 26 March 1996, Constable Hopkins inspected the Lemonthyme site. As he opened the gate to compound 1 he was shot in the back by a shotgun which had been set up as a booby trap. The learned magistrate was informed that the Crown conceded that the appellant had been charged with "intending bodily harm" referable to that shooting. He had been tried by a jury and acquitted.
On behalf of the appellant, it was contended that this evidence provided the foundation for a reasonable and rational hypothesis which was consistent with the appellant's innocence and that the learned magistrate had failed to consider and exclude the hypothesis. This is the second basis upon which the appeal against conviction was pressed.
The hypothesis was put in the following way.
It is probable that the person who grew the plants was the person who set the gun booby trap which shot Constable Hopkins.
There was no evidence that the appellant had set the trap.
The absence of any evidence that the appellant set the trap gave rise to a reasonable hypothesis that he was not the grower of the plants.
The flaw in the hypothesis is the proposition that the absence of any evidence that the appellant set the trap is a basis for a conclusion as to the identity of the trap setter, and, in consequence, the identity of the person who grew the plants. Whilst it may be reasonable to suspect that the person who set the trap was the grower of the plants, there was no direct evidence whatsoever before the learned magistrate to identify the trap setter. Had that evidence existed, then clearly the learned magistrate would have been obliged to consider it and exclude any reasonable possibility that it showed that the appellant was not the person who grew the plants. As there was no evidence identifying the person who set the trap, there was no foundation for any reasonable hypothesis which the learned magistrate needed to consider and exclude before convicting the appellant. For these reasons I reject the second basis upon which the appeal against conviction was pressed.
Before leaving the second basis for the appeal, I mention that in the course of submissions, it was put on behalf of the appellant that he was entitled to the full benefit of his acquittal on the bodily harm charge. A similar submission was put to the learned magistrate. That submission is undoubtedly correct but, in the circumstances, had little relevance to the proceedings before the learned magistrate. The acquittal was not and could not have been challenged and the appellant was, of course, regarded as innocent of the bodily harm charge. The effect of the acquittal would have been significant had it given rise to a relevant estoppel. It was quite properly not contended that it did so. The minimal evidence before the learned magistrate on the acquittal was insufficient to enable the identification of any relevant issue determined in favour of the accused by the acquittal. See R v Storey and Another (1978) 140 CLR 364 and R v Hutton, Slicer J, B37/1994.
The appellant appeals against his sentence of seven months' imprisonment on the ground that it is manifestly excessive.
The learned magistrate sentenced the appellant on the basis that about 150 Indian hemp plants were involved in charges 1 and 2. The estimated commercial value of that number of plants, had they been allowed to mature, was $150,000. As to these charges, I agree with the observation of the learned magistrate that the appellant was engaged in a commercial enterprise of some significance. The appellant has an extensive record of prior convictions which demonstrates a general disregard for the law. His convictions include breaches of the Poisons Act in 1990 and 1995. I consider the sentence of seven months' imprisonment to be comfortably within the penalty range for charge 1. As recognised by the learned magistrate, charges 1 and 2 substantially overlap. I would not have imposed an additional penalty for the second charge. Whilst my inclination would be to impose an additional penalty for the third charge, there is no reason for me to consider that further, as the only issue before me is whether the sentence was manifestly excessive. I am not satisfied that it was. The sentence is in line with sentences imposed in broadly equatable circumstances which were considered and approved by the Court of Criminal Appeal in Lade and Bishop v R A12/1991.
The appeal is dismissed.
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