Kroni v The Queen

Case [2021] SASCFC 15

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

KRONI v THE QUEEN

[2021] SASCFC 15

Judgment of The Court of Criminal Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice Livesey)

2 March 2021

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER

The appellant is an Albanian national who has held a protection visa entitling him to permanent residency in Australia since 2010. The visa was subject to the appellant remaining of good character pursuant to s 501 of the Migration Act 1958 (Cth).

In August 2017, the appellant was arrested after a search revealed he had one ounce of cocaine in his possession. The appellant was charged with trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The appellant did not dispute that he was in possession of the cocaine, but denied that he intended to sell any of it. As the presumption in s 32(5) of the Controlled Substances Act 1984 (SA) was enlivened, the appellant bore the onus of establishing that his possession of the cocaine was not for the purpose of sale. After a trial by judge alone, the appellant was found guilty of trafficking a controlled drug and sentenced to four years' imprisonment with a non-parole period of 20 months. The trial Judge declined to suspend the sentence or order that it be served on home detention.

The appellant appealed against conviction on the basis that the trial Judge failed to adequately direct herself as to the permissible and impermissible use of evidence as to discreditable conduct, gave inadequate reasons for finding that the appellant failed to displace the statutory presumption of sale, and erred regarding a range of other matters. The appellant sought permission to appeal against sentence on the bases that the trial Judge failed to have regard to the risk that the appellant would be deported, or subjected to indefinite immigration detention, and in failing to order home detention.

Held, dismissing the appeal against conviction:

1. Per Kourakis CJ and Doyle J, the evidence of the cash, the mobile phones found on the appellant and at his home, the heat sealing machine and the plastic was admitted and treated at trial as discreditable conduct evidence pursuant to s 34P of the Evidence Act 1929 (SA).

2. Per Kourakis CJ and Doyle J, as such, the trial judge erred in not extending her s 34R direction to the items of discreditable conduct evidence other than the cash. However, in the circumstances, this error did not occasion any substantial miscarriage of justice.

3. Per Livesey J, the Judge gave a s 34R direction in respect of the appellant’s possession of cocaine and cash. The evidence of the…

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Details
AGLC
Kroni v R [2021] SASCFC 15
Case
[2021] SASCFC 15
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Doyle and Livesey JJ, heard an appeal by the appellant, Mr. Kroni, against his conviction for trafficking in a controlled drug. The appellant did not dispute possession of 27.1 grams of cocaine but denied any intention to sell it. Due to a statutory presumption of sale under the Controlled Substances Act 1984 (SA), the onus was on the appellant to prove, on the balance of probabilities, that his possession was not for the purpose of sale, making the appellant's intent the sole issue at trial. The appellant also sought permission to appeal against his sentence of four years' imprisonment with a non-parole period of 20 months.

The legal issues before the court included whether the trial judge erred in her directions regarding the permissible and impermissible use of evidence of discreditable conduct, whether she provided adequate reasons for finding the appellant failed to displace the statutory presumption of sale, and whether she misdirected herself concerning the credibility of the appellant's domestic partner and the appellant himself, potentially leading to a miscarriage of justice. The court also considered the application of the proviso in criminal appeals, which allows an appeal to be dismissed if, despite an error, there has been no substantial miscarriage of justice.

The court reasoned that evidence of discreditable conduct, such as the significant amount of cash, multiple mobile phones, and a heat sealing machine found in the appellant's possession and at his home, was admissible as circumstantial evidence probative of involvement in a drug trading enterprise. This evidence, in conjunction with the possession of cocaine, could support an inference of intent to sell, as recognised by established authorities. The court found that any failure by the trial judge to extend directions regarding the cash to other evidence of discreditable conduct did not affect her assessment of the evidence or her conclusion of guilt. The court was satisfied that the appellant did not lose any chance of a fair acquittal and therefore applied the proviso to dismiss the appeal against conviction. The appeal against sentence was also dismissed.

Orders

Orders of the court

The appeal is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In relation to the application for permission to appeal against sentence, I agree with the reasons of Livesey J and the orders he has proposed.Ground 1: evidence of discreditable conduct As detailed by Livesey J, the evidence adduced by the prosecutor on the issue of whether the appellant intended to sell any of the cocaine in his possession included evidence that:·at the time of his arrest, the appellant had $1,330 in cash in his possession;·the appellant had two mobile phones with him, and three more were found at his home;·a heat sealing machine was located at the appellant’s home; and·two rolls of plastic, and a plastic wrap, suitable for use with the heat sealing machine, were also located at the appellant’s home. In addition to these items of evidence, the prosecution also led evidence from a relevantly qualified police officer (Detective Pedder) to the effect that items often found at the scene of drug-related crimes included large amounts of cash and multiple mobile phones. Detective Pedder also gave evidence that he had found heat sealing machines similar to the type found at the appellant’s home at such crime scenes, and that they were used to package illicit drugs, using plastic wrapping. The above evidence was relied upon by the prosecution as evidence probative of the appellant’s involvement in a drug trading enterprise; or as it is sometimes referred to in the authorities, evidence of the indicia, accoutrements or paraphernalia of a drug trading enterprise. The relevance and admissibility of such evidence is well recognised. As the High Court recently summarised in R v Falzon:[5]Where an accused is found in possession of a prohibited drug and is charged with its possession with intent to sell, proof that the accused was, at the time of possession, engaged in a business of selling drugs or drug trafficking is evidence logically probative of the fact that the accused's purpose in possessing the drug on that occasion was the purpose of sale. Accordingly, as has been established by a succession of Australian intermediate appellate court decisions[6], evidence that an accused who is found in possession of a prohibited drug is also found in possession of the accoutrements of a drug trafficking business, such as scales, re‑sealable plastic bags, firearms, a multiplicity of mobile telephones or significant quantities of cash, is admissible in proof of the charge. As Gleeson CJ explained in Sultana[7], it is circumstantial evidence which, in conjunction with the fact of possession and, possibly, other evidence, may found an inference that the accused was engaged in the business of selling drugs. And that is so notwithstanding that such evidence may also be indicative of a tendency towards crime.[5] R v Falzon (2018) 264 CLR 361 at [1] (the Court).[6] See, eg, R vSultana (1994) 74 A Crim R 27 at 28-29 per Gleeson CJ (Handley JA agreeing at 32), 36-37 per Sully J; Blackwell (1996) 87 A Crim R 289 at 290 per Duggan J (Prior J and Debelle J agreeing at 294); R v Edwards [1998] 2 VR 354 at 367-370 per Eames A-JA (Hayne JA and Batt JA agreeing at 356); Evans v The Queen [1999] WASCA 252 at [31], [38] per Malcolm CJ (White J agreeing at [66]); at [65] per Anderson J; Radi v The Queen [2010] NSWCCA 265 at [39] per Hoeben J (Simpson J and R A Hulme J agreeing at [1], [58]); Tasmania v Roland (2015) 252 A Crim R 399 at 401-402 [4]; cf R v Lewis (1989) 46 A Crim R 365. See also R v McGhee (1993) 61 SASR 208 at 210-211; R v O'Driscoll (2003) 57 NSWLR 416 at 432 [77] per Spigelman CJ (Carruthers A-J agreeing at 443 [149]).[7] (1994) 74 A Crim R 27 at 28-29.

Decision

Reasons for decision

I am satisfied that the trial judge’s failure to extend the directions she gave pursuant to s 34R in relation to the cash to the balance of the evidence of discreditable conduct did not affect the trial judge’s assessment of the evidence, or reasoning towards her Honour’s conclusion of guilt. I consider the trial judge’s reasoning to have been sound, and to have established the appellant’s guilt. I am satisfied that the appellant did not lose any chance of an acquittal that was fairly open. I would therefore apply the proviso in respect of this ground of appeal.Conclusion For the reasons set out, I agree with the orders proposed by Livesey J. LIVESEY J:Introduction The appellant is an Albanian national who, since 2010, has held a protection visa entitling him to permanent residency in Australia. The appellant fled Albania because of a threat to his life. The visa was subject to the appellant remaining of good character pursuant to s 501 of the Migration Act 1958 (Cth) (Migration Act). In August 2017, he travelled back to Adelaide from Melbourne by a commercial bus liner. Upon exiting the bus, the appellant was searched by police and one ounce of cocaine was found. The appellant was charged on Information with trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (Controlled Substances Act). The appellant did not dispute his possession of 27.1 grams of cocaine, but denied that he intended to sell any of it. Because the presumption in s 32(5) of the Controlled Substances Act was engaged, the appellant bore the onus of establishing, on the balance of probabilities, that his possession of the cocaine was not for the purposes of sale. The “sole issue in dispute” at the trial was therefore whether the appellant intended to sell any of the cocaine in his possession.[20][20] R v Kroni [2019] SADC 46, [5]. The appellant’s trial proceeded before a Judge sitting without a jury and, on 9 May 2019, she delivered reasons for her verdict that the appellant was guilty. The appellant appeals against his conviction. On 18 October 2019, the appellant was sentenced to four years’ imprisonment with a non‑parole period of 20 months. The trial Judge declined to suspend the sentence or order that it be served on home detention. The applicant seeks permission to appeal against the sentence. In my opinion, for the following reasons, the appeal should be dismissed. The grounds of appeal against conviction The amended grounds of appeal against conviction comprise four grounds and seventeen sub‑grounds. In overview, the four grounds are:1.The trial Judge failed adequately to direct herself as to the permissible and impermissible use of evidence of discreditable conduct as required by s 34R of the Evidence Act 1929 (SA) (Evidence Act).2.The trial Judge gave inadequate reasons for finding that the appellant failed to displace the statutory presumption of sale created by s 32(5) of the Controlled Substances Act.3.The trial Judge misdirected herself, or erred in the directions she gave herself, regarding the evaluation of the credibility of Ms Schulz (the appellant’s domestic partner) in that she misapprehended or failed to have proper regard to the evidence in exhibits P7 and P8 which gave rise to a miscarriage of justice.4.The trial Judge erred in the directions she gave herself regarding the credibility of the appellant.The role of the Appeal Court: the proviso

Ratio Decidendi

Legal Principle Established

The appellant is an Albanian national who, since 2010, has held a protection visa entitling him to permanent residency in Australia. The appellant fled Albania because of a threat to his life. The visa was subject to the appellant remaining of good character pursuant to s 501 of the Migration Act 1958 (Cth) (Migration Act). In August 2017, he travelled back to Adelaide from Melbourne by a commercial bus liner. Upon exiting the bus, the appellant was searched by police and one ounce of cocaine was found. The appellant was charged on Information with trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (Controlled Substances Act). The appellant did not dispute his possession of 27.1 grams of cocaine, but denied that he intended to sell any of it. Because the presumption in s 32(5) of the Controlled Substances Act was engaged, the appellant bore the onus of establishing, on the balance of probabilities, that his possession of the cocaine was not for the purposes of sale. The “sole issue in dispute” at the trial was therefore whether the appellant intended to sell any of the cocaine in his possession.[20][20] R v Kroni [2019] SADC 46, [5]. The appellant’s trial proceeded before a Judge sitting without a jury and, on 9 May 2019, she delivered reasons for her verdict that the appellant was guilty. The appellant appeals against his conviction. On 18 October 2019, the appellant was sentenced to four years’ imprisonment with a non‑parole period of 20 months. The trial Judge declined to suspend the sentence or order that it be served on home detention. The applicant seeks permission to appeal against the sentence. In my opinion, for the following reasons, the appeal should be dismissed. The grounds of appeal against conviction The amended grounds of appeal against conviction comprise four grounds and seventeen sub‑grounds. In overview, the four grounds are:1.The trial Judge failed adequately to direct herself as to the permissible and impermissible use of evidence of discreditable conduct as required by s 34R of the Evidence Act 1929 (SA) (Evidence Act).2.The trial Judge gave inadequate reasons for finding that the appellant failed to displace the statutory presumption of sale created by s 32(5) of the Controlled Substances Act.3.The trial Judge misdirected herself, or erred in the directions she gave herself, regarding the evaluation of the credibility of Ms Schulz (the appellant’s domestic partner) in that she misapprehended or failed to have proper regard to the evidence in exhibits P7 and P8 which gave rise to a miscarriage of justice.4.The trial Judge erred in the directions she gave herself regarding the credibility of the appellant.The role of the Appeal Court: the proviso The role of the appeal court when dealing with an appeal from a verdict entered following a trial by a judge alone is addressed in three stages:[21]The first is to determine whether the judge has erred in fact or law. If there is such error, the second stage is to decide whether the error, either alone or in conjunction with any other error or circumstance, is productive of a miscarriage of justice. If so, the third stage is to ascertain whether, notwithstanding that the error is productive of a miscarriage of justice, the Crown has established that the error was not productive of a substantial miscarriage of justice.[21] See generally Filippou v The Queen (2015) 256 CLR 47, [4] (French CJ, Bell, Keane and Nettle JJ); Dansie v The Queen [2020] SASCFC 103, [421]-[442] (Livesey J, with whom Parker J agreed).