McLeod v Police - [2019] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
MCLEOD v POLICE
[2019] SASC 69
Judgment of The Honourable Justice Stanley
8 May 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Appeal against a conviction imposed by a magistrate for the offence of trafficking in cannabis contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The charge against the appellant arose as follows. On 6 September 2017 in Coober Pedy, police conducted a search of a man named Gene Kroll and seized a bag suspected of containing cannabis. After questioning Mr Kroll as to where he had purchased the cannabis, police attended an address where it was known that the appellant lived. At that location further cannabis was located in press seal bags as well as numerous empty press seal bags. Following a trial before a magistrate, the appellant was convicted of the offence.
On appeal, the appellant contended that the magistrate erred in his treatment of the evidence of Mr Kroll, including by accepting the in-dock identification of the appellant by Mr Kroll. The appellant further contended that the magistrate erred in his interpretation of the non-provision of forensic evidence as well as the criminal concepts of possession and reasonable doubt.
Held:
1. The magistrate erred in accepting Mr Kroll’s in-dock identification of the appellant. The in-dock identification was not essential to the magistrate’s finding that it was the appellant who sold the cannabis to Mr Kroll from her place of residence.
2. None of the appellant’s grounds of appeal had been made out.
3. Appeal dismissed.
Controlled Substances Act 1984 (SA) s 4, s 32(3); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Sch 1; Magistrates Court Act 1991 (SA) s 42, referred to.
R v GNN (2000) 78 SASR 293, distinguished.
Alexander v The Queen (1981) 145 CLR 395; R v Preston (2013) 116 SASR 522; SAPOL v McLeod Judgment of Magistrate Oates delivered 20 December 2018; The Queen v Hallam & Karger (1985) 42 SASR 126, discussed.
Corfield v Police [2017] SASC 170; Fox v Percy (2003) 214 CLR 118; Jones v Dunkel (1959) 101 CLR 298; Police (SA) v Rosales [2017] SASC 118; R v Baftiroski [2018] SASCFC 83; R v Taylor [2014] SASCFC 112; R v Saleh [2017] SASCFC 75, considered.

MCLEOD v POLICE
[2019] SASC 69
Magistrates Appeal
STANLEY J:
Introduction

The appellant was found guilty after a trial in the Magistrates Court of the offence of trafficking in cannabis contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). The appellant appeals against the conviction.
Nature of the appeal
This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA). The nature of an appeal pursuant to s 42 is by way of rehearing, which requires the court to consider the evidence before the magistrate along with such other materials as it may decide to admit, and then to decide whether the verdict should stand.[1] The appeal court should not interfere with a magistrate’s judgment where, notwithstanding that an error was made by the magistrate, the court is of the opinion that the magistrate’s judgment was inevitable despite the error.[2]
[1] R v Taylor [2014] SASCFC 112 at [18]; Corfield v Police [2017] SASC 170 at [20]-[23].
[2] Corfield v Police [2017] SASC 170 at [23]; Police (SA) v Rosales [2017] SASC 118 at 95.
The trial
The prosecution case at trial was that the offence was committed by the appellant at a house at Lot 412 Fitzgerald Road, Coober Pedy, on the night of 6 September 2017. Constable Cook gave evidence that on that night he was on mobile patrol with Senior Constable MacKenzie on Jones Street, Coober Pedy, when he saw a male walking from Fitzgerald Road onto Jones Street. He gave evidence that he spoke to the male person who gave his name as Gene Kroll. Constable Cook said he noticed that Mr Kroll had a small plastic resealable bag in his hand. He suspected the bag contained cannabis. He conducted a search of Mr Kroll. He seized the bag. He spoke to Mr Kroll about where he had obtained the bag containing what he suspected to be cannabis. Mr Kroll initially said he had found it on the ground but then told Constable Cook that he obtained it from “McLeod’s house”. When Constable Cook asked which McLeod he had purchased it from, Mr Kroll said “the older one”. He told Constable Cook he had paid $20 for it. Constable Cook said he contacted Detective Brevet Sergeant Guerin and advised him of what had occurred. He spoke to him about utilising the general search warrant held by Sergeant Guerin. Constable Cook subsequently met with Sergeant Guerin at the Coober Pedy Police Station.
Constable Cook said he then attended at an address at Fitzgerald Road, Coober Pedy, where he knew Gabriella McLeod lived. This was 25 minutes after speaking to Mr Kroll. He attended in company with Sergeant Guerin and Senior Constable MacKenzie. He described the house as having an entry under a verandah / pergola type area with shade cloth. He said when they arrived, he walked in the driveway and observed a car parked in the driveway, being a blue Ford sedan. He recognised Gabriella McLeod leaning into the front passenger side window. Constable Cook said he detected a strong scent of cannabis coming from the car.
Constable Cook said he looked in the car and observed that the driver was a person he subsequently came to know as Dejan Bulovic. He saw two bags in the passenger seat footwell which he suspected contained cannabis. In the central console of the car he observed a wad of cash.
Constable Cook said he entered the house with Sergeant Guerin and the appellant. Immediately inside Constable Cook observed a wall with a set of shelves on it. Sitting on one of the shelves was a white plastic tub. Constable Cook observed the appellant attempt to conceal the tub behind some other objects on the shelf. This caused him to inspect the tub. He opened it and found it contained 11 small plastic resealable bags containing what he suspected was cannabis. The bags bore a striking similarity to the bag he had found on Mr Kroll. Next to the tub Constable Cook found a brown box which contained similar small plastic resealable bags. Elsewhere in the house Constable Cook found more plastic resealable bags. Many of these bags were found in boxes. Also during the course of the search a “bong” was located in the laundry.
Constable Cook gave evidence of his extensive experience in dealing with cannabis.
In addition, Constable Cook gave evidence that there were two teenage females in the house.
Sergeant Guerin gave evidence that when he executed the search warrant at the Fitzgerald Road residence he found four other persons apart from the appellant in the premises. They were Tahlia Grace Lennon, Josiah Stapleton, Ethen Klempt and Damien Klempt. They were not interviewed. Constable Cook directed Sergeant Guerin’s attention to the contents of the white tub, namely, several resealable plastic bags containing cannabis.
Mr Kroll gave evidence that on 6 September 2017 he was “caught with a little bag of weed”. This occurred “around the corner from Fitzgerald”. Mr Kroll gave evidence that he obtained the weed from a house on Fitzgerald. This was the first occasion he had purchased from this address. He went there at night. He could not remember the street number of the house. The house had a shade mesh and a few cars outside. Mr Kroll said he knocked on the door of the house and it was opened by an old short lady with glasses, wearing a nightie. Mr Kroll then identified the appellant, who was in the dock, as the woman who had sold him the “weed”. He gave evidence that he spoke to her at the doorway and told her that he was looking for a bag. She told him to wait and closed the door. About a minute later she reopened the door and gave him a bag of weed in exchange for $20. The bag was a little plastic bag. He gave evidence that when he was stopped while walking home he told police that he had purchased the marijuana from “an old girl round the corner” named “Gail”. Mr Kroll said he had never purchased marijuana from her before. Under cross-examination he said that he knew the person he had purchased the weed from as “Gail”, not “McLeod”.
Senior Constable MacKenzie gave evidence that on 6 September 2017 he was working with Constable Cook. He corroborated Constable Cook’s account of events in relation to the stopping, search and interrogation of Mr Kroll and the search of the appellant’s premises at Fitzgerald Road. He gave evidence of searching Mr Bulovic and of the cannabis and cash found in his vehicle.
Mr Bulovic was called to give evidence about the events of 6 September 2017. He had no recollection at all of those events.
The magistrate’s reasons
The magistrate, after setting out the basis of the charge and the nature of the evidence led by the prosecution, directed himself as to the elements of the offence. He further directed himself that he was not to draw any adverse inference from the appellant’s decision not to give evidence. He reminded himself that it was for the prosecution to prove its case beyond reasonable doubt. He then referred to the submissions made by counsel for the prosecution and the appellant. The magistrate referred to counsel for the appellant attacking the reliability of Mr Kroll’s evidence and emphasising that there were a number of other people present when the police searched the appellant’s home. He noted that counsel submitted that the potential for the involvement of those persons had not been excluded and that possession of the cannabis found in the 11 bags in the tub had not been proven. The magistrate found the charge proved beyond reasonable doubt on the following basis:[3]
[3] SAPOL v McLeod, Judgment of Magistrate Oates delivered 20 December 2018 at [90]-[99].
I find beyond reasonable doubt that the controlled drug in relation to this matter is cannabis. I refer particularly to the 11 bags found in the white tub in the defendant’s home.
Exhibit P2 lists the scientific analysis to this effect. The substance purchased by Mr Kroll was not analysed. In saying that I have no doubt it was cannabis. Mr Kroll went to the premises and purchased cannabis. What he purchased was in the same packing as the other items located confirmed as cannabis. The lack of analysis is however not crucial to my findings.
The bags of cannabis located in the white tub at the defendant’s premises are listed in Exhibit P2 items 1.01 to 11.01 totalling approximately 9.1 grams. They are pictured at Exhibit P1 photographs 18 to 28.
I am not sure of who possessed the cannabis located in the vehicle driven by Mr Bulovic nor the $700.00 cash. I am not sure quite what the role of Mr Bulovic was in all of this.
It is obvious the defendant knows what cannabis is. I find beyond reasonable doubt that it was the defendant who sold the cannabis to Mr Kroll from her home. I disagree with Mr Crawford that Mr Kroll was a poor witness. I considered him to be creditable and reliable. There were also numerous empty bags located at her premises, which the defendant could not possibly have been unaware of. They are an indicia of cannabis sale.
I find beyond reasonable doubt that the defendant was in possession of the 11 bags of cannabis located in the white tub. She sold some of this shortly before to Mr Kroll. I reject beyond reasonable doubt any involvement by any other persons located in her premises when police were there. There is absolutely no evidence to support this. Constable Cook also saw her handle and move the white tub prior to him investigating it when he was there (see above paragraph 5).
Her further involvement in the cannabis trade is evidenced in relation to the cannabis located in Mr Bulovic’s car along with the cash. I do not find that she possessed that cannabis (items 12.01 and 13.01 Exhibit P2) or that cash. But she must have seen the cannabis there. It is evidence of her capacity to interact with persons however involved in the use or trade of cannabis as she did by selling cannabis to Mr Kroll.
I mention for the record the reference by Detective Brevet Sergeant Guerin to a possible charge of drugs pertaining to the defendant stated in his evidence. I make it clear that I have completely disregarded mention of that in my analysis of this matter.
I find beyond reasonable doubt that the substance subject of this charge (the 11 bags located in the defendant’s home) was cannabis, being a controlled drug pursuant to the legislation and that the defendant possessed that substance intending to sell it. Evidence of sale occurred in relation to the sale to Mr Kroll along with other indicia mentioned.
I also find beyond reasonable doubt that the defendant knew the 11 bags was cannabis (9.1 grams) and was an illegal substance.
Appeal
It is convenient to address the grounds of appeal in the order in which the appellant’s counsel, Ms Sibree, did. She first addressed grounds 5 and 6 relating to alleged deficiencies in the identification of the appellant, before dealing with the remaining grounds relating to the application of the onus of proof for possession (ground 3), trafficking (grounds 1 and 4) and the ultimate burden of proof (ground 2). The appellant submits that the magistrate’s admission of the “in‑dock” identification and the consequent finding that the appellant was the person who had sold cannabis to Mr Kroll earlier in the evening, was an essential step in his reasoning and ultimate findings on the elements of possession and trafficking. On that basis the appellant submits that this erroneous finding on the issue of identification tainted the magistrate’s consideration of the essential elements of the charge as set out in the remaining grounds of appeal.
I am satisfied it is convenient to proceed in that way.
Ground 5: the magistrate erred in accepting evidence of an “in-dock” identification of the appellant by the witness Kroll
The appellant submits that the only evidence that identified her as the person who sold the bag of weed to Mr Kroll was his identification of her in the dock during the trial. No objection was taken at the trial to this process of identification. The magistrate accepted Mr Kroll’s in-dock identification of the appellant. He erred in doing so.
In Alexander v The Queen[4] Gibbs CJ said:[5]
Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused. The reasons for this were explained in Davies and Cody v. The King. In particular there is the danger that the witness will too readily come to believe, without any true recollection, that the man charged is the man whom he had previously seen, particularly if his own memory has become dim and there is some resemblance between the two men. The courts in England and Australia have long recognized the danger of acting upon evidence of identification made in those circumstances.
[Footnotes omitted].
[4] [1981] HCA 17, (1981) 145 CLR 395.
[5] [1981] HCA 17, (1981) 145 CLR 395 at 399.
In The Queen v Hallam & Karger[6] King CJ said:[7]
Identification by confronting the victim with the suspect in circumstances which tend to suggest to the victim that the suspect is under suspicion is a virtually valueless form of identification which should be resorted to only in the most exceptional situations.
[6] (1985) 42 SASR 126.
[7] (1985) 42 SASR 126 at 130.
In R v Preston[8] David J said:[9]
There may be cases where an in-dock identification is appropriate, but only where there has been some form of positive identification on a previous occasion and the in-dock identification merely relates that previous identification to the case at hand. [In this case] there was no previous positive identification, merely evidence that amounted to a piece of circumstantial evidence. Therefore, the only positive identification led as part of the prosecution case against the appellant was that in-dock identification. The evidence is clearly valueless and, if objected to at the time, should have been excluded.
[Footnotes omitted].
[8] [2013] SASCFC 69, (2013) 116 SASR 522.
[9] [2013] SASCFC 69 at [34], (2013) 116 SASR 522 at 527-528.
It is immaterial that the appellant’s counsel did not object to the admissibility of this evidence before the magistrate. Once the evidence was led, the magistrate should have directed himself that it was valueless and he would ignore it.
So much is conceded by the respondent. However, the respondent does not concede that the in-dock identification was the only evidence in the trial which incriminated the appellant as being the person who sold cannabis to Mr Kroll.
I am satisfied that there is other evidence which justified the magistrate’s finding that the appellant was identified as the person who sold cannabis to Mr Kroll. First, in his evidence Mr Kroll called the weed seller “an old girl” named “Gail”. The appellant’s full first name is Gabriella. While the name “Gail” is close to “Gabe” and might be mistaken for “Gabe”, it could not be mistaken for the first name of the only other female found present in the Fitzgerald Road house later that evening, namely, Tahlia.[10] Constable Cook gave evidence that there were two other females in the house at the time. He described them as teenagers. Second, Mr Kroll said the purchase had occurred at the premises “on Fitzgerald”. The appellant’s home was known to Constable Cook as being at Lot 412 Fitzgerald Road, Coober Pedy. The appellant’s defence was conducted on the basis that this was her place of residence. Mr Kroll gave evidence that the person who sold him the bag of cannabis lived at a house where there was shade mesh. That fit the description of the appellant’s house. Constable Cook’s evidence was that the appellant’s residence at Lot 412 Fitzgerald Road included an entrance under a verandah / pergola type area with shade cloths. Third, Mr Kroll gave evidence that he purchased the bag of weed from the old, short lady at the house on “Fitzgerald”. Mr Kroll gave evidence that the sale took place at the door. A short time later Constable Cook observed the appellant at 412 Fitzgerald Road moving a plastic tub containing 11 resealable plastic bags containing cannabis. This was found just inside the front door at 412 Fitzgerald Road. Fourth, most importantly, the bag seized from Mr Kroll was a small red-lined resealable bag. It was strikingly similar, if not identical in nature, to the 11 bags containing cannabis found a short time later in the white plastic tub at Lot 412 Fitzgerald Road.
[10] Tahlia Grace Lennon.
For these reasons I am satisfied that, contrary to the appellant’s submission, the in-dock identification was not essential to the magistrate’s finding that it was the appellant who sold the cannabis to Mr Kroll from her place of residence. That finding is supported by other evidence properly admitted independent of the in-dock identification. The 11 bags of cannabis found in the plastic tub just inside the appellant’s front door together with other indicia of sale found in the house i.e. the empty resealable bags, and the appellant’s close contact with Mr Bulovic who was found in a car on the property with a large amount of cannabis and cash, and the striking similarity between the bags found in the tub containing cannabis and the bag found on Mr Kroll are cogent strands of circumstantial evidence that connect the appellant to the sale of cannabis to Mr Kroll. This circumstantial evidence stands independently of Mr Kroll’s in-dock identification of the appellant.

I would dismiss ground 5.
Ground 6: the magistrate erred in finding the testimony of the witness Mr Kroll to be reliable
The appellant submits that the magistrate erred in acting in reliance upon Mr Kroll’s evidence. The appellant points to Constable Cook’s evidence that Mr Kroll told him that he had bought the cannabis from the “McLeod house” from the “older one” after falsely telling police that he had found the bag. Further, the appellant points to the inconsistency between that part of Constable Cook’s evidence and Mr Kroll’s evidence that he knew the person he bought the cannabis from as “Gail” and not as “McLeod”.
I do not accept this submission. The magistrate found Mr Kroll to be an honest, earnest and softly-spoken witness who was entirely clear and “creditable” in his account of events. The magistrate had the advantage over this Court of seeing and hearing the evidence of Constable Cook and Mr Kroll. It has not been demonstrated that he has misused that advantage. None of the impugned evidence has been demonstrated to be inconsistent with objective fact or glaringly improbable or contrary to compelling inferences in the case.[11] Further, I accept the respondent’s submission that the appellant’s reliance upon Mr Kroll’s apparent inconsistent statement to police that he bought cannabis from “the older one” at the “McLeod house” does not materially advance the appellant’s cause because the supposedly inconsistent statement is not exculpatory. If the statement to police was true it would still incriminate the appellant. It would increase the number of coincidences leading to the inevitable conclusion that the appellant sold Mr Kroll cannabis. The additional circumstantial evidence would be that Mr Kroll was able to say that the name of the seller at “Fitzgerald” was “[Gail] McLeod”, and that a short time later police found cannabis at the appellant’s residence at Lot 412 Fitzgerald Road.
[11] Fox v Percy [2003] HCA 22 at [29], (2003) 214 CLR 118 at 128.
I would dismiss ground 6.
The remaining grounds were argued by the appellant somewhat differently from the precise terms in which the notice of appeal formulated them. It is convenient to address them in the way that they were argued.
Ground 3: the magistrate erred by incorrectly interpreting the criminal concept of possession
In effect the appellant submits that the magistrate erred in finding it proved beyond reasonable doubt that the appellant was in possession of the cannabis found at her house.
The appellant contends that there was no evidence that proved she had exclusive occupation of the premises. No Certificate of Title, rental records or tenancy agreements were tendered during the trial. At least four other “occupants” were present in the house during the search in addition to Mr Bulovic whose vehicle was at the front of the property. No enquiries were made by police as to whether those, or any other person or persons, also resided in the house. No evidence was led by the prosecution to exclude that any or all of them were residing in or exercising control over the premises or items within the premises. This remained a reasonable possibility on the evidence. The magistrate was in error in finding that there was absolutely no evidence to support the involvement of any other persons with the cannabis found on the premises. The prosecution were required to exclude as a reasonable possibility the involvement of those other persons yet the police did not interview any of them.
The appellant submits that the magistrate found her to be in possession of the cannabis found in the plastic tub on the basis that Constable Cook had seen her handle and move the tub and on the basis of his finding that her further involvement with the cannabis trade was evidenced by the cannabis and cash located in Mr Bulovic’s motor vehicle. The appellant submits that this evidence is inadequate to prove possession.
The appellant submits that the evidence of her handling the tub was at its highest ambiguous and insufficient. In relation to the evidence of the cannabis and cash found in Mr Bulovic’s car, this was a relevant matter for the magistrate to consider, but only for the purpose of deciding whether the evidence excluded as a reasonable possibility that Mr Bulovic, or any other person, was exercising custody and control over the cannabis found in the house.
The appellant submits that the magistrate was required to direct himself that he had to be satisfied beyond reasonable doubt that mere knowledge of the presence of cannabis on the premises on the part of the appellant was not sufficient to prove possession; that the cannabis found in the house was not in the exclusive possession of Mr Bulovic, or the other four persons in the house at the time the search was conducted, or any other potential occupants of the premises; and that the appellant had physical control over the cannabis and an intention to exercise control over it.
At common law possession refers to the power and intention to exercise control over some substance or thing to the exclusion of all others. The concept of power and intention to exercise control necessarily implies knowledge of the existence of the object in question.[12] The common law definition is extended by the terms of the CSA to include:
(a)having control over the disposition of the substance of thing; and
(b)having joint possession of the substance or thing.[13]
[12] R v Baftiroski [2018] SASCFC 83 at [30].
[13] CSA s 4.
In order to prove possession mere acquiescence by an accused in allowing someone else to store drugs in her house is insufficient. Proof of possession requires satisfaction beyond reasonable doubt, not only that the accused knew of the presence of drugs in her house, but that the drugs were there for the purpose of her storing it, either for her own purposes or for someone else’s purposes. In other words, it is necessary for proof of possession that there must be an intention on the part of the accused to control the drugs in addition to knowledge of their presence in the house.[14]
[14] R v Saleh [2017] SASCFC 75 at [18].
In R v GNN[15] this Court considered the elements of possession in the context of charges of possessing heroin for sale contrary to s 32 of the CSA. In GNN a police search discovered heroin in a house when there were a number of persons present, including some visitors who had just arrived from interstate. GNN was convicted of possessing heroin for sale which was found concealed in two different locations in the kitchen, but not guilty in relation to heroin found in a bedroom which she was temporarily sharing with a man with whom she was in a relationship. That man had arrived from Sydney the day before the police search. The heroin in the bedroom was hidden between the mattress and the base of the bed. That heroin was not related chemically to any other heroin found in the house. Heroin was also found in the car in which the visitors from Sydney had arrived. GNN denied any knowledge of the heroin. Doyle CJ commenced his consideration of the adequacy of the directions that had been given by the trial judge on possession as follows:[16]
First, it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury's part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who were at the house that night. Thirdly, it was necessary to emphasise the requirement to prove physical control over the heroin and an intention to exercise control over it. It was necessary to relate these matters to the facts, in a practical way, to avoid the risk of the jury convicting on an unreliable basis. It was necessary to give directions that dealt adequately with the possibility that the heroin was in the possession of one of the men found in the house.
[15] [2000] SASC 447, (2000) 78 SASR 293.
[16] [2000] SASC 447 at [20], (2000) 78 SASR 293 at 296.
In my view there was no error made by the magistrate. The evidence before the magistrate was sufficient to establish that the appellant knew there was cannabis located in her house, precisely where it was located, and that she had performed specific physical acts for the purposes of exercising control over it.
The evidence was that immediately following upon the police discovering the appellant leaning into the passenger side of Mr Bulovic’s car, where there was found cannabis and cash, Sergeant Guerin exercised the search warrant at Lot 412 Fitzgerald Road. He entered the house with Constable Cook and the appellant. On entering the house the appellant immediately went to the plastic tub and sought to conceal it. There was no challenge to this evidence.
The evidence is that the tub contained 11 small plastic bags with a distinctive red stripe. Each bag contained cannabis. The bags were identical to, or bore a striking resemblance to, the bag seized from Mr Kroll earlier that evening. The appellant’s physical act in manually seeking to conceal the tub is consistent with her exercising knowing control over the disposition of the tub and its contents.
In considering the circumstantial case it was open to the magistrate to weigh that evidence with the evidence of Mr Kroll that he had purchased cannabis from an older woman at an address in Fitzgerald Road earlier that evening, and the evidence that the appellant’s initial reaction to the police commencing to search her house was the attempt to conceal the tub.
Being satisfied that the evidence establishes the identity of the appellant as the person who sold Mr Kroll the bag of weed earlier in the evening, for the reasons I have explained in addressing ground 5 of the appeal, I am satisfied that it was open to the magistrate to find this circumstantial evidence proved beyond reasonable doubt that the appellant knew the plastic tub contained cannabis, that it was stored in her house for the purposes of selling that cannabis, and that she was exercising physical control over the tub and its contents.
Against that evidence, the appellant points to the presence of Mr Bulovic and the other people at the Fitzgerald Road property that night. There is no basis in the evidence to raise as a reasonable possibility that the cannabis found at the property was in the exclusive possession of any of these people. By contrast, there is positive evidence that the appellant exercised possessory control over the tub containing the cannabis upon the police entering the house for the purposes of conducting a search. Proof beyond reasonable doubt that the appellant was in exclusive possession of the cannabis found in the white plastic tub is sufficient to exclude as a reasonable possibility that the cannabis was in the possession of Mr Bulovic, or any of the other people in the house at the time of the police search, or anyone else. This distinguishes this case from GNN and cases like it, in which police find drugs in a house but have no evidence of any of the persons located in the house doing anything with the drugs. The evidence does not raise as a reasonable possibility that those persons, rather than the appellant, were in possession of the cannabis.
There is no error in the magistrate finding that the appellant was in possession of the cannabis.
I would dismiss ground 3.
Ground 1: the magistrate erred by incorrectly applying the onus of proof to the appellant on the question of trafficking
The appellant submits that, in circumstances where only 9.1 grams of cannabis was found at the appellant’s premises, the prosecution was not entitled to the benefit of a presumption of trafficking. The cannabis found was less than the prescribed quantity of 250 grams which gives rise to the presumption under s 32(5) of the CSA.[17] Accordingly, it was necessary for the magistrate to be satisfied of all elements of the charge of trafficking. Further, the police search found a “bong” in the laundry which, together with the small amount of cannabis located, raised the reasonable possibility that the appellant’s possession of cannabis was for personal use only. That was reinforced by the absence of other indicia of a commercial purpose, such as tick lists, scales and large quantities of cash. The only indicia of sale located at the premises were the plastic bags. In these circumstances, the appellant submits the magistrate failed to apply the onus of proof which required him to exclude the reasonable possibility that the cannabis was in the appellant’s possession for personal use or for non-commercial purposes. The appellant submits that that possibility was not considered by the magistrate or excluded by the admissible evidence.
[17] Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA), Schedule 1.
I do not accept this submission.
The prosecution neither needed, nor attempted, to rely upon the presumption in s 32(5) of the CSA to prove the appellant possessed cannabis for sale. Given the finding that it was the appellant who had sold the bag of cannabis to Mr Kroll, a strong inference arose that the 11 identical, or strikingly similar, bags of cannabis contained in the plastic tub found in the appellant’s home a short time later were in her possession for the purposes of sale. The magistrate adopted that permissible form of reasoning. While there was an absence of many of the indicia of sale frequently found in offending of this kind, there was the finding of multiple empty resealable bags throughout the house and, in particular, next to the plastic tub. In the circumstances, these were indicia of sale. This was sufficient to exclude as a reasonable possibility that the cannabis was possessed solely for personal use or non-commercial purposes.
Further, the magistrate correctly directed himself in relation to the onus of proof, in particular when discussing the appellant’s right not to give evidence.
I would dismiss ground 1.
Ground 4: the magistrate erred by incorrectly interpreting the non-provision of forensic evidence
The appellant submits that the prosecution failed to tender evidence of forensic analysis of the substance found by police in the possession of Mr Kroll. In the absence of any forensic analysis of this item, including any evidence to connect it in terms of type, quality or amount with the cannabis allegedly found in possession of the appellant, she submits that it was not open to the magistrate to find that the substance sold to Mr Kroll was cannabis, and that it was the same cannabis that was found in the plastic bags in the white plastic tub at her house. The appellant further submits that Constable Cook’s evidence was an insufficient basis to ground a positive finding that the substance sold to Mr Kroll was from the same cannabis found in the possession of the appellant. Finally, the appellant submits that the failure to adduce evidence of the forensic analysis of the substance seized from Mr Kroll gives rise to a Jones v Dunkel[18] inference adverse to the prosecution case.
[18] (1959) 101 CLR 298.
I do not accept this submission.
At issue on this ground is the question of the sufficiency of the evidence.
The flaw in the appellant’s submission is the proposition that proof of the offence required evidence of the forensic analysis of the substance found by Constable Cook in the possession of Mr Kroll. Proof of the offence did not require scientific evidence establishing that the substance in the plastic bag seized from Mr Kroll was cannabis, or that there was some similarity or consistency in terms of type, quality or amount between the cannabis seized from Mr Kroll and the cannabis found in the possession of the appellant.
Proof that the substance seized from Mr Kroll by Constable Cook was cannabis did not necessarily require scientific evidence. Whether the substance was cannabis is a question of fact provable in any number of ways. In this case, Mr Kroll identified the substance he had purchased as a bag of “weed”. This was sufficient to establish his belief that he had purchased cannabis. The evidence was that the contents of the bag seized from Mr Kroll by police consisted of green vegetable matter consistent with it being cannabis. Mr Kroll was cross‑examined by the appellant’s counsel in the course of the trial on the assumption that the substance seized from him was cannabis.[19] That was the basis upon which the appellant conducted the trial.
[19] T 14.6, 14.19, 14.24, 14.35, 15.3 and
More importantly, Constable Cook gave evidence that he had previous contact with cannabis as a police officer. He inspected the substance in the plastic resealable bag seized from Mr Kroll. He was satisfied it was cannabis. He did so on the basis of its appearance and scent. There was no challenge to his evidence in this regard, either on the basis of his expertise or his particular conclusion in this matter. This was a sufficient basis for the magistrate to make the finding that the substance purchased by Mr Kroll was cannabis.
Further, I do not consider there is any substance to the appellant’s submission that, in the absence of scientific evidence, the magistrate could not make the positive finding that the cannabis sold to Mr Kroll came from the appellant. This too was a factual question capable of proof without reliance upon a forensic analysis of the properties of the material in each of the 11 bags found in the white plastic tub inside the front door of the appellant’s premises. A simple examination of the bag and its contents seized from Mr Kroll with the 11 bags found in the white tub is sufficient to support the magistrate’s finding that the bags seized from Mr Kroll and the 11 bags in the white tub contained cannabis. Further, the appearance of the 12 bags, together with the evidence of Mr Kroll that he had purchased the bag of “weed” seized from him by police a short time earlier at a house on “Fitzgerald” was a sufficient basis to find that the bag purchased by Mr Kroll was cannabis sold by the appellant from her residence on “Fitzgerald”. Scientific evidence was not necessary for proof of this fact.
There is no Jones v Dunkel point. That would require evidence that scientific testing of the cannabis seized by police from Mr Kroll had been undertaken. There was no such evidence.
I would dismiss ground 4.
Ground 2: the magistrate erred by incorrectly interpreting the concept of reasonable doubt in criminal matters
In effect, the appellant submits that the magistrate erred in finding that the charge was proved beyond reasonable doubt. This is really just a rolled-up plea encompassing the other grounds of appeal. For the reasons rejecting those grounds, I also reject this ground.
Conclusion
I would dismiss the appeal.