R v Atkinson - [2004] SASC 332

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ATKINSON
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
26 October 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Appeal against conviction - appellant charged with one count of taking part in the production of cannabis and two counts of possessing cannabis for sale - appellant pleaded guilty to the charge of taking part in the production of cannabis - appellant acknowledged that he had hydroponically grown ten cannabis plants - appellant convicted by jury in relation to charges of possessing cannabis for sale - appeal on grounds that trial judge misdirected jury in relation to the onus of proof and the misstatement of the evidence - consideration of onus of proof - discussion of presumption contained in section 32(3) Controlled Substances Act 1984 (SA) - discussion of directions to jury concerning the evidence - no misdirection - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(3), referred to.
R v Zampogna (2003) 85 SASR 56, considered.

R v ATKINSON
[2004] SASC 332
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ I would dismiss the appeal against conviction. I agree with the reasons given by Gray J. There is nothing that I wish to add to those reasons.
BLEBY J I agree that the appeal should be dismissed for the reasons given by Gray J.
GRAY J This is an appeal against conviction.
The appellant Ronald David Atkinson was charged with one count of taking part in the production of cannabis and two counts of possessing cannabis for sale.
The appellant pleaded guilty to the charge of taking part in the production of cannabis. The plants the subject of the charge of possession were growing in an underground bunker. He acknowledged that he had hydroponically grown ten plants.
The trial against the appellant proceeded on the two counts of possessing cannabis for sale. He was convicted by jury verdict on the two counts of possessing cannabis for sale. One count related to a weight of 2.9 kilograms of cannabis found in 13 vacuum sealed packages located in a computer room within the house at the property. The other charge related to cannabis weighing 3.3 kilograms contained in 11 vacuum sealed packages and a further 895 grams of drying cannabis all found in an underground bunker. Each vacuum sealed package weighed about 225 grams.
Given the appellant’s admission to possessing the cannabis, the subject of all counts, the sole issue was the appellant’s purpose for that possession.
On 24 July 2002 a police search of the premises disclosed a bunker underneath a shed on the property. The entrance was concealed. The bunker contained an elaborate and sophisticated hydroponic arrangement for growing cannabis.
The evidence established that the appellant had spent $10,000 on the construction of the bunker. This occurred in circumstances where the appellant had limited financial means. He had been unemployed for 15 years.
The appellant suggested that he had built the bunker as a place to store olives. However there had been no olive trees planted, no proper investigation about the viability of an olive plantation, no arrangements made for access to water and no plant or equipment for processing olives had been acquired. The evidence suggested that it would take at least six years following plantings for there to be any significant production of olives.
Other evidence supported the prosecution case of possession for sale. Significant sums of money had been spent by the appellant on electricity for the growing of cannabis hydroponically in the bunker. Electricity accounts in excess of $1,000 per quarter had been incurred for some time. Following the police search the electricity accounts dropped substantially. The appellant’s car had been fitted with long-range fuel tanks. This was said to be significant against the background of evidence that cannabis was commonly transported interstate for sale. The appellant was also found to be in the possession of firearms including a firearm found in the vehicle fitted with the long-range fuel tanks. Documents located on the property disclosed records of monetary amounts consistent with the amounts clients were said to have paid for cannabis.
The prosecution also drew attention to the on-going nature of the operation. The appellant admitted experience in growing cannabis over many years. It was said that the total value of cannabis in the possession of the appellant was in the range of $26,000 to $45,000. The method of packaging and the weight of each packaging of the vacuum sealed bags was consistent, it was said, with the manner in which cannabis was sold. Scales were located at the premises.
Finally the prosecution relied on the presumption contained in section 32(3) of the Controlled Substances Act 1984 (SA). That section provides:
For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.
Given the acknowledged weight of cannabis relevant to each of the counts for sale, it was the prosecution case that the presumption arose in respect of both counts of possession for the cannabis for sale. Counsel for the appellant accepted that the presumption arose with respect to the two counts.
It was the appellant’s case that much of the cannabis was the property of a third party, Robert Walton. It was the evidence of the appellant and Mr Walton that of the total weight of 6.5 kilograms, 2.7 kilograms was the property of the appellant. The balance of 3.8 kilograms belonged to Robert Walton. It was claimed that the appellant was vacuum sealing the cannabis for Mr Walton. Mr Walton claimed that the appellant had possession of cannabis that belonged to him.
Issues on Appeal
On appeal two issues arose. Counsel for the appellant submitted that the judge erred in his directions concerning the onus of proof. The second issue concerned a suggested misdirection by the trial judge about the evidence of Mr Walton.
Onus of Proof
The judge directed the jury with respect to the onus of proof:
The burden of proving the case against each accused lies wholly on the prosecution.
Furthermore, ladies and gentlemen, nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt, or to show that an accused person is probably guilty. Neither accused is to be convicted unless his or her guilt has been proved to you beyond reasonable doubt.
It is important to understand that the requirement of proof beyond reasonable doubt extends to each and every element of the offence. You cannot convict an accused person so long as you have a reasonable doubt as to an essential element of the crime charged against him or her. If, at the end of the day, you are left with a reasonable doubt about the guilt of either or both accused, you must give that accused the benefit of that doubt and find him or her not guilty.
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However, there is a twist in the position concerning counts two and three. Both accused have pleaded not guilty to counts two and three; that is, possession of cannabis for the purpose of sale.
If you are satisfied that either or both accused were knowingly in possession of more than 100 grams of cannabis – and I will explain all of this to you in detail later – then either or both of them will need to show you, on the balance of probabilities, that the possession was other than for the purpose of sale.
You will realise that is not the normal situation. In other words, ladies and gentlemen, assuming all other things are proved for either or both of counts two and three, except for whether an accused possessed the cannabis for sale, then if there was possession of more than 100 grams of cannabis, the law takes over and presumes possession was for the purpose of sale unless the accused shows, on the balance of probabilities, that the possession was not for sale. If the accused fails to show you that on the balance of probabilities, then your verdict should be guilty as charged. But, members of the jury, I will repeat these directions to you a little later.
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Finally, the accused must have the substance in his or her possession for the purpose of sale. If you are satisfied that the accused under consideration, on 24 July 2002 at Sanderston, knowingly had cannabis in his or her possession, and that the amount possessed was more than 100 g, then he or she is presumed, in the absence of proof to the contrary, to have the cannabis for the purpose of sale to another person.
In that situation, the accused under consideration must prove, but only on the balance of probabilities, that he or she did not have the cannabis in his or her possession for the purpose of sale to another person.
This is one of those rare instances in the law where an accused is obliged to prove something to the contrary. However, as I have said, it is only proof on the balance of probabilities. That is, the accused must show you that it is more likely than not that he or she did not have it for the purpose of sale.
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If an accused person fails to satisfy you on the balance of probabilities that he or she did not have possession of the cannabis in his or her possession for the purpose of sale to another person, the legislation presumes he or she had the drug in his or her possession for the purpose of sale to another person.
In other words, if he or she has failed to satisfy you, the law takes over and says that assuming all other things are proved, the accused had it in his or her possession for the purpose of sale. In that situation, the accused then under consideration should be found guilty.
Following the summing up, counsel for the appellant sought a further direction from the judge about the onus of proof. The trial judge did not consider that any further direction was necessary.
Counsel referred to the decision of this court in R v Zampogna[1]. In Zampogna this court was concerned with the proper direction to be given to a jury concerning the onus of proof on a charge of possession of cannabis for sale in circumstances where the statutory presumption operated by reason of the weight of cannabis involved. Duggan J observed:[2]
In the passages complained of, the trial judge referred to a “change in the onus of proof” with respect to that element of the charge which requires possession to be for the purpose of sale. According to the argument, this may have conveyed to the jury that the prosecution was not required to establish this element of the offence.
I do not think there was any danger of the jury being misled by the terminology used by the trial judge. He explained that the prosecution must prove that the appellant had the drug in his possession for the purpose of sale. He went on to refer to the presumption which would arise if the prosecution established beyond reasonable doubt that the appellant was in possession of more than the prescribed amount. He explained that the presumption could be rebutted by the appellant if it were established on the balance of probabilities that the possession was not for the purpose of sale.
That having been said, it would be better, in my view, if the effect of the section was not explained in terms of a change of onus, although I appreciate that this is sometimes said in the course of jury charges. There is a sense of which that statement is true, but there is a risk of confusing the operation of the onus in relation to the presumption with the overall onus in relation to proof of this particular element of the offence. The onus of establishing the element of purpose for sale remains throughout on the prosecution, albeit that proof is aided by the presumption.
The other members of the court agreed with these observations.
[1] (2003) 85 SASR 56
[2] (2003) 85 SASR 56 SASR 56 at 64-65
As Duggan J observed the prosecution has the obligation to prove each of the elements of the offence to the satisfaction of the jury beyond reasonable doubt. However the prosecution can call in aid the statutory presumption to satisfy its burden of proof of the element of the offence - possession for sale.
In the present case the judge made it clear to the jury that the prosecution carried the onus of proof beyond reasonable doubt of each element of the offence. He directed them specifically in these terms. His direction outlined to the jury the proper use that could be made of the statutory presumption, the obligation that the appellant carried to rebut the presumption and the level of satisfaction the jury needed in reaching the conclusion that the presumption had been rebutted. The judge explained that the presumption arose as a matter of law. The judge did not suggest that the ultimate onus on the element of the purpose of sale had shifted. This complaint should be rejected.
Mr Walton’s Evidence
In the course of his summing up, the judge drew attention to what he suggested that the prosecution had said about the evidence of Mr Walton.
The prosecution also say that Mr Walton’s evidence is not to be believed because it also is unbelievable and bears inconsistencies when compared with [the appellant].
The effect of what the prosecution is saying about Mr Walton is that he is the fall guy, a friend of [the appellant], the person who is brought along here to take the blame for not quite four kilograms of this cannabis, safe in the knowledge that the police will not take any action against him because of his quadriplegia.
Counsel for the appellant complained that the judge misstated the prosecution submission. It was said that there was no evidence to support the assertion that Mr Walton had acted safe in the knowledge that the police would not take any action against him because of his quadriplegia. Counsel for the prosecution agreed. The judge re-directed in the following terms:
During the course of my discussion of the prosecution case, I dealt with the evidence of Mr Walton. I dealt with his evidence, obviously, in the context of the case against Mr Atkinson. I was dealing with the prosecution case, although I do not think that at any time [counsel for the appellant] used the words that I used.
I said to you that the effect of what the prosecution was saying about Mr Walton was that he was the fall guy. He was a good friend of [the appellant], the person who had been brought along here to court to take the blame for about four kilograms of the cannabis, safe in the knowledge that the police would not take any action against him because of his quadriplegia.
It is true, members of the jury, that there is no evidence that the police will not take some action against him by virtue of what he has admitted under oath. The police, obviously, could take action against Mr Walton and charge him with simple possession of the cannabis that he acknowledged under oath he had; or maybe, by virtue of this quantity, possession for the purpose of sale.
It is true then that the police could take that action against him should they so wish.
The point of my comment was and is how likely do you think that is, bearing in mind the nature of his condition. You have no real means of gauging that, but if you apply your common sense to it, you might take the view that [the appellant] got Mr Walton along to court to tell that story because [the appellant] thought or believed that no action would be taken against Mr Walton for taking the fall for about four kilograms of cannabis.
Counsel for the appellant complained that the problems occasioned by the initial comment had not been overcome by the further direction.
It was further contended that there was an aspect of the re-direction that compounded the earlier misdirection. Counsel for the appellant drew attention to the words at the end of the re-direction:
… but if you apply your common sense to it you might take the view that Mr Atkinson got Mr Walton along to court to tell that story because Mr Atkinson thought or believed that no action would be taken against Mr Walton for taking the fall about four kilograms of cannabis.
It was suggested this was a prejudicial comment made without any evidentiary support.
Mr Walton in evidence-in-chief explained the circumstances of the injury leading to his quadriplegia. He also gave evidence of his long term use of cannabis. He acknowledged earlier cannabis offending. He claimed to be the owner of 3.8 kilograms of the cannabis. He claimed that the appellant was vacuum sealing it for him. He asserted that the cannabis was for his personal use. He had not contacted the police about his alleged involvement before trial. The first occasion on which he claimed to be the owner of 3.8 kilograms of the cannabis was made during the trial.
The initial direction was not a statement by the trial judge of his view of the facts. It was a misstatement of the prosecution case. The misstatement was corrected in the re-direction to the jury. At that time the judge made it plain that the prosecution had not put its case about Mr Walton in the way that had initially been outlined.
The judge then pointed out that there was no evidence that the police would take action. Mr Walton might be charged with an offence arising out of his evidence. In the re-direction the judge did not suggest to the jury that they should take a particular view of the evidence. The re-direction did not involve any mistake, any misleading statement or any untenable proposition. There was no danger of the jury being overawed by the judge’s views. It cannot be suggested that the judge’s comments left the jury with nothing to decide. The judge was careful to leave his comment as a matter for the jury’s consideration as a matter that they might have regard to.
It has been acknowledged that a trial judge has a broad discretion in commenting on the facts and in a language that may be employed in commenting on those facts. It has been acknowledged that a trial judge must be permitted considerable latitude in making comments to the jury. Ultimately the jury must understand that the determination of the facts is a matter for the jury and the jury alone. In this respect the trial judge directed the jury in the following terms:
Each of us has a role to play. Mine is to direct you on the law, including the elements of the offences with which the two accused are charged. You are obliged to accept my directions on the law, but you alone are the judges of the facts, including the ultimate question as to whether or not it has been proved that the two accused, or either of them, is or are guilty of any of the offences with which they are charged.
If I say something about the facts with which you do not agree, you should prefer your own views and act upon them because the facts, and the way they are to be assessed and interpreted, are your responsibility. No-one, judge or counsel, can exercise that responsibility for you; it is your assessment that is crucial.
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You have the absolute right as jurors to accept or reject any witness, or any part of a witness’s evidence.

The submissions made by counsel for the appellant with respect to the direction and re-direction must be considered against the background of the summing up as a whole. Viewed in this way there is nothing in the comments of the judge that have overborne the jury so as to withdraw an issue of fact from the jury.
This appeal should be dismissed.