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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Atkinson

Details

AGLC: R v Atkinson [2004] SASC 332
Case: [2004] SASC 332
Decision Date: 26 October 2004

CaseChat Overview and Summary

The case of R v Atkinson involved the appellant who was convicted by a jury of possessing cannabis for sale and taking part in the production of cannabis. The appellant had pleaded guilty to the charge of taking part in the production of cannabis but was convicted on two counts of possessing cannabis for sale. The appeal against the conviction was based on the grounds that the trial judge misdirected the jury in relation to the onus of proof and misstated the evidence. The appeal was dismissed by the court.

The legal issues before the court were whether the trial judge had misdirected the jury concerning the onus of proof and whether the judge had misstated the evidence in his summing up. The appellant argued that the trial judge had misdirected the jury by suggesting that the onus of proof had shifted to the appellant to rebut a statutory presumption. The appellant also argued that the trial judge misstated the evidence of a witness by suggesting that the prosecution had said that the witness had acted safe in the knowledge that the police would not take any action against him because of his quadriplegia.

The court held that there was no misdirection by the trial judge concerning the onus of proof. The court found that the judge had made it clear to the jury that the prosecution carried the onus of proof beyond reasonable doubt of each element of the offence. The court also held that the trial judge’s comment about the witness’s evidence was not a misstatement of the evidence. The court found that the judge had re-directed the jury and clarified his comments about the witness’s evidence. The court held that the appellant’s complaints about the trial judge’s summing up should be rejected.

The court dismissed the appeal and upheld the conviction of the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

DOYLE CJ (dissent) BLEBY J (dissent) GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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