R v Atkinson - [2004] SASC 210

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ATKINSON
Judgment of The Honourable Justice Gray
16 July 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
Applicant convicted of two counts of possession of cannabis for sale - application for leave to appeal against conviction and sentence - grounds of appeal against conviction - admissibility of evidence obtained following a search warrant - trial judge was "excessively" involved in the trial - leave to appeal against conviction refused - misrepresentation of evidence in summing up - trial judge misdirected the jury as to onus of proof - leave to appeal against conviction granted - leave to appeal against sentence refused.
Rowland v Police (2001) 79 SASR 569, considered.

R v ATKINSON
[2004] SASC 210
Application for Leave to Appeal

GRAY J: This is an application for leave to appeal against conviction and sentence.
Ronald David Atkinson, the applicant, was charged with two counts of possessing cannabis for sale. The offending occurred between 24 March 2002 and 24 July 2002 and involved approximately 6.5 kilograms of cannabis. At trial the applicant admitted to possession of all the cannabis, but denied possession for the purpose of sale. He admitted that 2.7 kilograms of the cannabis belonged to him, but claimed that the remaining 3.8 kilograms of the cannabis was the property of Robert Walton. On 3 March 2004 the applicant was convicted on both counts. On 22 March 2004 he was sentenced to three years imprisonment with a 15 month non parole period.
Conviction
The following proposed grounds of appeal were advanced:
1.Evidence of all items found on the Sanderston property by police should have been excluded from consideration by the jury as inadmissible due to the invalidity of the police search warrant. Alternatively, evidence of the rifle found was more prejudicial than probative.
2.The trial judge took an excessive involvement and/or gave the impression that he had taken the prosecution side, depriving the applicant of a fair trial
3.The trial judge erred in allowing the prosecutor to ask the applicant questions as to whether he might lie to help his wife.
4.The trial judge erred in directing the jury in regards to the witness Walton’s evidence.
5.The trial judge erred in failing to direct the jury that the onus of establishing the element of purpose for sale remained throughout on the prosecution, albeit that proof is aided by the presumption in section 32(3) of the Controlled Substance Act.
It was said that leave was not required for the last ground of appeal.
Validity of the Search Warrant – Ground 1
Counsel for the applicant submitted that the general search warrant purportedly issued pursuant to section 67 of the Summary Offences Act 1953 (SA) was invalid and that as a consequence the results of the search should have been excluded as the evidence had been obtained by unlawful conduct. Argument drew attention to the terms of section 67 and in particular the words under sub-section 2:
Every such warrant must be in the form in the Schedule, or in a form to the same effect, and must be signed by the Commissioner.
It was accepted that the warrant that was issued did follow the form of the schedule and authorised a search for “any goods obtained by an offence”. Although this accorded with the schedule to the Summary Offences Act it did not accord with the terms of section 67:
(4)        The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a)     the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—
(i)an offence has been recently committed, or is about to be committed; or
(ii)    there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
(b)     the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—
(i)     there are stolen goods; or
(ii)there is anything that may afford evidence as to the commission of an offence; or
(iii)there is anything that may be intended to be used for the purpose of committing an offence;
I do not consider that there is any substance to this complaint. In any event the trial judge ruled that even if there was substance in this complaint he would not have exercised his discretion to exclude the evidence obtained pursuant to the warrant at trial. In these circumstances as there is no challenge to the alternative conclusion of the judge, this point could not lead to the appeal being allowed. I would refuse leave to appeal on this ground. If the applicant raises a pure question of law, leave is not required.
Trial Judge’s ‘Interference’ in the Trial Grounds 2 & 3
Counsel for the applicant contended that the trial judge displayed an excessive involvement in questioning of witnesses, giving the appearance that he favoured the prosecution case. It was said that this appearance was compounded by comments in the summing up and that as a result a miscarriage of justice occurred. It was submitted that extensive questioning should be left to the prosecutor and was not the role of the judge. Counsel referred Perry J’s comments in Rowland v Police[1] where it was observed:
There is much judicial dicta which confirms that it is in only very limited circumstances that it is proper for a trial judge to ask questions of a witness. …
…
[W]ith respect to the evidence of the defendant and his or her witnesses, magistrates should recognise that a good deal of circumspection must be exercised before putting any questions at all from the bench.
[1] (2001) 79 SASR 569 at 576-578
It was also contended that the trial judge erred in engaging in excessive cross examination of the accused, and further, that he permitted the prosecutor to conduct repetitive and excessive cross examination.
A review of the identified passages does not allow the conclusion that this ground is arguable. The questioning by the trial judge was restricted and viewed in context was not excessive and not objectionable. Leave should be refused on this ground
Misrepresentation of the Evidence – Ground 4
Counsel for the applicant submitted that the trial judge erred in “misrepresenting the evidence” to the jury during the summing up.
At trial Mr Walton, a good friend of Mr Atkinson and a quadriplegic, was called to give evidence relating to his ownership of a quantity of the cannabis found at Mr Atkinson’s premises. It was said that the trial judge told the jury that Mr Walton gave evidence favourable to the defence case because he was:
… [S]afe in the knowledge that the police will not take any action against him because of his quadriplegia.
This was said to be an error, as the prosecutor did not claim that Walton would not be prosecuted for any alleged offences resulting from his acknowledgement that he owned 3.8 kilograms of cannabis. Counsel contended that a later direction, made in an attempt to correct the earlier misdirection by the trial judge, was unfair and prejudicial:
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 Mr Barklay 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 Mr Atkinson’s, that 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 was 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 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 Mr Atkinson got Mr Walton along to court to tell that story because Mr Atkinson though or believe that no action would be taken against Mr Walton for taking the fall for about four kilograms of cannabis. That all I propose to say about that.
It was contended that the trial judge in effect asked the jury to speculate about a matter on which there was no evidence. It was also argued that the judge was inviting the jury to conclude that the applicant had arranged false evidence to be given by Mr Walton. The redirection was said to be unfair and prejudicial. This ground is arguable. Leave to appeal should be granted.
Onus of Proof – Ground 5
Counsel submitted that the trial judge misdirected the jury with respect to the onus of proof. This ground was said to raise a pure point of law. In so far as may be necessary then there should be a grant of leave.
Sentence
Three proposed grounds of appeal were advanced in respect of the sentence imposed:
- The sentence is manifestly excessive in the circumstances;
-The sentence of imprisonment should have been suspended having regard to all of the circumstances, in particular the applicant’s medical conditions and depression;
-The trial sentencing judge erred in accepting the following facts to be proven beyond reasonable doubt:
-That the bunker was constructed expressly for the growing of cannabis;
-That the growing of cannabis by the applicant was a continuing commercial enterprise;
-That none of the cannabis possessed by the applicant belonged to the witness Walton.
During submissions the challenge was restricted to a complaint that the finding that more than 2.7 kilograms of cannabis was possessed for sale was in error.
I would refuse leave to appeal on this ground. The jury found the applicant guilty on both counts. If those verdicts are not set aside it follows that the proposed appeal against sentence must fail. No arguable ground has been identified to support a grant of leave to appeal against sentence.
Conclusion
Leave to appeal is granted in respect of the proposed ground 4 and, in so far as it may be necessary, in respect of proposed ground 5. Otherwise leave to appeal is refused.