R v Granger No. Sccrm-03-230

[2003] SASC 390

R v GRANGER
[2003] SASC 390

Court of Criminal Appeal:  Doyle CJ, Perry and Gray JJ

1. DOYLE CJ: (ex tempore)               In this matter a single Judge refused leave to the applicant to appeal to the Supreme Court from his conviction in the District Court, following a trial by judge alone on a charge of possessing cannabis for sale. The applicant requested that his application for leave be considered by the Full Court. As requested, the matter has been listed for oral argument.

2. The offence arose out of a police raid on suburban premises occupied by the applicant on 8 September 2002. Police officers found, in a locked garage at the rear of the premises, equipment and material set up to grow cannabis hydroponically. They also found piles of harvested leaves and a quantity of female flowering heads.

3. The applicant did not deny that he was in possession of the material and that he was cultivating cannabis. He told the police officers that he thought he was entitled to grow three plants, and that the cannabis was for his own consumption to relieve pain for injuries which he had received some years before and, on occasions, to supply to friends.

4. The total cannabis plant material found in his possession was of the order of 16 kilograms. There were no items found on the property that might have been associated with preparation for sale, such as scales, plastic bags, or any large amount of cash. However, there was evidence that in cases such as this the absence of such items is not necessarily inconsistent with possession for sale.

5. It appears from the evidence that hydroponically grown cannabis is sometimes cultivated by individual growers who pass the crop on to a principal to sell.

6. In view of the quantity of cannabis in the applicant’s possession, the prosecution relied on the presumption, contained in s 32(3) of the Controlled Substances Act 1984 (SA), that a quantity of the drug in excess of the prescribed amount, in the absence of proof to the contrary, will amount to proof that the defendant has the drug in his or her possession for the purposes of sale. The prescribed amount for the purposes of that section is 100 grams.

7. The Prosecution relied on evidence as to the electricity consumption which was in excess of the average domestic consumption. That was said to be consistent with use of electricity for the purposes of sustaining the process of hydroponic cultivation.

8. Given that the applicant admitted cultivation and possession of the drugs, evidence of the electricity consumption did not assist in determining the central issue which was whether or not the applicant’s possession was for the purposes of sale.

9. The applicant gave evidence in which he elaborated upon the circumstances in which he had developed a habit of smoking cannabis to treat his medical condition and giving small amounts to friends. He denied selling any of it or having the intention to do so. He admitted that during the relevant period he was in difficult financial circumstances and relied substantially on the generosity of friends to cope with his living expenses. His financial situation was the subject of close scrutiny at the trial.

10. At the end of the day, her Honour was not prepared to accept the applicant’s evidence as discharging the onus of proving on the balance of probabilities that the applicant did not have the cannabis or some of it in his possession for the purpose of sale.

11. The applicant wishes to pursue two grounds of appeal.

12. The first is that the trial Judge erred in commenting that the presumption provided for in s 32(3) facilitates proof of an offence “…which might otherwise be difficult to prove”. In my opinion it is clear that that is nothing more than an incidental comment by the trial Judge. It is not reasonably arguable that it affected in any way the soundness of the reasoning process by which she reached a conclusion of guilt.

13. The other ground is that the trial Judge erred in the proper assessment of the evidence presented on behalf of the applicant. It is true that she did not refer to every point raised by the applicant in his evidence, but she clearly dealt with the substance of the case which he presented. Her comment at [73] to the effect that it was possible that the applicant did not have cannabis in his possession for the purposes of sale is a comment that does no more than reflect the reality of the situation. That was possible, but the onus was on him to prove on the balance of probabilities that he did not, and that was the issue which the judge addressed.  While the comment was by the by, and added nothing to her Honour’s reasons, there is no reason to infer that her Honour became confused as to the reasoning approach that she should adopt. In my opinion it is not reasonably arguable that her Honour erred in that respect or in her assessment of the evidence.

14. For those reasons I would refuse leave to appeal on the grounds of appeal originally before the court, before the amendment, and I do so on the basis that they are not reasonably arguable.

15. PERRY J:  I agree.

16. GRAY J:    I agree.