R v Hogg

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOGG
[2011] SASCFC 127
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Blue)
11 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
Appeal against conviction – appellant found guilty by jury of one count of trafficking in a controlled drug namely methylamphetamine and one count of possessing a Class H firearm without a licence – police found methylamphetamine and scales in the appellant’s housemate’s vehicle – police then searched the appellant’s home and found a trafficable quantity of methylamphetamine and a firearm – appellant and his housemate were jointly charged with trafficking methylamphetamine – only the appellant was charged in relation to the firearm – the prosecution of the housemate was not proceeded with – appellant was tried by jury – appellant gave evidence that he knew nothing of the methylamphetamine or the firearm – appellant was found guilty of both charges.
Whether the decision to prosecute the appellant and not the housemate constituted an abuse of process – whether trial Judge should have granted a stay of proceedings – trial Judge did not give jury directions on joint criminal enterprise – whether trial Judge should have given directions on joint enterprise – whether trial Judge properly directed the jury on the element of possession of the methylamphetamine – whether trial Judge’s directions on circumstantial evidence were sufficiently specific as to the elements of possession or sale of methylamphetamine.
Held: appeal dismissed – the appellant was not disadvantaged by the decision not to prosecute his housemate – that decision did not constitute an abuse of process – the prosecution case was not put on the basis of joint criminal enterprise – there was no need for the trial Judge to give directions on joint enterprise – it was clear from the trial Judge’s directions that it was necessary for the prosecution to show that the appellant's housemate did not have exclusive possession of the methylamphetamine – the trial Judge gave proper directions as to how the items of circumstantial evidence relied upon by the prosecution could be used.
Controlled Substances Act 1984 (SA) s 32(3), s 32(5); Firearms Act 1977 (SA) s 11(1), referred to.
R v GNN (2000) 78 SASR 293, distinguished.
Williams v Spautz (1992) 174 CLR 509, considered.

R v HOGG
[2011] SASCFC 127
Court of Criminal Appeal: Gray, David and Blue JJ

GRAY J: I would dismiss the appeal. I agree with the reasons of David J. I do not wish to add to those reasons.
DAVID J: The appellant was found guilty by verdict of a jury of one count of trafficking in a controlled drug namely methylamphetamine and one count of possessing a Class H firearm without holding a firearms licence.
The appellant appeals against both convictions.
The appellant was originally charged with the first offence on the one information with Ms S, (“S”), who was his former partner and was still living with him at the time of the alleged offending.
At the time of trial, however, the charges against S were withdrawn from the information and the appellant faced the charges alone.
He now argues that that decision by the DPP resulted in an unfair trial and amounted to an abuse of process.
The appellant also argues in other grounds that the trial Judge failed to give any directions to the jury on the application of the principles of joint enterprise, failed to give adequate directions on the element of possession and that his directions on circumstantial evidence were misleading and confusing.
Background facts
I set out the information in full.
First Count
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Leon Derek Hogg on the 17^th day of August 2008 at West Richmond, had possession of a controlled drug, namely methylamphetamine, with the intention of selling it.
Second Count
Possessing a Class H Firearm Without Holding a Firearms Licence. (Section 11(1) of the Firearms Act, 1977).
Particulars of Offence
Leon Derek Hogg on the 17^th day of August 2008 at West Richmond, had in his possession a class H firearm namely a improvised firearm chambered to fire .22 calibre long rifle rimfire ammunition, whilst not holding a firearms licence authorising possession of that firearm.
The prosecution case at trial was that S and the appellant were living together at premises at West Richmond. On 17 August 2008 at 9.30am, S left the home in a vehicle which was stopped by the police. They searched the vehicle and located three small plastic resealable bags with a black lady motif containing methylamphetamine and a set of electronic scales.
On the same day at 11.00am, the police went to the appellant’s home. Evidence was led that that house had a closed circuit television system installed with three outside cameras, two under a carport and one above a lounge room window. The appellant was present at the time and had $4,160 in his trouser pockets. On a search of the house the police found the following items:
1.In the dining room of the house were:
·       a Tupperware container containing 96.81 grams of methylamphetamine (purity 43 per cent);
·       an Escort cigarette tin containing 43.13 grams of methylamphetamine (purity 10 per cent);
·       a glass jar containing 0.44 grams of methylamphetamine (purity less than 1 per cent);
·       a small plastic resealable bag with black lady motif containing 1.62 grams of methylamphetamine (purity 46 per cent);
·       a red plastic spoon with methylamphetamine residue;
·       a home made grater containing methylamphetamine residue;
·       a plastic container that held the grater containing methylamphetamine residue;
·       a Nokia N95 mobile telephone containing text messages that were consistent with drug dealing;
·       a Tudor notebook containing a list of names (tick list);
·       an empty small plastic resealable bag with a black lady motif;
·       eight small plastic resealable bags with a West Coast Chopper motif;
·       a plastic straw / scoop with methylamphetamine residue.
2.On top of the dining room cabinet was a set of digital scales with methylamphetamine residue on and around the weighing pan and on the underside of the plastic lid.
3.On the dining room chair was a blue Lonsdale bum bag containing:
·       a red spoon that had methylamphetamine residue ; and
·       a plastic vial that contained methylamphetamine.
4.On the dining room floor were 62 empty small plastic resealable bags with a black lady motif.
5.In the dining room cabinet draw was the firearm which was the subject of Count 2.
6.On a dining room chair was a plastic vial containing 0.27 grams of methylamphetamine (purity 39 per cent).
7.In the main bedroom was:
·       a small safe containing one 9 mm ammunition round, and a box containing 25 Winchester .22 cartridges; and
·       utility, bank statements and Centrelink documents in the name of Syvertsen.
8.In a kitchen cupboard was a bag of methyl-sulfonyl-methane (MSN) powder which is used to cut methylamphetamine.
9.When the appellant was arrested he was searched and in his trousers was a small plastic resealable bag containing 0.01 grams of methylamphetamine.
In all, the prosecution alleged that the appellant was in possession of 139.94 grams of mixture containing methylamphetamine. It is to be noted that, pursuant to s 32(5) of the Controlled Substances Act 1984 (SA) (“the CSA”), this exceeded the prescribed trafficable quantity which is two grams. Consequently, if it was proved at trial that the appellant had possession of that amount of methylamphetamine, the onus was upon him to prove on the balance of probabilities that he possessed the drug for some purpose other than to sell it. If he did not, the elements of possessing methylamphetamine with the intention of selling it, and therefore, the charge of trafficking in a controlled drug, are made out.
The appellant and S were jointly charged with Count 1 on an information in the Magistrates Court dated 27 October 2008. On 3 April 2009, the appellant pleaded not guilty and was committed to the District Court for trial. On the same day S pleaded not guilty to Count 1, namely, the charge of trafficking in methylamphetamine. There was no charge laid against her in relation to the firearm. S was remanded to the Magistrates Court for submissions on no case to answer on 10 July 2009.
On 9 July 2009 a solicitor employed in the Office of the Director of Public Prosecutions reviewed the charge against S and concluded there was no case to answer. Accordingly, on 10 August 2009, the Director tendered no evidence against S in the Magistrates Court.
The appellant was tried by jury in the District Court between 12 and 15 July 2011. The prosecution case summarised above was led on the basis that the appellant was in sole possession of the drugs and drug paraphernalia or alternatively was in joint possession with S of the drugs and drug paraphernalia located in the appellant’s home. The case against the appellant was never presented as relying upon the principle of joint enterprise.
At trial the appellant gave evidence on oath and maintained that he was not in possession of the methylamphetamine which was the subject of Count 1 on the information or the firearm which was the subject of Count 2. He said that S was his ex-girlfriend and had had that status for about two years. He said that they were living together because he just could not get rid of her and he was in fact in another relationship. On a number of nights during the week he would stay at his new girlfriend’s house. When he was searched by the police a small plastic resealable bag with some methylamphetamine residue was found inside a pocket. He said he bought that about a week before and had forgotten to throw it out and it was for his own use. He admitted he was a moderate user of methylamphetamine. He gave evidence that the large amounts of methylamphetamine that were found in the house were not his and he was ignorant of their existence. He also said that he had never seen the firearm which was found in the house and was the subject of Count 2.
The appellant’s defence was that he shared the house with S, that although he was a moderate user of methylamphetamine he knew nothing of the existence of the methylamphetamine that was found, nor the paraphernalia, nor the gun and by implication all of that belonged to S.
The jury found him guilty on both counts.
Appeal
I set out the grounds of appeal:
1.The Learned Trial Judge erred in refusing to discharge the jury and stay the proceedings before the court.
Particulars
1.1.    The proceedings were an abuse of the courts process where the respondent had declined to prosecute the alleged co-offender and then put its case on the basis of joint possession/joint enterprise.
2.The Learned Trial Judge erred in failing to give any direction at all on the application of the principles of joint enterprise.
3.The Learned Trial Judge erred in failing to give adequate directions on possession.
Particulars
3.1.    At no time did the Learned Trial Judge direct the jury to consider the possibility that the drugs were in fact the co-offenders exclusively. This possibility needed to be excluded.
3.2.    The directions fail to explain joint possession in terms of shared possessory rights.
3.3.    Nor does he explain joint control.
3.4.    The directions tend to conflate joint possession and intention to sell.
4.The directions on the circumstantial case were confusing and misleading in that they confuse the element of possession with the sale. At no time does the Learned Trial Judge assist the jury as to how the evidence can be used to prove one or the other or both elements as to possession and sale.
I deal with each ground in turn.
Ground 1
After the jury was empanelled at the trial and before the prosecutor opened the case, the appellant’s counsel at the time made an application to stay the proceedings as an abuse of process. That application was refused and Ground 1 argues that the trial Judge was wrong in so doing. This ground of appeal involves both Counts 1 and 2. It is clear from the law that the District Court has the power to stay criminal proceedings permanently or temporarily to prevent an abuse of process. The onus of satisfying the Court that an abuse of process exists lies upon the party alleging it and the power to stay should only be exercised in exceptional circumstances.[1]
[1] Williams v Spautz (1992) 174 CLR 509 at 529.
An example of where a stay being granted for an abuse of process might be justified is where a person is incapable of receiving a fair trial and there is no other remedy available.
The appellant here argues that he has suffered impermissible prejudice which cannot be cured short of a stay being granted because, without the presence of S at the trial, he is at a disadvantage. Ms Davison SC, counsel for the appellant, argues that if there was a joint information as originally laid then S would be present and may give evidence at the trial. Counsel for the appellant would therefore have the chance to cross-examine her and attempt to establish that she alone was the possessor of the drugs and not the appellant. According to Ms Davison, that would then support the appellant’s case at trial that he had no knowledge of their presence.
I reject that proposition. It does not bear any form of analysis. It is a matter of mere conjecture as to what S would say if present at the trial. It is a matter of mere conjecture as to whether she would admit to sole possession or would be damaged in cross-examination if gave evidence contrary to the appellant’s position. She may not have given evidence at all. These are all matters of mere conjecture. Furthermore, the appellant was not inhibited at trial because of her absence. He, by inference, placed responsibility for the drugs upon S in the sense that they were the occupiers of the house and he knew nothing of them and because of her absence that version was uncontradicted.
Added to that, the prosecution case at trial was properly based upon either sole possession by the appellant or joint possession. The principles of joint enterprise whereby the appellant would be responsible for the behaviour of S pursuant to an agreement were not left to the jury. Therefore, any evidence led at trial concerning S could not be used against the appellant.
I would reject that ground of appeal.
Ground 2
Permission to appeal is required in relation to this ground. I would refuse permission. Although the case was based upon either sole possession by the appellant or joint possession between the appellant and S, there was never a case whereby it was left to the jury on the basis of joint enterprise. Therefore, there was no need to give a direction about joint enterprise. I would refuse permission on that ground.
Ground 3
The Judge in his charge to the jury in relation to possession said the following:
I direct you on the legal meaning of the concept of ‘possession’ for the purposes of this ingredient. Possession does not mean ownership. Obviously you can possess something without being the owner of it. Possession does not necessarily mean having the actual physical custody of something. Possession means the power and intention to exercise control over something to the exclusion of others, except any joint possessor.
I take up the example of the television set suggested by the prosecutor. In the eyes of the law you are in possession of your television even though you are away from your house. That is because you have retained the power and intention to exercise control over your television set. You might not possess your television set exclusively. You might jointly possess it with your partner. You would then be said to retain the power and intention to exercise control over your television set to the exclusion of all others except your partner.
In this case the prosecution alleges that the accused either possessed the drug exclusively or he possessed it jointly with Ms Syvertsen. For the purposes of this aspect of this ingredient, it must also be proved beyond reasonable doubt that the accused was in possession of more than the trafficable quantity of the drug. I direct you as a matter of law that the trafficable quantity of the drug methylamphetamine is 2 grams.
In this case the prosecution alleges that the accused was in possession of 139.94 grams of substance containing methylamphetamines. The relevant substances are those in the larger plastic blue top box and the Escort cigarette tin found in the dining room. The prosecution must prove beyond reasonable doubt that the accused was in possession of a trafficable quantity of methylamphetamines.
Only if you are satisfied beyond reasonable doubt of this aspect of this ingredient would you move on to the second aspect. If you are not satisfied beyond reasonable doubt of this aspect, then you would find this accused not guilty. It may be that this first aspect is the critical issue in the trial.
Ms Davison argues that those directions were inadequate because the jury needed to be satisfied that there was no reasonable possibility that S had sole or exclusive possession of the drug. Of course, if that were so, the appellant would not be in possession. Ms Davison emphasised that that was of particular significance in this case because there was an inference to be drawn from the police finding methylamphetamine in the car that S was driving that she herself was involved in drugs. Such an inference supports the argument that it was reasonably possible that she could have been in exclusive and sole possession of the drugs in the house also.
In submitting that argument, Ms Davison relied upon the decision of R v GNN[2] where Doyle CJ said:[3]
It was particularly important to identify the circumstances which, if proved to the jury's satisfaction, would establish that the heroin was in the possession of Ms GNN as distinct from being in the possession of one or other of the men found in the house. The Judge's direction does not really grapple with that issue. It is an issue which cannot be resolved solely by reference to the knowledge of Ms GNN. It required some further explanation of the practical application of the concept of control. It was not a case that required further general discussion of the nature of the relevant concepts, but rather an explanation of how they were to be applied. The jury needed further guidance on the issue of control because, in this case, it was quite possible that the heroin had been brought into the house by one of the men, but with the knowledge and acquiescence of Ms GNN.
[2] R v GNN (2000) 78 SASR 293.
[3] R v GNN (2000) 78 SASR 293 at [25].
It is to be remembered that the case cited above involved a very different factual circumstance. In that case there were a number of men visiting the house of Ms GNN and in relating the directions of law to the facts it had to be emphasised that exclusive possession attributed to one of the other people had to be excluded by the prosecution. The present matter is very different. The appellant and S were living together and there were no other people involved. Although the trial Judge did not explicitly say that if it was reasonably possible that S had exclusive possession that would amount to a defence, that fact was clear from the directions he gave. To say more would be superfluous.

It is to be noted that both this ground of appeal and Ground 4 do not apply to Count 2 on the information because the Judge charged the jury that in relation to that count, even if the appellant had joint possession with S of the gun which was the subject of the charge, that would not be enough to make that charge out. He directed that the jury that the appellant had to have sole possession.
I would reject this ground of appeal.
Ground 4
The trial Judge gave the following directions on circumstantial evidence:
I want to turn to a direction on circumstantial evidence, because that is the nature of the evidence that has been led by the Crown in this case. I turn to my direction on the law in relation to circumstantial evidence because the prosecution in this case bases its case in respect of each of the charges on circumstantial evidence.
Circumstantial evidence is different from direct evidence which is the evidence of a person who witnessed the actual offence. Circumstantial evidence, as the name suggests, is evidence of the circumstances surrounding the alleged offence from which the prosecution asks you to infer beyond reasonable doubt that the accused committed the offence.
Circumstantial evidence does not imply that that sort of evidence is weak. Circumstantial evidence can be as sound as direct evidence. Nevertheless, I must give you a special direction regarding the approach you should take regarding circumstantial evidence.
A case which depends on circumstantial evidence is sometimes likened to a rope and the many strands that go to make it up. The rope has the combined strength of all of its strands. Some strands may be strong while others may be weak. When all are twined together, however, they produce a total effect and strength which is greater than the strength of any one strand.
The weight of a case depending upon circumstantial evidence depends upon the combined strength of all of the facts that are proved to you. Before you can return a verdict of guilty in respect of the charge you are then considering depending upon circumstantial evidence the circumstances must exclude any reasonable or rational explanation consistent with innocence.
To be satisfied of the guilt of the accused of a given offence you must be satisfied not only that his guilt is a rational inference but that it is the only rational inference that the circumstances you find proved enable you to draw.
There are two steps in approaching circumstantial evidence. First, you look at the evidence of facts upon which the prosecution relies as circumstantial evidence and you decide which of those facts you accept as established by the evidence. Then you consider what inference or inferences you are prepared to draw from those facts. I am obliged to identify for you what the Crown says are the circumstantial facts from which it asks you to infer the guilt of the accused. I will deal with each count separately.
In respect of count 1, the circumstances are these: that the accused was the lessee of the house, he pays the rent, it is his house, his personal property is in that house. The house was under surveillance by the police from 9 o’clock. At 9.30 Ms Syvertsen leaves the premises. A search of her and her car locates the black lady motif bags. They locate methylamphetamine in black motif bags and there is a similarity between the purity in the samples found on her and the samples back at the house. There is found in her possession scales of the sort that are used by people engaged in selling methylamphetamine.
The accused is present at the house when the police arrive. The accused is in possession of a large quantity of cash. There is operating at the time a CCTV system consistent with additional security for people with that sort of enterprise. In and on the dining table are the drugs, paraphernalia associated with the drugs, the black lady motif, the West Coast Chopper motif bags, the blue notebook which might be regarded as, among other things, a tick list, multiple mobile phones. There are the text messages which one sees in the device report, P15. There is the pen gun. There is the ammunition. There is the mirror, the West Coast motif being on the front of it. Bedroom 1 is shared, the Crown asks you to find, by both the accused and by Ms Syvertsen. There are clothes and other belongings belonging to each.
The safes are open. There is the HP Pavilion computer with references to methylamphetamine to be found on it. Methylamphetamine is a valuable drug which was found on the dining room table unsecured.
The accused was searched and found to be in possession of a small bag containing traces of methylamphetamine which would indicate a familiarity with the drug.
In respect of count 2, the Crown relies on the discovery of the pen gun in the dining room drawer and the ammunition in the safe alongside the bed in the bedroom.
These then are the circumstantial facts upon which the prosecution relies for proof of its case. Your first step, as I have said, is to decide which of those facts you accept as established by the evidence. If you do not accept one of those facts as established by the evidence then you put that fact aside when considering the combined effect.
The next step is to consider what inference or inferences you are prepared to draw from the facts that you find established. This step requires you to consider the combined strength of the established facts. The inference that is drawn against the accused must be the only rational inference which the established facts enable you to draw.
I can find no fault in the trial Judge’s directions above. Ms Davison argues that he was not specific enough as to whether the items of circumstantial evidence went to the question of possession or sale. In my view, that argument has no substance. The trial Judge comprehensively set out those items of circumstantial evidence which the prosecution relied upon and gave correct directions as to how those items could be used, and the jury clearly could use them to prove either element, namely possession or sale.
I would reject this ground of appeal.
Conclusion
I would dismiss the appeal.
BLUE J: I would dismiss the appeal. I agree with the reasons of David J.

[2011] SASCFC 127

11 November 2011

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Abuse of Process

Charge

Sentencing

Stay of Proceedings