R v Hogg - [2011] SASCFC 127

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…

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 Hogg

Details

AGLC: R v Hogg [2011] SASCFC 127
Case: [2011] SASCFC 127
Decision Date: 11 November 2011

CaseChat Overview and Summary

The appeal in *R v Hogg* concerned a conviction for trafficking in methylamphetamine and possessing an unlicensed firearm. The appellant, Leon Derek Hogg, was found guilty by a jury on both counts. The prosecution's case arose from police finding methylamphetamine and scales in a vehicle driven by the appellant's housemate, and subsequently discovering a significant quantity of methylamphetamine and a firearm in the appellant's home. The appellant maintained his innocence, claiming no knowledge of either the drugs or the firearm.

The legal issues before the appellate court included whether the decision not to prosecute the appellant's housemate for drug trafficking constituted an abuse of process, warranting a stay of proceedings. Additionally, the court considered whether the trial judge had erred by failing to direct the jury on the principles of joint criminal enterprise, whether the directions on the element of possession of methylamphetamine were adequate, and whether the directions on circumstantial evidence were sufficiently specific to the elements of possession and sale.

The appellate court dismissed the appeal, finding that the decision not to prosecute the housemate did not disadvantage the appellant and did not amount to an abuse of process. The court noted that the prosecution's case was not based on a joint criminal enterprise, thus negating the need for joint enterprise directions. The trial judge's directions were deemed sufficient to convey that the prosecution had to prove the appellant's possession of the methylamphetamine, and that the housemate did not have exclusive possession. Furthermore, the directions on circumstantial evidence were considered proper in guiding the jury on how to use such evidence in relation to the elements of possession and sale.

Orders

Orders of the court

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Background

Background to the litigation

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 CountTrafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).Particulars of OffenceLeon Derek Hogg on the 17th day of August 2008 at West Richmond, had possession of a controlled drug, namely methylamphetamine, with the intention of selling it.Second CountPossessing a Class H Firearm Without Holding a Firearms Licence. (Section 11(1) of the Firearms Act, 1977).Particulars of OffenceLeon Derek Hogg on the 17th 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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