R v Horne
[2009] QCA 336
•3 November 2009
SUPREME COURT OF QUEENSLAND
CITATION:
R v Horne [2009] QCA 336
PARTIES:
R
v
HORNE, David Ross
(appellant)FILE NO/S:
CA No 192 of 2009
SC No 136 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
3 November 2009
DELIVERED AT:
Brisbane
HEARING DATE:
19 October 2009
JUDGES:
McMurdo P and Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where appellant found guilty after a jury trial of one count of possession of, and one count of trafficking in, the dangerous drug, cannabis sativa – where the appellant was acquitted of one count of producing cannabis sativa – where three pounds of cannabis was found by police at the appellant's mother's house – where there was evidence that the appellant's estimated and calculated expenditure was $420,408 over his declared income – whether trial judge should have directed the jury that, unless they were unanimously of the view, beyond reasonable doubt, that the appellant was in actual possession of the cannabis, they must acquit him of the charge of trafficking – whether there has been a substantial miscarriage of justice
Drugs Misuse Act 1986 (Qld), s 129(1)(c)
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, considered
COUNSEL:
J R Hunter SC for the appellant
P F Rutledge for the respondentSOLICITORS:
Guest Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: This appeal should be dismissed for the reasons given by Muir JA.
MUIR JA: The appellant appeals against his conviction in the Supreme Court after a jury trial of one count of possession of the dangerous drug, cannabis sativa, in a quantity in excess of 500 grams and one count of trafficking in the dangerous drug, cannabis sativa. The grounds of appeal are that:
(a) The primary judge failed to properly instruct the jury of the use, if any, that they might make of the evidence of production with respect to the charge of trafficking; and
(b) The primary judge erred in not instructing the jury that unless they were unanimously of the view that the appellant was, beyond reasonable doubt, in actual (as opposed to deemed) possession of 1.3 kilograms of cannabis found at the appellant's mother's house at Tivoli on 7 November 2007, then they must acquit him of trafficking.
Count 1, of which the appellant was acquitted, was producing cannabis at Tivoli between 1 September 2007 and 8 November 2007. Although the original Notice of Appeal encompassed the conviction for possession, the grounds of appeal, as amended, related only to the trafficking conviction. No argument was advanced in relation to the possession conviction and there is no reason to suppose that there was any appellable error in relation to it. In order to understand the grounds of appeal and the arguments advanced in support of them, it is necessary to understand something of the facts.
The evidence before the Jury
On 7 November 2007, police executing a search warrant at 19 Tivoli Hill Road, Tivoli, found the back door of the house in which the appellant's mother, Mrs Horne, had resided for about five years, unlocked and the house unoccupied. An unlocked 4-wheel drive vehicle belonging to the appellant was parked in the carport. Police detected the strong smell of fresh cannabis and in the laundry underneath the house found a white barrel containing three pounds (1.3 kg) of high quality cannabis bundled in precisely measured one pound quantities. The cannabis had a value of around $12,600 to $15,000.
Mrs Horne's evidence was to the following effect. The appellant had lived at the house before she had moved in but was rarely there in recent times, as he stayed at his girlfriend's place. The appellant had been at the house "about the day before or two days before" 7 November attending to a sewerage problem and in this regard, he had dug up a pipe and had used another vehicle owned by him to take trees which he had cut to the rubbish tip. When Mrs Horne left the house at about 9.30 in the morning of 7 November the appellant wasn't there. Asked if her son stayed the night at the house on 6 or 7 November she responded, "No, I don't think so." Mrs Horne used the laundry "a couple of times a week". She had used it on the morning of 7 November but hadn't then, or previously, seen the white barrel.
The appellant had a bed in a bedroom and some clothes in the wardrobe in that room. He didn't need her permission "to access the house" and, if at the house, he "could have" told a person who asked to come in, to leave. The phone was in the appellant's name, not having been changed from when the appellant lived at the house but the phone bill remained shared between the appellant and Mrs Horne. She identified a fish tank in a room in the house as the appellant's and the fish in a chest freezer as belonging to the appellant.
The appellant used 19 Tivoli Hill Road as his mail address and came around "sometimes" to pick up mail. The appellant mowed the quarter acre property when requested to by Mrs Horne. He was "doing some renovations" at the house and Mrs Horne thought that timber on the floor of the garage related to the renovations. A tool box in the garage was identified as belonging to the appellant.
Mrs Horne's 18 year old granddaughter had also stored some furniture of hers under the house from about July 2007 and used to "come and go". Mrs Horne didn't recall ever having seen the granddaughter's boyfriend at the house.
During a search of the Tivoli property on 7 November 2007, police located approximately 10 cannabis plants growing in a small clearing behind the back fence. A length of black polypipe ran from where they were growing along the fence to a tap. Those facts formed the basis of count 1.
The appellant made formal admissions to the following effect:
(a) He purchased land for $30,000 in October 1999;
(b) In mid 2005 he paid $2,000 cash to a man who undertook improvements to a residence on one of his properties;
(c) On 15 November 2006 police located about $5,000 in $50 notes in his vehicle;
(d) He purchased a property in March 2006 for a total outlay of $52,440.79;
(e) In March – April 2006 he purchased another property for a total outlay of $92,513;
(f) In about October 2007 he paid a concretor $4,180 in cash to lay a concrete slab on one of his properties;
(g) In August 2007 he paid $11,820 in cash to purchase a prefabricated shed which was delivered to one of his properties. He gave his own address to the vendor as 19 Tivoli Hill Road;
(h) He was the owner of $300,550 in cash found on Mr Watson's property on 16 November 2007; and
(i) On 7 November 2007 he was the owner of a 7.1 metre Haines Hunter boat and a 4 metre Clark Cygnet boat.
The appellant's income, declared in his tax returns for the financial years ending June 2001 to June 2007, was:
" $0 in tax year 00-01,
$8377 for tax year 01-02,
$2552 for tax year 02-03,
$8785 for tax year 03-04,
$10183 for tax year 04-05,
$11836 for tax year 05-06 and
$22,112 for tax year 06-07."
A forensic accountant gave evidence that in the period from 1 July 2004 to 31 December 2007 the appellant's estimated and calculated expenditure over his declared income was $420,408.
Mr Watson gave evidence to the following effect. He lived on a property of about three acres on the Bremer River fairly close to Tivoli. His daughter was in a de facto relationship with the appellant. On a date he was unable to identify, but no more than a week before 9 November 2007, the appellant brought him a bag containing money and asked him to hang onto it for him. The appellant, who was "a little nervous", tipped the money out of the bag onto a bench and said he would pick it up later but never did. Mr Watson "bundled it up and put it in the boiler" and a dog biscuit bag and hid it under a "big tree at the back of the house".
A police officer gave evidence of going to Mr Watson's property with other police officers on 16 November 2007 in order to conduct a search. He found with the aid of a metal detector a stainless steel pot inside what he described as a "dog bag" which, in turn, was inside another plastic bag. Inside the stainless steel pot was a plastic bag containing in excess of $300,000 in hundred dollar and fifty dollar notes. Another police officer gave evidence that $5,000 in notes was found inside Mr Watson's house.
The arguments of counsel for the appellant
The primary judge correctly told the jury that if they found only deemed possession of the cannabis in the laundry, that was not a circumstance to which they could have regard in determining whether the accused was guilty of trafficking. At no stage did the prosecution suggest that the evidence of production was relevant to the charge of trafficking and nor did the trial judge.
The primary judge, however, gave the jury no directions which would limit the use to which the jury might put the evidence of production, especially in the event that the appellant was found not guilty of the production count. Because the evidence of trafficking was entirely circumstantial, the jury should have been directed to disregard the production evidence.
If the jury convicted the appellant of possession only on the basis of a deemed possession by operation of s 129(1)(c) of the Drugs Misuse Act 1986 (Qld), the only other evidence supporting the trafficking count was that relating to his financial affairs, including evidence of his possession of $300,550. That evidence, on its own, whilst engendering a high level of suspicion of illegality of some kind, could never support a conclusion of trafficking beyond reasonable doubt. This was a case where a piece of circumstantial evidence represented an "indispensable link in the chain of reasoning towards an inference of guilt."[1]
[1]Shepherd v The Queen (1990) 170 CLR 573 per Dawson J at 579.
It follows that the jury should have been directed that unless they were unanimously of the view, beyond reasonable doubt, that the appellant was in actual possession of the cannabis, they must acquit him of the charge of trafficking.
The submissions of the respondent's counsel
The prosecution case was a very strong one in that:
(a) The 1.3 kg of high quality cannabis was found in the house the appellant shared with Mrs Horne;
(b) Shortly after the search of the house, the appellant asked Mr Watson to hide $300,550 in cash;
(c) During the trafficking period, the appellant purchased property and services amounting to over $100,000 in cash;
(d) The appellant's expenditure was clearly well in excess of any known legitimate income.
The prosecution case was that the only reasonable rational inference that could be drawn from this combination of circumstances was that the appellant had been engaged in the business of trafficking in cannabis. He had access to large amounts of cash and was shown to be in possession of high grade cannabis packaged in a way consistent with commercial dealing. There was no alternative explanation offered, apart from the suggestion that the unexplained income could have been from some other unidentified source. The only reasonable rational inference on the evidence was that the unexplained income was from trafficking in cannabis.
The jury were directed that they could only use the evidence of the possession of the cannabis at the house if they were satisfied that the appellant had actual knowledge of the presence of the cannabis, as opposed to constructive knowledge, under s 129 of the Drugs Misuse Act 1986 (Qld). Absent possession of the cannabis, the only evidence that the prosecution was relying on to prove trafficking in cannabis was the financial evidence, including evidence of the appellant's $300,550 in cash.
The appellant would not have gained anything from the direction contended for by the appellant as, absent the evidence of the possession of the cannabis, there was insufficient evidence to support a conclusion that the source of the appellant's cash was dealing in substantial quantities of cannabis.
The directions now said to be required were not asked for at trial.
The primary judge's directions
The primary judge gave the following directions concerning the drawing of inferences and circumstantial evidence:
"Importantly, if there is more than one inference reasonably open, you must draw the inference that most favours the accused person, that is, the inference that most favours Mr Horne.
Importantly, if there is an inference reasonably open which is adverse to Mr Horne, that is, one pointing to his guilt and an inference that is reasonably open pointing in his favour as to his innocence, you may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in your minds.
Now, this is a case where you are being asked to draw inferences, particularly in relation to those charges of trafficking, producing and possession, so I will repeat what I just said: if there is more than one inference reasonably open, you must draw the inference that most favours Mr Horne. If there is an inference reasonably open which is adverse to Mr Horne, that is, pointing to his guilt, and an inference in
his favour, that is, consistent with his innocence, you may only draw an inference of guilt if it so overcomes other possible inferences as to leave no reasonable doubt in your mind.
…
So you should consider all of the evidence, including the circumstantial evidence. However, to bring in a verdict of guilty based entirely or substantially on circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty. That follows from the requirement that guilt must be established beyond reasonable doubt."
The primary judge directed in relation to possession of the cannabis in the drum:
"Now, if you are satisfied that Mr Horne actually had possession, so he actually knew of those drugs being there on 7 November as opposed to the deemed possession – so there is two bases on which you can be satisfied about possession – if you are satisfied he had actual knowledge you can use that evidence to go towards the trafficking charge. However, if you are only satisfied about possession on the basis of section 129, the deemed provision, then you can't use that possession as part of the trafficking evidence. So, that doesn't assist the Crown in respect to the trafficking charge because by virtue of that section a person is deemed to be in possession, whether or not the person, in fact, knew.
So, the Crown (sic) proof of possession only on the basis of section 129C (sic) does not carry with it an implication of knowledge on the part of Mr Horne such that it could be used as a basis for the trafficking charge but the other factual matters that I referred you to can be." (emphasis added)
Consideration
There is no substance in the contention that the primary judge should have directed the jury about the use to which they might put the evidence of production. The jury rejected the Crown case in that regard. The amounts of cannabis involved were relatively miniscule and there was never a suggestion in the prosecutor's opening address, evidence, addresses or summing-up that there was a connection between the production and trafficking charges, apart from the appellant's alleged occupancy of the property. The direction contended for was not required and, if given, would have amounted to no more than unnecessary and potentially distracting verbiage.
Before the jury could be satisfied beyond a reasonable doubt that the appellant was trafficking in cannabis, it was necessary to link him to the cannabis in the white barrel. Counsel for the respondent did not contend that it was sufficient to show that the appellant had and was paying large amounts of cash for goods and services during the period charged; that his outgoings greatly exceeded his income and that no innocent explanation for these matters had been advanced. That evidence, and the evidence relating to the $300,550, in my view, would entitle the jury to conclude beyond reasonable doubt that the appellant had come by large sums through continuing unlawful activity. However, as counsel for the respondent considered, further evidence was required to tie the appellant's finances and financial activity to trafficking in cannabis.
The necessary connection could be provided by proof that the cannabis in the white drum was in the possession of the appellant: it was not contended that custody, control or some other connection might be sufficient. Once this was found, it was possible to conclude that the only reasonable inference open on the evidence was that the appellant had been trafficking in cannabis during some part of the period charged. The evidence supports the inference that it was highly improbable that the cannabis was placed in the laundry or was available to be dealt with by any person other than the appellant.
The jury was entitled to conclude that the appellant: had a close connection with the property, visited the property on 6 and 7 November and was a regular visitor prior to those dates. His 4-wheel drive vehicle was parked there. He had his own bedroom in which he kept clothes. He mowed the lawn, did jobs such as the plumbing work on the sewerage, despite his ready supply of cash, and was carrying out renovations. His fish was in the chest freezer. There was no other potential visitor to the property mentioned in or suggested by the evidence who had anything like the appellant's degree of contact with and control over the property generally, let alone at material times.
The appellant could take a container of cannabis to the property and place it in the laundry with some confidence that it would not be disturbed. No-one else was in that position. If Mrs Horne's evidence is to be accepted, she had not seen the white drum. That would mean that it was either put there on 7 November after she left the house or that it had been put there shortly before that date and she had failed to notice it.
The evidence relating to the placement and removal of documents in the house on 7 November provides further cogent proof of the presence of the appellant on the property on that day. Senior Constable Roache gave evidence of leaving a copy of the search warrant and Notice to Occupier, with police seals on it, face up in a prominent place in the house on 7 November. Mrs Horne's evidence was that she didn't see any such documentation on and after her arrival home that day. It is highly unlikely that any person other than the appellant would have had any interest in removing the documents and the conclusion that it was the appellant who removed them is supported by the evidence of his behaviour in relation to the $300,550 in notes. The prosecutor submitted to the jury that this money was taken to Mr Watson shortly after the search of the house. That is a reasonable inference to draw in the circumstances.
The passage from the reasons quoted above makes it plain enough that the judge was directing that actual possession rather than deemed possession was required for the purpose of the trafficking count. The passage has to be understood in the light of her Honour's earlier directions in respect of possession when dealing with the possession count, that:
"Possession generally denotes a physical control or custody of a thing with knowledge that you have it in your control or custody. Generally, you do not possess a thing unless you know you have it or else can actually exercise dominion over it. The Crown in this case submits that there are two bases upon which you will be satisfied that Mr Horne was in possession of the dangerous drug on the 7th of November.
The Crown case is essentially couched in terms of both section 129 of the Drugs Misuse Act which is that deeming provision which is based on an assertion that the accused was an occupier or concerned in the management or control of the place where the drug was found. The second basis is that there was a circumstantial case that Mr Horne was in fact the possessor of the drug with knowledge and control. So it's got two bases upon which the Crown are saying you would be satisfied about possession. So the Crown asserts that Mr Horne had actual knowledge and control of the cannabis sativa, and secondly, they rely on the deeming provisions on the basis that Mr Horne was the occupier or concerned in the management or control of 19 Tivoli Hill Road."
It is asserted, on the authority of Shepherd v The Queen[2] that the primary judge erred in failing to direct the jury that unless they were unanimously of the view, beyond reasonable doubt, that the appellant was in actual possession of the cannabis, he must be acquitted of the trafficking count.
[2](1990) 170 CLR 573 at 579.
In Shepherd, Dawson J, with whose reasons Toohey and Gaudron JJ agreed, said:[3]
"But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.
On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." (emphasis added)
[3](1990) 170 CLR 573 at 579.
Later in his reasons, referring to the reasons of Gibbs CJ and Mason J in Chamberlain v The Queen [No 2][4] Dawson J said:[5]
[4](1984) 153 CLR 521.
[5](1990) 170 CLR 573 at 582.
"Gibbs C.J. and Mason J. go on to cite a portion of the judgment in the Court of Criminal Appeal of South Australia in Reg. v Van Beelen, which makes apparent the distinction between items of evidence and an intermediate factual conclusion. It is as follows:
'But the requirement of proof beyond reasonable doubt relates to the final state in the process; the jury is not, in our view, required to split up the various stages in the process of reasoning leading to the conclusion of guilt beyond reasonable doubt and to apply some particular standard of proof to each of those steps … and to instruct them to do so would, in our view, be confusing and possibly misleading and would tend to the imposition of an artificial and scholastic strait-jacket on their deliberations.
That, of course, does not mean that they ought to be encouraged or permitted to draw inferences of guilt from doubtful facts. As a matter of common sense it is impossible to infer guilt beyond reasonable doubt from facts which are in doubt. There is a clear distinction between drawing an inference of guilt from a combination of several proved facts, none of which by itself would support the inference, and drawing an inference of guilt from several facts whose existence is in doubt. In the first place the combination does what each fact taken in isolation could not do; in the second case the combination counts for nothing.'
Of this passage Gibbs C.J. and Mason J. say:
'It is clear that the first part of this statement was not intended to contradict the second. It refers only to the manner in which the jury should be directed. It is quite correct to say that the jury are not required to split up the various stages in the process of their reasoning; they are not required to make findings on questions of primary fact, and jurors who agree in reaching the same ultimate conclusion may nevertheless disagree as to what evidence is to be accepted, or as to what inferences are to be drawn from evidence which they do accept. However that does not mean that the jury may draw an inference of guilt from a fact which is not proved beyond reasonable doubt.'
…
The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful." (footnotes deleted) (emphasis added)
In Shepherd, McHugh J, addressing the question of whether the jury should be directed that to find the accused guilty they must be satisfied beyond reasonable doubt as to a particular fact, said:[6]
[6](1990) 170 CLR 573 at 593 – 594.
"Although I think that the majority in Chamberlain intended to assert that an inference of guilt can never be drawn unless each circumstance relied on to found that inference is proved beyond reasonable doubt, it does not follow that Chamberlain is an authority for the proposition that a jury must be directed to that effect. In Quinn v. Leathem, the Earl of Halsbury L.C. pointed out that:
'a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.'
Chamberlain was concerned with whether the verdict of the jury was unsafe or unsatisfactory. It was not concerned with the directions which a jury should receive on the standard of proof to be applied to the circumstances of the case.
Jurors are under a duty not to find an accused person guilty of an offence unless they are satisfied beyond reasonable doubt of that person's guilt. But they are not under a duty to find any particular fact beyond reasonable doubt. Indeed, absent any statutory direction to the contrary, they are under no duty to find any particular fact: see Otis Elevators Pty. Ltd. v. Zitis. To direct the jury that, as a matter of law, they cannot find an accused person guilty of an offence unless they find a particular fact beyond reasonable doubt would be to trespass upon their right to determine whether, upon evidence properly admitted, the guilt of the accused had been proved beyond reasonable doubt. If, absent a Chamberlain direction, the jury would be persuaded beyond reasonable doubt of the guilt of the accused, how can they be directed to disregard a fact, proved on the balance of probabilities, which they would use to reach that degree of persuasion? No doubt a trial judge has the right to suggest to the jury that they might think that, on the evidence, they could not be satisfied that the accused was guilty beyond reasonable doubt unless they found that a particular fact was proved beyond reasonable doubt. But the existence of that right in the trial judge provides no support for the proposition that the jury must be directed that they cannot rely on a circumstance to found an inference of guilt unless that circumstance is proved beyond reasonable doubt.
In my opinion, Chamberlain is an authority only for the proposition that, in considering whether a verdict is unsafe or unsatisfactory, a court of criminal appeal must approach the case upon the basis that the jury had to be satisfied beyond reasonable doubt that each circumstance relied on to found the verdict was proved beyond reasonable doubt. While the decision stands, it has to be followed in cases concerned with whether a verdict, based on circumstantial evidence, is unsafe or unsatisfactory. But the case is not authority for the proposition that trial judges must give juries a direction that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt and its authority should not be extended to cover that proposition." (footnotes deleted)
There is thus no invariable imperative for a summing-up in a circumstantial case to direct that the jury must identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt, or to direct the jury that they need to be satisfied of such facts beyond reasonable doubt. Having regard to the directions quoted in paragraph [24] above, it must be doubted whether any further direction along the lines of that contended for by the appellant was required. However, for the reasons about to be advanced, it is unnecessary to decide the question.
The prosecution case was based on establishing the appellant's possession of the cannabis coupled with the evidence of an extensive flow of cash from unidentified sources into and through the hands of the appellant. The primary judge informed the jury that:
"The Crown submits that the entirety of that financial evidence, combined with the manner of his possession of the cash, and the fact that there was high grade cannabis cannot be explained in any other way other than that he was engaged in the business of trafficking of cannabis. So that is the basis of the trafficking charge the Crown submits.
There is really three bases. The fact of the cash, the expenditures, the manner of possession and the fact this was high grade cannabis, the Crown submits that all points to the business of trafficking in cannabis."
After the passage in the summing-up just quoted it was explained that the prosecution was relying on the possession by the appellant of a large quantity of high quality, precisely measured cannabis packed for commercial distribution, to establish the prosecution case. Earlier in the summing-up, in describing the elements of the trafficking, the primary judge concentrated on explaining the meaning of trafficking, but it was made plain that the activities relied on to constitute trafficking had to be in respect of cannabis.
It may be seen the jury were not directed that in order to prove trafficking, they had to find the existence of unexplained illicit activities of a business nature in addition to possession of the cannabis and that it was only when these two strands were combined that the trafficking could be proved beyond a reasonable doubt and the part of the summing-up quoted in paragraph [25] above, which came immediately after the aspects of the summing-up just discussed, was capable of creating the impression that proof of possession by the appellant of the drum of cannabis was not an essential part of the prosecution case.
The jury made this request in the course of their deliberations:
"Can we hear the Act that refers to possession, deemed possession and knowledge of possession and how this can affect or apply to judgment of trafficking."
The request made it apparent that the jury was uncertain about the role of proof of possession of the drum of cannabis in the trafficking count.
The primary judge directed the jury at considerable length on what had to be established to prove actual possession and deemed possession before addressing the possession in the context of trafficking. She said:
"The other part of your question was the issue of knowledge of possession and how this can affect or apply to judgment of trafficking. Remember I said to you that if you were satisfied of actual knowledge under the tougher test, under the first part, then you could use that as part of the evidence towards trafficking. Remember the Crown had a variety of grounds on which they said you'd be satisfied. There were three. If you were satisfied about actual knowledge, you can add that as a fourth as a basis of the evidence of the trafficking, but if you're not satisfied about actual knowledge, you don't put that in. So that was the basis, you could put it into the weighing up of the trafficking, if there was actual knowledge, but if there wasn't, you can't. Does that answer the questions that you were concerned with?"
These redirections were given between 3.42 pm and 3.57 pm. The jury's verdict was returned at 4.28 pm.
The redirections, particularly when considered together with the previous explanation that the prosecution case had "really three bases" was confusing and had a distinct potential to mislead the jurors. By describing satisfaction by the jury as to "actual knowledge" of possession as a fourth basis of proof of trafficking and adding that if the jury were not "satisfied about actual knowledge" they could not "put that in" in determining whether the appellant was guilty of trafficking, the direction implicitly acknowledged that a finding of trafficking beyond reasonable doubt was open even if actual possession by the appellant of the cannabis in the white drum had not been established or, for that matter, even if the jury did not find any connection between the appellant and the cannabis. The prosecution case was not put on that basis and it was not argued by counsel for the respondent that the prosecution could have proved its trafficking case beyond reasonable doubt unless possession by the appellant of the drum of cannabis was established.
Consequently, the appellant has demonstrated an appellable error and the verdict on the trafficking count must be set aside, unless, as counsel for the respondent submits, the Court should conclude "that no substantial miscarriage of justice has actually occurred".
Having regard to the factual matters already discussed, I am of the view that the whole of the evidence proved beyond reasonable doubt that the appellant was guilty of trafficking as alleged. My reasons for this conclusion are set out in paragraphs [26] – [31] above, coupled with the considerations relied on by counsel for the respondent in his submissions. Once it is concluded that there is no reasonable doubt about the appellant's possession of the cannabis, the quantity, quality and packaging of the cannabis strongly suggests that it is stock of a clandestine money‑making enterprise. There is no doubt that the appellant was engaged in such an enterprise during the trafficking period.
I am of the view also that no substantial miscarriage of justice has actually occurred. It is a relevant consideration that two of the most significant prosecution witnesses, Mrs Horne and Mr Watson, could not be regarded as witnesses favourably disposed to the prosecution. Nevertheless, the above conclusions are able to be reached even if their evidence is taken at face value.
Conclusion
For the above reasons I would dismiss the appeal.
FRASER JA: I have had the advantage of reading the reasons for judgment of Muir JA. I agree that the appeal should be dismissed for the reasons given by his Honour.
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