R v HUGHES - [2006] SASC 305

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUGHES
[2006] SASC 305
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Layton and The Honourable Justice David)
29 September 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - PROOF AND EVIDENCE
Appeal against conviction - appellant convicted by jury of possessing methylamphetamine for sale - charge arose from police attendance at a motel room with which two other people were associated - appellant was found in motel room next to a quantity of methylamphetamine - other evidence relating to the charge was found in the appellant's car which was outside the room - whether trial Judge erred in permitting the prosecution to lead evidence of the value of the methylamphetamine given that possession was the central issue - held that evidence of value was relevant to the issue of possession - whether trial Judge erred in finding that there was a case to answer - held that there was a case to answer - whether the trial Judge misdirected the jury by failing to relate the concept of possession to the facts of the case - whether the trial Judge misdirected the jury by failing to identify clearly that if a reasonable possibility remained that the methylamphetamine was possessed by another person, the jury could not be satisfied beyond reasonable doubt that the appellant was in possession - held that the trial Judge correctly directed the jury - appeal against conviction dismissed.
Controlled Substances Act 1984 s 32(1)(e), referred to.
Question of Law Reserved on Acquittal (No 2) (1993) 61 SASR 1; R v Bilick & Starke (1984) 36 SASR 321, applied.
R v GNN (2000) 78 SASR 293, distinguished.

R v HUGHES
[2006] SASC 305
Court of Criminal Appeal: Sulan, Layton and David JJ

SULAN J: This appeal yet again raises the issue of possession of a prohibited substance. The appellant was convicted of possessing methylamphetamine for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984. The offence took place on 31 August 2003 at Kent Town.
The first ground of appeal is that the trial Judge was in error in permitting the prosecution to lead evidence of the value of the methylamphetamine the subject of the charge. The second and third grounds relate to whether the prosecution had established that the appellant was in possession of the drug and whether the trial Judge had misdirected the jury on the issue of possession.
Background facts
On the morning of Sunday, 31 August 2003, police attended a motel room at Flinders Lodge Motel at Kent Town. A young female named Ms Bronwyn Barnett, aged about 16 or 17 years, opened the door. There were two bedrooms in the unit. The appellant was in a room described as the front bedroom. In the rear bedroom the police officer observed a large amount of female clothing. Some of the clothing belonged to Ms Barnett. Other clothing…

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 HUGHES

Details

AGLC: R v HUGHES [2006] SASC 305
Case: [2006] SASC 305
Decision Date: 29 September 2006

CaseChat Overview and Summary

The appellant was convicted by a jury of possessing methylamphetamine for sale, a charge which arose from the police attendance at a motel room associated with two other individuals. The appellant was found in the motel room next to a quantity of methylamphetamine, and additional evidence relating to the charge was found in the appellant's car outside the room. The appeal against the conviction presented several legal issues, the first of which was whether the trial judge erred in permitting the prosecution to lead evidence of the value of the methylamphetamine when possession was the central issue. The court held that the evidence of value was relevant to both the issue of possession and the purpose of sale. The second and third grounds of appeal were whether the prosecution had established that the appellant was in possession of the drug and whether the trial judge had misdirected the jury on the issue of possession. The court determined that the prosecution had established a case to answer, and the trial judge correctly directed the jury.

The court found that the evidence of the value of the methylamphetamine was relevant to the prosecution's case. The defence argued that the evidence should have been excluded as it was irrelevant and could prejudice the appellant by quantifying the alleged criminality. However, the court held that the evidence was relevant to the issue of possession and the purpose of sale. The court noted that the prosecution is required to prove all elements of the offence charged, and the evidence of value was relevant to an element of the charge, namely, whether the drug was in the appellant's possession for the purpose of sale. The court held that the prosecution was entitled to lead relevant evidence, even if the issue upon which the evidence is led is ultimately not contested.

The court also found that the prosecution had established a case to answer and the trial judge correctly directed the jury. The court noted that the defence case was that it was reasonably possible that the drug was in the possession of either or both of the females who had an association with the motel room in which the drug was found. The court held that it was open to the jury to use the evidence of value to support the prosecution case that the appellant was in possession of the item by reasoning that it would be unlikely that a person in possession of it would leave it out of their immediate control. The court also held that the trial judge correctly directed the jury on the issue of possession and the purpose of sale. The court held that the evidence of value was relevant to both the issue of possession and the purpose of sale, and the trial judge correctly directed the jury on these issues. The appeal against conviction was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The first ground of appeal is that the trial Judge was in error in permitting the prosecution to lead evidence of the value of the methylamphetamine the subject of the charge. The second and third grounds relate to whether the prosecution had established that the appellant was in possession of the drug and whether the trial Judge had misdirected the jury on the issue of possession.Background facts On the morning of Sunday, 31 August 2003, police attended a motel room at Flinders Lodge Motel at Kent Town. A young female named Ms Bronwyn Barnett, aged about 16 or 17 years, opened the door. There were two bedrooms in the unit. The appellant was in a room described as the front bedroom. In the rear bedroom the police officer observed a large amount of female clothing. Some of the clothing belonged to Ms Barnett. Other clothing belonged to a Ms Debbie Ann Burton. The unit had been rented in her name. The evidence disclosed that Ms Burton had produced a driver’s licence to the motel manager when she rented the unit. The date of birth on the driver’s licence was recorded as 10 August 1972. Ms Burton appeared to have given her residential address as a unit at Marden. There was evidence that a Ms Burton had rented a different room at the motel some eleven days earlier and given a residential address at Hectorville. Police observed the appellant, who was fully clothed, lying on a double bed in the motel room. On the bedside table was a Tupperware container with white paste inside. That paste was later analysed and found to weigh about 17 grams, containing 12.52 grams of pure methylamphetamine, which is commonly known as speed. The value of the methylamphetamine paste contained in the container was between $37,000 and $70,000, depending on the purity and the number of amounts sold. The prosecution case was that the appellant had it in his possession for the purpose of sale. The police searched the appellant who had $1700 in bank notes on his person. Police officers observed a number of syringes in the motel room, both in the front bedroom and in the kitchen area of the unit. Some of the syringes were new and some had been used. One of the syringes had a cloudy coloured liquid in it. The substances in the syringes were analysed and some of the syringes had traces of methylamphetamine in them. Ms Burton was located asleep in a car in the motel car park at the rear of the car park. When asked by police if she had rented a room that evening, she denied having done so and said that she had merely parked in the car park. There was a motor vehicle parked outside the unit, which the appellant agreed was his vehicle. The appellant had given them the keys to the car. Between the driver’s seat and the car door there was a syringe that had liquid in the canister. There was a kitchen knife found in the front right-hand side of the car which had a residue of methylamphetamine. A set of electronic scales, which were later examined and found to have traces of methylamphetamine on them, was found in the boot of the car. Also in the boot of the vehicle were seven syringes containing liquid. Six of them contained brown liquid and the seventh contained a clear liquid. A black, soft pouch was also found in the boot, which contained two syringes filled with a clear liquid. Both syringes were later shown to contain methylamphetamine. An additional syringe was found which was later shown to contain methylamphetamine. Glad snap-lock bags, containing smaller resealable plastic bags, were found in the boot and on the rear left and front left passenger floors of the vehicle. Additional new and used small resealable plastic bags were found in the front right compartment of the vehicle. Some of the bags were found to have traces of methylamphetamine in them.

Evidence

Evidence Before The Court

The issue in the trial was whether the prosecution had proved beyond reasonable doubt that the appellant was in possession of the drug. Should evidence of the value of the drug have been excluded? The first ground of appeal is that the trial Judge should have excluded evidence from a detective who was a member of the Drug and Organised Crime Investigation Branch, who gave evidence of the value of the methylamphetamine contained in the Tupperware container. The trial Judge rejected a submission that the evidence should be excluded. Mr Algie, who appeared for the appellant, submitted that the evidence should not have been admitted by the trial Judge, because it was irrelevant and could only potentially prejudice the appellant by escalating or quantifying the alleged criminality in monetary terms, thereby distracting the jury from what was the central in the case; namely, possession. Mr Algie submitted that if the jury was satisfied beyond reasonable doubt that the appellant was in possession of the drug, it followed that he was in possession for sale, as the quantity of the drug exceeded the prescribed amount, and the presumption that the possession was for sale would apply. I reject Mr Algie’s submission. First, the evidence of the value of the item found next to where the appellant was lying is relevant evidence to the issue of possession. The defence case was that it was reasonably possible that the drug was in the possession of either or both of the females who had an association with the unit in which the drug was found. It was relevant for the jury, in considering whether it was reasonably possible that Ms Burton or the younger woman, Ms Barnett, were in possession, to have regard to the fact that a very valuable item had been left in the motel room near where the appellant was located. If, as in this case, an item was of substantial value, it was open to the jury to use that evidence to support the prosecution case that the appellant was in possession of the item by reasoning that it would be unlikely that a person in possession of it would leave it out of his or her immediate control. Secondly, the evidence of value was relevant to whether the drug was in the appellant’s possession for the purpose of sale. The fact that the appellant did not give evidence, and the fact that he did not seek to rebut the presumption, is not a reason for the evidence being excluded. The evidence was relevant to an element of the charge; namely, whether it was for sale. The prosecution was required to prove that element and, although the legislation provides that possession of that quantity of the drug presumes a person who is possession of it to be in possession of it for sale, that does not preclude the prosecution from establishing its value as an item of circumstantial evidence in support of the prosecution case that the drug was in the appellant’s possession for the purpose of sale. Although Mr Algie submitted that possession was the central issue in the case, the prosecution has the onus of proving all elements of the offence charged. The matters in issue in a case may not be identified with certainty until the defence case has been opened. The prosecution is required to lead all relevant evidence as part of its case. If evidence is relevant evidence then the prosecution is entitled to lead it, albeit that the issue upon which the evidence is led is ultimately not contested. The fact that defence counsel may make a concession or an admission in respect of a fact or matter is not, on its own, a reason for rejecting evidence relevant to that fact or matter.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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