R v Jones

Case [2018] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v JONES

[2018] SASCFC 96

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)

14 September 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE

Application for permission to appeal against conviction and appeal against sentence.

The appellant was convicted following a trial by jury of the offence of trafficking in a controlled drug. He was sentenced to a term of imprisonment for four years, with a non-parole period of two years and nine months.

During a police search of premises, the appellant produced from the pocket of his pants a metal tin, in which police found a substance containing a quantity of methylamphetamine. Police also located items at the premises including large sums of cash, digital scales, a ‘tick list’, multiple mobile phones and a number of ice pipes. The prosecution adduced expert evidence from a police officer as to items commonly associated with or indicative of drug dealing.

At trial, the appellant conceded possession of the substance and that the substance contained methylamphetamine. The prosecution relied on the statutory presumption in section 32(5) of the Controlled Substances Act 1984 (SA) that, should it be proved beyond reasonable doubt that the appellant had possession of a trafficable quantity of methylamphetamine, it was to be presumed in the absence of proof to the contrary that the appellant had an intention to sell some or all of the methylamphetamine in his possession. The prosecution also relied on some of the items located by police at the premises as being circumstantial evidence, and discreditable conduct evidence, as tending to prove that the appellant was engaged in trafficking.

The central issue was whether the appellant could satisfy the jury on the balance of probabilities that he did not intend to sell any of the methylamphetamine in his possession. The appellant adduced evidence from witnesses to the effect that the methylamphetamine had been acquired jointly by the appellant and other persons for personal consumption. The appellant conceded that the cash located at the premises was his and proffered an innocent explanation for it. 

The appellant relies on two grounds of appeal with respect to his conviction: first, that the Judge erred in his directions concerning certain discreditable conduct evidence by failing to comply with section 34R of the Evidence Act 1929 (SA) and second, that the summing up was imbalanced, causing a miscarriage of justice. The appellant appeals against his sentence on the ground that the non-parole period is manifestly excessive.

Held per Nicholson J (Kourakis CJ and Hinton J agreeing), granting permission to appeal and allowing the appeal against conviction:

1. The directions given with respect to the discreditable conduct evidence failed to comply with…

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R v Jones [2018] SASCFC 96
Case
[2018] SASCFC 96
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for a drug offence. The appellant, Mr. Jones, was found in possession of methylamphetamine. The prosecution's case relied heavily on circumstantial evidence suggesting Mr. Jones was involved in drug dealing, including the presence of scales, cash, a tick list, and numerous resealable bags at the premises where he was apprehended. The Court of Criminal Appeal of South Australia was tasked with determining whether a miscarriage of justice had occurred due to errors in the trial process.

The central legal issue before the court was whether the trial judge had adequately directed the jury regarding the use of evidence of discreditable conduct, specifically evidence that tended to suggest Mr. Jones was involved in drug dealing. The court had to consider the admissibility and proper use of such evidence under section 34P of the *Evidence Act*, which governs the use of discreditable conduct evidence to prevent it from being used impermissibly to suggest a defendant is more likely to have committed the offence simply because they have engaged in other discreditable conduct.

The court found that the trial judge had erred in failing to adequately address the jury on the permissible uses of the circumstantial evidence of drug dealing. While the evidence was admitted, it appeared to have been treated as common ground that it was probative of both possession and the intention to sell, without a proper judicial direction on how the jury should approach this evidence, particularly in light of section 34P of the *Evidence Act*. The court held that this failure to provide clear directions on the limited and specific purposes for which the discreditable conduct evidence could be used, and the risk of its impermissible use, amounted to a substantial miscarriage of justice.

Consequently, the Court of Criminal Appeal allowed the appeal against conviction, set aside the conviction, and ordered a retrial. The court also directed that the retrial should be heard by a different judge.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I would allow the appeal against conviction on the basis of the first appeal ground and order a retrial.The prosecution case, the defence case and general background On 24 November 2014, police attended at residential premises in Salisbury. The appellant, a co-accused, Charmaine Meller, and her brother, Dwayne Workman were present. The latter two lived at the premises and the appellant, who had been involved in a long term but casual relationship with Ms Meller, had stayed over from the night before. The police searched the appellant who produced from the front pocket of his jeans a metal tin. Inside the metal tin was a plastic bag containing 3.96 grams of substance which included 3.17 grams of methylamphetamine. Other items located by the police included:(i)cash in the amount of $1,700 on the appellant’s person;(ii)a set of digital scales on a bedside dresser in the main bedroom and another set of digital scales on the table in the lounge room;(iii)a single page “tick list” amongst mail in the name of the appellant inside a blue backpack in the wardrobe of the main bedroom;(iv)a notebook and, within the notebook, mail in Ms Meller’s name, found on a shelf inside a wardrobe in the main bedroom;(v)cash in the amount of $20,650 in a multi-coloured bag found in a shelf inside the wardrobe in the main bedroom;(vi)five mobile phones, one located on the appellant’s person, one located in the main bedroom, two located in the bathroom and one located in Ms Meller’s bag;(vii)numerous plastic resealable bags in a grey pouch inside a black backpack found in a cupboard in another bedroom; and(viii)a number of ice pipes. The prosecution adduced expert evidence from a detective, a member of the drug and organised crime taskforce, as to the prices for which and quantities in which methylamphetamine typically is sold and as to items commonly associated with or regarded as indicative of drug dealing such as scales, unused plastic bags, cash and tick lists. The evidence included an opinion to the effect that the figures and writing seen in the notebook and on the single page tick list were consistent with drug dealing credit lists typically found when searching premises associated with drug dealing. Forensic Science SA undertook a handwriting comparison exercise. No evidence of this analysis was adduced but the following agreed fact was put before the jury:Police sent the notebook and mail located in the wardrobe in bedroom one to [Forensic Science SA] for handwriting analysis. The analysis was able to identify that some of the handwriting showed very strong support that it belonged to Charmaine Meller. [Forensic Science SA] were unable to identify the remainder of the handwriting. Possession of the 3.96 grams of substance containing methylamphetamine referrable to the charge was conceded by the appellant. Whilst the jury were properly directed that they had to be satisfied beyond reasonable doubt of all elements of the offence including the fact of possession, the trial was conducted on the basis, accepted by both parties, that proof of this element was not in dispute.

Evidence

Evidence Before The Court

Circumstantial evidence tending to establish that an accused has been or is in the business of trading in controlled drugs (not being the drug or drugs the subject of the offence) is characterised in this State as discreditable conduct evidence and its admissibility is governed by section 34P of the Evidence Act.[10] Section 34P is in these terms:[10] R v Soteriou [2013] SASCFC 114. Such evidence, ordinarily, is not to be characterised as part of the res gestae or the transaction the subject of the charge, in the sense described by McHugh J in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 at 633, so as to be admissible independently of section 34P. See the discussion of and application of this principle by Peek J in Police v Rosales [2017] SASC 118 at [22]-[30].34P—Evidence of discreditable conduct(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and(b) is inadmissible for that purpose (impermissible use); and(c) subject to subsection (2), is inadmissible for any other purpose.(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.(5)The court may, if it thinks fit, dispense with the requirement in subsection (4). There was no consideration given prior to the commencement of the trial as to the admissibility of the discreditable conduct evidence or as to any permissible purpose to which the evidence might be put by the jury. It appears to have been common ground that the evidence was admissible, as probative of the fact of possession and that the accused’s purpose for possessing the drugs the subject of the charge was one of sale.

Decision

Reasons for decision

NICHOLSON J
In my view, the error of law was, in the circumstances of this matter and in the words of the plurality in Lane, one which was apt to prevent the performance by the jury of its function. Without more, this has resulted in a substantial miscarriage of justice. In any event, given that the credibility and reliability of the evidence of the appellant and his witnesses was central to the defence, this Court is not in a position to assess whether guilt has been proved to the criminal standard. I would not apply the proviso.Conclusion I would allow the appeal against conviction, set aside the conviction and remit the matter to the District Court for retrial. In the circumstances, it is not necessary to consider ground 2 of the conviction appeal nor the appeal against sentence. However, given the nature of the matters complained of under appeal ground 2 (about which I make no findings) it would be appropriate for any retrial to come before a different Judge I agree with Nicholson J that the appeal should be allowed for the reasons that he gives.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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