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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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: NICHOLSON J
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