R v MASON - [2006] SASC 359

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MASON
[2006] SASC 359
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Anderson)
28 November 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appeal against conviction – appellant convicted of possessing methylamphetamine for sale contrary to s 32(1)(e) of the Controlled Substances Act – whether guilt was the only rational inference which the jury could draw from the evidence – whether the verdict of the jury was unsafe or unsatisfactory – appeal dismissed.
M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439, applied.
Chamberlain v The Queen [No 2] (1984) 153 CLR 521; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234, considered.

R v MASON
[2006] SASC 359
Court of Criminal Appeal: Doyle CJ, Debelle and Anderson JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Anderson J.
DEBELLE J. The facts are recited in the reasons of Anderson J.
As the prosecution case was essentially circumstantial, the prosecution had to satisfy the jury that the only rational inference was that the appellant was guilty, that is to say, that the prosecution had to exclude any reasonable hypothesis consistent with guilt.
Mr Ibbotson, who appeared for the appellant, submitted that, although a rational inference from the evidence was that the appellant possessed methylamphetamine for sale, it was not the only rational inference. Another rational inference on the evidence, he said, was that the appellant possessed the methylamphetamine for his own personal use. This submission serves to emphasise the fact that it was for the jury to determine whether guilt was the only rational inference to draw from the evidence. In the result, the question whether the verdict should stand therefore depends on whether the verdict is unsafe or unsatisfactory as that expression is explained in M v The Queen (1994) 181 CLR 487 especially at 492 and at 494-495 in the passages quoted in the reasons of Anderson J.
I have reviewed the evidence. In my view, the verdict was not unsafe or unsatisfactory. As the appellant had very few other normal possessions with him, the fact that he was found in a motel room with four mobile telephones, as many as 86 snap-seal bags and a set of scales was, when considered with the large amount of money in his possession, capable of constituting a compelling circumstantial case that the appellant possessed the amphetamine for sale. The evidence of the substantial numbers of boxes of cough medication was a further piece of circumstantial evidence pointing to the conclusion that the appellant possessed methylamphetamine for sale. While one or two boxes might be explained as being for medicinal use, it strains credulity to breaking point that 24 boxes in total of two forms of medication were for medicinal use. This was, in my view, a strong circumstantial case. These were facts which entitled the jury to reject the evidence of the appellant as to his reasons for possessing these items and to conclude that, although the appellant’s father gave him money from to time, the money in his possession had not come from his father. It was evidence which would cause the jury to conclude that the only rational inference was that the appellant possessed the methylamphetamine for sale. In other words, the evidence does not suggest that it was unsafe for the jury to draw that inference.
I agree that this appeal should be dismissed.
ANDERSON J The appellant was found guilty by a jury of possessing methylamphetamine for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984. He appeals against his conviction on the basis that the verdict of the jury is unsafe and unsatisfactory and cannot be supported having regard to the evidence.
Background
The prosecution case was that on 21 April 2003 the appellant was occupying a room in a motel at Glen Osmond. He had been occupying a room at that same motel for approximately one month. Prior to that he had occupied a room at the Hyatt Hotel. Earlier the lease of a property he was renting at St Peters was terminated. As a result, he had virtually no possessions at the time of his arrest as they had all been placed in storage.
The police entered his room at the motel and arrested him. At that time he was wearing a “bum bag” which contained $4,519.35 in cash. The police also found a tin in the pocket of the appellant’s jeans. This tin contained five snap‑seal plastic bags containing white powder.
The forensic examination of the contents of those bags showed that various quantities of drugs were involved. The examination showed that the first bag contained a powder which itself contained a substance Lignocaine. There was 3.94 grams of powder which in turn contained 0.01 grams of methylamphetamine in the second bag. In addition there was a crystalline material weighing 2.23 grams which contained 1.02 grams of methylamphetamine in the third bag. The fourth bag contained 1.534 grams of crystalline material which in turn was made up of 0.72 grams of methylamphetamine. Finally there was a bag which contained crystalline material weighing 0.14 grams and containing 0.06 grams of methylamphetamine. The total weight therefore for the contents of the bags was 7.85 grams of which there was 1.81 grams of methylamphetamine.
There was also a quantity of a prescription medication called Largactil found in the appellant’s motel room. The police also found 86 snap-seal plastic bags inside the Largactil box and a set of electronic scales with traces of methylamphetamine on the scales. They also found four mobile telephones, two of which were inside the motel room itself, and two in the bum bag worn by the appellant.
Outside the motel, in a motor vehicle which was linked to the appellant, there were found 12 boxes of Nyal decongestant cough medication and 12 boxes of Actifed CC in the vehicle.
Evidence was led by the prosecution that the bags found were of the type commonly used for packaging drugs. Likewise, the scales were commonly used by those involved in the drug trade. In addition evidence was given of the use of multiple mobile telephones by those involved in drug dealing.
There was also evidence that the medication found in the vehicle contained pseudoephedrine, a product used in the manufacture of methylamphetamine and there was evidence that such products are used in the drug trade.
The appellant’s evidence
The appellant gave evidence. He admitted possession of the items which I have set out and he admitted using methylamphetamine on a regular basis. He said that the money found in the bum bag came from his father. There was evidence given by his father that he did give his son money from time to time. The appellant said that the methylamphetamine had been for his own use. He also told the jury that he used the snap-seal bags to carry his own medication and to carry small amounts of methylamphetamine. He said that he used the scales to weigh his own methylamphetamine to ensure that he consumed the correct amount. He said he had borrowed the scales.
In relation to the mobile phones, the appellant said one was broken but the other three were all capable of being used if charged. Only one was charged at the time.
He gave evidence that the 24 boxes of the medication containing pseudoephedrine were obtained on credit from someone named John for $50 and that it was for the purpose of on-sale to someone named Paul at a cost of $80, and therefore for a total profit of $720 each time he engaged in such a transaction.
The appellant had for some years suffered from schizophrenia and had been prescribed Largactil for that condition.
In other words, he gave an explanation for each of the items of circumstantial evidence put against him.
The argument on appeal
Mr Ibbotson, for the appellant, argued that the evidence, when properly considered, could not have satisfied the jury that the appellant’s guilt was the only rational inference that could be drawn from the circumstantial evidence. He suggested that there were other rational inferences that could be drawn which were consistent with the appellant’s innocence and that on that basis the verdict of the jury was unsafe and unsatisfactory and had resulted in a miscarriage of justice.
He argued that the principle of law emerging from cases such as Peacock v R (1911) 13 CLR 619 at 634, Plomp v The Queen (1963) 110 CLR 234 at 252 and Chamberlain v R [No 2] (1984) 153 CLR 521, was that the prosecution must exclude any reasonable hypothesis consistent with innocence. Murphy J, at 570, in Chamberlain v R put it another way, namely, that when a case is based on circumstantial evidence, it “must be so cogent and compelling that it convinces the jury that no rational hypothesis other than the accused’s guilt can account for the facts”.
It is clear from cases such as Plomp that in a case involving circumstantial evidence, when directions are given using the terminology “the only rational inference”, such a direction is merely part of, and not separate from, the basic general direction that guilt must be established beyond reasonable doubt.
Mr Ibbotson submitted that this was not a strong prosecution case and that there was absent from the case many of the usual indicia, which might be associated with possession for sale. He instanced such indicia as the lack of any packaged street deals, the lack of the necessary quantities of methylamphetamine to make up street deals, the absence of cutting agents, and the absence of incriminating lists of names. He argued that a rational inference consistent with innocence could not be excluded and therefore the verdict was unsafe and unsatisfactory.
The role of the appellate court
It was submitted by the appellant that the role of the appellate court in circumstances where it is asserted that the verdict is unsafe and unsatisfactory, is as set out in M v R (1994) 181 CLR 487 at 492. The majority Judges said:
The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any reason must also constitute a miscarriage of justice requiring the verdict to be set aside. (footnotes omitted).
Their Honours went on to say at 494:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence.
Mr Ibbotson also referred to Jones v R (1997) 191 CLR 439 at 452 in which the above majority statement in M v R was accepted as the appropriate test to decide if a verdict is unsafe and unsatisfactory.
The decisions in M v R and Jones v R, whilst setting down the relevant test, are of course cases on their own facts. They were both cases involving complaints of sexual misconduct, in which the complaints were uncorroborated and where the complaints were made at some considerable time removed from the alleged conduct.
Conclusion
It seems to me that once the appellant conceded possession of the drugs in question it then became a matter for the jury as to whether it had been proved beyond reasonable doubt that the appellant possessed those drugs with the purpose of intended sale.
The prosecution case had a significant cumulative effect, in my view, when some of the individual aspects were considered together. I refer particularly to the possession of the four mobile telephones, the 86 snap-seal bags and the set of scales with traces of methylamphetamine.
The fact that the appellant had four mobile phones is particularly relevant because he had virtually no other normal possessions. His possessions had previously been placed with a storage firm by his father and then removed to a shed at his father’s property where they remained at the time of the appellant’s arrest. Therefore to have four mobile phones, two in his motel room and two in his bum bag, could be considered as something out of the ordinary.
The jury was entitled to conclude that the phones, the bags and the scales, in themselves, aside from any other circumstantial evidence, amounted to proof beyond reasonable doubt that the accused possessed the methylamphetamine for sale.
The jury would also have taken into account the amount of money found, the large amount of drugs containing pseudoephedrine found at the premises and in the vehicle, plus the fact that there was a tin with five sealed bags of drugs in the appellant’s pocket, as adding to the strength of the circumstantial case. In addition, the jury would have taken into account the fact that the appellant admitted selling the drugs containing pseudoephedrine for profit.
This was not a case where there were discrepancies in the evidence or where the evidence was tainted, to use the words of the High Court set out earlier at [25] of these reasons.
The jury clearly rejected the evidence of the appellant, which it was entitled to do. It clearly rejected his explanations for the possession of the various items which I have referred to earlier. The jury’s assessment of the appellant was also a relevant and significant factor.
In my view, it is not an answer for the appellant that some of the usual indicia associated with possession for sale were missing in this case. The fact is that there were strong indicia to support a verdict of guilty. The jury was properly directed to consider whether there was any other rational inference consistent with innocence and obviously concluded that there was not.
It is not the role of the appellate court to interfere with a guilty verdict solely because the court comes to a different conclusion than that of the jury. The statement of principle in M v R is not to that effect. In my view, the jury, in this matter, after a proper direction on circumstantial evidence, found sufficient evidence which it regarded as cogent and which left no room for any other rational inference than the guilt of the appellant. In my view, it was open upon the evidence for the jury to find the appellant guilty. In my view the verdict is not unsafe and unsatisfactory.
It is for these reasons that, in my view, the appeal should be dismissed.