R v Morrison

R v MORRISON
[2002] SASC 399
Court of Criminal Appeal: Nyland, Williams and Gray JJ

NYLAND J I agree that the appeal should be dismissed for the reasons expressed by Gray J.
WILLIAMS J I agree that the appeal should be dismissed for the reasons given by Gray J.
GRAY J This is an appeal against conviction. The appellant Sharon Lee Morrison was charged with producing cannabis and possessing cannabis for sale.[1] On 29 January 2002 in the presence of the jury she pleaded guilty to the charge of producing cannabis. The trial proceeded that day on the second count. The appellant was unanimously convicted on 31 January 2002.
[1] “ Statement of Offence
The Crown Case
The Crown case was that the appellant possessed cannabis for the purpose of sale. The case was circumstantial. On 26 April 2001 five police officers attended the appellant’s residence. When at the front door the police detected an odour of cannabis. The appellant was telephoned at work. The police walked along the boundary to the property. They located a shed. A strong smell of cannabis was detected and a buzzing sound was heard. The appellant arrived soon after. When the appellant unlocked the shed police found a pit which was covered with a tubular frame and black plastic. The pit contained extensive lighting. Two cannabis plants and a bucket of green vegetable matter were in the pit. In another section of the shed two more plants were found under a frame with lights. Branches of cannabis plants were suspended on 11 coat hangers. A half full garbage bag of leaf material was found on a table along with a polystyrene box of green vegetable matter. Twelve cannabis seedlings were located in seven pots in the laundry area of the appellant’s house. Plant material was hanging from coat hangers in a shower cubicle. Other items associated with cannabis were located including plant material in a plastic tub, a glass jar of plant material marked with weight measure, a book entitled “Indoor marijuana horticulture,” a pipe, a bong and various sized plastic bags. Another police officer Detective Sergeant Lester Martin gave evidence concerning cannabis and its use.
A certificate of analysis from the Forensic Science Centre which identified the seized cannabis was tendered. It provided:
“ -A sealed paper bag containing a black garbag with 1731.5g of damp Cannabis leaf material.
-A sealed paper bag containing 370.0g of slightly moist Cannabis leaf material.
-A sealed paper bag containing 1548.0g of slightly damp mouldy female Cannabis plant material on cut stem pieces up to approximately 30 cm long.
-A sealed paper bag containing a plastic bag with 346.5g of slightly damp mouldy Cannabis leaf material with some stem pieces and several items of rubbish.
-A sealed paper bag containing a paper bag with 119.5g of female Cannabis plant material.
-A sealed paper bag containing a broken jar with 26.5g of Cannabis leaf and female flower material.
-A sealed paper bag containing a shopping bag with 330.0g of female Cannabis plant material.
-A sealed paper bag containing 1012.0g of slightly moist female Cannabis plant material on cut stem pieces up to approximately 40 cm long.
-A sealed envelope containing five envelopes each with a Cannabis plant sample.
The weights reported in this Certificate are those obtained at the time of the analysis and are rounded down to the nearest whole or half gram. The total weight of Cannabis material weighed above (calculated as the sum of the rounded down weights) was 5484.0 grams.”
The Crown submitted that the quantity of cannabis was too much for personal use. The appellant had the means and motive to sell the cannabis. She knew its value and had a network of people to whom she could sell.
The Crown relied on the fact that items used to package cannabis were located in and amongst cannabis paraphernalia. Emphasis was placed on the appellant’s evidence that she weighed cannabis from time to time. It was said that this would be unnecessary if the cannabis was for personal use. The Crown also relied on the fact that further yields were expected.
Cannabis is defined in section 4 of the Controlled Substances Act 1984 (SA) as
“a plant, or any part (including the seed) of a plant, of the genus cannabis, but does not include cannabis resin or cannabis oil.”
Section 32(1)(e) provides:
“(1) A person must not knowingly —
…
(e) have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.”
The Crown relied on the presumption created by section 32(3):
“For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.”
Regulation 6 of the Controlled Substances (Prohibited Substances) Regulations 2000 provides:
“For the purposes of section 32(3) of the Act, the prescribed amount of a prohibited substance is the amount listed in the second column of Schedule 2 opposite the entry listing the prohibited substance.”
The amount specified for cannabis is 100 grams.
The Defence Case
The appellant denied the charge. She did not dispute that the material located at her residence was cannabis, that she had cannabis in her possession and that she knew she was dealing with a prohibited substance. However she said that she had no intention to sell the cannabis. It was the defence case that the appellant was in possession of the cannabis because she was a regular user. The appellant gave evidence but called no other witnesses.
The appellant was aged 38 years. She had been using cannabis since she was aged 16 years. She had been buying cannabis for some 20 years. She smoked up to 20–30 cones per day, about one ounce per week. She smoked only the female head of the plant. She began growing cannabis over the preceding 18 months because it was too expensive to buy. She was planning to leave her present residence and was stockpiling the female head in glass jars. She used the plastic bags to store jewellery, paperclips and cannabis to give to her friends.
Issues on Appeal
As earlier observed the appellant pleaded guilty to one count in the presence of the jury. The other went to trial. Counsel for the appellant complained that the evidence relating to each count was not kept separate. It was said that the evidence was indiscriminately admitted. The judge should have warned the jury to counter the danger of the possible misuse of the evidence. Expert evidence given by Detective Martin was said to have been given without qualification. It was said that this evidence was irrelevant and should have been ignored. It was further submitted that aspects of the expert evidence had been misquoted by the prosecutor in his address and by the judge in the summing up. Complaint was made about the use of the evidence of the growing plants. It was said that the jury was not entitled to use the fact of the growing plants to anticipate the quantity of cannabis that may be obtained from them in the future.
Separation of Counts
Counsel for the appellant submitted that it was not made clear to the jury that the charge of possessing cannabis for sale related to the cannabis that had been harvested and the charge of producing cannabis related to the plants that were growing.
It was submitted by counsel for the appellant that the quantity of cannabis which might have been obtained from the growing plants was irrelevant to the appellant’s intention in relation to the harvested cannabis. The jury should have been told that only the harvested cannabis could have been the subject of the allegation of sale. It was further submitted that only those parts of the harvested cannabis that were suitable for sale could have been intended for sale. Just under one pound of cannabis female head was located. The jury should have been told that this was the only saleable cannabis located. There was no evidence as to whether one pound of cannabis was too much for one person to use.
It was submitted that the jury should have been told that an allowance should be made for the proportions of weight that might be lost when the unusable or unmarketable portions of the cannabis plants were removed. Allowance should also be made for the difference between wet or recently harvested cannabis and that which had been dried ready to smoke. The jury should have been told that gross weight may include unusable weight as much of the cannabis was still drying when found. It was said that there should have been a direction about how the jury should treat the cannabis debris which had apparently been discarded. The submission went so far as to suggest that the jury should have been told that it would have been possible for the Crown to have dried, separated and weighed the various parts of the cannabis and to have specified the actual weights of the different parts of the plant.
The judge’s directions included:
“You heard the accused plead guilty to producing cannabis; that is, growing cannabis plants. You must not reason that because she pleaded guilty to that offence she must therefore be guilty of the offence she is charged with, and which you are considering, of possessing cannabis for the purpose of selling it. It would be quite wrong for you to do that. You can, of course, use the fact of growing cannabis as evidence in the case against her for possessing cannabis for sale but not to conclude, that because she is guilty of producing cannabis she must be guilty of possessing the loose plant material, if you find it to be cannabis.
…
Bear in mind that [the amount of 5,484 grams] does not include any growing plants. All that was weighed was loose cannabis …whether it be stalk, leaf or head.”
The jury was entitled to consider the significance of the total quantity of cannabis material found at the premises, including both the harvested material and the growing plants. It was for the jury to assess and weigh this evidence, together with all of the other evidence in coming to its ultimate conclusion.
No complaint was made by counsel for the appellant at the time of the summing up. The judge warned the jury about the impermissibility of using the plea to the charge of producing cannabis to reason that the appellant was guilty of the possession for sale charge. The judge identified the parts and quantities of cannabis located by the police. He then reminded the jury that the quantity alleged did not include the growing plants. The separate nature of the two counts was made clear to the jury. The judge’s directions were adequate. No error has been demonstrated.
Expert Evidence
Counsel for the appellant complained about the evidence given by Detective Martin. It was accepted that objection was not taken to the evidence at trial. However it was said that this did not preclude the issue being raised on appeal. Reference was made to The Queen v Harm[2] where Bray CJ observed:
“It is of course, true to say as an abstract proposition of law that, even where the accused is represented by counsel and counsel fails to take objection to any piece of evidence, or to any passage in the summing up, or to ask the judge to discharge the jury because of some incident in the trial, or to take any other particular procedural course, nevertheless a court of criminal appeal is not precluded from interfering (Stirling v Director of Public Prosecutions[3]; Reg v Hally[4]). But the silence of counsel on such occasions must always be a very cogent factor in considering whether the accused really suffered any prejudice from any irregularity or whether there has been any miscarriage of justice; cf R v Neal[5]. Sometimes, indeed, such silence may indicate a deliberate decision that the interests of the accused would be better served by allowing the matter to pass over unnoticed. Sometimes it may indicate an implied consent to inadmissible evidence or an implied exercise of some option open to the accused or an implied waiver of some right.”
[2] (1975) 13 SASR 84 at 88
[3] [1944] AC 315 at pp 327-328
[4] [1962] QSR 214 at p 221
[5] (1949) 33 Cr App R 189, at pp 195-196
It was said that Detective Martin purported to give expert evidence when not qualified to do so. The Crown did not open on him as an expert. He had no botanical qualifications and his experience was insufficient to enable him to express an opinion as to the yields from cannabis plants. His expertise was limited to the value of cannabis.
Counsel for the Crown submitted that the prosecutor did not proffer Detective Martin as an expert qualified by botanical qualification. He was called as an experienced police officer who had worked for 20 years in the criminal intelligence branch and eight years in the drug and organised crime, criminal investigations branch (formerly the drug task force). It was said that he was capable of providing expert evidence with respect to growing, production and sale of cannabis. His evidence was not the subject of any objection on the ground of lack of qualification or expertise.
In his summing up the judge referred to Detective Martin’s evidence as follows:
“You have the evidence of Sergeant Martin that female cannabis material is the part of the cannabis plant preferred by cannabis users and that it commands the highest price.
Sergeant Martin told you that cannabis leaf and stem have lower concentrations of THC, the active ingredient of cannabis, than the female head which is the prized part of the cannabis plant. So, if leaf material is mixed with female head, the price is reduced.
...
It’s a matter for you but you may conclude from Sergeant Martin’s evidence that cannabis stems are not a saleable product of the cannabis plant except for the extraction of cannabis oil. He spoke only of cannabis female head and leaf as being marketable.
Sergeant Martin also told you of the kind of packaging in which cannabis is sold: plastic bags, the size of money bags, holding 1 to 4 grams, the price $20 to $30 and ounce bags holding 28.4 grams for the price of $300 to $400, in each case, for the female cannabis material.
He said the plastic bags in ... were, what he described, as jewellery bags holding or could hold 1 to 4 grams and that there was, as I understood his evidence, one bag of a slightly larger size not usually used to package cannabis.
Sergeant Martin told you that, in his experience, those in possession of cannabis, for the purpose of sale, may be found in possession of large amounts of cash and other, what are called, indicia of selling cannabis, such as lists of names and packages of cannabis or scales.
The circumstantial evidence upon which the Crown relies are bags; the description and number of them, what was submitted to be the sheer quantity – up to 5 kilograms of cannabis material; the plants in the shed that are said to be healthy plants; on the evidence of Mr Martin, it is submitted they would produce or could produce 1 to 1-and-a-half pounds of head material, and the potential sale price of that; the quantities of cannabis, that is, 1 pound, could be sold, on Sergeant Martin’s evidence, for up to $3,000…
In the course of his submissions, [the prosecutor] told you, or reminded you, that the accused said that she consumed 20 or 30 cones of cannabis a day. He said there was no expert evidence before you of what the usual consumption of cannabis users is, or what the effect of such a great consumption might be. He suggested that it was a matter for your own experience.
…
You could only bring to account what the effect of such smoking might be if there was expert evidence before you, that you accepted, of what is the usual rate of use and what the effect might be of smoking 20 to 30 cones.”
It is well settled that as a general rule witnesses may only give evidence about matters they have observed. One exception is an opinion given by an expert. That is an opinion about matters which are not within the knowledge and experience of ordinary persons. A witness may be permitted to express an opinion if sufficient knowledge or experience is demonstrated in relation to the subject to be of assistance to the court. Any opinion given during the course of a criminal trial is subject to the judge’s discretion to exclude the evidence if its prejudicial effect outweighs its probative value.[6] There is a discretion to exclude for unfairness if the expert evidence is presented in such a way as to overawe the jury to such an extent that they may give it too much weight.[7]
[6] The Queen v Bonython (1984-85) 38 SASR 45 at 46 per King CJ
[7] R v Humphrey (1998-99) 72 SASR 558
A person may be an expert on value from practical experience alone.[8] The practices of drug users from a police officer familiar with the drug trade is also a recognised field of expertise.[9] In Anderson v The Queen[10] Olsson J with whom King CJ and Mullighan J agreed, observed:
“...Suffice it to say that the essential concept involved in the rule permitting the leading of so‑called expert evidence, is that material of that type is considered to be appropriate and helpful in relation to matters which involve spheres of knowledge about which the ordinary person knows relatively little. It may, of course, be evidence of fact or opinion, or a combination of both.
As is pointed out by the learned author P Gillies, Law of Evidence in Australia (2^nd ed, 1991), at pp 377-379, whilst the classic field of expertise is that which relates to an organised branch of knowledge which is identifiable as a discipline in the social or physical sciences, fields of expertise, for the purposes of the law of evidence, are not so confined.
A person may be viewed as relevantly being an expert in an area of skill or knowledge by virtue of nothing more than his or her practical experience in a field which may not necessarily have been reduced to organised, documented knowledge. (See also P Gillies, ‘What is a relevant field of expertise?’[11]).
...
The courts have, in any event, long held that ... a person may be classified as having relevant expert status by virtue of formal training, or through mere practical experience or informal study in appropriate circumstances. (See, eg, Nickisson v The Queen[12]; R v Duncan[13]; Cooper v Bech (No 2)[14] and R v Murphy[15].) The credentials required depend fundamentally on the field of expertise in question.
The basic principle involved is that the person must, through knowledge, however acquired, have reliable knowledge and/or skill reaching beyond that in the possession of the trier of fact. (Generally see the comment of Young J in his article headed ‘Quasi experts’ contained in (1992) 66 ALJ 379.)”
[8] Bennett v The Queen (1998) 144 FLR 311
[9] Marchesano v R (2000) 116 A Crim R 237
[10] (1992-93) 60 SASR 90 at 103
[11] (1986) 60 ALJ 597 at 601
[12] [1963] WAR 114 at 119-120
[13] (1969) 90 WN (Pt 1) (NSW) 150 at 155
[14] (1975) 12 SASR 151 at 152
[15] [1980] 1 QB 434 at 437
A similar view was expressed in R v Marinovich[16] by Malcolm CJ and Kennedy J:
“In our opinion the evidence of police officers based on their accumulated experience combining personal observation with information received concerning characteristics, prices, packaging, terminology and availability of heroin by comparison with other illicit drugs was relevant and admissible. Such evidence is in the nature of expert evidence although it may also involve factual evidence of personal experience and observation. Expert evidence about such matters necessarily involves some hearsay evidence. It would be quite artificial and place an unnecessary restraint on prosecution and police work to limit such evidence to those who had been involved in undercover work in the illicit drug market. ... In the end it must be a matter of weight, but I do not consider that the mere fact that the experience relied upon includes both personal observation and experience, as well as information received through intelligence reports or from informants, means that an attempt has to be made to isolate the two areas of knowledge so as to establish the admissibility of evidence based on the one source and exclude evidence based on the other.”
[16] (1990) 46 A Crim R 282 at 361

The prosecutor’s opening address in the present case included:
“You will hear evidence from an experienced police officer that the sale value of female cannabis material is worth many thousands of dollars.
The prosecutor laid an adequate foundation for Detective Martin to give expert evidence. It was not suggested that he had botanical qualifications or other similar expertise. He did not purport to rely on statistics or theories. He gave evidence as a police officer with extensive involvement in the criminal investigation of cannabis production. His evidence was based on his experience. There was no challenge to his expertise on a voir dire. He was not asked questions about his employment history or the extent of his experience. No challenge was made at trial to his ability to give the now impugned evidence.
Only one objection was taken during Detective Martin’s examination in chief. This related to the relevance of a potential Crown hypothesis about what the appellant planned to do with the cannabis. During the course of argument on that point in the absence of the jury counsel for the appellant acknowledged:
“…it is simply not fair and should not be permitted that, at this stage of this trial, the Crown’s expert witness is entitled to advance an alternative theory that could possibly be speculated about to provide a basis for her guilt.”
Counsel for the Crown withdrew the question.
In cross examination defence counsel’s questions to Detective Martin drew on his expertise:
“Have you in your years of experience in the police force and the Drug Task Force, come upon people who regularly and quite heavily use cannabis.
...
In those circumstances, as an expert in the drug trade your evidence is that the finding of that money is consistent and indicative of sales of cannabis isn’t it.”
The evidence of Detective Martin was relevant, probative and admissible. His evidence was properly admitted. Its evaluation and weight was a matter for the jury. There was no basis for excluding the evidence on the grounds of unfairness. No error has been demonstrated.
Yield and Female Head
Detective Martin gave evidence of the yield that could be expected from a healthy female cannabis plant. His evidence included:
“Q. Assuming an ideal growing condition, based on your experience, do you know what might be the average yield of the healthy female plant.
A.     Somewhere between one to one and half pound.
Q.     That is an approximate figure is it.
A.     Yes.”
Counsel for the appellant complained that the prosecutor misunderstood and mistated this evidence. During the course of the trial and in his address the prosecutor referred to the “one to one and half pound” as being the quantity of head material that could be expected from a healthy female plant. It was said that this was incorrect. Detective Martin was not referring exclusively to head material in his answer. The amount that he specified included root, stem, branch, leaf and female head. The prosecutor said in his address:
“When you think about those three plants you also need to bear in mind Detective Martin’s evidence that a healthy plant might yield one to one and a half pounds of head material. It’s only average figure. It’s a working guide, but it should give you some kind of understanding as to the kind of head material the accused was about to get.”
It was contended that in his summing up the judge compounded this error.
“…the plants in the shed that are said to be healthy plants, on the evidence of Mr Martin, it is submitted they would produce or could produce 1 to 11/2 pounds of head material and the potential sale of that, the quantities of cannabis – that is, one pound, could be sold, on Sergeant Martin’s evidence, for up to $3,000…
[Defence counsel] said the politicians have marked a line in the sand of 100 grams. He made a submission to you concerning the anomalies and the absurdities in fixing such a limit of 100 grams, pointing out that, on the evidence before you, each plant, at maturity, would be capable of bearing one to one and a half pounds of female head. Three plants, it was submitted, can be grown, or at that time could be grown, three cannabis plants, which although an offence, could be expiated by the payment of a fine.”
Counsel for the appellant submitted that the prosecution address as to yield was misleading and incorrect. The concept of cannabis was not fully explained to the jury. When questions of price and yield were discussed it was unclear whether head, the most prized part, was being referred to exclusively or whether the amounts included other parts of the plant. It was said that the confusion surrounding this topic should have been remedied. Instead the confusion was perpetuated. Careful directions were required.
Counsel for the appellant further submitted:
“I don’t say it’s the factor that will make or break the direction, but, I say it’s an important matter to get the evidence correct…”
The use of the term female head by the prosecutor and the judge when referring to the average yield was unfortunate. In submissions to this court counsel for the Crown acknowledged:
“I admit the prosecutor has, in error, addressed on the basis of them being female head which was clearly not correct….Yes, his Honour picked that up. ... If it was a matter of any great moment you might have expected counsel to pick it up at the end of the summing up, but that wasn’t to happen either.”
The complaints must be looked against the background of the summing up as a whole. The judge drew the jury’s attention to the fact that the female head was the most prized part of the cannabis plant. The different components of the plant were referred to on a number of occasions during the trial. If the jury accepted the evidence as to the total quantity of cannabis material located at the appellant’s residence then this involved a finding of at least 500 grams of head material in the appellant’s possession. This evidence was not challenged. The judge’s directions included:
“I remind you that of the 5 kilograms that all of this material weighed, there was no evidence put before you as to how much of it was stalk or part branches. But there is evidence before you as to two particular exhibits, where there was a quantity of dry female cannabis head amounting to a little less than 500 grams”
It was not disputed that the presumption applied. Detective Martin’s evidence was available for the jury to weigh along with all other evidence. There was no risk that the prosecutor’s error created a risk of a miscarriage of justice in this case.
Growing Plants
As earlier observed it was complained that the evidence relating to the two counts should have been kept separate. This submission also encompassed concern about the use that was made of the growing plants. It was said that the prosecutor treated it as inevitable that the 12 seedlings would grow. It was said that there was no evidence to support this assumption and that there was at least a “strong possibility” that they were not going to grow. The appellant’s evidence was that she was shutting down her operation as she was planning to move.
Counsel for the appellant identified a number of passages of concern. They included:
“But for the police attending one could readily assume that there was more head material to be obtained. So gradually, steadily, you can see that, whilst from the outset she might only have a starting point of more than a pound, there was soon a lot more to be gained.
…
So, overall, there was a large quantity in her actual possession at the time and there was more significant quantities to be obtained in the near future.”
It was said that the judge should have warned the jury about coming to a factual conclusion based on “fiction”. It was submitted that the jury was not entitled to multiply the number of growing plants by the average yield of mature plants having assumed that the seedlings would grow to maturity. This would be a hypothesis relating to cannabis not yet in existence.
Counsel for the appellant acknowledged that the fact of possession of growing plants was relevant and admissible evidence on the possession for sale charge. Counsel accepted that:
“[the jury] would be entitled to say ‘She’s growing more plants, that suggests to me that she wasn’t going to keep the one she had grown and picked and dried, therefore I conclude that she might have been going to sell them. That is a matter that I put in the guilty basket”
The evidence of growing plants was part of the material that the jury could consider when determining whether the presumption had been rebutted. It was also accepted that the jury was entitled to approach the evidence on the basis that it showed an intention by the appellant to produce more cannabis.
Counsel for the appellant’s concessions were rightly made. The use that counsel agreed the jury could make of the evidence was not inconsistent with the prosecutor’s address:
“Another piece of circumstantial evidence relates to the cultivation of further plants and you need to think about it carefully, because you might say to yourself ‘Hold on a minute, we’re talking about loose cannabis, which is the subject of the offence. Why do I need to think about the plants?’
The plants are significant for two main reasons: one of them is that they show that down the track further yields of cannabis were expected and I’ve already touched on that, in relation to the three plants in the shed. I won’t labour the point. But bear in mind Detective Martin’s evidence about the average yield of the plant. Secondly, however, they show an element of continuity or regularity in what this woman was doing, and in thinking about that, you need to think also about the 12 immature plants. I refer to those 12 immature plants as the replacement crop for the more mature plants.”
The growing plants were but one item of circumstantial evidence relied upon by the Crown. As was accepted the evidence was relevant and probative of a fact in issue. It was properly admitted. There is no basis for suggesting that the jury used the evidence to reason impermissibly. There is no substance to this complaint.
Browne v Dunn
Counsel for the appellant complained that propositions put by the prosecutor to the jury were not put to the appellant in cross examination and accordingly offended the rule in Browne v Dunn.[17] It was submitted that it was not put to the appellant that she was running an ongoing business. It was not put to her that she had financial difficulties. It was not put to her that she had a strong motive to commit the offence. It was not put to her that she had difficulties servicing her debts.
[17] (1894) 6 R.67 (HL)
Counsel for the Crown submitted that the prosecutor did no more than identify possible inferences that arose from undisputed facts. The prosecutor questioned the appellant as to her personal and financial circumstances. The answers disclosed that she was the mother of two children aged 13 and 16 years. She was separated and living in rental accommodation with one of her daughters. She paid $170 rent each week and had a credit card debt of some $8,000. She was employed as a shop assistant on a casual basis. Her hours of work varied and were usually between 12 and 38 per week. She was also in receipt of a single parenting allowance.
The appellant smoked cannabis daily. She began to grow it because it was too expensive to buy. She wanted to “shut down and keep what I had and get back on my feet, stop outlaying money to buy the stuff.” She purchased hydroponic equipment to set up her cannabis growing operation initially at a cost of $676.00. This was later upgraded at a cost of $800.00. This equipment was purchased on credit.
The propositions put by the prosecutor to the appellant during cross examination included:
“Q. How were you going to pay off or, in fact, how did you finance the hydroponic equipment, given you had an $8,000 credit card debt.
…
Q. …you obviously had some motive or justification to sell [the cannabis] given your debt.”
There is no substance to this complaint. The prosecutor canvassed these matters with the appellant. Although not all were directly put a sufficient foundation was laid in cross examination to enable the prosecutor to invite the jury to draw the above inferences. No complaint was made to the trial judge. No request was made for the appellant to be recalled.[18] No error has been demonstrated.
[18] See R v Karger (2002) 221 LSJS 224 at [125]; The Queen v Killick (1980) 24 SASR 137 at 153; Reid v Kerr (1974) 9 SASR 367 at 375
Conclusion
The only complaint that has been made out concerns the amount of head that could be produced from a healthy female plant. As earlier observed counsel for the appellant acknowledged that this alone would not lead to a risk of a miscarriage of justice. The Crown case was supported by an extensive body of evidence. The amount of cannabis material in the possession of the appellant both harvested and growing was substantial and well in excess of the amount required to invoke the presumption. There was no risk of a miscarriage of justice in this case. The appeal should be dismissed.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 “ Statement of Offence
Producing Cannabis (section 32(1)(a) of the Controlled Substances Act, 1984)
Particulars of Offence
Sharon Lee Morrison between the 1^st day of March 2001 and the 27^th March 2001 at Seacombe Gardens, knowingly produced cannabis, a prohibited substance.
Statement of Offence
Possessing Cannabis for Sale (Section 32(1)(e) of the Controlled Substances Act, 1984)
Particulars of Offence
Sharon Lee Morrison on the 26^th day of April 2001 at Seacombe Gardens, knowingly had cannabis, a prohibited substance, in her possession for the purposes of selling it to another person.
It is further alleged that the said offence involved more than 2 kilograms of cannabis.”
2 (1975) 13 SASR 84 at 88
3 [1944] AC 315 at pp 327-328
4 [1962] QSR 214 at p 221
5 (1949) 33 Cr App R 189, at pp 195-196
6 The Queen v Bonython (1984-85) 38 SASR 45 at 46 per King CJ
7 R v Humphrey (1998-99) 72 SASR 558
8 Bennett v The Queen (1998) 144 FLR 311
9 Marchesano v R (2000) 116 A Crim R 237
10 (1992) 60 SASR 90 at 103
11 (1986) 60 ALJ 597 at 601
13 [1963] WAR 114 at 119-120
14 (1969) 90 WN (Pt 1) (NSW) 150 at 155
15 (1975) 12 SASR 151 at 152
16 [1980] 1 QB 434 at 437
17 (1990) 46 A Crim R 282 at 361
18 See R v Karger (2002) 221 LSJS 224 at [125]; The Queen v Killick (1980) 24 SASR 137 at 153; Reid v Kerr (1974) 9 SASR 367 at 375

Producing Cannabis (section 32(1)(a) of the Controlled Substances Act, 1984)

Particulars of Offence

Sharon Lee Morrison between the 1^st day of March 2001 and the 27^th April 2001 at Seacombe Gardens, knowingly produced cannabis, a prohibited substance.

Statement of Offence

Possessing Cannabis for Sale (Section 32(1)(e) of the Controlled Substances Act, 1984)

Particulars of Offence

Sharon Lee Morrison on the 26^th day of April 2001 at Seacombe Gardens, knowingly had cannabis, a prohibited substance, in her possession for the purposes of selling it to another person.

It is further alleged that the said offence involved more than 2 kilograms of cannabis.”

[2002] SASC 399

5 December 2002