R v Pali

Case [2018] SASCFC 134

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PALI; R v BUCKINGHAM

[2018] SASCFC 134

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Hinton)

17 December 2018

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE

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

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION

Two separate appeals against convictions for drug offences, which raised similar arguments and were heard together.

Pali was found guilty by a jury of one count of trafficking in a large commercial quantity of cannabis, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the Act) and one count of cultivating a large commercial quantity of cannabis plants, for sale, contrary to s 33B(1) of the Act.

The issue at trial was whether the prosecution had proven beyond reasonable doubt that Pali knowingly provided the premises that he was leasing at Daws Park for the cultivation of cannabis, intending that it would be sold (Count 2); and, to prepare or store cannabis for sale (Count 1).

The permission Judge granted permission to appeal on Count 1 and referred the question of permission to appeal against the conviction on Count 2 to this Court. The appellant has applied for permission to appeal on further grounds.

Buckingham was convicted following a separate and unrelated trial by jury of the offence of trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Act, the drug in this case also being cannabis.

Buckingham gave evidence that he grew the cannabis in order to extract oil from it for “strictly personal medicinal use” in alleviating his post-traumatic stress disorder symptoms.

The permission Judge refused permission to appeal on any ground. The appellant applies to the Court of Criminal Appeal to rule on his application for permission to appeal.

Held per Peek J (Kelly and Hinton JJ agreeing), dismissing both appeals:

In relation to Pali:

Per Peek J (Kelly and Hinton JJ agreeing):

1. Section 33OA of the Act only imposes an obligation to reference the “pure” or “mixed” nature of a drug if the prosecution alleges that the offence is one which involves a controlled drug “contained in a mixture”. Section 33OA has not been contravened; the case was conducted on the basis that the cannabis the subject of Count 1 was “pure” in that it was all “cannabis” within the statutory definition.

2.       The Judge did not err in directing the jury that any amount of cannabis in excess of two kilograms constituted the relevant amount; there was not at trial any suggestion that a real possibility existed that the weight of “pure” cannabis was less than two kilograms, regardless of whether the total quantity under consideration was 39.5 kilograms or 11.6 kilograms.

3.       A so called “narrowing” at trial of the subject matter of Count 1 from…

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AGLC
R v Pali; R v Buckingham [2018] SASCFC 134
Case
[2018] SASCFC 134
Decision Date

CaseChat Overview and Summary

The appellant, Mondi Pali, appealed his conviction for trafficking in a large commercial quantity of a controlled drug and cultivating a large commercial quantity of controlled plants for sale. The charges arose from the discovery of cannabis at premises leased by the appellant. The appeal was heard by Kelly, Peek, and Hinton JJ.

The legal issues before the court concerned whether the appellant's trial had been a miscarriage of justice. Specifically, the appeal raised questions regarding the prosecution's case on the quantity and purity of the cannabis, and whether the trial judge had misdirected the jury on these matters. A further ground of appeal alleged that the prosecution had impermissibly changed its case late in the trial.

The court rejected the first ground of appeal, which concerned the distinction between "pure" and "mixed" cannabis. The court found that the prosecution's case had proceeded on the basis that the cannabis was sufficiently pure, and that the trial judge's direction that any amount in excess of two kilograms constituted the relevant amount was not in error. The court noted that there was no admissible fresh evidence to suggest the cannabis was mixed to a degree that would reduce the pure weight below the statutory threshold. The court also considered the second ground of appeal, which alleged the prosecution had impermissibly changed its case. The court examined the evidence and the exchange between the trial judge and prosecution counsel regarding the quantity of cannabis relied upon for the trafficking charge.

The court dismissed the appeal, finding no substantial miscarriage of justice had occurred.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Pali was charged on a joint Information laid against him and two co‑accused persons concerning two different suburban houses where cannabis was grown. In the present proceedings, Pali was tried alone and in relation to only one of the houses, that at 194 Daws Road (the premises). He was tried on Counts 1 and 4 of the Information but Count 4 was re-numbered Count 2 for the purposes of this trial and will be so referred to here. Accordingly, the two counts were as follows:First CountStatement of OffenceTrafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).Particulars of OffenceIdriz Hoxha and Mondi Pali on the 17th day of October 2016 at Daw Park, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.Second CountStatement of OffenceCultivating a Large Commercial Quantity of Controlled Plants for Sale. (Section 33B(1) of the Controlled Substances Act, 1984).Particulars of OffenceMondi Pali between the 6th day of August 2016 and the 18th day of October 2016 at Daw Park, cultivated a commercial quantity of controlled plants, namely 145 cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them or their products or believing that another person intends to sell any of them or their products.A chronological overview of the facts In October 2010, Pali signed a lease agreement with Mr and Mrs Basheer to lease their premises at 194 Daws Road. He used the name ‘Plamen Markov’ on signing the lease and in subsequent dealings with the Basheers. Mrs Basheer gave evidence that he told her that he was going to live there by himself and that he was going to have his wife and son come to live with him in the future; and further, in the last year or two of the rental, she had overheard the accused tell her husband that he would continue to live at the premises but that he had got someone in with him to help him with the rent. Pali continued as the lessee until 2016. He personally paid the rent in cash to the Basheers every month at their home and also paid an additional amount for water usage every quarter. Mrs Basheer said that two or three weeks before the police raid on the premises on 17 October 2016 a different person (who she did not know) attended at her home and paid the rent, which was the last rent received prior to the police raid. She could not identify that person in any of the photographic folders that she was shown by the police. However, she gave evidence that the unknown man had telephoned her husband and said: “Plamen rang me to pay you the money because he’s away.” She further said that, when the man arrived, he said to her: “There is money from Plamen for two months because he’s away.” Police Officer Bartlett gave evidence that, on 7 August 2016, he performed surveillance duties and observed one of the co-accused, Gentjan Koci, driving to the premises and stay there for just over half an hour during which time banging and the sounds of power tools were heard coming from the premises. The evidence, including the state and age of the cannabis plants (which had just been recently harvested when the police examined them on 17 October 2016), indicated that the hydroponic crop would have commenced at about the time of Koci’s visit. It is to be noted that this evidence corresponds with the date range of “between the 6th day of August 2016 and the 18th day of October 2016” averred in Count 2, the charge of cultivating cannabis.

Evidence

Evidence Before The Court

On an assumption that the prosecution was restricted to an amount of 11.6 kilograms rather than the total amount found of 39.5 kilograms,[24] it may be accepted that the prosecution case had to be based on “pure” cannabis rather than “mixed” cannabis. But this is hardly contentious since it was always the prosecution position throughout the trial that the pure amount of two kilograms was the applicable weight; it would therefore seem that sub-paragraph 1 is intended to be merely introductory to what follows.Sub-paragraph 2: There was no evidence of and no direction by the Learned Trial Judge as to “pure cannabis” and what “pure” meant.[24] This aspect is dealt with in more detail in connexion with proposed ground 2 of Appeal below. It follows from all of the above discussion that there was no need for any such evidence or directions. To put it bluntly, there was either two kilograms of cannabis present or there was not.Sub-paragraph 3: The jury were instead (wrongly) directed that any amount of cannabis in excess of 2 kilograms constituted the relevant amount. It follows from the above discussion that the case was conducted on the basis that all amounts of cannabis found were “pure” cannabis, or at least sufficiently “pure” such that there was no rational possibility that there was less than two kilograms of pure cannabis whether the total amount of 39.5 kilograms or the lesser amount of 11.6 kilograms was under consideration. Accordingly, the Judge was not in error in directing the jury that any amount of cannabis in excess of two kilograms constituted the relevant amount.Conclusion concerning ground 1 of appeal I conclude that, in the absence of any admissible fresh evidence demonstrating that the cannabis was mixed with something else to the extent that there was a real possibility that the weight of pure cannabis was less than two kilograms, there is no basis upon which this Court could find that a miscarriage of justice has occurred in this connexion. Ground 1 of appeal is rejected. Consideration of proposed ground 2 of appeal The whole of proposed ground 2 appears above at paragraph [29]. I will deal with its sub-grounds in the following order: 2.5; 2.1 and 2.3; 2.2; 2.4. The Appellant’s trial on Counts 1 and 2 miscarried because:2.5 The prosecution impermissibly changed its case against the appellant just before the trial Judge was about to commence her charge to the jury. Reference to the statements of the trial prosecutor (above at paragraphs [14] to [16]) and to the evidence of the police officers and the forensic scientist (above at paragraphs [44] to [48]) demonstrates that throughout the trial the prosecution case was consistently that all of the cannabis found at the premises (39.5 kilograms) was the product of one cultivation that had taken place “between the 6th day of August 2016 and the 18th day of October 2016” as averred in Count 2. It will be remembered that it was on 7 August 2016 that police officer Bartlett observed one of the co-accused, Gentjan Koci, staying at the premises for a time during which banging and sounds of power tools were heard and the evidence concerning the state and age of the cannabis plants (which had just been recently harvested when the police examined them on 17 October 2016) indicated that the hydroponic crop would have commenced at about the time of Koci’s visit.

Decision

Reasons for decision

KELLY J (dissent)
It follows from the above discussion that the case was conducted on the basis that all amounts of cannabis found were “pure” cannabis, or at least sufficiently “pure” such that there was no rational possibility that there was less than two kilograms of pure cannabis whether the total amount of 39.5 kilograms or the lesser amount of 11.6 kilograms was under consideration. Accordingly, the Judge was not in error in directing the jury that any amount of cannabis in excess of two kilograms constituted the relevant amount.Conclusion concerning ground 1 of appeal I conclude that, in the absence of any admissible fresh evidence demonstrating that the cannabis was mixed with something else to the extent that there was a real possibility that the weight of pure cannabis was less than two kilograms, there is no basis upon which this Court could find that a miscarriage of justice has occurred in this connexion. Ground 1 of appeal is rejected. Consideration of proposed ground 2 of appeal The whole of proposed ground 2 appears above at paragraph [29]. I will deal with its sub-grounds in the following order: 2.5; 2.1 and 2.3; 2.2; 2.4. The Appellant’s trial on Counts 1 and 2 miscarried because:2.5 The prosecution impermissibly changed its case against the appellant just before the trial Judge was about to commence her charge to the jury. Reference to the statements of the trial prosecutor (above at paragraphs [14] to [16]) and to the evidence of the police officers and the forensic scientist (above at paragraphs [44] to [48]) demonstrates that throughout the trial the prosecution case was consistently that all of the cannabis found at the premises (39.5 kilograms) was the product of one cultivation that had taken place “between the 6th day of August 2016 and the 18th day of October 2016” as averred in Count 2. It will be remembered that it was on 7 August 2016 that police officer Bartlett observed one of the co-accused, Gentjan Koci, staying at the premises for a time during which banging and sounds of power tools were heard and the evidence concerning the state and age of the cannabis plants (which had just been recently harvested when the police examined them on 17 October 2016) indicated that the hydroponic crop would have commenced at about the time of Koci’s visit. Further, as has been noted above (at paragraphs [14] to [16]), the prosecution case was always that the role Pali played in both counts was to knowingly provide the premises in which cannabis could first be cultivated (Count 2) and in which cannabis could then be prepared for sale or stored (Count 1 - a form of “trafficking”[25]). [25] The definition of “traffic” appears above at page 4. It was very late in the trial, just before the summing up, that the Judge initiated the following exchange with prosecution counsel concerning Count 1 (to which I will refer as “the Count 1 conversation”):HER HONOUR: In relation to that count, I’m not sure that Mr Roach actually said how much cannabis you are relying upon for that count, could you perhaps identify that, and it might be helpful to do that from one of the exhibits that was tendered.MS BURROWS: Yes, the most significant quantity, and really the quantity that I have pitched closing on, is exhibit item No 3, which was labelled DR12, the 11.6 kg of dry female cannabis plant material. Because that is the material that had been sorted from the leaf had been dried, the remainder could form part of the charge but isn’t necessary, it has gone over and above the 2 kg by far by then. HER HONOUR: I see.MS BURROWS: The other cannabis is on its way to end up in that situation.HER HONOUR: Thank you, that’s helpful.(Emphasis added)

Ratio Decidendi

Legal Principle Established

Established by:

However, with all of its infelicities, I will use this document as the basis for consideration of both appeals since the Court is assured that “it brings together the grounds in the various documents that are before the court”. I proceed on the basis that the four headings Counts 1 to 4 are in fact to be taken to state exhaustively the grounds of appeal that are sought to be relied upon by the appellants.[16][16] Proposed ground 2 of appeal can apply only to Pali.Consideration of ground 1 of appeal – “Pure” and “Mixed cannabis” I again reproduce the new proposed ground 1 of appeal as follows:Ground 1 1 The Appellant was deprived of a fair trial as the prosecution was required either to allege in a charge on the Information, or in particular of it, that the quantity of cannabis the subject of the charge is a certain amount and is pure cannabis as distinct from mixed cannabis, and the Trial Judge was required to direct the jury as to whether the cannabis was pure cannabis or mixed cannabis:1.1The quantity of the cannabis alleged in respect of the offence was below the specified amount for “mixed” cannabis (ie below 12.5 kg) the relevant element of the offence charged was that the quantity of cannabis was more than 2 kg of pure cannabis.1.2There was no evidence of and no direction by the Learned Trial Judge as to “pure cannabis” and what “pure” meant.1.3The jury were instead (wrongly) directed that any amount of cannabis in excess of 2 kg constituted the relevant amount.1.4The respondent was required to particularise as to whether the charge of large commercial quantity of the controlled drug (cannabis) was a charge relating to cannabis in its pure form or mixed form. I will first address the introductory five lines (which will be referred to, perhaps loosely, as “the chapeau”) and then deal with the sub-paragraphs in the following order: 1.4; 1.1; 1.3; and, 1.2.The chapeau to proposed ground 1 of appeal The chapeau appears to be divided into two parts. The first part ends with the third word in the fourth line “cannabis,”. The second part consists of the words “and the Trial Judge was required to direct the jury as to whether the cannabis was pure cannabis or mixed cannabis:” with the colon appearing to invite progression to each of the following four sub-paragraphs. However, there is little grammatical connection of the chapeau to those four sub-paragraphs. In these uncertain circumstances, it is well to refer to the jurisdictional basis of this appeal. Section 353 of the Criminal Law Consolidation Act 1935 provides:[17]353—Determination of appeals in ordinary cases(1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.[17] This section was repealed on 5 March 2018 by the Summary Procedure (Indictable Offences) Amendment Act 2017 and re‑enacted in materially the same terms as s 158 of the Criminal Procedure Act 1921. As the subject proceedings were commenced prior to the commencement of the Act, the legislative changes have no application here: s 41 of the Summary Procedure (Indictable Offences) Amendment Act 2017.