R v Pringle

Case [2017] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PRINGLE

[2017] SASCFC 9

Judgment of The Court of Criminal Appeal

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

23 February 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - KNOWLEDGE AND INTENT - SOUTH AUSTRALIA

Appeal against conviction. The appellant was convicted after a trial by jury of the offence of trafficking in a large commercial quantity of a controlled drug, contrary to section 32(1) of the Controlled Substances Act 1984. The police searched a locked shipping container and found 38.2 kg of cannabis. The container was located on business premises owned by a company of which the appellant was the sole shareholder and sole director and from which the appellant conducted a business. The container had been purchased by the appellant in a business name registered to the appellant. The prosecution case was wholly circumstantial. Whether the trial miscarried as the result of the wrongful admission of various pieces of evidence (including having regard to section 34P of the Evidence Act 1929) – whether the Judge erred in the directions to the jury concerning various types of discreditable conduct evidence (section 34R of the Evidence Act 1929) – whether the trial miscarried as a result of a misdirection concerning an element of the offence – whether the trial miscarried as a result of the jury being invited to return a verdict of guilty on one of two mutually exclusive legal and factual pathways – whether the trial miscarried as a result of the failure by the Judge to give an extended unanimity direction – whether the verdict of guilty was unreasonable or unsupportable by the evidence.

Held per Nicholson J (Kelly and Hinton JJ agreeing):

1. Appeal allowed on the basis of grounds 3, 5 and 7.2, there having been a miscarriage of justice as a consequence of the Judge's failure to comply with section 34R of the Evidence Act 1929 in conjunction with a misstatement of the requisite standard of proof.

2.  Conviction set aside.

3.  Matter remitted to the District Court for a new trial.

Controlled Substances Act 1984 s 4, s 32; Evidence Act 1929 s 34P, s 34R; Criminal Law Consolidation Act 1935 s 353, referred to.
Barca v The Queen [1975] HCA 42, (1975) 133 CLR 82; Peacock v The King [1911] HCA 66, (1911) 13 CLR 619; Plomp v The Queen [1963] HCA 44, (1963) 110 CLR 234; R v Barker (1988) 34 A Crim R 141; Anderson v The Queen (1992) 60 SASR 90; Wheal v Bottom (1966) 40 ALJR 436; Lawler v Leeder (1981) 1 SR (WA) 389; Ritz Hotel Ltd v Charles of the Ritz Ltd (No 7) (1987) 14 NSWLR 104; Shepherd v The…

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AGLC
R v Pringle [2017] SASCFC 9
Case
[2017] SASCFC 9
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant for trafficking in a large commercial quantity of a controlled drug, contrary to section 32(1) of the Controlled Substances Act 1984. The conviction followed a jury trial where the prosecution's case was entirely circumstantial, relying on the discovery of 38.2 kg of cannabis in a locked shipping container located on business premises owned and operated by the appellant. The appellant was the sole shareholder and director of the company, and the container had been purchased in a business name registered to him. The appeal was heard by Kelly, Nicholson, and Hinton JJ.

The court was required to determine several grounds of appeal, including whether the trial had miscarried due to the wrongful admission of evidence, particularly in light of section 34P of the Evidence Act 1929. Further issues included whether the trial judge erred in directing the jury on the use of discreditable conduct evidence under section 34R of the Evidence Act 1929, whether there was a misdirection concerning an element of the trafficking offence, and whether the jury had been improperly invited to consider mutually exclusive pathways to a guilty verdict. The court also considered whether a failure to give an extended unanimity direction constituted a miscarriage of justice, and whether the guilty verdict was unreasonable or unsupported by the evidence.

The court addressed the admissibility of evidence concerning a grow room found at the appellant's premises, which tended to suggest discreditable conduct. The court found that this evidence had a permissible use probative of a fact in issue, independently of any impermissible propensity use. Even if characterised as relying on a propensity, the court was satisfied it possessed strong probative value and that its prejudicial effect was substantially outweighed by its permissible use, which could be kept distinct from any impermissible use, satisfying the requirements of section 34P(2)(a) and (3). The evidence of the grow room equipment, along with cannabis leaves, smell, and mugginess, was considered sufficient to permit a strong inference that the room was used for growing cannabis, with no plausible alternative use suggested by the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 34P of the Evidence Act is in the following terms.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).The evidence concerning the grow room at the Walkerville premises was evidence tending to suggest that the appellant had engaged in discreditable conduct such that the requirements of section 34P applied. However, I agree with the overarching submission of the respondent that the evidence was probative and admissible. The evidence had a permissible use or uses probative of a fact in issue independently of any impermissible propensity use. In any event, insofar as a permissible use of the evidence might be characterised as relying on a particular propensity or disposition of the defendant, as circumstantial evidence of a fact in issue, I am satisfied that it had the strong probative value as required by section 34P(2)(b). I am also of the view that any prejudicial effect of the evidence was substantially outweighed by its permissible use and that its permissible use was capable of being kept sufficiently separate and distinct from any impermissible use so as to satisfy the requirements of section 34P(2)(a) and (3). Independently of the evidence of cannabis leaves, the smell of cannabis and the feeling of mugginess, the evidence concerning the equipment located in the room was sufficient to permit a strong inference to be drawn by the jury that the room had been used for the growing of cannabis. The evidence concerning the leaves, the smell and the mugginess (which I am satisfied was properly admitted – see further below) only served to strengthen what was already a readily available inference. No alternative use for the room was suggested by the appellant during the cross-examination of any witness. I agree with the submission put on behalf of the prosecution to the effect that the reason for this is obvious; there was no possible alternative use or, at least, none that could not be considered fanciful. The fact that it was a cannabis grow room is implicit in the submission put on behalf of the appellant that the evidence of the hydroponic set up did no more than expose a general propensity on the appellant’s behalf for criminal behaviour involving cannabis.

Decision

Reasons for decision

KELLY J NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J, NICHOLSON J

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