R v Pringle
[2017] SASCFC 9
•23 February 2017
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 Queen [1990] HCA 56, (1990) 170 CLR 573; R v Forrest [2016] SASCFC 76, (2016) 125 SASR 319; R v Perara-Cathcart [2015] SASCFC 103; R v Parisi [2014] SASCFC 57, (2014) 119 SASR 277; R v McCarthy [2015] SASCFC 177, (2015) 124 SASR 190; R v Leivers & Ballinger (1998) 101 A Crim R 175; R v Cramp (1999) 110 A Crim R 198; Libke v The Queen [2007] HCA 30, (2007) 230 CLR 559; M v The Queen [1994] HCA 63, (1994) 181 CLR 487; R v Cluse (2014) 120 SASR 268; Lithgow City Council v Jackson (2011) 244 CLR 352; Martin v Osborne (1936) 55 CLR 367, considered.
R v PRINGLE
[2017] SASCFC 9Court of Criminal Appeal: Kelly, Nicholson and Hinton JJ
KELLY J.
I agree with the orders proposed by Nicholson J and with his reasons.
NICHOLSON J.
Introduction
On 26 May 2016, following a trial before a jury in the District Court, Barry Robert Pringle was convicted of the offence of trafficking in a large commercial quantity of a controlled drug.[1] He has raised nine grounds of appeal, a number of which contain numerous sub-grounds.
[1] Contrary to section 32(1) of the Controlled Substances Act 1984.
Appeal ground 2 raises a question of law for which permission to appeal is not required. A single Judge of this Court, at an earlier hearing, granted permission to appeal on grounds 6 and 7. All other grounds, being grounds 1, 3, 4, 5, 8 and 9, were referred to the Court of Criminal Appeal for the question of permission to be heard and decided at the same time as the appeal.
Brief summary of the prosecution case
The appellant was the proprietor of a business, Bench Excavations, which operated from premises comprising approximately 4,000 square metres at Port Adelaide. On 14 June 2013, at about 12.40pm, police attended at the Port Adelaide premises for the purpose of conducting a search of a shipping container located on the premises. The appellant was not present but a number of other persons, including various employees were present. A person who identified himself as John Winslet, the manager of the business, spoke with the police. The shipping container was secured with three padlocks. No keys were made available to the police and they had to remove the three padlocks using an angle grinder. At some time between 2.40 and about 3pm, the police gained access to the shipping container and located boxes containing approximately 90 bags of cannabis, weighing, in total, 38.2 kilograms.
On that same day, the police also searched an external room at residential premises in Walkerville where the appellant lived with his partner, Karen Rutland. The room contained hydroponic equipment and other evidence suggesting that cannabis had recently been grown and harvested there. The appellant was originally charged with a second count, that of possessing prescribed equipment. However, shortly before the trial on the trafficking charge commenced, an application for severance of the two charges was upheld by the trial Judge.
The order for severance was based, essentially, on the concern that the possessing prescribed equipment charge imposed a burden of proof on the appellant which conflicted with the burden of proof assumed by the prosecution with respect to the trafficking charge, to the potential confusion of the jury. Nevertheless, the Judge held that all of the evidence bearing on the charge of possessing prescribed equipment was admissible in the trial of the trafficking charge.
The charge
The offence of trafficking in a large commercial quantity of a controlled drug is comprised of the following four elements, each of which must be proved by the prosecution beyond reasonable doubt.[2]
(i)the substance found by the police was a controlled drug;
(ii)the appellant trafficked in the substance;
(iii)when trafficking in the substance the appellant did so knowing that the substance was a controlled drug; and
(iv)the quantity of the controlled drug trafficked was a large commercial quantity.[3]
[2] Section 32(5) of the Controlled Substances Act 1984 provides that where it is proved that the defendant had possession of a trafficable quantity of a controlled drug, a presumption as to the defendant’s belief or intention concerning sale arises in particular defined circumstances. It is arguable that the presumption was available in the present case. However, because the prosecution relied on alternative pathways leading to guilt of the offence (referred to further below) it elected to assume the usual burden of proving all elements of the offence beyond reasonable doubt without relying on any otherwise available presumption.
[3] The relevant regulation under the Controlled Substances Act 1984 prescribes a quantity of two kilograms or more of cannabis to be a large commercial quantity.
Element (i) was never in contest. It was common ground that the substance located by the police and relied upon by the prosecution to make out the charge was a quantity of 38.2 kilograms of female cannabis head material, packaged roughly in one pound lots. Elements (ii), (iii) and (iv) were in dispute.
The definition of “traffic” in section 4(1) of the Controlled Substances Act 1984 is in the following terms.
Traffic in a controlled drug means–
(a)sell the drug; or
(b)have possession of the drug intending to sell it; or
(c)take part in the process of sale of the drug;
The prosecution case was that either (b) or (c) or both had been proved as against the appellant beyond reasonable doubt.
Insofar as paragraph (b) is concerned, section 4(1) contains the following inclusive definition.
Possession of a substance or thing includes–
(a)having control of the disposition of the substance or thing; and
(b)having joint possession of the substance or thing;
Insofar as paragraph (c) of the definition of “traffic” is concerned, subsections 4(4) and 4(5) provide as follows (emphasis supplied).
(4)For the purposes of this Act, a person takes part in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
(5)For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a) storing the drug;
(b) carrying, transporting, loading or unloading the drug;
(c) packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d) guarding or concealing the drug;
(e) providing or arranging finance (including finance for the acquisition of the drug);
(f) providing or allowing the use of premises or jointly occupying premises.
The primary issues before the jury were whether the appellant was proved to have been in “possession” of the 38.2 kilograms of cannabis with an intention to sell at least a large commercial quantity, that is, two kilograms or more, thereof or whether the appellant was proved to have taken part in the process of sale of the 38.2 kilograms of cannabis or, at least, a large commercial quantity thereof. Insofar as the latter alternative is concerned, it was the prosecution case that the appellant took or participated in a step in the process of sale of the cannabis in that his involvement, at the least, fell within paragraphs (a), (d) or (f) of section 4(5).
The factual basis of the prosecution case in more detail
The prosecution case was wholly circumstantial and required the jury to be directed in accordance with and to adopt the required reasoning as explained in Barca v The Queen,[4] Peacock v The King[5] and Plomp v The Queen.[6]
[4] [1975] HCA 42; (1975) 133 CLR 82.
[5] [1911] HCA 66; (1911) 13 CLR 619.
[6] [1963] HCA 44; (1963) 110 CLR 234.
The primary matters of fact relied on by the prosecution, based on the evidence and inferences to be drawn are summarised in the following paragraphs. Much of the evidence in support of these matters is not in contest other than as will be referred to when considering the various grounds of appeal. The availability of certain inferences, the relevance of certain facts and inferences and the ultimate inference to be drawn as to guilt are in contest.
The appellant was the sole shareholder and director and, in effect, the controlling mind of the company BRP Holdings Pty Ltd. That company owned premises in Lipson Street, Port Adelaide from where the company conducted its business. The premises had been purchased by BRP Holdings Pty Ltd in April 2012. The appellant is also the registered owner of the business name Bench Excavations and has been so since the date of registration of that business name, 22 May 2007.
The shipping container in question was purchased in the name of Bench Excavations in February 2010. As at the date of the police search of the shipping container, 14 June 2013, it was situated at the Port Adelaide premises. It is an available inference that the appellant, as owner of the shipping container and as the controlling mind of the company that owned the Port Adelaide premises, arranged for the shipping container to be moved to and located on the Port Adelaide premises sometime after those premises were purchased in April 2012.
On 14 June 2013, the shipping container was sealed with three padlocks. The keys were not available to the police and the padlocks were of a type such that a police locksmith was unable to gain access to the container. Access to the container had to be obtained by using an angle grinder. The container was under the cover of a large industrial carport in a prominent position in the yard of the premises.
In addition to the 38.2 kilograms of cannabis, the contents of the container included various documents that on their face showed a connection with the appellant. Some such documents were seen by Senior Constable Flavel when he first entered the container on 14 June 2013 and a box of such documents was seized by police three days later on 17 June 2013. The box contained invoices for the years 2010 and 2011 to Bench Excavations and were addressed to the appellant at his residential address and a previous work address. The container had been left unsecured between 14 June and 17 June 2013.
The police attended the Port Adelaide premises on 14 June 2013 at about 12.40pm and made various attempts over the next two hours to open the container in view of a Mr John Winslett who identified himself as the site manager. The police attempted to telephone the appellant on a number of occasions but were unable to speak to him. The police officer concerned could not recall whether or not he left a message. The container was opened some time between 2.40 and about 3pm.
According to the billing record of outgoing calls and charges for the phone number subscribed to by the appellant, a number of calls were made from that phone number, on 14 June 2013, to Karen Rutland, the appellant’s partner. The prosecution relies on this evidence for the inference that the appellant was using his phone service on that day.
According to the call charge records, the appellant’s phone also called:
(i)the number of a man called Damien Morley at 2.10pm (22 seconds) 9.15pm (28 seconds) and 10.43pm (text message);
(ii)the number of John Winslett at 2.12pm (2 minutes) 2.38pm (5 seconds) and 2.41pm (54 seconds); and
(iii)the number of a man called Simon Jones at 2.50pm (2 minutes) 7.18pm (4 seconds) and 7.56pm (3 seconds).
Apart from any inference that might be available from the duration of the various calls, there was no evidence as to whether or not direct contact was in fact made by the appellant with any of Damien Morley, John Winslett or Simon Jones, nor as to whether any message was left at a message service available to any of those men or, if so, whether access to any such message was obtained. There was no evidence as to the content of any message that may have been left or conversation that may have been conducted.
Fingerprints were located on two of the plastic bags containing cannabis found in the container. One of the fingerprints belonged to a man called Ian Thompson. According to the evidence given by Ian Thompson, he worked for the appellant for three years at Bench Excavations when it conducted its business from premises at Royal Park. Ian Thompson finished working for the appellant in January 2010. Between 2010 and 2014, Ian Thompson worked for a shop called “Bloomin’ Hydro”. He said that at the Bloomin’ Hydro shop he handled lots of plastic shopping bags. He did not recall the appellant as being a customer of Bloomin’ Hydro.
However, the registered owner of the business name Bloomin’ Hydro was the man called Damien Morley. The prosecution relied on this fact as permitting an inference that it was not merely a coincidence that the appellant called Mr Morley on the afternoon of 14 June 2013 at 2.10pm.
The man Simon Jones, whom the appellant’s phone called or attempted to call at 2.50pm, was found by the police at or about 5pm on 14 June 2013 in the external room at the appellant’s Walkerville premises, apparently in the process of dismantling an hydroponic system. The police located in the room four large pots, eight large light shades, nine transformer boxes, an irrigation system and a broom. The pots did not contain any growing cannabis. Fingerprints matching those of Simon Jones were found on transformers forming part of the hydroponic equipment in the room. Fingerprints matching those of the appellant were found on two lightshades.
The prosecution maintains that the evidence supports an inference that the appellant contacted Simon Jones at 2.50pm on the day in question in order to arrange for him to dismantle and remove the hydroponic system.
The prosecution contends that it was open to the jury to infer, to the effect, that at 2.50pm the appellant did contact Simon Jones; that this was because the appellant had become aware (probably through telephone contact with John Winslett) that the police were intending to search or were in fact searching the shipping container; that the appellant knew that they would find the cannabis; and that the appellant perceived a risk that the police would thereupon attend at his Walkerville premises and locate the hydroponic system unless it could be dismantled and removed in the meantime. In short, the prosecution contends, inter alia, for the inference that the appellant was aware of the cannabis in the shipping container.
Unchallenged expert evidence given by Detective Sergeant Nguyen was to the effect that a sophisticated hydroponic system for the cultivation of cannabis can include equipment such as high wattage lighting, irrigation systems, cooling exhaust fans, carbon filters and plastic sheeting. He also expressed the opinion that a hydroponic system for cannabis cultivation may also include ropes to support the cannabis plants when, as they mature, the branches become heavier due to the presence of the thick oily cannabis head material. Many of these features including such a rope system were present in the room.
Police officers who attended gave evidence that they observed cannabis fronds or leaves or leaves that looked like cannabis leaves, that there was a smell of cannabis and that the room was unusually warm or muggy.
The prosecution also relies upon the evidence relating to the cannabis grow room for an inference that the appellant, as at shortly prior to 14 June 2013, had the means and the knowledge needed to produce cannabis; a strand of circumstantial evidence relevant to whether the appellant had been in possession of some or all of the cannabis in the shipping container.
The prosecution did not seek to establish that the appellant had produced or was solely in possession of all of the 38.2 kilograms of cannabis found in the shipping container. It was accepted, during the prosecution address to the jury, that the hydroponic equipment located in the Walkerville premises was not capable of producing anywhere near all of the 38.2 kilograms of cannabis found. However, the prosecution adduced evidence from Detective Sergeant Nguyen to the following effect.
Due to the high profit margin there is now a well-established trend towards groups of persons forming syndicates to grow cannabis, which once harvested, is pooled together to make commercial quantities of packaged cannabis which is then transported for sale interstate.
The prosecution case was that the appellant was in possession, whether alone or jointly with others, of all of the cannabis found in the shipping container. However, the prosecution was unable to and did not need to demonstrate from where the cannabis had been sourced or as to whether or not it had been sourced from persons other than the appellant.
The prosecution acknowledged that the phone call to Damien Morley’s phone service, the fingerprint of Ian Thompson on one of the bags, the involvement of Simon Jones, the expert evidence of Detective Sergeant Nguyen and the expert evidence of Tanya McKew to the effect that four cannabis plants would produce up to six pounds of cannabis, considered together, raised as a possibility that the cannabis had been sourced from various locations.
According to the prosecution, it was open to the jury to find, on the evidence, that there had been a pooling with others of cannabis, that the appellant was in possession of the whole intending to sell it and that the appellant had taken part in the process of sale of the cannabis by storing, or concealing the cannabis or providing or allowing for the use of premises for the purpose of its sale.
The Judge summarised the relevant pieces of circumstantial evidence relied upon by the prosecution as sufficient to enable the jury to infer guilt of the offence beyond reasonable doubt in the following terms.[7]
Those pieces [of circumstantial evidence] would appear to encompass the following matters: the fact that the drugs were located in a container on land owned by one of the accused’s companies; the fact that the container belonged to an entity, namely Bench Excavations, controlled by the accused; the fact that the container was securely locked with some three padlocks, the amount and value of the drugs that were located in the container, the existence of documents located in the container with the names Bench Excavations and Barry Pringle on them; the fact that calls were made from the accused’s phone to phones in the names of Mr Morley, Mr Jones, Mr Winslett and Ms Rutland at or about the time the police had arrived, or after the time the police arrived at the Lipson Street premises and were seeking to gain access to the container; the fact that one of the persons that the accused rang, or a phone in the name of the accused, was connected to a phone in the name of Mr Jones; the fact that that man was later located in the accused’s home in a room which was set up for the cultivation of cannabis; the fact that Officer Marsh observed a strong smell of cannabis in that room, that Officers Marsh and Munn noted that it was warm and that Marsh and McFarlane observed what looked like cannabis leaf below the floor; the existence of the accused’s fingerprints on some of the equipment in that room; the fact that one the Crown case the man Morley was a proprietor of a hydroponic shop which sold things like pots, pipes for pumping water and hydroponic nutrients; and the fact that a fingerprint of a man employed by Morley, on the Crown case, Mr Thompson, his fingerprint was found on one of the plastic bags in the container.
[7] Summing up at p11-12, AB 59-60.
As I have indicated, the case against the appellant was wholly circumstantial. The jury were directed accordingly and returned a unanimous verdict of guilty of the offence of trafficking in a large commercial quantity of a controlled drug.
Appeal ground 1 – the trial miscarried as a result of the wrongful admission of evidence
There are eight subgrounds, each identifying an aspect of the evidence to which objection is taken.[8]
[8] The eight subgrounds are grounds 1.1 to 1.7 inclusive and 1.9. Subground 1.8 in the original Notice of Appeal is not now relied upon.
Subground 1.1
By subground 1.1, the appellant contends that the evidence of the presence of the hydroponic equipment at the Walkerville premises constituted inadmissible discreditable conduct evidence and should not have been admitted. The appellant has submitted that, save for the presence of cannabis fronds of unidentifiable age and provenance, there was no evidence that the room had been used to cultivate cannabis and, a fortiori, no evidence that the room had been used to cultivate any of the cannabis located in the shipping container.
The Judge, following a voir dire hearing, ruled that all of the evidence of: the existence of the hydroponic equipment, as found; the finding of fingerprint impressions matching the appellant’s fingerprints on two lightshades in the room; the fronds or leaves as found by the police and identified by two police officers as cannabis leaf fragments; the smell of growing cannabis recognised by one of the police officers; and the muggy atmosphere in the room observed by one of the police officers, was admissible as probative of the fact that the appellant had knowledge of the means for producing cannabis and the means to produce cannabis. The appellant contended that the evidence was wrongly admitted for four reasons.
(i)Contrary to the reasons given by the trial Judge, the evidence was not capable of establishing knowledge of or access to the means of production of cannabis. As such there was no foundation for the admissibility of the evidence for a non-propensity purpose, as required by section 34P of the Evidence Act 1929.
(ii)The evidence did no more than expose a general propensity on the appellant’s behalf to criminal behaviour involving cannabis and as such the evidence contravened the prohibition under section 34P(1) of the Evidence Act.
(iii)Even if the evidence was capable of demonstrating a specific propensity or disposition such that it may have been admissible under section 34P(2)(b) of the Evidence Act, the evidence did not possess the necessary probative value in the circumstances.
(iv)Even if the evidence did have a non-propensity use, that use could not be kept sufficiently separate from its prohibited use, insofar as the jury was concerned, and as required by section 34P(3).
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.
It is accepted that, if the evidence permitted only an inference of such a general propensity as contended for by the appellant, it would not have been admissible for that purpose bearing in mind the requirements of section 34P.
It was submitted by the appellant that the potential use of the evidence was limited in this way because there was no evidence that the cannabis in the shipping container had been grown hydroponically or by using the hydroponic equipment at the Walkerville premises or that the hydroponic equipment had been in working order or that the equipment could have been or was, in fact, used to produce any or all of the cannabis in the container or that the appellant knew how to cultivate or had in the past cultivated cannabis.
It can be accepted that there is no direct evidence of these matters. However, the evidence concerning the grow room at the appellant’s residential premises (including that of the police concerning leaves, smell and mugginess) considered in conjunction with the facts: that the hydroponic system was being dismantled during the very afternoon of the day when police searched the shipping container owned by the appellant on premises owned by the appellant and in which was found 38.2 kilograms of packaged cannabis; that the appellant had the means and opportunity to have contacted Simon Jones earlier that afternoon; and that he had at the very least, attempted to do so, combine to leave open an inference or inferences in line with those asserted by the prosecution. The weight to be given to any such inference or inferences, particularly in the context of the prosecution’s wholly circumstantial evidence case, was a matter for the jury.
I accept the prosecution submission that this evidence was relevant and strongly probative of facts in issue being:
(a) that at the time the cannabis was being stored in the shipping container, on 14 June 2013, the appellant knew how and had the means to produce cannabis; and
(b)that shortly prior to 14 June 2013, the appellant had access to hydroponically grown cannabis capable of forming part of the cannabis found in the shipping container.
The evidence of the grow room when considered in conjunction with other circumstantial evidence was also strongly probative of a third fact in issue:
(c)that the appellant had knowledge of the cannabis in the container.
In this latter respect, the conduct of the appellant that afternoon, to be inferred from the telephone records and Simon Jones’ conduct, was consistent with his having knowledge that the police were about to locate or had located cannabis in the shipping container and with a concern that the police may, as a result, proceed to investigate his home shortly thereafter. It was open to the jury to infer that the appellant did contact and instruct Simon Jones that afternoon as a consequence of his knowledge of the contents of the container.
The fact that the evidence in question also was capable of demonstrating a general propensity on the appellant’s behalf to criminal behaviour involving cannabis is not sufficient, alone, for the evidence to be excluded. Its admissible permissible uses are plainly different from any inadmissible general propensity use. A jury, adequately instructed, would be able to draw that distinction.
Subgrounds 1.2 and 1.3
By subgrounds 1.2 and 1.3, the appellant contends that the evidence given by police officers purporting to identify cannabis fronds or leaves in the room and purporting to identify a smell of cannabis in the room was, in each case, inadmissible opinion evidence.
Senior Constable Marsh gave evidence that the room was set up to grow hydroponic cannabis and that he observed cannabis leaf below wooden slats in the floor. He also said that the room was muggy and that he could smell growing cannabis or cannabis that had been grown. Senior Constable McFarlane said that he observed what he believed to be dried cannabis leaves on the ground. However, he explained that he had seen what was in effect three or four pieces of leaf not complete five or six or nine stemmed leaf. He knew from his experience that the pieces of leaf were cannabis.
Senior Constable Marsh has been a police officer since 2007, he had worked at Operation Mantle, focussing on street level drug dealing, for a period between April 2013 and April 2014 and again between November 2014 to April 2015. He described his experience in dealing with low level street dealing, packaging of cannabis, cannabis equipment, and equipment used to cultivate cannabis. He also had experience with dried cannabis, growing cannabis, and in searching houses, warehouses, cars and so on in order to locate cannabis and cannabis related items. As at June 2013, he had attended cannabis cultivations between 10 and 20 times.
Senior Constable McFarlane has been a police officer since 2005. He has completed an Advanced Diploma in Public Safety Investigations which dealt with drug investigations. He told the Court that he had been involved in investigating cannabis related offences and had attended 10-12 indoor cannabis cultivations.
During the voir dire, following which this evidence was admitted, Senior Constable McFarlane said that he believed he had seen a cannabis leaf and qualified this in these terms.
Just from my own experience from looking at cannabis leaves, but on a chemical level, no, I didn’t.
Senior Constable McFarlane also said.
That sort of shape and structured leaf is something that I’ve only ever seen as cannabis leaf. If there is another plant that exists that has the same structure and proportion that looks exactly like a cannabis leaf but isn’t, then, then I – then basically to me that leaf looked like a cannabis leaf. I believe it was a cannabis leaf, if there is another plant that looks exactly like that them I’m not discounting that it couldn’t have been that but I believe from looking at that and from my experience at looking at other leaves that a cannabis leaves that that was a cannabis leaf.
During the trial Senior Constable McFarlane gave this evidence.
So I observed approximately three to four pieces of cannabis leaf, which is the leaves to a mature plant. The cannabis leaf I recall is or was, I should say, just spiny leaf, I only saw individual leaves not the traditional five, six or nine stemmed leaf, so I just seen bits of leave, spikey, narrow leaf, they range between 3-10 cm had a jagged edge, which I recall, and I knew that from my experience, to be cannabis.
During the voir dire Senior Constable McFarlane said that he had been trained in identification of cannabis leaf as a police officer but he had no tertiary qualifications in botany.
During his cross-examination, Senior Constable Marsh confirmed that the cannabis leaf he observed below the slats in the floor was not photographed nor seized nor analysed and that he himself is not trained in botany. Senior Constable Marsh also agreed that his observations of cannabis leaf, smell and mugginess did not feature in his contemporaneous notes although in a witness statement prepared on 31 August 2013 (one and a half months after the arrest) reference is made to a strong cannabis smell and remains of cannabis leaf that had fallen through the lattice work of a floating floor. The burden of the cross-examination, in this respect, was to the effect that Senior Constable Marsh’s observations that something was seen and something was smelt were unreliable. It was not put to him that what he observed was something other than cannabis leaf and that what he smelt was something other than a cannabis smell. It can be inferred that cross-examining counsel had no instructions as to an alternative explanation for anything that may have been seen and smelt.
Senior Constable McFarlane was also cross-examined as to the reliability of his recollection of what he saw. He also made no contemporaneous note but did include in his statement of 13 July 2013, approximately one month after the arrest, that he had observed several leaves on the ground which he believed to be cannabis leaves. Ultimately, the proposition was put and agreed to that “all you’ve got is your word for it”. This time, it was put to Senior Constable McFarlane in cross-examination that his evidence was incorrect and “that it [his observation of the leaves] didn’t happen” which proposition Senior Constable McFarlane said was incorrect. In effect, the cross-examination was directed to persuading the jury that no leaves at all were seen in the room. Again, it is to be inferred that counsel was not instructed as to any alternative characterisation of the leaves in the event that the jury accepted that Senior Constable McFarlane did in fact observe them.
The appellant’s challenge to the police evidence, in essence, was based on the contentions that the macroscopic or visual identification of leaf fragments, as originating from a cannabis plant, and the recognition of the smell of cannabis were not the proper subject matter for expert evidence and that the police officers concerned were not qualified to give such evidence. Whilst these contentions were developed in the context of the leaf evidence, they were relied on by the appellant for his argument that the evidence of smell of cannabis present in the room was also inadmissible.
The police officers concerned were experienced, through their work as investigating officers, in matters to do with cannabis use and cannabis production including by use of hydroponic equipment. Each of the police officers had significant experience of having encountered dried cannabis and growing cannabis plants. The fact that the police officers had a number of opportunities to observe leaves subsequently identified as cannabis leaves was not disputed on the voir dire or at the trial. I accept the submission put on behalf of the prosecution that the evidence given in this context was not strictly expert evidence. It was not to be subjected to the usual, strict, constraints relevant to the admissibility of expert evidence.
The evidence given was evidence of fact based on the observations of the police officers informed by their experience of what a cannabis plant and its leaf looked like and smelt like. There will be situations where any person might be able to give evidence of this nature based on the general experience of all or most persons. For example, in a circumstantial evidence case, evidence by a lay witness that upon entering a bathroom they noted a smell of or akin to lemon scented disinfectant would be admissible, if probative of a fact in issue; an observation by a lay witness that they observed what appeared to be blood at the scene of a motor vehicle incident would be admissible, if probative of a fact in issue.[9]
[9] Other relevant circumstances may need to be considered in order to assess the weight to be given to such evidence. For example, if the car contained smashed bottles of sauce or wine such may undermine the weight to be given to the observation.
There is no reason why a similar approach should not be taken with respect to observations based on experience, but limited only to members of a particular group of persons, where it can be shown that the witness has relevant experience on the basis of which the reliability of their observations can be assessed and given weight. In R v Barker,[10] an issue before the Court of Criminal Appeal concerned the admissibility of evidence of a police officer as to her knowledge of the use of particular appliances in the consumption of Indian hemp. King CJ (with whose reasons Matheson and O’Loughlin JJ agreed) said this.
The debate at the trial as to the admissibility of this evidence was conducted upon the basis that it was induced as the opinion evidence of an expert and her Honour treated at least part of the witness’ evidence as evidence of that kind. Appraisal of the evidence indicates to me, however, that it was not opinion evidence at all. Constable Raven was relating her observations and experiences over years of contact with Indian hemp and the uses of Indian hemp, and, in particular, with the appliances which are used for smoking it. She was well able to identify Indian hemp and its smell. She had seen the bongs being used for the smoking of Indian hemp. She had on a great many occasions seen pipes, including the bong type pipe, and joint clips, of the kind found in this shop, at places where quantities of Indian hemp were found. She had also on many occasions detected remnants of Indian hemp in such appliances and had that confirmed on analysis. None of this evidence was opinion evidence it merely recounted her actual observations and experience.
[emphasis supplied]
[10] (1988) 34 A Crim R 141 at 143. See also, Anderson v The Queen (1992) 60 SASR 90 at 102 (Olsson J).
The position is analogous to that line of authorities which stand for the proposition that evidence can be admissible where it consists of a generalisation from observed facts within the personal experience of the person in a field outside ordinary lay experience. An example is the evidence of a witness possessed of considerable experience in the driving and movement of articulated vehicles who gives evidence to the effect that such vehicles have a tendency to swing out when rounding a curve and that this tendency can be more marked when the road surface is wet.[11]
[11] Wheal v Bottom (1966) 40 ALJR 436 and see also, Lawler v Leeder (1981) 1 SR (WA) 389 at 391, Ritz Hotel Ltd v Charles of the Ritz Ltd (No 7) (1987) 14 NSWLR 104 at 105 and the other authorities cited in JD Heydon Cross on Evidence, LexisNexis Butterworths Australia, 8th ed, 2010 at footnotes 18 and 19 of paragraph [29025].
In the present case, the evidence of the police officers concerned was admissible as a piece of circumstantial evidence to be considered together with the observations of the hydroponic equipment in the room rendering an inference open to the jury to the effect that the room had been used to grow cannabis rather than something else. The reliability of the police observations is enhanced by the circumstances in which they were made – a room containing hydroponic equipment in the process of being dismantled. It is true that insofar as the inference that the room had recently been used to grow cannabis is relied upon, there is an element of circularity to the reasoning. However, where circumstantial evidence reasoning is concerned one piece of circumstantial evidence can gain strength from another and vice versa. Here, the evidence concerning the grow room when considered as a whole is capable of supporting the prosecution case.
The fact, relied upon by the appellants, that the expert evidence of the forensic scientist, Tanya McKew, to the effect that she would need to examine leaf fragments under a microscope with a view to observing particular hairs unique to cannabis in order to “positively” identify the leaf fragments as cannabis, does not serve to preclude the admissibility of the evidence of the police officers as a strand in the prosecution’s circumstantial evidence case. What might count as or be required in order to satisfy scientific proof does not necessarily dictate what is required for legal proof, particularly where an item of circumstantial evidence is concerned. I add, that different considerations may well apply in circumstances where, say, the identification of a leaf as a cannabis leaf constituted the element of an offence or an essential intermediate link in a chain of proof towards guilt of an offence,[12] such that proof beyond reasonable doubt would be required.
[12] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at [4]-[6], 579 (Dawson J with whose reasons Mason CJ, Toohey and Gaudron JJ agreed).
I would reject appeal grounds 1.1, 1.2 and 1.3.
Appeal grounds 3 and 7.2
On the basis that the evidence concerning the hydroponic equipment in the external room of the Walkerville premises and the evidence of the police officers as to what they saw and smelt was admissible such that grounds 1.1, 1.2 and 1.3 should be rejected, it is convenient now to consider the appellant’s grounds 3 and 7.2 concerning the attack on the Judge’s directions as to the use of this discreditable conduct evidence and ground 5 raising the contention that the Judge’s directions in this respect undermined the standard of proof.
Grounds 3 and 7.2 complain about the directions given by the Judge as to the use of the discreditable conduct evidence and are in the following terms.
3.The learned trial Judge erred in directing the jury that evidence of the hydroponic equipment at the Walkerville premises indicated the applicant had “both the knowledge and the means to produce cannabis”.
7.2The applicant’s trial miscarried as a result of the learned trial Judge’s failure to ... direct the jury that the evidence of the “grow room” at the Walkerville premises was not admissible in relation to the prosecution case as to take part in the sale of cannabis.
The argument put by the appellant with respect to these grounds, during submissions, extended beyond the terms of the grounds themselves and challenged more generally the directions given as to the permissible use of the discreditable conduct evidence. Before considering those directions, it will be helpful to provide, by way of context, a brief summary of the structure of the summing up.
His Honour commenced with a series of conventional directions dealing with the presumption of innocence, the prosecution’s burden of proof, methods (in the abstract) for the assessment of the evidence of witnesses, the role of inferential reasoning and a relatively standard circumstantial evidence direction, albeit one in the abstract unrelated to any of the evidence in the case. His Honour then summarised the factual basis of the prosecution case, interspersed with a recitation of prosecution and defence submissions as to the nature of the inferences that might or ought not, respectively, be drawn from the various items of circumstantial evidence dealt with. His Honour canvassed the circumstantial evidence in quite some detail.
Perhaps unusually, his Honour summarised the evidence and the submissions by the parties as to competing inferences, in advance of identifying for the jury the nature of the offence charged and the elements of that offence. This is not an offence where the elements can be simply stated. As earlier indicated element (ii), the issue of trafficking, requires quite a complex explanation of its statutory components. As a consequence, it is possible the jury or some members of the jury may well have struggled, throughout this evidence discussion, to relate the various competing submissions to the issues in the case.
At one point, towards the end of the Judge’s evidence discussion, his Honour restated for the jury the following prosecution submission.
The prosecution says you may infer from the existence of the accused’s fingerprints on the lightshade that he had been in the room and that he was actively involved with the production of cannabis. The Crown says that this fact, again taken in conjunction with a number of the others I have mentioned, renders it more likely than not that he was knowingly in possession of the cannabis or knowingly taking part in its sale.[13]
[emphasis supplied]
After completing the discussion of the evidence his Honour concluded this section of his summing up in the following terms.
These then in general, ladies and gentlemen of the jury, are the facts, the pieces of circumstantial evidence upon which the Crown relies upon which it submits you may infer knowledge of the accused of the cannabis in the container which he was either intending to sell or knowingly taking part in its sale.
[13] It is acknowledged that this is not a direction by the Judge but rather a recitation of a submission made by the prosecution. However, later in the summing up, his Honour posits a proposition along the lines of that in italics by way of direction.
The Judge then reminded the jury of some critical aspects of his earlier circumstantial evidence direction including a restatement of the propositions: that the jury must first decide which of the facts “you accept as established by the evidence”; that the jury must then “consider what inferences or what conclusions you are prepared to draw from the combined weight of those established facts”; that the jury could not find that the accused was in possession of the drugs with an intention to sell or was knowingly taking part in the process of sale unless “that is the only rational inference or conclusion that the established facts considered as a whole enable you to draw”; and that if the jury considers “there is a reasonable hypothesis consistent with innocence, the accused cannot be convicted”. The Judge emphasised that the prosecution case relied on the strength of all of the circumstantial evidence in accordance with its combined weight and did not rely on each piece of evidence being considered in isolation.
To this point, the Judge had referred to the inferences that the prosecution contended for, including that the accused was in possession of the drugs with an intention to sell or was knowingly taking part in the process of sale. However, his Honour had not yet identified for the jury the elements of the offence of trafficking in a large commercial quantity of a controlled drug nor the definition of trafficking and the aspects of that definition relied upon by the prosecution. Those aspects were that the appellant was in possession of a commercial quantity of the cannabis found in the container with an intention to sell it[14] or that the appellant was taking part in the process of sale of a commercial quantity of the cannabis found in the container[15] and, in this latter case, the definitional aspects of what it means to “take part in the process of sale”.[16]
[14] Paragraph (b) of the definition of “traffic in a controlled drug” in section 4(1) of the Controlled Substances Act 1984.
[15] Paragraph (c) of the definition of “traffic in a controlled drug” in section 4(1) of the Controlled Substances Act 1984.
[16] Subsections 4(4) and 4(5) of the Controlled Substances Act 1984.
His Honour then proceeded to direct the jury with respect to the discreditable conduct evidence comprised of the finding by the police of the hydroponic equipment in the Walkerville premises and any inferences that might properly be drawn therefrom. It is necessary to set out this part of his Honour’s summing up in full. I have numbered each paragraph for ease of reference.
(1)I now turn to the direction that I mentioned earlier about the equipment, the hydroponic equipment, found at the accused’s house which is commonly used, you heard, for the cultivation of cannabis.
(2)The fact that the accused has such equipment in his house is not the subject of any criminal charge. Usually in a criminal trial evidence of another alleged crime which is not the subject of an actual charge is not admissible because it is only the evidence relating to the actual charge which is relevant for a jury to hear and evaluate.
(3)You in this trial have been permitted to hear this evidence, but I need to give you a direction as to the purpose for which this evidence may be used. You may use the evidence, if you are prepared to accept it, to show first that the accused owned property, domestic property in which there was hydroponic equipment.
(4)You may use the fact of the accused’s fingerprints being found on the light shade in the room to show that he was aware that the equipment was there, and you may use the evidence to show that as a result the accused had both the knowledge and the means to produce cannabis.
(5)You may also use the evidence of Officer Marsh with respect to detecting a smell of growing cannabis and Officers Marsh and McFarlane with respect to seeing leaf material that they believed bore a resemblance to cannabis leaf, even though there was no evidence to prove it actually was cannabis. If you accept that evidence, you may use it to show that this room was being used, or was recently used for the growing of cannabis.
(6)In summary, you may use this evidence, if you accept it, to conclude what the accused was doing at his domestic premises at the time drugs were found in the container, that he was combining his knowledge of cannabis with the means to produce it.
(7)If you accept that he was acting in this way in his domestic premises, you may think it more likely than not that he was knowingly in possession for the purposes of the sale of the cannabis at his commercial premises.
(8)Alternatively, you may think these facts make it more likely he was taking a step in the process of selling cannabis by storing or otherwise providing his premises for it, or guarding it, or concealing it.
(9)These then are the uses which you may make of that evidence. There are, however, uses which you are not permitted to make of the evidence. You are not permitted to use the evidence to reason that because the accused may have been involved in the cultivation of cannabis at his home, that accordingly he is the sort of person who would traffic in illicit drugs in the ways alleged by the Crown, and that he is therefore guilty of the charge before the court.
(10)You must not use the evidence in that way because that would be to reason that because he may have done something unlawful in the past, he must have committed and be guilty of this offence, and that is a form of reasoning which is not permitted.
After dealing with the discreditable conduct evidence in this way, the Judge provided a series of directions as to the nature of and elements of the offence in question and provided an explanation of the law dealing with aspects of the elements including, for example, the concept of “to traffic”, the concept of “possession” and the concept of “taking part in the process of sale”. After that his Honour provided another summary of the evidence but essentially without commentary and a summary of the prosecution and defence final addresses. His Honour concluded by, inter alia, reminding the jury of the need for proof beyond reasonable doubt of the charge.
In his argument dealing with the Judge’s directions on the use of the discreditable conduct evidence, the appellant first contended that the directions were flawed because “as a matter of content, [the evidence] did not establish the appellant had the knowledge or means to grow cannabis”. In other words, the directions were flawed because they were based on evidence that was inadmissible in the first place and did not permit the inferences relied on by the prosecution to be drawn in any event. The appellant maintained that the evidence in question revealed no more than a predisposition to offend with respect to cannabis which rendered the evidence inadmissible in accordance with the requirements of section 34P of the Evidence Act.I have already dealt with the question of admissibility of the evidence concerning the Walkerville grow room and the police observations in my discussion of section 34P and I have identified the proper inferences open to the jury if they were to accept that evidence.
However, the appellant also contends that having admitted the evidence (wrongly) the Judge in his directions did not properly address the permissible and impermissible uses of the evidence in accordance with the requirements of section 34R of the Evidence Act.
Section 34R of the Evidence Act is in the following terms.
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
Section 34R imposes an important obligation on a trial Judge to identify both the permissible and impermissible uses of any discreditable conduct evidence that has been admitted. The primary purpose of this is to ensure that the jury does not reason in a manner prohibited by section 34P(1). It is important (and required by section 34R) that a Judge direct not just as to impermissible uses but also as to the permissible uses of such evidence. Any failure to do so may well increase the risk of its improper use by a jury.[17] The failure to properly direct as to permissible uses will be an error of law just as will be a failure to properly direct as to impermissible uses.[18] It is another question as to whether or not, in particular circumstances, any such error of law will necessarily warrant the setting aside of a conviction.[19]
[17] See R v Forrest [2016] SASCFC 76; (2016) 125 SASR 319 at [47] (Kourakis CJ, with whose reasons Kelly and Lovell JJ agreed).
[18] See generally R v Perara-Cathcart [2015] SASCFC 103 at [12]-[18] (Kourakis CJ) and [56]-[58] (Stanley J).
[19] See the different approaches adopted by Kourakis CJ and Stanley J, respectively, in R v Perara-Cathcart [2015] SASCFC 103 at [12]-[18] and [56]-[58] respectively.
The Judge in this case directed the jury as to two permissible uses, being the two possible intermediate inferences available as identified in paragraphs (4) and (5) as summarised in paragraph (6) of the direction set out above. His Honour then identified two, ultimate, permissible uses of the evidence in paragraphs (7) and (8) of the direction: first, the drawing of an inference that the appellant was “knowingly in possession for the purposes of the sale of the cannabis at his commercial premises”; and second, the appellant “was taking a step in the process of selling the cannabis by storing or otherwise providing his premises for it, or guarding it, or concealing it”.
His Honour went on to direct as to an impermissible use, namely, “to reason that because the accused may have been involved in the cultivation of cannabis at his home, that accordingly he is the sort of person who would traffic in illicit drugs in the ways alleged by the Crown and that he is therefore guilty of the charge ...” (paragraph (9)). His Honour amplified this direction by telling the jury that to reason in this way would be to reason that “because [the appellant] may have done something unlawful in the past, he must have committed and be guilty of this offence, and that is a form of reasoning which is not permitted” (paragraph (10)).
The second, ultimate, permitted use identified by the Judge in this direction (paragraph (8)), is not one of the permitted uses that I have earlier identified when considering the admissibility of the grow room evidence in accordance with the requirements of section 34P nor is it one that his Honour identified when finding, following the voir dire, that evidence to be admissible. The Judge, in his ruling, made these findings with respect to the evidence of the grow room.
In my view, the evidence on count 2 demonstrates that the accused:
• has a knowledge of the means for the production of cannabis;
• has the means to produce quantities of cannabis;
• occupied premises at which plant leaves bearing a close similarity to cannabis and a strong cannabis odour were detected.
This evidence, if proved, is strongly probative evidence in support of the Crown case that the accused was knowingly in possession at the same time of cannabis in the container.
It is also capable of rebutting any suggestion of the accused having an innocent association with the drugs in the container.
Furthermore, I am satisfied that the probative value of this evidence substantially outweighs its probative force.
In this case, in purported compliance with s 34R of the Evidence Act 1929 (SA) the trial Judge gave the jury the following directions:[42]
[42] Paragraph numbers added per Nicholson J’s approach.
(1)I now turn to the direction that I mentioned earlier about the equipment, the hydroponic equipment, found at the accused’s house which is commonly used, you heard, for the cultivation of cannabis.
(2)The fact that the accused has such equipment in his house is not the subject of any criminal charge. Usually in a criminal trial evidence of another alleged crime which is not the subject of an actual charge is not admissible because it is only the evidence relating to the actual charge which is relevant for a jury to hear and evaluate.
(3)You in this trial have been permitted to hear this evidence, but I need to give you a direction as to the purpose for which this evidence may be used. You may use the evidence, if you are prepared to accept it, to show first that the accused owned property, domestic property in which there was hydroponic equipment.
(4)You may use the fact of the accused’s fingerprints being found on the light shade in the room to show that he was aware that the equipment was there, and you may use the evidence to show that as a result the accused had both the knowledge and the means to produce cannabis.
(5)You may also use the evidence of Officer Marsh with respect to detecting a smell of growing cannabis and Officers Marsh and McFarlane with respect to seeing leaf material that they believed bore a resemblance to cannabis leaf, even though there was no evidence to prove it actually was cannabis. If you accept that evidence, you may use it to show that this room was being used, or was recently used for the growing of cannabis.
(6)In summary, you may use this evidence, if you accept it, to conclude what the accused was doing at his domestic premises at the time drugs were found in the container, that he was combining his knowledge of cannabis with the means to produce it.
(7)If you accept that he was acting in this way in his domestic premises, you may think it more likely than not that he was knowingly in possession for the purposes of the sale of the cannabis at his commercial premises.
(8)Alternatively, you may think these facts make it more likely he was taking a step in the process of selling cannabis by storing or otherwise providing his premises for it, or guarding it, or concealing it.
(9)These then are the uses which you may make of that evidence. There are, however, uses which you are not permitted to make of the evidence. You are not permitted to use the evidence to reason that because the accused may have been involved in the cultivation of cannabis at his home, that, accordingly he is the sort of person who would traffic in illicit drugs in the ways alleged by the Crown, and that he is therefore guilty of the charge before the court.
(10)You must not use the evidence in that way because that would be to reason that because he may have done something unlawful in the past, he must have committed and be guilty of this offence, and that is a form of reasoning which is not permitted.
I agree with Nicholson J that the seventh and eighth paragraphs overstate the inferences that may be drawn from the subsidiary or intermediate facts subject of the fourth, fifth and sixth paragraphs. What is missing is reference to the other evidence which, taken with the subsidiary or intermediate facts subject of the fourth, fifth and sixth paragraphs, render it more likely that the appellant was knowingly in possession of the cannabis or was storing or otherwise providing his premises for it, or guarding it, or concealing it.[43] The missing evidence is that referred to in opening this judgment, namely, connecting the appellant to the Port Adelaide premises and the container (including the evidence of the invoices found in the container and the fingerprint of Mr Thompson on the “Bloomin Hydro” plastic shopping bag), the quantity of cannabis located, the evidence of Sergeant Nguyen, the evidence of the appellant’s contact with Mr Jones and the evidence of Mr Jones being found in the process of dismantling the grow room. Absent the further dissection of the process of reasoning to the conclusions referred to the in the seventh and eighth paragraphs, those paragraphs invite the jury to jump to the conclusions therein articulated from the conclusion as to what had taken place at the Walkerville premises. As Nicholson J points out, that is to do exactly what the ninth and tenth paragraphs tell the jury not to do. In such circumstances the trial Judge did not correctly discharge the duty imposed by s 34R of the Evidence Act 1929 (SA).
[43] I agree with Nicholson J that to the extent that the second permissible use identified by the trial Judge in the eighth paragraph of the passage taken from the summing up did not fall within his ruling is of no consequence. The inference as to possession, if drawn, could not sensibly be separated out from an inference as to storage.
With respect to ground five, I agree that paragraphs seven and eight invite the jury to reason from the overstated inferences that a main or material fact, an element, is more likely than not to have occurred. As indicated above, such direction without more offends the standard of proof. I appreciate that in this case the trial Judge did subsequently correctly direct the jury as to the standard of proof and that it applied to each element of each of the offences charged. Nowhere, however, did the trial Judge revisit his directions as to the use of the evidence of the grow room and the inferences it gave rise to. His directions as to the permissible and impermissible use of that evidence remain hanging complete with the invitation to reason to satisfaction as to proof of the elements of possession or storage on the basis of those facts being more likely. In those circumstances there arises a perceptible risk of a miscarriage of justice. Whilst the prosecution case may be considered strong, I agree that this is not a case where it would be appropriate to apply the proviso.
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