R v Russo - [2009] SADC 144

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v RUSSO
[2009] SADC 144
Ruling of His Honour Judge Rice
17 December 2009
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
Application for a permanent stay of proceedings upon the basis that the prosecution case was "foredoomed to failure" - Tests to be applied.
Held: Applying the appropriate test, prosecution not foredoomed to failure - Application refused.
Controlled Substances Act 1984 (SA) ss 4, 32(3) and 32(5), referred to.
Barton v R (1980) 147 CLR 75; R v Ratcliff, Stanfield and Utting [2007] SASC 297; Jago v The District Court of New South Wales and Others (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; Ridgeway v The Queen (1994-1995) 184 CLR 19; Rona v District Court of South Australia and Another (1995) 63 SASR 223; R v McGee and McGee (2008) 102 SASR 318; Metropolitan Bank Ltd v Pooley (1884-85) LR 10 App Cas 210; R v Smith [1995] 1 VR 10; R v R (1989) 18 NSWLR 74; R v Haas (1986) 22 A Crim R 299; The Queen v Prasad (1979) 23 SASR 161; Doney v The Queen (1990) 171 CLR 207; The Queen v Bilick and Starke (1984) 36 SASR 321; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Brady and Smythe (2005) 92 SASR 135; R v Thaller & Gee (Question of Law Reserved) (2001) 79 SASR 295; R v GNN (2000) 78 SASR 293; R v Ngo and R v Le (2002) 135 A Crim R 550; R v Anderson [2004] SASC 201, considered.

R v RUSSO
[2009] SADC 144
Introduction

The accused is charged on an ex officio Information with two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the Act”). The facts are referred to in detail below.
The accused applies for a permanent stay of the proceedings as amounting to an abuse of process. It is submitted that to allow the proceedings to continue would amount to an abuse because, applying the appropriate test, the prosecution is foredoomed to failure.
As originally framed, the application to stay was advanced on a different basis. As noted, the Information before the Court is presented ex officio, there having been found “no case to answer” in the Christies Beach Magistrates Court. The original application sought a stay simply because the factual situation had not changed since the committal. That application was in these terms:
1.That the DPP have laid an ex officio indictment which is an abuse of process of this Honourable Court, as there was no different information or material advanced since the Magistrate found no case to answer in the Christies Beach Magistrates’ Court on Tuesday, 5 May 2009.
An application on that basis would have been foredoomed to failure: Barton v The Queen[1]; R v Ratcliff, Stanfield and Utting[2]. An amended application is now before the Court and the parties have made submissions on the basis of the amended application. That application is in the terms of the applicant accused’s primary contention in the Outline of Argument. The particulars are in these terms:
1.Taking the Prosecution case at its highest, and drawing all inferences from the evidence most favourable to the Prosecution case, a Trial Judge would be required to direct the Jury (if a case to answer was found) that ownership of and presence at the premises upon which the drugs were located, together with the detection of methamphetamine on response from the applicant’s right and left hand, could not be sufficient to satisfy it beyond reasonable doubt of the two counts charged against the applicant.
[1] (1980) 147 CLR 75
[2] [2007] SASC 297
The application as now before the Court is, having regard to the submissions put, ambiguous as to the basis upon which the application is made. One of the suggested approaches is simply that, on the material before the Court on the papers, the case does not meet the “case to answer” test and should be stayed. The other approach is that, even assuming a case to answer (see the bracketed words), the evidence could not be sufficient to prove guilty beyond reasonable doubt and is therefore foredoomed to failure and should be stayed. It will be necessary to consider the authorities in the area of a stay on the basis that the prosecution is foredoomed to failure.
The application gives rise to three main issues:
1.What is the scope of the power to stay upon an application for a stay that the prosecution is foredoomed to failure?
2.What is the appropriate test that is to be applied to the prosecution case in determining such an application of “no case to answer”?
3.What are the facts and inferences upon which the prosecution case is based?
Abuse of process – general considerations
It is well recognised that this Court has an inherent power to prevent abuse of its processes, including a power to order a permanent stay of proceedings: Jago v The District Court of New South Wales and Others[3]; Walton v Gardiner[4]; Ridgeway v The Queen[5]; Rona v District Court of South Australia and Another[6].
[3] (1989) 168 CLR 23
[4] (1993) 177 CLR 378
[5] (1994-1995) 184 CLR 19
[6] (1995) 63 SASR 223
Although it has been recognised that the concept of abuse of process does not comprise “closed categories”, one established basis is “…if they [the proceedings] can be clearly seen to be foredoomed to fail”: Walton v Gardiner per Mason CJ, Deane and Dawson JJ at 393; similarly Brennan J at 411.
The authorities also make it clear that the remedy is quite exceptional and will only be granted in exceptional cases or sparingly or with the utmost caution. The onus or burden for the purposes of this application rests upon the applicant accused. It must be that the prosecution will inevitably fail: R v McGee and McGee[7].
[7] (2008) 102 SASR 318
Abuse of process – foredoomed to failure
The submissions made on behalf of the applicant rely upon a number of authorities. Some of the language used in those authorities might be seen to be ambiguous.
The applicant relied upon Metropolitan Bank Ltd v Pooley[8]:
The Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had a right to protect itself against such abuse.
[8] (1884-85) LR 10 App Cas 210 (at 220-1)
Quite what is meant by “without reasonable grounds” is not made clear but it appears to be no more than a general statement as to the basis of the exercise of the power. That seems to be the basis upon which it was cited with approval in Barton v The Queen (supra) at 96. I do not read Their Honours’ comments as touching upon the suggested power to stay where there are “no reasonable prospects of success” (Outline of Argument, para 2.5). Similarly, nothing in Jago v The District Court (supra) goes that far.
Reliance was also placed upon the Victorian Court of Criminal Appeal decision of R v Smith[9]. The three passages relied upon by the applicant are as follows:
3.2Brooking J said (at 15):
Civil or criminal proceedings are an abuse of process, not if it can be said of them only that they will very likely fail, but if it can be said of them that it quite clear that they must inevitably fail. So it was laid down in Walton v Gardiner by Mason CJ, Deane and Dawson JJ (at 393) that proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. This formulation does not differ in substance from that of Brennan J (at 411) (‘proceedings which will inevitably and manifestly fail’).
3.3His Honour concluded:
Assuming in favour of the respondents that a stay may be granted at the outset of a criminal trial on the ground that the Crown will be unable to make out a case to answer, having regard to the available evidence, that inability of the Crown must be clear beyond argument. If it is fairly arguable that on the evidence available to the Crown there will be a case to answer, the prosecution is not in the necessary sense clearly shown to be foredoomed to fail, so as to be shown to be an abuse of process [at 23].
3.4Byrne J said:
The power to order a permanent stay of a criminal proceeding before the court should be limited to the case where it is plain beyond argument that the prosecution case suffers from some incurable vice. Such a vice must be readily apparent and clearly fatal to the prospect of success of the prosecution …[at 28-9]
… unless the applicant can satisfy the trial judge at the outset that, on any view of the evidence, it is plain beyond argument that no reasonable jury could accept the Crown hypothesis the application must fail [at 32].
[9] [1995] 1 VR 10
It can be seen from these quotations that the test of foredoomed to failure is expressed in conventional terms. Nowhere can I find the test formulated, as suggested here, as “no reasonable prospects of success”. Whether the prosecution enjoys reasonable prospects of success, assuming a case to answer, is a question for the decider of the facts, usually a jury. To decide otherwise would be to usurp the function of the jury, not to mention that it would be contrary to the High Court case of Doney, to which reference is made below.
Further, the authority of R v McGee and McGee (supra) supports an approach in conventional terms. Doyle CJ said at [90]:
The fact that the jury might ultimately decide that the circumstantial evidence in the present case does not exclude hypotheses consistent with innocence is not enough for the submission to succeed. To deal with a submission on that basis is not an appropriate exercise of the court’s power. The prosecution should proceed even though the jury could or might decide that all such hypotheses were excluded, and the court would stay the proceedings only if satisfied that the jury so finding was inevitable. And, as I have said, this is to be considered not by the court weighing a quality of the evidence, but on the basis that evidence will be accepted unless patently incredible, and on the basis that all inferences favourable to the prosecution case that could be drawn will be drawn.
White J said this at [291]:
In considering an application for a permanent stay on this ground it is to be remembered that, ordinarily, it is not an abuse of process to bring proceedings which fail or even proceedings which are likely to fail.
That is the approach I adopt to the present application.
As was also emphasised, the test for a stay is necessarily a stricter test than will apply when the Court considers a submission of no case to answer: R v McGee and McGee, Doyle CJ at [88], White J at [291].
What are the facts that are established by the prosecution case and what inferences are legitimately open?
The first point to be made is that consideration of the application is necessarily based upon the prosecution case as evidenced by its filed declarations.
Secondly, as will be developed later, consideration of a case to answer involves, using the accepted shorthand, taking the prosecution case at its highest. Necessarily, that must involve disregarding evidence or inferences favourable to the accused: R v R[10] approving R v Haas[11].
[10] (1989) 18 NSWLR 74
[11] (1986) 22 A Crim R 299
Finally, before considering the facts and available inferences, assuming this prosecution was to proceed on the committal declarations, there is no discretion to direct a verdict of acquittal even “…if he [the trial judge] considers that the evidence for the prosecution is so unsatisfactory that it would be unsafe to convict upon it”: The Queen v Prasad[12]. The High Court confirmed that view in Doney v The Queen[13].
[12] (1979) 23 SASR 161
[13] (1990) 171 CLR 207 at 215
It is convenient to rely upon the prosecution case as it was formulated in the written outline of submissions (para 17) which are accepted by the applicant for these purposes:-
17.1At about 11.50am on 7 August 2008, Police attended at 189 The Esplanade, Aldinga Beach.
17.2A tiler was standing at the front door of the premises upon their arrival and informed Police that he was awaiting the arrival of the owner of the premises.
17.3Two other males were seated in a workman’s van out the front of the premises and informed Police they were there to install Foxtel pay television to the premises.
17.4The Defendant arrived at 189 The Esplanade, Aldinga Beach as a passenger in a white Holden Station wagon South Australian registration number ASAP 03.
17.5Police executed a general search warrant to search 189 The Esplanade, Aldinga Beach in relation to a drug investigation.
17.6The premises was a two story residence and was undergoing some renovations.
17.7The rear garden was a fenced dog pound measuring about 2 x 3 metres with a concrete floor.
17.8A dog kennel made out of large sheet metal was situated at the south eastern corner of the rear garden and an Alaskan Malamute crossed with a Japanese Akita dog was located at the premises.
17.9While searching the rear garden, a small box containing an item wrapped in newspaper was located on the floor of the dog kennel, tucked into the front right hand corner.
17.10When the newspaper was removed from the item it revealed a large plastic snap lock ‘Glad’ bag containing a large amount of an off white coloured powder.
17.11The powder from within this ‘Glad’ bag was analysed by a forensic chemist and found to contain methylamphetamine. The total weight of the substance was 133.5 grams. The total weight of methylamphetamine was 81.7 grams.
17.12The newspaper that had been wrapped around the ‘Glad’ bag was the first two pages of the Adelaide Advertiser, dated Wednesday July 2nd, 2008.
17.13Located on top of an empty chest freezer in the main room of the downstairs section of the premises, was a copy of the Adelaide Advertiser dated Wednesday 2nd of July 2008.
17.14The said newspaper was missing some of its outer pages, including pages 1 and 2, with the first page being number 9.
17.15A drug detector dog then attended at the premises and conducted a search on the premises for the presence of drugs.
17.16The dog made indications of the presence of drugs in the main ground level room in a box where the floor tiles were stacked awaiting laying.
17.17Police searched this area and located a globe packaging/box which contained six filter papers and a large ‘Glad’ plastic bag containing two smaller plastic bags inside of it.
17.18These two plastic bags contained an orange coloured paste.
17.19The paste from within these two smaller bags was analysed by a forensic chemist and found to contain methylamphetamine. The total weight of the substance was 12 grams. The total weight of methylamphetamine was 4.77 grams.
17.20Of the six filter papers, forensic analysis determined that four of these held traces of residue.
17.21Three of the four filter papers contained traces of methylamphetamine.
17.22The fourth filter paper contained traces of methylamphetamine and tetrahydrocannabinol.
17.23Swabs were obtained from underneath the fingernails and the hands of the defendant.
17.24These swabs were analysed by a forensic scientist and methylamphetamine was detected in an extract from the swabs of both the left and right hands of the defendant.
17.25The Defendant was interviewed and during this interview told Police that he had owned the premises at 189 The Esplanade, Aldinga Beach for around 13 years.
17.26The Defendant confirmed that he had slept at the premises the night before and had left the premises to pick up paint at around 9:30am.
17.27The Defendant confirmed that the dog located at the premises was his, her name being ‘Bella’ and the Defendant having owned her for about 2.5 to 3 years, since she was a pup.
17.28Located upstairs just outside bedroom two, was a large fish tank containing large ‘Oscar’ fish. The Defendant confirmed that he had had these for about 3 or 4 years and that ‘you have to clean them all the time’.
In my view, some qualification and explanation is needed as to some of these facts.
As to para 17.2, having regard to all the material, it is reasonable to proceed upon the assumption that the tiler, who had just arrived at the house that morning, was inside the house when the police arrived. I also proceed on the basis that, at the time the police arrived, the keys to the premises were being held by the painters who were working on another property across the road and had allowed the tiler access to the subject premises. The house was closed when the police arrived. Further, the accused had been absent because he had gone to purchase some paint (see interview upon accused’s arrival).
In addition to that written material, at the suggestion of counsel, I also viewed the video tapes of the search conducted by the police. That served to clarify some aspects of interest.
First, the fenced dog pound, measuring about two metres by three metres was part of a much larger rear garden. The drugs located in this area were in a position in a kennel such that a person would need to access the inside of the pound before being able to get to the drugs (that is, place them there or take them away).
Secondly, the dog concerned was noisy, large and intimidating, although not unfriendly when the accused was present. Some ability to control the dog would have been important. There was no shortage of safer, more accessible hiding places throughout the two-storey building.
Thirdly, the applicant had a clear financial motive given some of his comments while the search was being conducted.
Factual basis for the two counts
As mentioned, the accused is charged with two counts of trafficking in a controlled drug. Although the counts are in identical terms, the prosecution case is that Count 1 refers to the drug located in the kennel inside the dog pound, and Count 2, the drug located in the main ground level room in a box near to where the floor tiles to be laid, were stacked.
Legal ingredients of the counts
The offence of “trafficking” was introduced by an amendment to the Controlled Substances Act as from 3 December 2007. Section 32 seems to create separate offences of “trafficking” dependent upon the quantity of the drug concerned. The charges are against s 32(3) which simply says:
A person who traffics in a controlled drug is guilty of an offence.
There is no challenge that methylamphetamine is a controlled drug.
By s 4, “traffic” is defined:
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;
Section 32(5) contains a presumption; it provides as follows:
(5)If, in any proceedings for an offence against subsection (1), (2) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary―
(a) in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant―
(i)was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b) in any other case―that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
As can be seen, the application of the presumption is triggered by proof of possession of a “trafficable quantity of a controlled drug”. It is unnecessary to take this aspect of the case further because the central factual question is whether there is sufficient proof of “possession” in the accused for the purpose of the charges. However, it should not be assumed that the offence of “trafficking” always requires proof of possession. For example, a person could sell a drug that has never come into their possession.
Test to be applied on the application

It was submitted by counsel on behalf of the accused applicant, Ms B.J. Powell QC, that the test to be applied is not really in dispute. Effectively it amounts to whether the prosecution is able to make a case to answer. It was submitted that the test is, taking the prosecution case at its highest and drawing inferences most favourable to the prosecution, would there be a case to answer. If not, the case is foredoomed to failure and a stay is the appropriate remedy.
In addition to the legal considerations referred to earlier, there are these.
Although the ground is well-travelled, it is useful to consider again some of the authoritative formulations of the test. In The Queen v Bilick and Starke[14], there is a detailed discussion of the earlier authorities by King CJ (with whom Mohr J agreed). His Honour then put the test in this way, including those cases of a circumstantial nature (as here), at 337:
The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct ‘evidence’ is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer.
[14] (1984) 36 SASR 321
The High Court had cause to consider some of these principles in Doney v The Queen (supra). The Court concluded in this way (p 214-5):
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
In this State, the principles were re-stated in Questions of Law Reserved on Acquittal (No 2 of 1993)[15], where King CJ (with whom Bollen J agreed), emphasised what it was that the evidence was “capable” of proving. He said (at p 5):
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer.
[15] (1993) 61 SASR 1
An important point to emphasise in the context of a case based substantially upon circumstantial evidence is that, when considering a submission of “no case to answer”, the fact that there can be formulated a reasonable hypothesis consistent with innocence which the prosecution has failed to exclude, does not necessarily mean the submission should succeed. As the cases keep repeating, the question is whether the evidence is capable of supporting a conclusion beyond reasonable doubt. Whether the evidence is so capable is assessed by considering inferences taken at their highest from the prosecution’s perspective. Whether a guilty verdict would result in what the trial judge considered to be an unsafe or unsatisfactory verdict, is not to the point when considering such a submission. These principles were confirmed in R v Brady and Smythe[16] and R v McGee and McGee (supra), per Doyle CJ at [88].
[16] (2005) 92 SASR 135
During the course of submissions, Ms Powell referred to two Court of Criminal Appeal decisions that, at least in the results, seem to have applied a more restrictive test. Further, it was submitted that Questions of Law on Acquittal (No 2 of 1993) (supra) had been overruled in a later appeal decision of R v Thaller & Gee (Question of Law Reserved)[17]. However, an examination of the latter case reveals that it did overrule Questions of Law on Acquittal (No 2 of 1993) but on a completely unrelated legal point concerning the jurisdiction of the Court to hear and determine questions reserved under State legislation arising from a charge of a Commonwealth offence. No consideration was given to the principles to be applied when considering a no case submission. Subject to the cases to which Ms Powell referred, in my view the “case to answer” authorities to which I have referred represent the state of the law to be applied to the present application.
[17] (2001) 79 SASR 295
I now turn to the cases to which Ms Powell referred, the first being R v GNN[18]. The facts require some consideration.
[18] (2000) 78 SASR 293
The accused was found guilty of one count of possessing heroin for sale relating to heroin found in the kitchen of her home a Kilburn. She was found not guilty on the same charge relating to heroin found in a bedroom occupied by her and another.
As for the heroin found in the kitchen, it consisted of the drug found in two separate places, one in a flower pot on top of the refrigerator and the other in a video tape box (also in the kitchen).
The police had the house under surveillance as they suspected Ms GNN was involved in dealing in heroin. The police suspected a consignment of heroin was being brought to the house from Sydney. The police entered the house and found three men in the house who had come from Sydney. There was a fourth man who lived at another address in Adelaide.
There was no doubt that Ms GNN and her young children were the only regular occupants of the house. The Court found that the directions on possession were inadequate in the particular circumstances of the case and ordered a re-trial. However, as part of the Court’s discussion about possession, Doyle CJ (with whom Prior and Olsson JJ agreed) said this (at p 296):
The fact that it [the heroin] was found in a house occupied by her was not, of itself, enough to establish possession.
Obviously, with respect, I agree. However, it is important to understand what the Chief Justice was there saying. Occupation, certainly on the facts of that case, would not be enough to “establish” or “prove” possession. That is not to say, on the tests to which I have referred, it would not have been sufficient, by itself, to find a case to answer.
I add that the Court rejected a submission that the verdict was unreasonable or unsupportable. I note that, in discussing the facts in that context, the Chief Justice also said this (at p 300):
The presence of the heroin in the house did not, of itself, advance the prosecution case very far.
Again, with respect, I agree. Although it may not have advanced the case very far, GNN’s case does not go as far as saying that would be insufficient for a case to answer. For these reasons, GNN’s case is distinguishable, as is R v Ngo and R v Le[19].
[19] (2002) 135 A Crim R 550
The second case is R v Anderson[20], a Court of Criminal Appeal decision delivered on 13 July 2004. The appellant and one Elsayed were jointly charged with knowingly taking part in the manufacture of methylamphetamine. Originally, the appellant and Elsayed were charged with four others but the prosecution entered a nolle prosequi with respect to those four.
[20] [2004] SASC 201
The premises at Seaton, which were searched by the police, were leased to and occupied by Elsayed. The appellant and the four who were not proceeded against, were in the kitchen when the police attended. For present purposes, it is sufficient to refer to the facts as summarised by Perry J upon a submission that the verdict was unreasonable or could not be supported on the evidence (paras 51-55):
The appellant’s presence at the house and the fact that he was sitting at the kitchen table when the police arrived, coupled with the traces of methylamphetamine found under his fingernails, the evidence of equipment and materials that could be used to extract pseudoephedrine, and information about the process of manufacturing methylamphetamine, was not in combination a sufficiently cogent evidentiary basis to justify a conclusion that guilt had been established beyond reasonable doubt. In the end, there was really nothing to link the appellant to the chemical process that was underway, or to the equipment and information, other than his bare presence in the kitchen and the methylamphetamine under his fingernails, indicating some contact with methylamphetamine and possibly an interest in obtaining some.
Perhaps the strongest item of evidence against the appellant was the presence of DNA in one of the gloves, but as I have said, there were only four loci out of ten from which a result could be obtained. The fact that the appellant could not be excluded as the source of the DNA is not sufficient, considered in the context of the evidence as a whole, to support a finding of guilt.
In my view, on the whole of the evidence, it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant.
I would allow the appeal.
In view of the conclusion which I have reached as to the strength of the Crown case, I would quash the conviction, but I would not order a re-trial. I would substitute a verdict of acquittal.
It is important to observe that this was not a case about ownership or occupation of the premises, rather whether the accused’s presence could be linked to the activity of taking part in the manufacture of methylamphetamine at that time and place. In Anderson’s case, the Court simply decided that the guilty verdict could not be sustained. Bearing in mind what was found to be the strength of the prosecution case, the Court entered a verdict of acquittal. There was no suggestion in the judgment that there was no case to answer, it was simply not a very compelling prosecution case.
Further, as already observed, the powers of a Court on appeal are quite different than those of a trial judge considering, in effect, a no case to answer submission. Even if it could be said that, on certain facts, a prosecution case is foredoomed to fail on appeal (as being unsafe or unsatisfactory), does not mean it is foredoomed to fail for the purposes of this application. What is more, Anderson’s case is readily distinguishable on its facts. As mentioned, it was not a case involving ownership or occupation.
Having considered both of the cases of GNN and Anderson, I remain of the view that the principles and authorities are those to which I have previously referred.
Finally, it is worth noting what King CJ said in Questions of Law Reserved on Acquittal (No 2 of 1993) (supra) (at p 6):
I should add that I would have reached the same conclusion if there had been no fingerprints and the case had rested solely on the presence of the drugs hidden on the accused’s premises. Those facts clearly called for an explanation and, if not satisfactorily explained, were in themselves capable of founding a verdict of guilty.
That observation has application here.
Consideration of the application
There is no doubt in my mind that, applying the principles to which I have referred, this application should be dismissed no matter which basis is advanced.
The accused applicant owned the premises and had done so for some years. The evidence was capable of showing he was in occupation at the time the police attended, having slept there the night before, having his fish in the tank upstairs and ownership of the dog in whose kennel some of the methylamphetamine was found. It is reasonable to infer that the person who owned the dog and who could control it was the one who secreted the drug in the kennel. It should not be overlooked that swabs from both hands showed traces of methylamphetamine.
Further, the drug in the kennel could also be linked to the house by the newspaper in which it was wrapped being of the same date as the one inside and with the same pages missing that comprise the wrapping.
Additionally, the quantity of the pure drug (81.7 grams out of 133.5 grams, being about 60 per cent pure) suggests a significant commercial dealing. It would be reasonably open to infer that the tiler and painters did not fall into that category.
Although the case against the accused applicant is not quite as strong concerning the drug found inside, the evidence is capable of excluding others who may have had access to the house.
As to both counts, it was reasonably open to be inferred that the tradesmen who were there had nothing to do with what was secreted there.
The application in relation to each count is refused.