R v Scarponi - [2004] SASC 262

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SCARPONI
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)
20 August 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against conviction - appellant found guilty by a jury of taking part in the production of cannabis contrary to s 32(1)(b) of the Controlled Substances Act - evidence admitted that appellant previously involved in cannabis production - whether directions by trial Judge as to the use that this evidence could be put led the jury to engage in an impermissible form of propensity reasoning - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(b), referred to.

R v SCARPONI
[2004] SASC 262
Court of Criminal Appeal Doyle CJ, Besanko and White JJ

DOYLE CJ In my view, the appeal should be dismissed.
The appellant was charged, with Mr Svingos, with taking part in the production of cannabis contrary to s32(1)(b) of the Controlled Substances Act 1984 (SA). Mr Svingos pleaded guilty.
The appellant was tried before a jury in the Supreme Court. He was found guilty by the jury. There had been a previous trial but, in that trial, the Judge discharged the jury before the jury gave a verdict.
The prosecution alleged that the appellant was involved in the production of cannabis being grown hydroponically in two shipping containers. The shipping containers were on a property owned by the appellant but, at the time, occupied by Mr Svingos.
One aspect of the prosecution case was that Mr Svingos was unlikely to have been able to establish what was described as a relatively elaborate set-up for a hydroponic crop, without the appellant knowing. When questioned by the police, the appellant had told the police that he knew nothing about the crop, that he had never grown cannabis and had never purchased equipment for the hydroponic production of cannabis.
However, at the first trial, when he gave evidence, he admitted that that part of what he said to the police was false. He told the jury at the first trial that he had in fact grown a small amount of cannabis in the past, that he had grown it hydroponically and that he had been detected by the police. He said he paid an on-the-spot fine. He said he had kept the equipment and had ultimately taken it to the house on the property on which the shipping containers were placed. He assumed, or it was part of his case before the jury, that Mr Svingos had simply used some of his equipment to establish the hydroponic set-up in question.
The relevance of this evidence from the appellant’s point of view was that it provided a possible explanation for the fact that his fingerprints were found on some of the items of equipment in the containers, these items of equipment being used to grow cannabis.
The evidence that the appellant gave to the jury at his first trial, as I said, provided a possible explanation for what otherwise might seem to be an incriminating fact.
At the second trial, the trial now in question, the prosecution had this evidence read to the jury, that is the evidence from the first trial. The appellant did not give evidence at the second trial.
Mr Edwardson, counsel for the appellant before us, does not dispute that this evidence was relevant in relation to the explanation for the fingerprints. Nor does he dispute that the prosecution were entitled to use it at the second trial to show that the appellant knew how to produce cannabis using the hydroponic method. That, in essence, was how the prosecution put it at the second trial and put it to the jury.
The complaint on appeal today is that the directions by the trial Judge left open the possibility that the jury might have used the evidence in an impermissible fashion. The impermissible fashion would be to reason that if Mr Scarponi had grown cannabis before hydroponically, he was likely to have done so again. That is, putting it briefly, an impermissible form of propensity reasoning. That is, again, to put it simply, reasoning that if he had committed the offence before, he is likely to have committed it again.
The complaint is based on a part of the Judge’s summing up that appears between pp.23 and 25 of the summing up. Mr Edwardson acknowledges that in this part of the summing up the Judge began by correctly warning the jury not to use the evidence at the first trial to reason along the lines that if the appellant knows how to do it and has done it before, he is likely to have committed the offence again. The Judge gave a clear warning to the jury in that respect, as Mr Edwardson acknowledged.
However, having given that quite clear warning, the Judge then referred to the manner in which the prosecutor sought to use the evidence. The Judge said that the prosecutor’s argument was along these lines: “Well, he had grown it in the past hydroponically, therefore he knew about hydroponic growing and that points to him being involved.”
Mr Edwardson argues that in summarising the prosecution argument in this way, the Judge inadvertently reintroduced the very danger that he had warned the jury against. Mr Edwardson makes the point that the prosecution argument was simply that the evidence at the first trial established that Mr Scarponi knew how to produce cannabis hydroponically and that that fact, the simple knowledge of how to do it, was a relevant fact to take into account when considering whether they were satisfied that he had, in fact, been involved in producing the cannabis on this occasion.
Mr Edwardson argues that the concluding clause in the Judge’s direction, that “that points to him being involved”, invited the jury to reason, in a loose fashion, from knowledge to likelihood of offending. The correct use of the material was simply to prove knowledge of the method and not, in any way, to reason simply from knowledge to likelihood of offending.
Having considered the passages of the summing up with care, I do not accept that submission.
First of all, it was not put that way by the prosecutor to the jury. Not that that itself is decisive because, of course, if the Judge made an error, then an error has been made. But it is relevant that there was no suggestion by the prosecution of that form of reasoning, and so it was not a danger that would have been planted in the jury’s mind during the addresses.
Secondly, the passage in question is preceded by very clear warnings against reasoning from prior involvement with cannabis to guilt on this occasion.
Thirdly, in my opinion, when one looks at the passage in question, when the Judge refers to having knowledge of hydroponic growing he says that the prosecution were arguing “that” points to him being involved. The reference is to the knowledge and, indeed, in a sense, that did point to him being involved because, as the prosecution argue, if he knew how to produce the cannabis hydroponically that does make it easier to conclude that he was involved, on this occasion, without, in any way, reasoning that because he had done it in the past he was likely to have done it again.
For those reasons, I do not accept that the Judge explained the manner in which the prosecution sought to use the evidence in a manner which left open to the jury as permissible a form of propensity reasoning. In particular, I do not accept that the Judge reintroduced the very danger that he had warned the jury against.
Had the passage complained of stood in isolation there may well have been some force in the point made by Mr Edwardson but it is not in isolation. It is in a context which includes preceding clear warnings, and in a wider context which includes the fact that the prosecution had not sought to use the material in a manner that raised the danger of propensity reasoning.
For those reasons, I am firmly of the view that the summing up by the Judge contained no error and, for that reason, I would dismiss the appeal.
BESANKO J I agree that the appeal should be dismissed and I agree with the reasons just delivered by the Chief Justice.
WHITE J I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
DOYLE CJ The order of the Court is that the appeal be dismissed