R v Tassone - [2016] SASCFC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TASSONE
[2016] SASCFC 146
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)
21 December 2016
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 following a jury trial of the offence of trafficking in a commercial quantity of a controlled drug and trafficking in a controlled drug contrary to subsections 32(2) and 32(3) respectively of the Controlled Substances Act 1984 (SA). The appellant owned and occupied a house in which police located in the appellant's bedroom a bottle containing 920 mls of 1,4-Butanediol (fantasy) and in the kitchen refrigerator a container with 11.1 grams of paste-like substance including 6.1 grams of pure amphetamine. The prosecution case with respect to each offence was circumstantial.
Whether the trial miscarried as a result of the jury being invited to return a verdict of guilty on either of two mutually exclusive legal and factual alternative pathways - whether the trial miscarried as a result of the trial Judge's failure to give an extended unanimity direction - whether the trial miscarried as a consequence of the trial Judge's misdirections concerning the elements of the two offences - whether the verdict is unreasonable or cannot be supported having regard to the evidence.
Held: (Nicholson J, Kelly and Hinton JJ agreeing)
1. Appeal dismissed.
Controlled Substances Act 1984 s 4, s 32, 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 McCarthy [2015] SASCFC 177; R v Leivers & Ballinger (1998) 101 A Crim R 175; R v Cramp (1999) 110 A Crim R 198; R v Parisi [2014] SASCFC 57, (2014) 119 SASR 277; Liebke v The Queen [2007] HCA 30, (2007) 230 CLR 559; M v The Queen (1994) HCR 63, (1994) 181 CLR 487, discussed.

R v TASSONE
[2016] SASCFC 146
Court of Criminal Appeal: Kelly, Nicholson and Hinton JJ
KELLY J.

I agree that the appeal should be dismissed for the reasons given by both Nicholson and Hinton JJ.
NICHOLSON J.
Introduction
On 2 June 2016, following a trial before a jury in the District Court, Bruno Tassone was convicted of the offence of trafficking in a commercial quantity of a controlled drug[1] (count 1) and of the offence of trafficking in a controlled drug[2] (count 2). The appellant has raised five (amended) grounds of appeal. A single Judge of this Court granted permission to appeal on ground 2 and referred all other grounds to the Court of Criminal Appeal for its consideration at the same time as hearing the appeal on ground 2.
On 7 February 2013, the police seized a bottle containing 920 grams of 1,4-Butanediol, a controlled substance with the street name “fantasy”. It had been found in the vanity unit in the ensuite bathroom for a bedroom said to have been occupied by the appellant in his house at Kilkenny.[3] The bottle of fantasy is the subject of count 1. On that same day, the police also found a container, in the nature of or similar to a urine specimen container, in the kitchen refrigerator. This container contained 11.1 grams of paste-like substance including 6.1 grams of pure amphetamine. The substance containing amphetamine is the subject of count 2.
The Information filed by the Director of Public Prosecutions charged the appellant and Lauren Colegate jointly with both counts 1 and 2. Lauren Colegate also lived in the house. The appellant has a number of significant medical conditions including diabetes type II and extremely impaired eyesight. According to the evidence, Ms Colegate occupied a separate bedroom and there was no relationship between the two other than that of housemates with Ms Colegate assisting the appellant as his carer in exchange, it would appear, for concessional terms of occupation.
Prior to the appellant’s trial, Ms Colegate pleaded guilty to count 2 whereupon count 1 was withdrawn as against her. The fact that Ms Colegate had pleaded guilty to count 2 was an agreed fact at the trial and was conveyed to the jury during the prosecution opening.
Now, Lauren Colegate has pleaded guilty to possessing the amphetamine in the kitchen fridge with an intention to sell some of it. And you will actually see her name on count 2 at the bottom of that charge sheet but, because she has pleaded guilty, she doesn’t appear in this trial.
. . . .
So just because Lauren Colegate has admitted her possession in the prosecution’s submission that does not exonerate the accused on the prosecution case. Of course what the prosecution must disprove as a reasonable possibility is that Lauren Colegate solely possessed that amphetamine without the accused having any knowledge that it was in his house.[4]
The charges
The offence of trafficking in a 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.[5]
(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 commercial quantity.[6]
As far as the offence of trafficking in a controlled drug (count 2) is concerned, the elements to be proved by the prosecution are those in (i), (ii) and (iii) above.
With respect to each count, the central issue was whether the Crown had proved beyond reasonable doubt that the appellant trafficked in the substance in question and, in the case of count 1, whether it was proved that the appellant trafficked in a commercial quantity (that is, 500 grams or more) of the fantasy.
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 each drug, as found, with the intention to sell a commercial quantity, that is, 500 grams or more of the fantasy and with the intention to sell at least some of the amphetamine or whether the appellant was proved to have taken part in the process of sale of 500 grams or more of the fantasy and of the amphetamine or part of it. 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 at least 500 grams of the fantasy and of some or all of the amphetamine, in that his involvement fell within paragraph (f) of section 4(5), that is, in each case the appellant took a step in the process of sale by providing or allowing the use of premises (that is, his house) for the purpose of sale.
The factual basis of the prosecution case
The prosecution case as to possession, intention to sell, and providing or allowing the use of premises for the purpose of sale was wholly circumstantial. It was necessary that the jury be directed in accordance with and that the jury adopt the required reasoning as explained in Barca v The Queen,[7] Peacock v The King[8] and Plomp v The Queen.[9]
The home of the appellant was searched by police on 7 February 2013 commencing at about 10.55am. The appellant was not at home but Lauren Colegate was. The appellant arrived home at about 11.50am. He had been absent for a procedure on one of his eyes designed to assist in maintaining the very low level of sight available in that eye. He undertakes this procedure on approximately a monthly basis.
The appellant’s home has three bedrooms one of which, described as bedroom 1 in the evidence and on the plan of the house, had an ensuite bathroom and walk-in robe attached to it. The ensuite was accessible only from bedroom 1.
In addition, the house has a main bathroom, a laundry, a kitchen/meals area, a dining and lounge area and an external games room. The appellant owned the house and had the sole legal right to permit or exclude others from either visiting or living in the house. Whilst not conceded by the defence, there was evidence on the basis of which the jury might readily find that the appellant had exclusive occupation of bedroom 1,[10] that Lauren Colegate occupied one of the other bedrooms[11] and that apart from casual use by other persons who may be in the house from time to time, particularly if the main bathroom was occupied, the appellant had exclusive use of the ensuite bathroom.
During the search, the police located and seized a number of items.
(i)A black box containing a number of small press-seal bags (exhibit P3) was found in the left-hand drawer of the dresser of bedroom 1. One of the press-seal bags contained the residue of a substance found to contain 0.07 grams of methylamphetamine.
(ii)A set of electronic scales (exhibit P4) was found in the right-hand drawer of the dresser in bedroom 1. The scales were not tested for the presence of residue of any type.
(iii)A cardboard box containing three plastic phials and two syringes (exhibit P5) was found in the vanity unit in the ensuite bathroom. These also were not tested for residue of any type.
(iv)A plastic bottle was found in the vanity unit in the ensuite bathroom which contained 920 grams of fantasy (exhibit P6).
(v)A urine specimen type container was found in the right-hand drawer of the dresser in bedroom 1 (exhibit P8). This container held the residue of a crystalline substance which was not tested.
(vi)A similar specimen type container was found in the kitchen refrigerator which contained a crystalline substance. This was tested and found to contain the amphetamine the subject of count 2.
(vii)An ice pipe was found in a handbag in the bedroom which had items of female clothing and perfume and the notice board with pictures of a person who looked like Lauren Colegate.
At the time the house was searched, the police also searched Lauren Colegate and an ice pipe was located poking out of her underwear. The pipe was recognised by a police officer as of a type used to smoke amphetamine. Police also observed at the premises a CCTV monitoring system which appeared to be substantially operational.
The estimated value of the fantasy at the time of seizure was in the order of $3,680 to $9,200. The estimated value of the amphetamine at the time of seizure was in the order of $4,400 to $11,000.
The appellant is a diabetic. His insulin supply which he injected as required was stored in the refrigerator. The Crown accepted that the appellant was partially blind but relied on the police evidence that the amphetamine was located on a shelf in the refrigerator below the insulin. The prosecution submitted that the appellant’s eyesight was not such as to cast down on his ability to see or distinguish the specimen container of amphetamine. The prosecution relied on evidence from a previous occupant, Fiona Curran, to the effect that during the time she resided at the house she observed the appellant regularly accessing the refrigerator in the kitchen.
The prosecution relied on evidence of police officers, with apparent appropriate experience, to the effect that the CCTV monitoring system was consistent with those commonly installed at premises from which drug trafficking occurs, that the press-seal bags and digital scales were consistent with those commonly used to measure amphetamine and package it for sale and that the plastic phials and syringes were commonly used to measure fantasy and package it for sale.
Matters of fact relied on by the defence
The appellant complained at trial and on appeal that various aspects of the integrity of the crime scene had been compromised by what the appellant submitted was poor policing. Various potentially relevant exhibits were not forensically tested and this together with a lack of police note taking and a failure to take material photographs of items in situ were said to support the submission that the evidence that was relied on was incapable of excluding the possibility that the main bedroom with its dresser and the ensuite were occupied or used by someone other than the appellant.
The defence also submitted that Fiona Curran who was called by the prosecution had been completely discredited in cross-examination. The defence relied on her drug use history which only became apparent through cross-examination and in a way which conflicted quite significantly with her evidence in chief and on the fact that she had been told by the appellant to cease living at the house and to leave, in acrimonious circumstances, only a matter of days before the police search. The defence contended that it was reasonably possible that the drugs had been planted by her or that she was jointly in possession of the drugs with Lauren Colegate and to the exclusion of the appellant.
The defence placed significant reliance on the appellant’s record of interview[12] conducted with the police under caution. In that interview, the appellant denied having any knowledge of the drugs located in the house. He was questioned specifically about the container of amphetamine found in the refrigerator and denied any knowledge of it. He was not questioned in respect of the fantasy or any of the items found by the police on which the prosecution rely as indicia of sale.
The appellant explained that he had significant eye problems. He was blind in his left eye and had only 2.2 per cent vision in his right eye as a result of macular degeneration caused through being a diabetic. He requires insulin in the morning and in the afternoon. Lauren Colegate was his live-in carer because of his vision problems and Fiona Curran had lived in the house until two days prior to the search. The appellant said that Lauren Colegate would bring friends to the house and if it was hot they would swim in his pool and use his games room. He never knew what they were doing. He also explained that his son and his nephews came around to his house and played pool. He told the police that Fiona Curran had been kicked out of his house by him because he had heard a number of comments that she was a bad drug user. The appellant explained that on the day of the search he had been absent from his house in order to have his monthly medical procedure to his right eye. After this procedure he experiences an improvement in his vision in that eye but it slowly deteriorates until everything goes blurry again.
Fiona Curran agreed in cross-examination that “Bruno couldn’t really see where he was going when moving around the house. He had a magnifying glass on the table and he shuffled about”. She agreed that it was obvious to her that the appellant had a significant eye problem.
The appellant relies primarily on ground 1 that the verdicts were unreasonable or insupportable having regard to the evidence. Nine subgrounds or particulars are provided. However, it is convenient to deal with grounds 2 to 5 first which raise more discrete issues.
Appeal grounds 2 and 3
By ground 2 the appellant contends that the trial miscarried as a result of the jury being invited to return a verdict of guilty on one of two alternative and mutually exclusive legal and factual pathways. By ground 3 the appellant contends that the trial miscarried as a result of the Judge’s failure to give to the jury an extended unanimity direction as to the legal and factual basis upon which any finding of guilt might be arrived at.
Matters of principle and the law concerning circumstances in a criminal trial which might give rise to the need for an extended unanimity direction have recently been discussed by members of this Court in R v McCarthy.[13] The discussion was tailored to the facts before the Court in that case which involved a charge of murder based, on one view of the matter, on two alternative factual bases (although not necessarily mutually exclusive factual bases) and various alternative pathways to the alternative offence of manslaughter. Nevertheless, Peek J provided a particularly comprehensive and illuminating discussion of the leading overseas and Australian authorities bearing on this issue. It is unnecessary to traverse here the various analyses in McCarthy.
The present is not a case within the category of alternative party type liability nor, in my view, is it a case raising alternative factual bases for liability. Rather, the prosecution here propounded two alternative but not necessarily mutually exclusive legal bases for liability founded on essentially the same factual substratum. I disagree with the appellant’s contention that the factual bases for the alternative pathways to guilt relied upon by the prosecution, are, materially different.
In general, the authorities suggest that where there are alternative legal bases for liability, there will be no need for jury unanimity with respect to a particular legal basis where each is based on the same or substantially the same facts. Ordinarily, this will be because the alternative bases do not involve materially different issues or consequences. In my view, this is so in the present case. By and large, the body of circumstantial evidence relied on by the prosecution for its contention that the appellant trafficked by being in possession with an intention of sale was the same body of circumstantial evidence relied on for the contention that the appellant took part in the process of sale by allowing the use of his premises for the purpose of sale.
In R v Leivers & Ballinger,[14] Fitzgerald P and Moynihan J observed:
When more than one basis of criminal liability is relied on against an accused, it is, in our opinion, necessary for the jury to be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt. It will not necessarily be sufficient for some members of the jury to be satisfied that the requirements of one basis of liability are established and for other members of the jury to be satisfied that the requirements of another basis of liability are established. However, that will be sufficient if the alternative bases of criminal liability do not involve materially different issues or consequences. ...
[emphasis supplied]
In R v Cramp,[15] Barr J speaking on behalf of the New South Wales Court of Criminal Appeal said this.
A distinction is to be made between alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts. The cases to which I have referred speak about the former. This appeal is about the latter.
The jury were obliged to consider the whole of the conduct of the appellant for the purpose of considering whether he caused the death of the deceased by his unlawful and dangerous act or by his gross negligence. Each process of reasoning invited by the Crown rested on substantially the same factual basis.
Of course, there were differences between the ways the Crown put the case factually on each basis. The main one was that the appellant was said for the purposes of his gross negligence (but not for the purposes of his unlawful and dangerous act) to have permitted the deceased to drive the car whilst she was not wearing a seatbelt. But that fact was not irrelevant to the jury’s consideration of the appellant’s unlawful and dangerous act. Whether the deceased was wearing a seatbelt was relevant to the questions whether she drove negligently, furiously or recklessly or in a manner dangerous to the public or whilst under the influence of alcohol.
It follows from what I have said that the jury must have agreed upon the basis upon which they found the appellant guilty. Using the terminology of Leivers, the alternative bases did not involve materially different issues or consequences. The appellant knew the case he had to meet.

The two pathways to guilt in the present case are based on the same or, at least, substantially the same factual basis. There would be nothing to be served by the giving of an extended unanimity direction but added complexity and potential confusion for the jury would follow. There would be nothing served because jury unanimity (or unanimity within the statutory majority, as necessary)[16] will have occurred in any event.
The issue concerns the two pathways relied on by the prosecution with respect to element (ii) of each offence, that is, that the appellant trafficked in the relevant substance.[17] The first pathway is that the appellant was in possession of some or all of each drug either alone or jointly with some other person, with an intention to sell. The second pathway is that the appellant took part in the process of sale of each drug by way of providing or allowing the use of premises for the purpose of its sale.
Those members of the jury who were satisfied of the first pathway would not be precluded from also being satisfied of the second pathway. The converse does not follow. Nevertheless, in the event that, following retiring, a verdict of guilty were to be reached, the alternative outcomes could only have been:
(1)that all members of the jury in favour of a guilty verdict were satisfied with respect to the first pathway; or
(2)that all members of the jury in favour of a guilty verdict were only satisfied with respect to the second pathway, or
(3)that a proportion of all members of the jury in favour of a guilty verdict were satisfied with respect to the first pathway and a proportion were satisfied only with respect to the second pathway.
The alternatives in (1) and (2) necessarily result in unanimity as to the legal pathway towards the verdict.
In this case, alternative (3) will also satisfy unanimity as to the legal pathway. Those members of the jury who were satisfied with respect to the first legal pathway, will also, given the facts of this case, be satisfied of the second pathway and extended unanimity will be achieved.
The alternative bases for liability do not involve “materially different issues or consequences” and, as such, an extended unanimity direction was not required.[18]
I would reject appeal grounds 2 and 3.
Appeal ground 4
Ground 4 is in the following terms.
4.The learned trial judge misdirected the jury on the elements of trafficking in a commercial quantity of a controlled drug (count 1) in that she failed to instruct the jury that it was necessary to prove that the [appellant]:
4.1 (in relation to the first path to guilt), intended to sell more than 500 grams of [fantasy] and that the holding of the requisite specific intent to sell must be contemporaneous with proof of his possession of the controlled drug
4.2 (in relation to the second path to guilt) knowingly took part in a process of selling at least 500 grams of [fantasy].
R v Parisi[19] stands for the proposition that on a charge of trafficking in a large commercial quantity of cannabis contrary to section 32(1) of the Controlled Substances Act, where the basis relied upon for the charge is that of having possession of a large commercial quantity of cannabis with intent to sell, it is an element of the offence and necessary for the prosecution to prove that the defendant intended to sell not less than a large commercial quantity, that is, two kilograms of the amount of cannabis that had been found in the defendant’s possession.
The appellant contends that the same requirement with respect to the necessary mental element also applies where the basis of the charge is an allegation that a defendant took part in the process of sale of the drug (as amplified by subsections 4(4) and 4(5) of the Controlled Substances Act).
The respondent does not dispute that the reasoning in R v Parisi leads to this conclusion with respect to the second limb of the trafficking charges relied upon by the prosecution in this case. Whilst this Court is bound only by the ratio of Parisi, my strong inclination is to accept that the reasoning, including the approach to the construction of section 32(1), adopted in Parisi supports the further contention argued for by the appellant and not disputed by the respondent that the same mental element is required where there is reliance on an allegation of taking part in the process of sale of the drug.
The Judge provided to the jury a one-page document by way of an aide memoire setting out the elements of the offence of trafficking in a commercial quantity of a controlled drug. The fourth element as set out in the aide memoire was in the following terms to which objection has not been taken.
(4)It must be proved the accused knowingly trafficked a commercial quantity of a controlled drug.
• A commercial quantity of 1,4-Butanediol is 500 grams.
In the section dealing with the elements of the two offences during her summing up, the Judge commenced with a preliminary statement of each element before discussing each element in some detail. The Judge initially described the fourth element for count 1 in terms slightly different from those set out in the aide memoire but, in my view, not materially different.
As to the first count, there is a fourth element, and that is that the accused trafficked in a commercial quantity of fantasy knowing it was a commercial quantity.
Her Honour amplified this direction during the summing up in these terms.
The fourth element only applies to count 1. In respect of count 1, the prosecution needs to prove beyond reasonable doubt that the amount of fantasy was a commercial quantity and that the accused knew that he was in possession of a commercial quantity of the drug. The Act defines a commercial quantity of fantasy as 500 grams or more of a mixed substance containing the drug. Here the plastic container had 920 ml of liquid containing the drug. There was no challenge to the evidence that the plastic container had 920 ml of liquid containing fantasy. The only issue with respect to this element is again the accused’s state of mind and whether the Crown has proved beyond reasonable doubt he knew the container had 500 grams or more of liquid fantasy.
A number of aspects of this direction call for comment.
First, there is no mention in the direction of the requirement, in accordance with Parisi, that the appellant must specifically intend to sell a commercial quantity (that is, 500 grams or more) with respect to the first pathway to guilt or that he must have knowingly taken part in a process of selling 500 grams or more with respect to the second pathway to guilt. There is also no statement that the required specific intention must be held at the same time as when the appellant is proved to have been in possession of the fantasy. This is the central criticism levelled by the appellant and I will need to return to it.
Second, the direction refers to the plastic container holding 920 ml of liquid containing the drug in juxtaposition to the proposition that the definition of a commercial quantity, insofar as fantasy is concerned, is 500 grams or more of a mixed substance containing the drug. During the trial, reference was made by the prosecution or its witnesses from time to time to the bottle of fantasy containing 920 grams, 920 mls and, on occasion, 920 mgs (which, if the transcript has correctly recorded what was said, would appear to refer to milligrams). There appears to have been an assumption that the unit of volume, one millilitre, corresponds with the unit of weight, one gram. Of course, volume and weight are quite different measures. This assumption is sound where the substance in question is pure water at a temperature of 4°C. However, the conversion ratio will vary according to the density of the substance being measured.
It is unclear from the transcript of the trial whether the liquid containing the fantasy had in fact been weighed and found to weigh 920 grams, whether it was assumed to be so because the volume was found to have been 920 mls or whether, in fact, the density of the substance was such as to replicate that of water at 4°C so that the one for one conversion rate applied in any event. It is conceivable that the jury may have puzzled over the indiscriminate reference to grams and mls. However, the position was made clear to the jury by way of an agreed fact: “the plastic bottle depicted in photograph 4 of the booklet of photographs contained 920 grams of 1,4-Butanediol (also known as fantasy), being the subject of count 1”. That the bottle contained 920 grams and, therefore, a commercial quantity of substance containing fantasy was not challenged at the trial and, in the circumstances there was no real prospect of the jury being confused in this respect. Nevertheless, given the terms of the agreed fact and given the definition of “commercial quantity” both of which referred to grams, it would have been better if the Judge had maintained consistency in the direction.
The third comment about this direction is that it may be seen as misstating the required mental element but, in my view, to the benefit of the appellant. In R v Parisi,[20] Peek J with whose reasons Sulan and Bampton JJ agreed said this.
I therefore conclude that on a charge of traffıcking in a large commercial quantity contrary to s 32(1) of the Act, it is necessary for the prosecution to prove that the defendant actually intended to sell not less than 2 kg of the amount of cannabis in his or her possession. However, two important matters should be emphasised.
First, when a defendant is in possession of a large commercial quantity of cannabis, the amount will usually be greater than the exact weight of 2 kg, of course by a varying margin. In such cases, proof of an intention to sell an amount of cannabis that in fact weighs not less than 2 kg (rather than the total amount, however much greater than 2 kg) will suffice. In the present case, it sufficed to prove an intention to sell not less than an amount of cannabis that in fact weighed not less than 2 kg of the total 11.99 kg of the cannabis. In practical terms, such an intention would be established here by a finding that at the time of his possession the appellant intended to sell not less than one sixth of the total “wet” cannabis in his possession immediately prior to police intervention.
Second, provided that the required elements of possession are proven, the prosecution need not prove that the defendant knew what the cannabis in his possession actually weighed or that a weight of 2 kg of cannabis constitutes a “large commercial quantity”.
In my view, the Judge overstated the requirement concerning the accused’s knowledge when her Honour stated (in the second sentence of the direction set out above) that “the prosecution needs to prove beyond reasonable doubt ... that the accused knew that he was in possession of a commercial quantity of the drug” and when her Honour stated (in the penultimate sentence) “the only issue with respect to this element is again the accused’s state of mind and whether the Crown has proved beyond reasonable doubt he knew the container had 500 grams or more of a liquid containing fantasy”. The offence requires proof that the appellant was knowingly in possession of the substance in question, the quantity of which (whether or not known to the accused) in fact comprised a commercial quantity and that the accused had a contemporaneous intention to sell a quantity of the substance found in his or her possession that as a matter of fact (whether or not known to the accused) constituted a commercial quantity.
The simplest form of direction that would achieve this end would be to direct that the jury must be satisfied beyond reasonable doubt that the appellant was knowingly in possession of the bottle of fantasy with an intention to sell so much of its contents as would weigh at least 500 grams of the total of 920 grams.
The appellant contends that at no time did the Judge explicitly direct the jury in respect of an essential element of count 1, namely that the prosecution had to prove that the appellant had a contemporaneous intention to sell a commercial quantity of the fantasy said to have been in his possession. The appellant complains that the Judge’s directions focussed on a requirement that the appellant knew that the quantity of fantasy in question was a commercial quantity but not on the requisite intention to traffic (that is, as far as the first pathway is concerned, to sell) that amount.
A Judge’s summing up is to be read as a whole and particular directions are to be considered in the context of the summing up as a whole. Whilst a particular direction when read literally and in isolation might be seen as containing an ambiguity or a misstatement or an incomplete statement of what is required, such may be rectified and the direction’s proper meaning discerned when regard is had to other aspects of the summing up.
When considering the second element for each count, that is, that the appellant trafficked in the controlled drug, the Judge in both the aide memoire and in her oral directions explained the meanings to be given to the notion of “traffic” as used in the Controlled Substances Act. Her Honour identified the two bases upon which the prosecution asserted that the appellant had trafficked: first, that he was in possession of the fantasy intending to sell “that drug”; and, second, that he took part in the process of the sale of “each drug” by allowing his premises to be used for the purpose of sale. Her Honour went on to say in respect of the first basis, that there were two parts to the element of trafficking.
First, that the accused was in possession of the drug the subject of each charge and second, he had an intention to sell the drug or in respect of count 2 any part of it.
[emphasis supplied]
Her Honour, here, has identified for the jury that the prosecution case was that the appellant was in possession of the whole of the fantasy as found and of the whole of the amphetamine as found and that he had an intention to sell the whole of the fantasy as found or, in respect of the amphetamine, “any part of it”. In other words, her Honour has stated the requirement in a way that is more favourable to the appellant in that she has identified the requisite intention as being to sell the whole of the fantasy rather than some proportion of it, be it a commercial quantity or otherwise.
The Judge proceeded to give detailed directions concerning the notion of possession but then returned to the second aspect of the second element (trafficking). Her Honour referred to the distinction I have just identified but with greater clarity. Her Honour said this.
The second aspect of this element of the offence is that if you are satisfied that the accused was in possession of either of the drugs, then you would next need to be satisfied beyond reasonable doubt that the accused intended to sell either the fantasy that is the subject of count 1 and all or some of the amphetamine the subject of count 2 ... .
[emphasis supplied]
The Judge then turned to the alternative basis or pathway relied upon by the prosecution to prove trafficking, still as part of her consideration of the second element for both counts, that is, that the accused took part in the process of sale. Her Honour provided a lengthy explanation of this pathway. In the course of this, she repeatedly referred to “the sale of the drug” or “the sale of the drugs” with reference to the requisite specific intention to be proved by the prosecution. At no time did her Honour suggest, at least with respect to the fantasy, that an intention to sell any of the fantasy rather than all of “the drug” or having a purpose of sale with respect to any of the fantasy rather than with respect to all “the drug” would suffice.
When the summing up is considered as a whole, the jury were informed that they had to be satisfied that the appellant knew of the container containing the fantasy and that he was in possession, as the law would have it, of that container and that he had an intention to sell the contents of that container which, as a matter of fact, exceeded to a significant extent a commercial quantity as defined, or in the alternative, that the appellant allowed his premises to be used for the purpose of selling the contents of that container. I agree with the submission of the prosecution that the directions of the Judge as they ultimately would have been understood by the jury were favourable to the appellant in that the jury would have understood the Judge to be directing them that the appellant had to have had the requisite mental state with respect to “the drug” that was the subject of count 1, that is all of the fantasy.
I agree with the submission of the prosecution that whilst the Judge’s directions did not specifically state that the appellant must have allowed his premises to be used for the purpose of sale of at least 500 grams of fantasy, the jury would only have understood her Honour’s direction in that manner. There was no logical reason for the jury to draw a distinction between what was required for each of the two pathways relied on for guilt.
Further, the requirement that the appellant had to hold the necessary specific mental element contemporaneously with having been found in possession or having allowed the use of his premises was implicit throughout her Honour’s directions. There was no realistic prospect that the jury might have focussed on the appellant’s mental state at a time other than when the police found the drugs in the house, being the time at which the prosecution sought to prove possession or use of premises.
I would reject appeal ground 4.
Appeal ground 5
Appeal ground 5 is in the following terms.
5.The learned trial judge misdirected the jury on the elements of trafficking in a controlled drug (Count 1 and 2) by directing the jury that “A person ‘trafficks’ in a controlled drug if he:
(A) has possession of the drug intending to sell it or believing another is intending to sell it; or
(B) takes part in the process of the sale of the drug.
◦A person takes part in the process of sale if he provides or allows the use of his premises for the purpose [of] sale of the drug.
◦A person allows the use of the premises for the purpose of sale of the drug if that person:
i.has some right or legal capacity to prevent the premises being used in that capacity; and
ii.fails to exercise that power to prevent it.
Particulars
The learned trial judge should have directed the jury that a person takes part in the process of the sale of the drug only when it is proved that the accused allowed the use of the premises with the intention that it be used for the purpose of sale of the drug and in the case of count 1, with the intention that more than 500 grams of 1, 4 Butaneodiol [sic] (fantasy) be sold.
In the appellant’s written outline of argument the submission put in support of ground 5 is “the appellant relies on the self-evident particulars of ground 5 of the amended grounds of appeal”. This submission was only briefly amplified during oral submissions.
As I understand the complaint, it is that the Judge should have but failed to direct the jury that when considering whether the appellant had taken part in the process of sale of either drug by allowing the use of his premises, the appellant had to have the intention that the premises were to be used for the purpose of sale of the amphetamine in the case of count 2 and with the intention that they were to be used for the purpose that more than 500 grams of fantasy were to be sold in the case of count 1.
This issue has been dealt with in large part under ground 4. Further, ground 5 would appear to focus solely on the Judge’s statement of the second element as set out in each of the two single-page aides memoire provided to the jury summarising the elements for each count. Ground 5, as set out above, correctly extracts her Honour’s statement of the second element from each of the two aides memoire. However, the aides memoire must be read as supplementary to and as a summary only of her Honour’s oral directions. As part of her discussion of the “alternative basis relied on by the Crown to prove trafficking” her Honour’s directions included the following.
I turn now to the alternate basis relied on by the Crown to prove trafficking, namely that the accused took part in the process of sale. A person takes part in the process of sale of a controlled drug if a person directs, takes or participates in any step taken in the process of sale of the drug. The Controlled Substances Act further states that a step in the sale of a controlled drug includes any of the following acts when done for the purpose of sale: storing the drug, carrying, transporting, loading or unloading the drug, guarding or concealing the drugs, providing or arranging finance for the acquisition of the drug, and importantly here, providing or allowing the use of premises or jointly occupied premises.
Ladies and gentlemen, you will appreciate from that definition, the Act intends to cover all activities associated with the process of the sale of the drug. Any such act amounts to taking the step in the process of sale provided it is carried out by the accused with the requisite intention or for the purpose of sale of the drug. In the present case, the prosecution argues that you can infer from a body of evidence which I will come to shortly that the accused has undertaken a step in the process of sale by allowing his premises to be used for the purpose of the sale of each of those drugs the subject of counts 1 and 2.
[emphasis supplied]

I agree with the respondent’s submission to the effect that, given the factual circumstances of this case, if the appellant can be shown to have used his premises for the purpose of sale it will follow that he was also intending to do so. The Judge also directed the jury in the following terms.
To prove that the accused intentionally allowed the use of the premises for a step in the sale of the drugs, the Crown must prove first that the accused knew that the drug was stored on the premises. Second, the accused had the legal capacity or power to prevent a step in the process in the sale of the drugs, and third, the accused failed to act to exercise that power with an intention or purpose that the drug be sold.
[emphasis supplied]
In addition, the Judge directed the jury in the following terms.
Members of the jury, you should however understand that the fact that an accused lives in a place where a controlled drug is being stored, whatever his knowledge or attitude to the commission of the crime, does not without more make him guilty of the offence. Even if you concluded that the accused did know of the drugs, you would still need to be satisfied that he had a legal capacity to prevent storing of the drug and that he failed to do so with the requisite intention, namely for the purposes of sale.
[emphasis supplied]
I am satisfied that the Judge adequately explained to the jury the nature of the requisite state of mind that the prosecution had to prove with respect to the second basis of liability and with respect to both count 1 and count 2. Again, the lack of an explicit reference to 500 grams or more in this context in connection with count 1 (the fantasy) does not of itself constitute a misdirection. For reasons previously given, I am satisfied that the jury were sufficiently made aware that the required mental element to be established had to apply with respect to at least 500 grams of the fantasy.
I would reject ground 5.
Ground 1 – unsafe and unsatisfactory
I return to ground 1 to which the majority of the parties’ submissions were devoted. The appellant relied on the following particulars in support of this ground.
1.1There was no evidence that the applicant exercised any actual or effective control over the drugs the subject of each count (‘the drugs’) and no evidence capable of excluding the reasonable hypothesis that another person (Fiona Curran and or Lauren Colgate)– exercised control over each of the drugs to the exclusion of Mr Tassone.
1.2There was no evidence (DNA, fingerprints) to prove that the applicant had physically come into contact with the drugs (from which knowledge of their existence might be inferred).
1.3There was no evidence capable of proving that the applicant knew of the existence of the drugs let alone an intention to exercise control over them to the exclusion of other persons or persons other than those with whom they were shared, nor that the applicant took part in the process of the sale of the drugs by allowing the premises to be used for the purpose of sale.
1.4There was no evidence capable of proving that the drugs were shared by the occupants of the house.
1.5The integrity of the crime scene was compromised by the nature of the police investigation (in particular officer Jewell who was responsible for the search of the applicants’ bedroom and officer Costalas, the exhibits officer) which raised a serious question about the reliability of the evidence of investigating police officers and, in turn, the location of the drugs and associated paraphernalia when the police first entered the applicants home.
1.6There was no evidence as to when the applicant had last been home before the police commenced the search at which time Lauren Colgate was the sole occupant of the house thereby leaving open the reasonable possibility that the drugs and associated paraphernalia were solely in her possession.
1.7The evidence was incapable of excluding the reasonable possibility that the drugs and associated paraphernalia alleged to have been located in the applicants’ bedroom were placed there by Lauren Colgate in response to the police presence at the house in which she was then the sole occupant.
1.8The evidence of Fiona Curren was so unreliable have regard to the proven lies by her and her refusal to answer questions such that her evidence was incapable of excluding the reasonable possibility that the drugs were hers or that she was responsible for their presence when police searched the applicants house.
1.9There was no evidence to refute the applicants claim that he had significant eyesight impairment requiring the use of magnification which evidence was relevant to the reasonable possibility that he was not aware of the existence of the drugs and associated paraphernalia in his home.
In Liebke v The Queen,[21] Hayne J (with whose reasons Gleeson CJ and Heydon J agreed) described the test approved of by the High Court in M v The Queen[22] in these terms.
It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.
[citation omitted]
When reviewing the trial evidence for this purpose, and given that the prosecution case was wholly circumstantial with respect to the central issues of possession (including knowledge) and intention to sell (or having a purpose of sale) it is necessary to keep in mind the injunction as summarised in Barca v The Queen[23] by Gibbs, Stephen and Mason JJ.
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused” ... . To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but it should be “the only rational inference that the circumstances would enable them to draw” ... . However, “an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.” ... These principles are well settled in Australia. It was recently held by the House of Lords ... that there is no duty on a trial judge to direct the jury in express terms before they can find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of the direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are early principles of logic and common sense.
[citations omitted]
The prosecution’s primary case with respect to both count 1 and count 2 was that the appellant trafficked in each drug by reason of it having been proved beyond reasonable doubt that he was found to have been in possession of each drug intending to sell it and, in the case of the fantasy, an intention to sell a quantity that comprised a commercial quantity.
As for being knowingly in possession of the fantasy, the prosecution relied on the following facts either established directly by the evidence or to which an inference was open to the jury based on the circumstantial evidence said to support it.
(i)The appellant’s ownership of the house and his exclusive occupation of bedroom 1 and the ensuite in which the fantasy was found.
(ii)The various items associated with drug trading found in the bedroom and the ensuite – particularly, insofar as related directly to the fantasy, the plastic phials and syringes.[24]
(iii)The CCTV monitoring system.
(iv)The limited, if any, use of the ensuite bathroom by persons other than the appellant.
(v)The size of a 920 ml container and the substantial value of the 920 grams of fantasy, rendering it very unlikely that some other person would have planted or otherwise left the fantasy in the appellant’s ensuite bathroom.
The matters just identified are sufficient in my view to render a finding that the appellant was in possession of the fantasy located in the ensuite bathroom as open to the jury. It is to be accepted that there was evidence of other matters that might serve to undermine such a conclusion. The appellant’s eyesight was very poor such that it is conceivable that if someone else had planted or stored the bottle of fantasy in the bathroom he may not have become aware of it. There is evidence of other people coming and going from the house, of others having sporadic use of the ensuite, and to the effect that Fiona Curran, who until very recently lived in the house, was a drug user. There is also the evidence that Lauren Colegate had pleaded guilty to being in possession, with an intention to sell, of the amphetamine found in the refrigerator. Nevertheless, it was the task of the jury to assess the evidence bearing on these issues and to assess the reliability of both Fiona Curran’s evidence and of the denials and explanations given by the appellant in his record of interview.
In this latter respect the jury had the usual advantages of having heard and seen the evidence given by Ms Curran.
Whilst it can be accepted that some persons, having heard the evidence available to this jury, might have entertained a doubt as to whether or not the appellant was in possession of the bottle of fantasy it cannot, in my view, be said that the jury must have entertained such a doubt.
Insofar as the inference pressed by the prosecution that the appellant was in possession of the bottle of fantasy with the intention of selling a commercial quantity thereof (or as the Judge left it to the jury, the whole of it) is concerned, the relevant matters included the following.
(i)The substantial quantity of the mixture containing fantasy (920 mls).
(ii)The fact that the expert evidence indicated that a single dose was of the order of 3-5 mls.
(iii)The substantial value of the fantasy.
(iv)The presence of the phials and syringes in the appellant’s bedroom suitable for use when selling the liquid form of a drug such as fantasy.
(v)The CCTV equipment in the house.
Again, I am not satisfied that a jury acting reasonably must, as distinct from might, have entertained a doubt about the appellant’s intention to sell most if not all of the fantasy found. It is true, that there were few potential indicia of past sales having occurred, for example, there were no so called tick lists, no evidence of multiple mobile phones and no test for residue in any of the phials. Nevertheless, it remained open to the jury to be satisfied of the requisite intention.
The evidence relied on by the prosecution in support of count 1, and notwithstanding the many criticisms of that evidence by the defence as earlier summarised, was not such as to require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.
I have been a little more troubled with respect to count 2, particularly, given that the amphetamine was found in the kitchen refrigerator, a common area readily available to Ms Colegate, Ms Curran and any other person who visited the house from time to time and also having regard to the fact that Ms Colegate pleaded guilty to being in possession of the amphetamine with an intention to sell. If the presence of the amphetamine in the refrigerator had been the sole basis of the prosecution case, the jury finding that the appellant, jointly with Ms Colegate, possessed the amphetamine with an intention to sell could not be justified. However, insofar as count 2 is concerned, the prosecution also relied on the finding of the scales and the small press-seal bags, including one containing residue of methylamphetamine in the appellant’s bedroom.
On the evidence available to the jury it was open to the jury to be satisfied that the appellant was in possession (whether or not jointly with Ms Colegate) of the amphetamine in the refrigerator. Again, whilst others might have entertained a doubt, it cannot be said that this jury must have entertained a doubt in this respect.
Further, the presence of the CCTV equipment, the quantity and value of the amphetamine in the refrigerator, the presence of the scales and the small press-seal bags in the appellant’s bedroom all combine to provide a sufficient evidentiary basis for the jury to have found an intention to sell all or some of the amphetamine found in the refrigerator. Whilst the various criticisms levelled at the evidence by the defence carry force, it was a matter for the jury to assess the weight to be given to the appellant’s denials and explanations in the record of interview, the evidence in support of the prosecution case given by Ms Curran and the failures by the police to more fully investigate the circumstances of the alleged offending. Notwithstanding these matters, the evidence relied upon by the prosecution did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt with respect to count 2.
I disagree with the appellant’s contentions that there was no circumstantial evidence relevant to the matters in particulars 1.1, 1.3 and 1.7 above. The other particulars concern matters relevant to weight and were for the jury to assess.
I would reject ground 1 of the appeal.
Conclusion
Permission to appeal with respect to appeal ground 2 was given by a single Judge. I would grant permission to appeal with respect to grounds 1, 3, 4 and 5. However, I would dismiss the appeal.
HINTON J.
I have had the benefit of reading the judgment of Nicholson J in draft for which I am grateful.
I agree with Nicholson J that the verdicts are not unsafe and unsatisfactory for the reasons he gives.
As to count two in particular, it was open to the jury to conclude that the appellant had the exclusive use of the bedroom to which there was attached the ensuite. The location in the dresser in that bedroom of items commonly used in the sale of amphetamine and one press seal bag containing a quantity of methylamphetamine, coupled with the location of the fantasy, syringes and phials in the ensuite used rarely by anyone other than the appellant, the quantity and street value of the fantasy, and the evidence of the illicit drug trade and illicit drug usage, suggested a commercial involvement by the occupant in the illicit drug trade. When these facts, if accepted, are coupled with the presence of an operational CCTV security system, the appellant’s ownership of and residence at the premises, the appellant’s use of the refrigerator and the presence of a similar container on the kitchen windowsill to that found in the refrigerator containing the amphetamine, it was, in my view, open to the jury to reject the hypothesis that the appellant was not in possession of the amphetamine in the refrigerator or not in joint possession, or did not know it was in the refrigerator. Clearly, the appellant’s use of insulin for his diabetes, his poor eye-sight, the presence in the house of Ms Colegate, her drug use and her plea, and Ms Curran’s credibility, were facts to be considered by the jury in determining whether all reasonable hypotheses consistent with innocence had been disproved. That was plain. In my view it cannot be said on the evidence adduced that a jury must have concluded that all reasonable hypotheses consistent with innocence were not excluded.
I agree for the reasons provided by Nicholson J that grounds two and three should be dismissed. I would add that nothing in the trial judge’s directions suggest that as the jury would have acted other than as one. In the light of the summing up, I doubt that there is any risk that the jury would have moved to the alternate basis upon which the prosecution put its case on the second element of the offence comprising count two unless, as a body, it had determined that it could not arrive at a conclusion on the first basis.
I would dismiss grounds four and five for the reasons given by Nicholson J.
I would dismiss the appeal.

[1] Contrary to section 32(2) of the Controlled Substances Act 1984.

[2] Contrary to section 32(3) of the Controlled Substances Act 1984.

[3] It was an agreed fact at trial that the appellant was the registered owner of the house, Appeal Book 74.

[4] This was an inaccurate statement of what the prosecution needed to prove. Knowledge of the existence of the amphetamine is not sufficient to demonstrate that the appellant had joint possession much less was guilty of trafficking.

[5] 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. In this case, the prosecution took the view that the presumption might not be available to it and assumed the usual burden of proving all elements of the offence beyond reasonable doubt without seeking to rely on this presumption.

[6] The relevant regulation under the Controlled Substances Act 1984 prescribes a quantity of 500 grams or more of the drug 1,4-Butanediol (fantasy) to be a commercial quantity.

[7] [1975] HCA 42; (1975) 133 CLR 82.

[8] [1911] HCA 66; (1911) 13 CLR 619.

[9] [1963] HCA 44; (1963) 110 CLR 234.

[10] Police observed male toiletries in the ensuite bathroom and male clothing in bedroom 1. Fiona Curran, a previous occupant of the house who had left only some days prior to the police search, identified bedroom 1 as exclusively occupied by the appellant.

[11] Police observed female clothing together with items such as perfume and a notice board displaying photographs depicting a person who, according to a police officer, looked like Lauren Colegate in one of the other bedrooms. A glass ice pipe was found in a handbag in this bedroom and a similar ice pipe was found secreted on Lauren Colegate’s person. Lauren Colegate did not give evidence.

[12] The appellant did not give evidence.

[13] [2015] SASCFC 177 at [2]-[10] (Kourakis CJ), [114]-[124] (Gray J) and, particularly comprehensively, at [205]-[323] (Peek J).

[14] (1998) 101 A Crim R 175 at 188.

[15] (1999) 110 A Crim R 198 at [65]-[68].

[16] In this case there were majority verdicts.

[17] Of course, other matters need to be proved in order to establish the commercial quantity aspect of count 1.

[18] R v Leivers & Ballinger (1998) 101 A Crim R 175 at 188 (Fitzgerald P and Moynihan J).

[19] [2014] SASCFC 57; (2014) 119 SASR 277 (Peek J with whose reasons Sulan and Bampton JJ agreed).

[20] [2014] SASCFC 57; (2014) 119 SASR 277 at [36]-[38].

[21] [2007] HCA 30; (2007) 230 CLR 559 at [113], 596-597.

[22] (1994) HCR 63; (1994) 181 CLR 487.

[23] [1975] HCA 42; (1975) 133 CLR 82 at [11], 104-105.

[24] There was evidence to the effect that fantasy, typically, was sold in liquid form and that a single dose would measure 3 to 5 mls.