R v Tassone

Case [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.

  1. I agree that the appeal should be dismissed for the reasons given by both Nicholson and Hinton JJ.

    NICHOLSON J.

    Introduction

  2. 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. 

  3. On…

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AGLC
R v Tassone [2016] SASCFC 146
Case
[2016] SASCFC 146
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction following a jury trial for trafficking in a commercial quantity of a controlled drug and trafficking in a controlled drug, contrary to the Controlled Substances Act 1984 (SA). The appellant was found to be in possession of 1,4-Butanediol and amphetamine at his residence. The prosecution's case was based on circumstantial evidence.

The court was required to determine whether the trial had miscarried due to the jury being invited to consider mutually exclusive legal and factual pathways for conviction, the trial judge's failure to provide an extended unanimity direction, misdirections regarding the elements of the offences, or whether the verdict was unreasonable or unsupported by the evidence.

The court dismissed the appeal, finding that the verdicts were not unsafe or unsatisfactory. It was open to the jury to conclude, based on the circumstantial evidence including the location of drugs and drug paraphernalia, the quantity and street value of the substances, and the presence of a CCTV system, that the appellant was commercially involved in the illicit drug trade. The court also found that the trial judge's directions did not suggest the jury would have acted other than as one, and that there was no risk of the jury moving to an alternative basis for conviction without first reaching a consensus on the primary basis. The court agreed with the reasoning of Nicholson J regarding the dismissal of grounds two, three, four, and five.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J NICHOLSON J
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. 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.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J, NICHOLSON J

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