R v Wilson

[2002] NSWCCA 288

CITATION:	R v WILSON [2002] NSWCCA 288
FILE NUMBER(S):	CCA 60091/02
HEARING DATE(S):	9 July 2002
JUDGMENT DATE:	23 July 2002
PARTIES :	Appellant - Scott Geoffrey Wilson Respondent - Crown
JUDGMENT OF:	Sheller JA at 1; Bell J at 68; Carruthers AJ at 69

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/41/0110
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL :	J I Doris - Appellant E A Wilkins - Respondent
SOLICITORS:	Russell McLelland Brown - Appellant S E O'Connor - Respondent
CATCHWORDS:	CRIMINAL APPEAL - appeal from conviction - Drug Misuse and Trafficking Act 1985, s23(1)(a), s24 - premises used for purpose of manufacturing prohibited drug - cultivation of cannabis plants - Circumstantial evidence - reasonable hypothesis - whether conviction was unsafe/unsatisfactory
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Criminal Appeal Act 1912 Criminal Procedure Act 1986
CASES CITED:	Plomp v The Queen (1963) 110 CLR 234 Fleming v The Queen (1998) 197 CLR 250 Shepherd v The Queen (1990) 170 CLR 573
DECISION:	Appeal dismissed

60091/02

SHELLER JA
BELL J
CARRUTHERS AJ

R v Scott Geoffrey WILSON

The appellant was charged under the Drug Misuse and Trafficking Act 1985 (the Act), first, that he did knowingly take part in the manufacture of a prohibited drug methylamphetamine (in contravention of s24 of the Act) and secondly that he did cultivate cannabis plants (in contravention of s23(1)(a) of the Act). The appellant pleaded not guilty to both charges, but was convicted on both by Judge Goldring without a jury.

The appellant appealed from his conviction on each count.

The appellant was arrested after the execution of two search warrants on his premises which discovered items which had been used in a step in the manufacture of methylamphetamine. Also discovered were 87 cannabis plants.

While the Crown case depended largely on circumstantial evidence, the trial Judge was satisfied beyond a reasonable doubt that the appellant knew that his premises were being used for the purpose of manufacturing a prohibited drug. The trial Judge was unwilling to infer that the appellant was actually participating in the manufacture of amphetamines on his premises. As to the second charge, the trial Judge was satisfied that the appellant had nurtured or tended the cannabis plants found in his premises.

At trial the appellant did not give evidence or call any evidence, but an alternative hypothesis to explain the presence of the items was advanced on his behalf. The appellant claimed that the step in manufacture took place off the appellant's premises and the premises were used merely to store the materials and implements of manufacture.

It was argued on appeal that the trial Judge had erred by regarding it as appropriate to discuss alternative reasonable hypotheses inconsistent with the appellant's guilt of the offences charged. The appellant contended that the verdict was unreasonable and unsupported by the evidence. It was further argued that the conviction was unsafe and unsatisfactory and lead to a miscarriage of justice.

In respect of the second charge, the appellant's counsel submitted that there was no evidence to support the conclusion that the appellant had tended or nurtured the cannabis plants found on the premises. As such, the verdict was unreasonable and was not supported by the evidence.

HELD (per Sheller JA, Bell J and Carruthers AJ concurring)

1. If there was a rational inference or reasonable hypothesis inconsistent with the appellant's guilt it was not open to the trial Judge to convict the appellant on some other rational inference or reasonable hypothesis which pointed to the appellant's guilt: see Plomp v The Queen (1963) 110 CLR 234. While the trial Judge did not correctly express the above principle, his treatment of the circumstantial evidence the Crown relied on demonstrated that the correct approach was taken.

The Court was satisfied that the trial Judge accepted and proceeded on the basis that he could not convict if there was a reasonable hypothesis available which explained the distribution of the various items found on the premises and was inconsistent with the appellant's guilt.

2. The Court did not accept the appellant's contention that the trial Judge had failed to give reasons and hence to comply with section 17 of the Criminal Procedure Act 1986: Fleming v The Queen (1998) 197 CLR 250 applied.

3. The evidence to which the trial Judge referred left it open to him to be satisfied beyond a reasonable doubt that the identified step in manufacture took place in the appellant's premises and to reject the hypothesis that manufacture had taken place elsewhere and the appellant's premises were used only for storage as a reasonable hypothesis. See the statements of Dawson J in Shephard v The Queen (1990) 170 CLR 573 at 579-80.

4. The appeal on the conviction for the second charge could not be sustained. The presence of fertiliser and evidence of the healthy condition of the cannabis plants when they were found indicated they had received reasonable amounts of light, regular watering and a nutrient supply. There was ample evidence for the trial Judge to be satisfied beyond a reasonable doubt that the appellant had tended and nurtured the plants by watering and fertilising them.

ORDER
Appeal dismissed


**********

60091/02

SHELLER JA
BELL J
CARRUTHERS AJ

Tuesdsay, 22 July 2002

R v Scott Geoffrey WILSON

Judgment

1 SHELLER JA: The appellant, Scott Geoffrey Wilson, was charged first that on or before 4 October 2000 at Bulli he did knowingly take part in the manufacture of a prohibited drug methylamphetamine and secondly that on or before 4 October 2000 at Bulli he did cultivate a prohibited plant namely cannabis plants.

2 The first charge was laid under s24 of the Drug Misuse and Trafficking Act 1985 (the Act). Section 6 of the Act provides that for the purposes of the Act a person takes part in the manufacture of a prohibited drug, inter alia, (a) if the person takes or participates in any step in the process of manufacture or (c) suffers or permits any such step in that process to be taken in premises of which the person is the occupier. Section 3 of the Act provides that manufacture includes the process of extracting or refining the prohibited drug.

3 The second charge was laid under s23(1)(a) of the Act. Section 3 of the Act provides that cultivate includes tending or nurturing.

4 The appellant pleaded not guilty to both charges. The trial proceeded before Judge Goldring without a jury on 20 and 21 February 2002. For reasons given on 21 February 2002 his Honour convicted the appellant on both charges.

5 On 19 April 2002 his Honour imposed sentences, on the first charge, of imprisonment for twelve months to date from 7 June 2002 with a non-parole period of nine months to be served by way of home detention and, on the second charge, imprisonment for a fixed term of two months to date from 7 June 2002 to be served by way of home detention.

6 The appellant appeals from his conviction on each count.

The Crown Case

7 In summary the Crown case was as follows. The police executed a search warrant on 4 October 2000 at premises occupied by the appellant at 21 Coleman’s Lane Bulli. They found the appellant at home with Matthew Clements, Melissa Tickle and Shane Evans. The four people were seated around a coffee table. On the table there was a small bowl of cannabis in a dried and shredded form. The appellant told the police that he was going to take it fishing and give it to other people to smoke.

8 Matthew Clements refused to be interviewed by the police. Melissa Tickle gave evidence that she had never been to the premises before and had not taken any of her personal items into the house. Shane Evans said that he had been at the house before. On that day he was there to go fishing with the appellant. He gave evidence that he had left his fishing gear outside. He had never left any other possessions at the house.

9 The house premises consisted of two bedrooms, one occupied by the appellant, a kitchen, a lounge room and a sunroom. In the backyard were two caravans and a tin shed.

10 During this first search the police found in the appellant’s bedroom a bottle labelled and containing methylated spirits and two plastic bags each containing a polyethylene suit for use in handling hazardous chemicals which, the appellant told police, he used to protect his clothing while fishing and had obtained from a person he knew who worked at the Steelworks. There was no evidence that either of the suits had been used in any way.

11 In the sunroom the police found a glass vessel described in the evidence by an expert chemical analyst, Mr Peter Ballard, as a separating flask for use in the reaction phase of the manufacture of amphetamines. The appellant told police during the search that his son had brought the flask home from school and the appellant had confiscated it to return to the school. The flask was not concealed in any way.

12 In the other bedroom which the appellant told police belonged to nobody, were found opened packets of Sudafed, car radios and other items. The appellant said that this room had been used by a person called Peter Champion.

13 In the backyard the police found 87 cannabis plants on a green plastic tray lying on a brick structure like an incinerator or barbeque. The appellant said that these plants belonged to Peter Champion who had left owing rent. The appellant understood that he was coming back to pick the plants up. He denied that he looked after the plants. There was also a disassembled motorbike in the yard said to belong to Peter Champion.

14 Richard Hawkins, a horticulturist called by the Crown, gave evidence from photographs shown to him that the plants were in good condition and must have been supplied with nutrients and water. The police also found two plastic containers of fertiliser suitable for use in the hydroponic cultivation of plants.

15 Senior Constable Hyndes gave evidence that he unsuccessfully searched the Roads and Traffic Authority records, the COPS database and the electoral roll for a Peter Champion who had lived in the Wollongong area.

16 From under the tin shed in the backyard the police removed a 20 litre drum labelled as containing methylated spirits. On analysis the drum was found to contain residues of not only ethanol but paracetamol and pseudoephedrine. In the corner of the shed in a cardboard box an Ohaus machine was discovered. The appellant admitted that he went into the shed nearly every day and he knew that the box was there but he did not know what was in it. Mr Ballard gave evidence that this machine could be used as electronic scales and could also be used to remove moisture from substances placed on its plate. On analysis the plate was found to contain traces of methylamphetamine, pseudoephedrine and cannabis extracts.

17 At the time of the execution of the search warrants, Ms Valerie Connelly was residing in one of the caravans. In that caravan under the seat in a compartment the police located several freezer bags containing hundreds of tablets which were later identified as Sudafed or a tablet of a similar chemical composition. There were also two 3 litre milk containers both of which contained a residue of pseudoephedrine and ethanol and a rectangular 4 litre container which contained a residue of pseudoephedrine and paracetamol. There was also a bottle of methylated spirits. The other caravan was searched but no items were seized from it.

18 Later in the day a second search warrant was executed in the presence of police from a specialist drug unit. This time in the second caravan a pair of children’s tracksuit pants, which had obviously been used as a rag, was confiscated and subjected to analysis. The pants were found to contain traces of methylamphetamine and pseudoephedrine.

19 Mr Ballard explained one method of manufacturing methylamphetamine. This involved the extraction of pseudoephedrine from commercially available tablets such as Sudafed or Codral by crushing the tablets and immersing them in an alcohol such as methylated spirits which caused the pseudoephedrine to go into solution. It could then be extracted. Before methylamphetamine could be produced a further process was required, known as a reaction process, where the pseudoephedrine was placed in an apparatus with a re-agent, heat applied and the fumes condensed to produce a methylamphetamine oil. That oil could then be solidified. The Crown case was that the process of extracting pseudoephedrine from tablets using methylated spirits took place at the premises. This was established by the presence of a large number of tablets of the Sudafed type, the various containers of methylated spirits and the various containers showing residue consistent with the production of pseudoephedrine.

20 Ms Connelly gave evidence. She came to be occupying the caravan as a result of her relationship with the appellant’s father. She had moved in about two months before the execution of the search warrant. She said that she never went into the house or into the other caravan. She gave evidence that the caravan was fitted with a lock but that she never had a key and did not lock the caravan from the outside.

21 Ms Connelly testified that she had looked all over the caravan, including the compartment seat whilst staying there and had never found anything. She also said that she had never seen the appellant enter the other caravan. The witness had made a prior inconsistent statement. The Crown obtained leave under s38(1)(c) of the Evidence Act 1995 to cross-examine her. In her prior statement dated 6 June 2001 Ms Connelly had said that she had never looked in the compartment seats of the caravan. She had also said that she had seen the appellant entering the other caravan every day and sometimes, more often than not, several times a day. She had been told never to enter into the other van.

22 The Crown conceded in relation to this witness that her extensive psychiatric record, history of alcohol and drug abuse and her own admission that she had provided sexual favours in return for the supply of amphetamines made her evidence unreliable and a warning under s165 of the Evidence Act was appropriate.

23 The appellant neither called any evidence nor gave any evidence himself.

Reasons for Judgment

24 In his reasons for judgment of 21 February 2002 Judge Goldring said that the case depended very largely on circumstantial evidence. He said that the onus of proof was and remained on the Crown to prove its case beyond reasonable doubt as to every essential ingredient of each of the charges. The trial Judge observed that he must be satisfied beyond reasonable doubt that there was no other reasonable explanation for those facts upon which the Crown asked him to infer that the accused was guilty of each of the two offences charged than that of the accused’s guilt.

25 Referring to the expert witnesses, Mr Ballard and Mr Hawkins, his Honour noted that it was open to him to reject any expert evidence or to accept it and that he must not draw any inference adverse to the accused because he exercised his right to remain silent and not to give evidence.

26 Next the trial Judge turned to the ingredients of the particular offences and set out the relevant provisions of the Act. There was no issue that methylamphetamine was a prohibited drug and cannabis plants prohibited plants. He summarised the Crown case on the first charge as follows. The Crown alleged that

“Mr Scott Wilson, knowingly took part in the manufacture of a prohibited drug, namely methylamphetamine, … because he participated in the extraction of pseudoephedrine from commercially available tablets … pseudoephedrine is an essential ingredient in the manufacture of methylamphetamine. Alternatively it says if Mr Wilson did not himself take part in that process he was the occupier of premises where that process did take part [sic] and he knew that the premises were being used for that purpose.”

27 As to the second charge the trial Judge said that the Crown alleged that Mr Wilson nurtured or tended the 87 odd plants that were found in his premises.

28 Judge Goldring referred to the evidence of Ms Connolly, the occupant of one of the caravans in the backyard, a caravan that, according to the appellant, the appellant owned. She had a close relationship with the appellant’s father Geoffrey Wilson. The Judge said:

“Mr Scott Wilson told the police that his father was helping a woman who was in trouble by allowing her to occupy the caravan and Ms Connelly confirmed that. It was conceded in the course of the trial that Ms Connelly, who is an unfortunate person and who undoubtedly was in trouble at this time, is affected by a number of conditions. She has been a psychiatric patient since 1990 when she was twenty-four; she suffers from auditory hallucinations; she has been or is addicted to drugs including heroin and amphetamines; she suffers from depression; she has suffered from drug induced psychosis; she has misused prescribed medication; she has abused alcohol; she has episodes of paranoia; she has been diagnosed as having a borderline personality disorder and in the past there are episodes when she has provided sexual favours to those who have supplied her with drugs, particularly amphetamines. It is conceded that on that basis, as well as the relationship with the accused’s father, I should be cautious of her evidence and indeed because of her history of drug related and medical problems I must regard her evidence as unreliable and if that were the only evidence of the accused it would be dangerous for me to convict on that basis. As it turns out, Ms Connelly’s evidence is not the principal evidence relied upon by the Crown .”

29 The trial Judge referred to the searches and the evidence of two of the three people (Mr Evans and his girlfriend, Ms Tickle) the police found with the appellant when they arrived at the premises at about 10 am on 4 October 2000. The fourth person present, Mr Clements, did not give evidence. Senior Constable Hyndes said that Mr Clements had declined to be interviewed by the police or to give a statement.

30 Ms Tickle’s evidence was that she and Mr Evans had gone to the premises. It was the first time she had been there. She did not use cannabis. She did not like it. She did not take anything there with her. She said that Mr Evans had taken his fishing tackle with him, which he corroborated. Mr Evans said he had known the appellant for some time and had been fishing with him in the past. The trial Judge said:

“On this occasion he intended to go fishing and had brought his fishing gear which he left outside when he entered through the back door. However, he did not bring anything else with him and he did not consider himself a regular visitor to Mr Wilson’s house. There is no doubt, in my view, that Mr Wilson is keen on fishing, that was his evidence, it was Mr Evans’ evidence, it was what Mr Wilson said to the police... And in the videotape there are obviously a number of fishing rods stored in the house.
The four people who were in the house when the police arrived were seated around a coffee table and on that table there was a small bowl containing a small amount of cannabis in a dried and shredded form ready for smoking together with the bong. Mr Wilson told the police that he was going to take that with him fishing and give it to other people who would smoke it. Very little turns on that.”

31 The trial Judge referred to the video tape of the search and the various things found by the police which I have already described. His Honour continued:

“There were in the refrigerator some fresh food items. Ms Connelly gave evidence and was not challenged on this point that she did keep food items in that fridge and indeed that these items were often provided for her by Mr Geoffrey Wilson. She gave evidence that the caravan was fitted with a lock but that she never had a key and did not lock the caravan from the outside. She said she thought she had seen Geoffrey Wilson lock it from the outside on one occasion but as far as she was concerned she did not lock it. She said that she had occupied this caravan for about two months before the search warrant was executed and for about six weeks afterwards. She did not ever go inside the house and she used a toilet block at the beach when she needed to go to the toilet. She moved out of the caravan when she obtained a flat which was more comfortable and warmer.”

32 The trial Judge said the contents of the 20 litre drum labelled as containing methylated spirits was analysed and found to contain residues of not only ethanol but paracetamol and pseudoephedrine. He referred to the Ohaus machine and on analysis the finding that the pan of this device contained traces not only of methylamphetamine and pseudoephedrine but also of cannabis extracts. The Judge continued:

“In the laundry at the rear of the house, when a second search warrant was executed later that afternoon, police including not only the police who had conducted the original search but police from a specialist drug unit who had been called in, found a length of black hose.”

33 The trial Judge said:

“Mr Wilson’s evidence, or what he told the police and what I must conclude from the evidence before me is that he was the only permanent adult occupant of this premises. He did have a girlfriend called Lee Buckley who was there from time to time and who was actually on the premises at the time of the execution of the second search warrant in the afternoon. She did not give evidence.
Ms Connelly gave evidence that she was there at times. Mr Wilson said that he lived there with his son who was aged seven and Ms Connelly confirmed that. There were some items found in the course of the search which were consistent with this.”

34 After describing the method of manufacture, his Honour said:

The Crown does not allege that the whole of the process took place on Mr Wilson’s premises. It does however allege that the process of extracting pseudoephedrine from tablets using methylated spirits did take place there and that this is the only explanation for the presence of large numbers of tablets of the Sudafed type, of containers of methylated spirits and of a number of containers showing residue consistent with the production of pseudoephedrine. Indeed, some of the items seized on analysis showed traces of methylamphetamine itself.”

35 Reiterating that the case was a “circumstantial case” and stating that the only corroborative evidence which, in view of the warning that he had given, could not be of significant value but might be of some value was that of Ms Connelly. The trial Judge said:

“Here, the relevant evidence is that she had firstly not examined the caravan where the items were found during the execution of the search warrant although in her evidence in court she said that she had explored the caravan thoroughly and I am asked to treat that inconsistency as effecting the worth of her evidence.
The other thing that she said in court, which contradicted a prior statement given to the police, was that she had never seen anyone going into the other caravan, whereas she had told police that she had seen Scott, meaning the accused, and other people going into this caravan on a number of occasions. As I say that statement is corroborative. It would not in my view justify by itself any finding of the accused’s guilt.”

36 The Crown listed various things that the appellant had said to the police in the course of the execution of the search warrant which were untrue and, it was submitted, were statements made in order to escape blame. His Honour said:

“The first was that the cannabis on the table was to be used when the accused and his friends went fishing. I cannot be convinced that that was an untruth. At least I cannot be convinced beyond reasonable doubt that that was an untruth. He also said that the chemical protection suits were intended by him to be used to protect his clothing when he went fishing and I cannot be satisfied that this could in any sense or on any rational basis be said to be true. It is a highly unlikely use for these garments.

37 After passing reference to the presence of Peter Champion, his Honour said:

“If I am not satisfied of the truth of those statements, a matter which I will consider, the Crown says that I should find that that is an untruth from which I can conclude that the accused told those lies because he was conscious of his guilt. The defence argued in my view convincingly, that clearly on these premises were a number of items which Mr Wilson knew or should have known were either illegal or closely related to activities which were criminal.”

The trial Judge was not satisfied that the only reason the appellant told lies was that he was conscious of his guilt of the particular offences charged.

38 Judge Goldring said he could not draw an inference that the appellant was actually participating in the manufacture of amphetamines on his premises. Accordingly, his Honour said he would concentrate on the use of the appellant’s premises.

“The defence put forward a number of alternative hypotheses to the knowing participation of Mr Wilson in the manufacture of amphetamines by allowing his premises to be used. I emphasise that this is an offence which requires knowledge. Knowledge, of course, can be inferred from circumstances and actions and that is what the Crown asks me to do in this case. The alternative hypotheses which the defence says I might find would reasonably explain the presence of all these items in the premises relate to the possibility that Valerie Connelly, or someone associated by her, placed some or all of the items on Mr Wilson’s premises; that Mr Geoffrey Wilson placed the items there; or that Peter Champion did and I should say something about each of those alternatives.”

39 The trial Judge regarded it as significant that not all the items found by the police when they executed the search warrant were found in the caravan occupied by Ms Connelly. Some were found in the shed, in the laundry and in the house. All of these items were ones used commonly in the extraction of pseudoephedrine from tablets. His Honour said:

“The protective clothing is at least consistent with the conduct of a laboratory of some sort. The methylated spirits, while having a perfectly innocent explanation if found in isolation, when found in conjunction with other items loses that innocence. The presence of the 20 litre drum under the shed is significant in my view. The Ohaus machine may be something that had been placed in the shed some time before and may not necessarily be used to Mr Wilson’s knowledge in the manufacture of amphetamines. He did know that the carton containing it was in the shed but said that he did not know what it contained. The evidence of Mr Ballard was that the apparatus, like the separation funnel, was an item used in the processes of manufacture of amphetamines which is not suggested took place on Mr Wilson’s premises [sic]. However, the fact that such items were found on the premises goes, the Crown says, to complete a series of coincidental findings of items from which I should deduce that part of the process of manufacturing of amphetamines was taking place on those premises.”

40 His Honour dealt with each of the hypotheses he had set out. He said:

“If I am to accept the Crown case I must find that each of the three hypotheses which the defence has put forward as possible alternatives are not reasonable and that indeed any other hypothesis which is reasonable can be dismissed. [emphasis added] Ms Connelly denied that she knew of the presence in the van occupied by her of any of the items which the police found. She did say that she knew a number of people who supplied amphetamine and indeed it would be difficult to imagine that she did not. It is possible that someone that she knew may have been admitted by her to the caravan. If all the items in question had been found in the caravan that hypothesis would be a reasonable one but because other items were found in other parts of the premises it seems to me that that is not a reasonable hypothesis.
Similarly in respect of Mr Geoffrey Wilson, who certainly had access to the caravan, there was virtually no evidence in this trial that he was involved in any illegal activity. The only evidence was the evidence of Ms Connelly about which there are a number of caveats, but there was no evidence that he had regular access to the premises or access to the inside of the house or the shed or the other caravan. So I find that the possibility that Mr Wilson placed all the items in the premises is not a reasonable hypothesis.
When the police searched the premises Mr Wilson told them on a number of occasions that items belonged to Peter Champion. Senior Constable Hyndes gave evidence that he searched the Roads and Traffic Authority records, the COPS database and the electoral roll. He found a number of people called Peter Champion but none who lived in the Wollongong area. No evidence was given about when Mr Champion lived in the premises. Mr Wilson did not tell the police in the course of the execution of the search warrant at what time Champion was said to have lived in the premises. Connelly, who had been a resident of these premises for three and a half months over this period denied that anyone other than Wilson and herself [sic] and occasionally Wilson’s girlfriend stayed in the house and Evans who said that he had known Mr Wilson for some time did not know him. There is, in my view, not sufficient evidence on which to formulate a reasonable hypothesis that Peter Champion had placed any items in the van or indeed any where else on the premises.”

41 I will return to what the trial Judge next said about the second charge. Immediately following that his Honour said:

“I also find that there is no reasonable hypothesis relating to the position [emphasis added] of the various items which clearly are items capable of being used in the manufacture of amphetamines through the extraction of pseudoephedrine from tablets, as a whole in these premises, other than the use of those premises for that purpose and in my view there is no hypothesis which can explain how Mr Wilson could not [emphasis added] have been ignorant of their presence or their use. I am therefore satisfied beyond reasonable doubt that he knowingly allowed the use of his premises for that purpose.”

42 The trial Judge said this about the second charge:

“In relation to the cannabis the circumstances on which the Crown asks me to infer that Mr Wilson was the person who tended or nurtured the cannabis was basically the condition of the cannabis when it was found and the fact that in the execution of the search warrants the police found two plastic containers of fertiliser used in the hydroponic cultivation of plants.
Mr Hawkins, a horticulturist, was shown photographs of the plants, and indeed I should say that although I am not a horticulturist and not a gardener in any sense it appeared to me from the video that the cannabis plants were in good condition. They were seedlings planted densely in a plastic container and Mr Hawkins gave expert evidence, if such were necessary, that they needed light, water and nutrient. Had the seedlings continued in that environment for long they could not have survived. There was no evidence as to the humidity of the soil when the plants were confiscated but Mr Hawkins said that to be in that condition they required nutrient and water. Mr Wilson was the only full-time adult occupant of these premises and he knew about the presence of the plants. It seems to me that the only reasonable hypothesis I can draw from those facts is that Mr Wilson was the person who tended and nurtured these plants by watering and fertilising.”

Grounds of Appeal

43 The appellant’s grounds of appeal against his conviction were:

“ Count 1
Ground 1: The Judge materially misdirected himself as to the applicable law.
Ground 2: The verdict was unreasonable, and cannot be supported, having regard to the evidence.
Ground 3: The conviction is unsafe and unsatisfactory and, in all the circumstances, there was a miscarriage of justice.
Count 2
Ground 1: The findings of fact made by the Judge were incapable of sustaining a verdict of guilty.
Ground 2: The conviction is unsafe and unsatisfactory and, in all the circumstances, there was a miscarriage of justice.”

Discussion

The first count

44 In his written submissions, Mr Doris of counsel, who appeared for the appellant both at the trial and on the appeal, argued that the trial Judge had failed to state the elements of the offence and in particular said, correctly, that the first passage in the reasons for judgment which I have emphasised, displayed error. It was suggested that the trial Judge regarded it as appropriate to dismiss alternative reasonable hypotheses inconsistent with the appellant’s guilt of the offence charged.

45 In his well known judgment in Plomp v The Queen (1963) 110 CLR 234 at 252, Menzies J said:

“The customary direction where circumstantial evidence is relied upon to prove guilt, that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw, was given.”

46 If in this sense there was a rational inference or reasonable hypothesis inconsistent with the appellant’s guilt it was not open to the trial Judge to convict the appellant on some other rational inference or reasonable hypothesis which pointed to his guilt. However, the infelicitous expression his Honour used did not accord with what elsewhere was shown to be his approach to the circumstantial evidence the Crown relied on. He had made it plain at the beginning of his judgment that he had to be satisfied beyond reasonable doubt that there was no other reasonable explanation for the facts the Crown asked him to infer than that of the accused’s guilt of the offences charged. At the end of his reasons for judgment he found that there was no reasonable hypothesis relating to the position of the various items clearly capable of being used in the manufacture of amphetamines through the extraction process, other than the use of the premises for that purpose and no hypothesis which could explain how the appellant could have been ignorant of their presence or their use.

47 The last passage of the judgment also contains words which present some difficulty of expression. It was accepted by both the Crown and the appellant that the transcribed phrase “could not have been ignorant” should be read by leaving out the word “not”. However, Mr Doris suggested that the word “position” at the beginning of that paragraph should be read as “possession”. In my opinion, no basis was shown for making this change. Reading the reasons for judgment as a whole I am satisfied that his Honour accepted and proceeded on the basis that he could not convict if there was a reasonable hypothesis available which explained the distribution of the various items found on the premises and was inconsistent with the appellant’s guilt.

48 In his oral submissions, Mr Doris made these points. Judge Goldring was not prepared to draw an inference that the appellant was actually participating in the manufacture of amphetamines on his premises. He therefore, as he said, concentrated on the use of the appellant’s premises. He identified three hypotheses that the defence said would reasonably explain the presence of the various items the police found on the appellant’s premises. The hypotheses were that Ms Connelly or someone associated with her, or the appellant’s father, Mr Geoffrey Wilson, or Mr Champion placed some or all of these items on the appellant’s premises. His Honour rejected each of these hypotheses as a reasonable explanation of the presence of the items found on the appellant’s premises. I did not understand Mr Doris to challenge the trial Judge’s rejection of these hypotheses.

49 The trial Judge regarded it as significant that not all the items found were found in Ms Connelly’s caravan but were dispersed about the premises in the tin shed, the laundry and in the house. They were items commonly used in the extraction of pseudoephedrine from tablets though the glass separating flask found in the sunroom could be used in the reaction phase of the manufacture of amphetamines. The protective clothing was at least consistent with the conduct of a laboratory of some sort. The methylated spirits might be innocently explained if found in isolation, but when found with the other items lost that innocence. In his Honour’s view the presence of the 20 litre drum under the shed was significant. The Ohaus machine had been placed in the shed some time before and might not necessarily be used to the appellant’s knowledge in the manufacture of amphetamines. This, like the separation funnel, could be used in processes of manufacture of amphetamines which the Crown did not claim took place on the appellant’s premises.

50 Ms Connelly denied that she knew of the presence in the van occupied by her of any of the items the police found. His Honour observed that it was possible that someone she knew might have been admitted by her to the caravan and said that if all the items in question had been found in the caravan that hypothesis would be a reasonable one. But because some items were found in other parts of the premises, it was not a reasonable hypothesis. There was little if any evidence that Mr Geoffrey Wilson was involved in any illegal activity. His Honour found that the possibility that Mr Wilson placed all the items in the premises was not a reasonable hypothesis.

51 The only evidence of the presence at any time of Peter Champion on the premises was found in the unsworn recorded remarks of the appellant during the search of the premises. Attempts to find Peter Champion had not succeeded. There was nothing to say when, if ever, he lived in the premises. Ms Connelly, who had resided there for three and a half months over this period, denied that anyone other than the appellant and his girlfriend stayed in the house. Mr Evans did not know Peter Champion. In the trial Judge’s view there was not sufficient evidence to formulate a reasonable hypothesis that a person named Peter Champion had placed any items in the van or indeed anywhere else on the premises. As I have said, Mr Doris did not challenge these findings.

52 Mr Doris challenged the inference which the trial Judge drew that the appellant suffered or permitted the taking of any step in the process of the manufacture of the prohibited drug in the appellant’s premises. At the trial the appellant had advanced the alternative hypothesis that this step in the manufacture took place off the premises and the premises were used merely to store the materials and implements of manufacture. Mr Doris submitted that this was a reasonable alternative hypothesis to which the trial Judge had not referred and which was ignored or rejected without reasons. This was the central plank of the appellant’s appeal against his conviction on the first count.

53 Part 2 of the Criminal Procedure Act 1986 concerns the “Disposal of offences”. Section 16 prescribes the occasions when an accused person in criminal proceedings in the District Court must be tried by the Judge alone. Section 17 provides:

“ Verdict of a single Judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

54 In Fleming v The Queen (1998) 197 CLR 250 the High Court at 261 and following said of these sections, then numbered ss 32 and 33 of the Criminal Procedure Act (see the Crimes Legislation Amendment (Sentencing) Act 1999, s12) that s17, in any particular case of a trial by a Judge alone, may attract the operation of one or more of the limbs of s6(1) of the Criminal Appeal Act 1912. In all such cases there will then be the question of the operation of the proviso. The Court said at 262 that the “finding” referred to in s17(1) is not of the same nature as the “findings of fact on which the Judge relied” specified in s17(2). The finding spoken of in s17(1) is one “on the question of the guilt” of the accused and, when made by the Judge, the finding has “the same effect as”, that is to say is of a character that would have been expressed in, “a verdict of a jury”. Accordingly, a finding in the sense specified in s17(1) is a finding of ultimate guilt or otherwise. Their Honours continued:

“…the first limb of s6(1), which deals with the unsatisfactory quality of ‘the verdict of the jury’, must now be seen through the prism of [s17]. The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding ‘unreasonable’ or one which ‘cannot be supported’?”

55 The High Court said that whilst they were differently framed, the requirements of s17(2) and (3) were expressed in terms of legal imperatives and a failure to observe either or both of them was to make a wrong decision on a question of law within the second limb of s6(1) of the Criminal Appeal Act. Such failure might also mean that justice had miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of s17.

“…whilst [s17(2)], when specifying that which a ‘judgment’ must include, does not use the expression ‘reasons for judgment’, it should not be taken as intending that the requirements of [s17(2)] be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.”

56 At 263 the Court pointed out that although there might have been a literal compliance with s17(2) the principle of law may have been erroneously formulated thereby disclosing an error of law which attracted at least the second limb of s6(1) of the Criminal Appeal Act.

“… if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of [s17(2)] by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of [s17(2)], there has been an error of law which may attract at least the second limb of s6(1) of the Criminal Appeal Act . The obligation imposed by [s17(2)] was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.
Finally, there may be a breach of [s17(3)] with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section [17(3)] is framed in a fashion which differs from that of [s17(2)] and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section [17(2)] requires the inclusion of principles of law applied and of factual findings relied upon, whilst [s17(3)] obliges the judge to take the particular warning into account.”

57 Their Honours said that the obligation imposed by s17(3) “to take the warning into account” is not only to be discharged but also to be seen to be discharged. The subsection imposes an obligation which may be discharged by the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the Judge. The failure to give such a warning does not always lead to the setting aside of a conviction. At 264 the Court said:

“The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by [s17(3)] that the warning be taken into account.”

58 At 265 the Court said:

“With respect to the application of the proviso, it has been held in this Court that not every wrong decision on a question of law will lead to the quashing of the conviction or a new trial and that ‘[t]here is no rigid formula to determine what constitutes such a radical or fundamental error’ as to preclude the application of the proviso. There may be cases where the failure to satisfy the requirements of [s17] involves errors that are so trivial that the Court of Criminal Appeal may conclude that there has been a trial according to law, notwithstanding that failure. However, given the importance of the subject matter of the warning demanded by this case, the miscarriage of justice was a substantial one. This was not a case for the application of the proviso.”

59 It is in the sense discussed in the High Court that the appellant contends that there was a failure to give reasons and hence to comply with the obligation imposed by s17 of the Criminal Procedure Act. However, I am not persuaded that there was such a error. His Honour referred to the Crown submission that the fact that the various ingredients and utensils were found on the premises went to “complete a series of coincidental findings of items from which I should deduce that part of the process of manufacturing of amphetamines was taking place on those premises”. Having dealt with the three hypotheses already discussed his Honour, in a passage already quoted, found:

“there is no reasonable hypothesis relating to the position of the various items which clearly are items capable of being used in the manufacture of amphetamines through the extraction of pseudoephedrine from tablets, as a whole in the premises, other than the use of those premises for that purpose and in my view there is no hypothesis which can explain how Mr Wilson could [not] have been ignorant of their presence or their use. I am therefore satisfied beyond reasonable doubt that he knowingly allowed the use of his premises for that purpose.”

60 As I have already said, no material was put to support a submission that the word “position” was a mis-transcription for the word “possession”. “Position” meaning “location” explains entirely what the Judge had in mind and which he had earlier referred to as being significant, namely that not all the items were found in the caravan occupied by Ms Connelly. Counsel accepted that the contents of the 20 litre drum found under the tin shed and the two 3 litre and the 4 litre containers found in the caravan indicated that the step in manufacture the Crown relied upon had taken place. A pair of children’s track suit pants containing traces of methylamphetamine and pseudoephedrine was also found. Whilst making this concession, the appellant’s counsel argued that the presence of these items did not establish that the relevant manufacture had actually taken place on the appellant’s premises.

61 Counsel for the appellant pointed out that although there had been some swabbing none revealed the presence on the walls, floors or furnishings of the ingredients used or the product manufactured. The Crown pointed out that if manufacture had taken place elsewhere one would not expect used and valueless items such as old milk containers to be brought back to the appellant’s premises for storage. Despite Mr Doris’s best efforts I do not find the suggestion that the remnant contents found in those vessels might have been brought back because they had some value persuasive.

62 In Shepherd v The Queen (1990) 170 CLR 573 Dawson J, in the context of the customary direction given to the jury about circumstantial evidence, said at 579-580:

“But where – to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev. 1981), par 2497, pp 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.
As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.”

63 In my opinion, the evidence to which the trial Judge referred left it open to him to be satisfied beyond reasonable doubt that the identified step in manufacture took place in the appellant’s premises and to reject the appellant’s contention that the hypothesis that manufacture had taken place elsewhere and the appellant’s premises were used only for storage was a reasonable hypothesis.

64 In my opinion, the appeal against conviction on the first count should be dismissed.

The second count

65 Mr Doris submitted that there was no evidence to support the conclusion that the appellant had tended or nurtured the 87 cannabis plants found on the premises. The appellant’s explanation of this derived from the record of what he had said during the search and in particular his reference to Mr Champion. Mr Hawkins expressed the opinion that the plants as found were in very good condition, standing upright with their leaves pointing in an “upright condition”. The cells were totally full of water and were in a very good condition. So was the root system which showed signs of recent root growth. Mr Hawkins had not observed the soil conditions which would have an effect on how often the plants would need to be watered but said that at least two or three times a week they would need to have some moisture. He said the plants appeared to be between four to six weeks old approximately. On the premises were found two bags of fertiliser used for hydroponic cultivation. The presence of the fertiliser and the evidence of Mr Hawkins of the healthy condition of the plants when they were found indicated they had received reasonable amounts of light, regular watering and a nutrient supply. They had been tended and nurtured.

66 In my opinion, bearing in mind that the appellant had said the plants belonged to Mr Champion, who, he understood, was coming back to pick them up, there was ample evidence for his Honour to be satisfied beyond reasonable doubt, as he was, that the appellant had tended and nurtured the plants by watering and fertilising them. The appeal against the appellant’s conviction on this charge should also be dismissed.

67 Accordingly, I propose the following order:

Appeal dismissed.

68 BELL J: I agree with Sheller JA.

69 CARRUTHERS AJ: I agree with Sheller JA.

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