R v WILTON

Case [2014] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WILTON

[2014] SASCFC 96

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Nicholson and The Honourable Justice Bampton)

10 September 2014

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE

Appeal against conviction following trial by jury for trafficking in a large commercial quantity of cannabis - police found three groups of bagged cannabis in the boot of a motor vehicle being driven in a northerly direction north of Coober Pedy - the driver was the appellant's half-brother, Hallion, who did not live with the appellant - one group comprised two plastic buckets each containing six plastic shopping bags, all containing about a pound of cannabis - appellant's fingerprints found on 10 of the 12 bags and on one of the buckets - appellant gave evidence that he had no connection with the cannabis, and that Hallion must have used plastic bags from the appellant's home previously used by the appellant for shopping and thus bearing the appellant's fingerprints - he said that he lived with his mother and did the shopping for both of them and that his custom was to store the plastic bags in the house after shopping - whether verdict unreasonable or not supported by the evidence.

Held per Vanstone J (Bampton J agreeing):  appeal dismissed - the evidence was capable of excluding any reasonable hypothesis consistent with innocence - while the appellant's answer to the incriminating evidence was not manifestly implausible, it was for the jury to assess all the evidence in the case and to weigh the appellant's evidence - it is a necessary implication of the guilty verdict that the jury rejected the particular innocent explanation advanced by the appellant.

Held per Nicholson J dissenting:  taking the evidence as a whole, and after making allowance for the jury's advantage in seeing and hearing the witnesses, there remained a reasonable possibility that the accused's prints were innocently deposited on the plastic bucket and shopping bags containing the cannabis.  On that basis, it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

Criminal Law Consolidation Act 1935 (SA) s 353(1), referred to.
M v R (1994) 181 CLR 487; Chidiac v The Queen (1991) 171 CLR 432; R v Dimitropoulos [1992] SASC 3625; R v Arrol [1999] SASC 293; Fitzgerald v The Queen [2014] HCA 28; MFA v The Queen (2002) 213 CLR 606; Shepherd v The Queen (1990) 170 CLR 373; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Liberato v The Queen (1985) 159 CLR 507;

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R v Wilton [2014] SASCFC 96
Case
[2014] SASCFC 96
Decision Date

CaseChat Overview and Summary

The appellant, R v Wilton, appealed against his conviction by a jury for trafficking in a large commercial quantity of cannabis. The conviction arose from the discovery of three groups of bagged cannabis in the boot of a motor vehicle driven by the appellant's half-brother, Hallion. The appellant's fingerprints were found on ten of the twelve plastic shopping bags and on one of the buckets containing the cannabis. The appellant provided an explanation, stating that Hallion must have used plastic bags from his home, which he used for shopping, and that these bags, therefore, bore his fingerprints.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the jury's verdict was unreasonable or unsupported by the evidence, given the appellant's explanation for the presence of his fingerprints. This required the court to consider the probative force of the fingerprint evidence in light of the appellant's defence and to determine if the prosecution had established guilt beyond a reasonable doubt.

Vanstone J, with whom Bampton J agreed, dismissed the appeal. Their Honours reasoned that while the appellant's explanation was not manifestly implausible, it was for the jury to assess all the evidence and weigh the appellant's explanation. The guilty verdict necessarily implied that the jury rejected the appellant's innocent explanation. The prosecution's evidence was considered capable of excluding any reasonable hypothesis consistent with innocence, and the jury was entitled to be satisfied of guilt beyond reasonable doubt. In contrast, Nicholson J dissented, finding that, after considering all the evidence, there remained a reasonable possibility that the appellant's prints were innocently deposited. Consequently, Nicholson J concluded that it was not open for the jury to be satisfied of guilt beyond reasonable doubt and would have allowed the appeal.

Orders

Orders of the court

Held per Vanstone J (Bampton J agreeing): appeal dismissed - the evidence was capable of excluding any reasonable hypothesis consistent with innocence - while the appellant's answer to the incriminating evidence was not manifestly implausible, it was for the jury to assess all the evidence in the case and to weigh the appellant's evidence - it is a necessary implication of the guilty verdict that the jury rejected the particular innocent explanation advanced by the appellant.

Held per Nicholson J dissenting: taking the evidence as a whole, and after making allowance for the jury's advantage in seeing and hearing the witnesses, there remained a reasonable possibility that the accused's prints were innocently deposited on the plastic bucket and shopping bags containing the cannabis. On that basis, it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

Background

Background to the litigation

The appellant was tried by jury at Port Augusta. He was found guilty by majority verdict. He appeals against his conviction arguing that the verdict of the jury is “unsafe and unsatisfactory”.Background In order to assess the probative force of the fingerprint evidence it is necessary to know more about the cargo carried in the Kia Carnival. By reason of the manner of its packaging, the bagged cannabis naturally divided itself into three groups. A black plastic garbage bag contained eight white, vacuum sealed plastic bags, each containing roughly one pound of cannabis. Two fingerprints of one Shane Joseph Morris were found on the outside of the garbage bag, and two unidentified prints were found on its inside. Then, a large cardboard box contained two vacuum sealed bags, one of which contained nine individual resealable bags of cannabis, each weighing almost exactly one pound; and the other of which contained 11 shopping bags containing cannabis, again, each one weighing almost exactly one pound. None of these items demonstrated any connection to the appellant. The third group comprised two white plastic buckets, one of which bore the name “John”: Exhibit P3. The lid of the second bucket, P4, was sealed with masking tape. Inside each bucket were plastic shopping bags of various colours. Each one contained very close to one pound of cannabis. The cannabis in P3 filled most of the bucket. It was packed in six plastic shopping bags, which were stacked on top of one another in a flattened fashion, so as to form rough disks. The cannabis contained inside was loose, but compacted. There was residue at the bottom of the bucket. There was no single bag containing the smaller bags. In P4 the cannabis again filled most of the bucket. The lid of the bucket was sealed with masking tape. Within a larger “Cocos” bag were six plastic shopping bags. They were stacked in a manner similar to P3. The appellant’s fingerprints were on 10 of the 12 plastic shopping bags. Twelve fingerprints and one palm print were found on the plastic bags within one bucket, and 21 fingerprints and two palm prints were found on the bags from the other bucket. There was evidence about the position of those prints on each bag. No fingerprints of Hallion were found in the vehicle. There was evidence that re-use of a shopping bag could quite readily destroy fingerprints left on it earlier. There was evidence that DNA analysis on the items containing cannabis was inconclusive. The appellant gave evidence in his defence. He said he was 30 years of age and worked as a bobcat driver for a “civil plumbing” company. He said that in September 2011 he lived with his mother at a Salisbury East address, which the family had owned for many years. He said that his mother was also the mother of Hallion, who was 14 or 15 years older than himself. His mother did not work. He said that he used to do the shopping – sometimes with his mother – on a weekly basis and that he would place used plastic shopping bags in the boot of his car or in a particular cupboard in the kitchen.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The statements made by the appellant in his evidence about his doing the shopping for his mother, his retention of plastic shopping bags, the access enjoyed by Hallion to the house and the appellant’s use of the plastic buckets for fishing were all matters entirely within his knowledge. It would not have been appropriate for counsel for the prosecution to directly challenge the appellant on those matters because, of necessity, he had no instructions upon them. However, counsel was entitled to probe them and highlight any improbabilities arising from them. Even had he not challenged them in any way, it remained for the jury to accept or reject the appellant’s evidence at its will. The jury was reminded by the trial judge that, even if it ultimately rejected the appellant’s evidence, it would not follow that he was to be found guilty. The matter would then fall to be determined on the basis of the other evidence and whether the case was proved beyond reasonable doubt. The matter was fairly left to the jury.Conclusion In my view the prosecution evidence established a case to answer. It is not surprising that no submission to the contrary was made at trial. The prosecution evidence summarised earlier was capable of excluding any reasonable hypothesis consistent with innocence. It is a necessary implication of the guilty verdict that the jury rejected the particular innocent explanation advanced by the appellant in his testimony. In the absence of credible evidence which the jury was prepared to entertain of an innocent explanation the jury was satisfied that the prosecution evidence was not only capable of, but did in fact, prove the appellant’s guilt beyond reasonable doubt. My own review of the evidence leads me to the same conclusion. While, on its face, the appellant’s answer to the evidence incriminating him was not manifestly implausible, it was for the jury to assess all the evidence in the case. It cannot be said that its verdict was unreasonable or not supported by the evidence. I would dismiss the appeal. NICHOLSON J: I have had the advantage of reading in draft the reasons of Vanstone J. I gratefully adopt her Honour’s account of the Crown case and evidence in support but subject to some further amplification which I set out below. I am unable to reach the same conclusion as her Honour. I would allow the appeal, quash the conviction and order that a verdict of acquittal be entered. The sole ground of appeal is that the verdict of the jury should be seen as “unsafe and unsatisfactory”. Subsection 353(1) of the Criminal Law Consolidation Act 1935 (SA) provides, in part:The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence...The appellant seeks to invoke the power of the Court of Criminal Appeal to set aside a verdict on this basis. In MFA v The Queen[1] Gleeson CJ, Hayne and Callinan JJ said this.Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out that it was once common for expressions such as "unsafe or unsatisfactory", or "unjust or unsafe", or "dangerous or unsafe" to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law. Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." [1] [2002] HCA 53, (2002) 213 CLR 606 at [25] (footnotes omitted).

Ratio Decidendi

Legal Principle Established

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