R v Wood - [2017] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WOOD
[2017] SASCFC 100
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
10 August 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Application for permission to appeal against convictions for trafficking in cannabis, trafficking in methylamphetamine, and unlawful possession. Application referred by single Judge. Whether the directions on possession were adequate – whether the verdicts could be supported by the evidence.
Held (Vanstone J, Kourakis CJ and Nicholson J agreeing): Permission to appeal is refused. The directions on possession were clear and sufficiently instructed the jury on the issues for decision, namely whether the applicant was in possession. The verdicts were open to the jury.
R v GNN (2000) 78 SASR 293, considered.

R v WOOD
[2017] SASCFC 100
Court of Criminal Appeal: Kourakis CJ, Vanstone and Nicholson JJ

KOURAKIS CJ: I would refuse permission to appeal for the reasons given by Vanstone J.
VANSTONE J.
After a trial by jury in the District Court, Bradley Grant Wood was convicted for trafficking in cannabis (count 1), trafficking in methylamphetamine (count 2), and unlawful possession of $840 (count 4). His application for permission to appeal on grounds raising the adequacy of the directions about possession, and the capacity of the evidence to support the verdicts, was referred to this Court by a single Judge.
Background
On 7 August 2014, acting on information, police attended a residential premises at Findon. The applicant was at home and answered the door to them. Two other men were present. Benjamin Rush was seated in the living-room. Joel Higgins was found in the main bedroom, “entirely underneath a quilt”.
Brevet Sergeant Watkins noted items on the coffee table in the living-room. He announced, “There is about an ounce of [methylamphetamine] on the table. We need to get everyone out”. Another officer then said, “What else have we got?”. The applicant responded, “That’s all there is”.
The police search of the unit revealed, on the coffee table, four resealable bags of cannabis (count 1), a bowl of cannabis, digital scales showing traces of methylamphetamine, two pipes, plastic bags, three mobile telephones, a notebook with what the prosecution alleged was a “tick list” and the tub of methylamphetamine in crystal form referred to by Sergeant Watkins (count 2). In an entertainment unit in the living-room was found a bag containing 8.3 grams of cannabis (count 3) and digital scales showing methylamphetamine traces.
Two lots of cash were found. There was $930 in a small safe in the living-room, and $840 in a bag along with the applicant’s driver’s licence, on the sofa in the living-room. Both amounts were the subject of count 4, unlawful possession. When the jury delivered its…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wood

Details

AGLC: R v Wood [2017] SASCFC 100
Case: [2017] SASCFC 100
Decision Date: 10 August 2017

CaseChat Overview and Summary

The applicant, Bradley Grant Wood, sought permission to appeal against his convictions for trafficking in cannabis, trafficking in methylamphetamine, and unlawful possession of $840, following a jury trial in the District Court. The application was referred to the Full Court of the Supreme Court of South Australia by a single judge. The grounds of appeal concerned the adequacy of the trial judge's directions to the jury regarding possession and whether the jury's verdicts were reasonably supported by the evidence presented.

The legal issues before the Full Court were twofold: first, whether the trial judge's directions on the concept of possession were sufficiently clear and adequately linked to the specific facts of the case, particularly in relation to the applicant's alleged knowledge of and control over the drugs and money; and second, whether the evidence, when viewed reasonably, was capable of excluding the possibility that the drugs and money were possessed by someone else, thereby rendering the jury's verdicts unreasonable or insupportable.

The Court, in dismissing the application, reasoned that while the concept of possession can be complex for jurors, the trial judge's directions on the elements of the offence were clear and adequately explained the required proof. The Court found that it was not necessary to provide an exhaustive list of what did not constitute possession, as long as the essential elements were clearly articulated. Regarding the sufficiency of the evidence, the Court noted that the applicant was a co-lessee of the premises where the drugs and money were found, his driver's licence was located with the $840, and his statement to police, "That's all there is," could be interpreted as indicating a degree of authority. The proximity of the drugs, packaging materials, and scales in the living room also suggested recent activity related to drug trafficking. Consequently, the Court concluded that the evidence was capable of supporting the jury's verdicts.

Orders

Orders of the court

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Background

Background to the litigation

After a trial by jury in the District Court, Bradley Grant Wood was convicted for trafficking in cannabis (count 1), trafficking in methylamphetamine (count 2), and unlawful possession of $840 (count 4). His application for permission to appeal on grounds raising the adequacy of the directions about possession, and the capacity of the evidence to support the verdicts, was referred to this Court by a single Judge.Background On 7 August 2014, acting on information, police attended a residential premises at Findon. The applicant was at home and answered the door to them. Two other men were present. Benjamin Rush was seated in the living-room. Joel Higgins was found in the main bedroom, “entirely underneath a quilt”. Brevet Sergeant Watkins noted items on the coffee table in the living-room. He announced, “There is about an ounce of [methylamphetamine] on the table. We need to get everyone out”. Another officer then said, “What else have we got?”. The applicant responded, “That’s all there is”. The police search of the unit revealed, on the coffee table, four resealable bags of cannabis (count 1), a bowl of cannabis, digital scales showing traces of methylamphetamine, two pipes, plastic bags, three mobile telephones, a notebook with what the prosecution alleged was a “tick list” and the tub of methylamphetamine in crystal form referred to by Sergeant Watkins (count 2). In an entertainment unit in the living-room was found a bag containing 8.3 grams of cannabis (count 3) and digital scales showing methylamphetamine traces. Two lots of cash were found. There was $930 in a small safe in the living-room, and $840 in a bag along with the applicant’s driver’s licence, on the sofa in the living-room. Both amounts were the subject of count 4, unlawful possession. When the jury delivered its verdicts, it made plain that it convicted the applicant only for the sum of $840. Messages retrieved from the applicant’s mobile telephone were alleged by police to be indicative of cannabis trafficking. The applicant did not give or call evidence. Indeed, the only witnesses at trial were police officers. His defence appeared to be that, while he was a lessee of the unit, and his comment, “That’s all there is” portrayed an awareness of drugs being present, there was no proof that he possessed the drugs or either amount of money. Proposed ground 1 – directions on possession The applicant argues that the directions on the concept of possession were inadequate. It is said that, here, in order to prove that the applicant was trafficking in drugs, the prosecution had to prove that the applicant was in possession of the cannabis, methylamphetamine and $840 and that, while the general directions on possession were unexceptional, the Judge failed to adequately link those directions to the facts. In particular it is put that the Judge should have specifically told the jury that the applicant’s acquiescence in the drugs being in the unit was insufficient to prove possession; that proof that one of the other men had brought the drugs to the house with the applicant’s knowledge, but without his intending to take control of them, did not prove any offence. It is submitted that the Judge should have and did not discuss with the jury what aspects of the evidence could point towards, or away from, the applicant being in control of the drugs and generally link his directions to the facts of the case.

Evidence

Evidence Before The Court

The passage in GNN relied on does not prescribe a particular approach to directing juries on possession. Certainly there is material there which Judges may well find helpful in drafting directions suitable for the particular case before them. But each case turns up different facts and different issues. Generally speaking, the main requirement in terms of the elements of an offence is to clearly explain what is required in terms of proof. If that is done then it will not usually be necessary to provide a catalogue of what is not sufficient. Of course, if issues are muddied by counsel, or if the issue for determination can be honed by sweeping away some red herrings or straw men, then it may be helpful to dispose of those issues by directing that certain matters cannot prove the charge. It is true that the concept of possession, and particularly joint possession, can be a difficult one for jurors, who do not customarily think in such terms. For this reason examples are helpful. However, in the circumstances of this case, having considered the evidence and the directions, I am of the view that the legal issues were clearly laid out. Proposed ground 2 – verdicts unsupported by evidence Counsel argues that the evidence was incapable of excluding the reasonable possibility that the drugs had been brought to the unit by either or both of Rush or Higgins, and, even if the applicant knew that, there was nothing to say that he intended to exercise control over them. It was put that there was no evidence from the applicant’s telephone linking him to methylamphetamine as there was on Higgins’ mobile telephone; there was no DNA or fingerprint evidence, and pseudoephedrine was found in close proximity to Higgins. However, it was proved that the applicant was a co-lessee of the premises, the other lessee being absent. His driver’s licence was found in the bag containing the $840, part of the money the subject of the unlawful possession charge, a matter potentially of great significance. As well, there was his answer to police, “That’s all there is”, which could be interpreted as indicative of some authority in relation to the drugs. In addition, the finding of the drugs, bags, and scales readily at hand in the living-room could suggest recent activity in the weighing and packaging of drugs for sale. In all of the circumstances I consider that the evidence justified the verdicts returned. Conclusion The directions on possession were clear. They sufficiently instructed the jury on the issues for decision. The verdicts were open to the jury. I would refuse permission to appeal on both grounds. NICHOLSON J: I would refuse permission for the reasons given by Vanstone J.

Decision

Reasons for decision

In all of the circumstances I consider that the evidence justified the verdicts returned. Conclusion The directions on possession were clear. They sufficiently instructed the jury on the issues for decision. The verdicts were open to the jury. I would refuse permission to appeal on both grounds. NICHOLSON J: I would refuse permission for the reasons given by Vanstone J.

Ratio Decidendi

Legal Principle Established

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