R v Woods - [2010] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WOODS
[2010] SASC 85
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice White and The Honourable Justice Layton)
1 April 2010
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
Trial Judge found appellant not guilty on Count 1 of taking part in production of cannabis under s 32(1)(b) of the Controlled Substances Act 1984 (SA) and guilty on Count 2 of being in possession of methylamphetamine for sale under Section 32(1)(e) of the Controlled Substances Act 1984 (SA) - appellant argued verdicts were inconsistent - whether verdicts could reasonably stand with findings of fact - whether onus of proof was reversed by finding that certain evidence of the appellant was implausible - whether verdicts unsafe or unsatisfactory.
Held: Appeal dismissed - different verdicts for Counts 1 and 2 were accounted for by the differences in the elements of the offences and the different physical circumstances surrounding each offence - it was open on evidence for Judge to find that "there was no rational hypothesis or reasonable possibility consistent with the accused's innocence" - onus of proof was not reversed.
Controlled Substances Act 1984 (SA) 32(1)(b);(c), referred to.
R v Schueard (1972) 4 SASR 36; R v Weetra [2004] SASC 337, applied.
M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Chidiac v The Queen (1991) 171 CLR 432; R v Hawkins [2003] SASC 419; R v K, GN [2004] SASC 431; Libke v The Queen (2007) 230 CLR 559; R v Jeisman [2008] SASC 266; R v Woods [2009] SADC 107; R v Blair [2005] SASC 319, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"unsafe and unsatisfactory"

R v WOODS
[2010] SASC 85
Court of Criminal Appeal: Nyland, White and Layton JJ

NYLAND J: I agree that the appeal should be dismissed for the reasons given by Layton J.
WHITE J: In my opinion, this appeal should be dismissed for the reasons given by Layton J.
LAYTON J: This is an appeal against a re-trial before a Judge, sitting alone, in respect of one count of taking part in the production of cannabis (“Count One”) and a second count of being in possession of methylamphetamine for sale (“Count Two”).
The trial Judge acquitted the appellant on the first count and found the appellant guilty of the second count. The appeal is against this latter verdict and there are three grounds of appeal. First, the appellant argues that the verdicts with respect to counts one and two were inconsistent. Secondly, it is argued that the learned trial Judge erred in finding that the lessee of the property would not have left cash in the sum of $27,015 on the floor of a bedroom in which the appellant had been invited to stay, unless the appellant had a “vested interest in that money”. It was submitted that on this second point, the approach taken by the trial Judge effectively reversed the onus of proof. The third ground of appeal was that the trial Judge “erred in fact in finding that the appellant thought the Premises were a good place for his dog to relax and hence that his evidence was implausible”.
Background
The case for the prosecution was that the appellant was, on Friday 30 September 2005, the sole occupant of premises at 25 Witonga Avenue, Salisbury North (“the Premises”). The police attended at 8.45am and a search of the Premises revealed eight hydroponically grown cannabis plants located in two rooms at the Premises, described as the “south-east” bedroom and the “south-west” bedroom. Further, drying cannabis was located on a trestle table in the dining room of the house. On the prosecution case, the growing of the eight cannabis plants and the drying of part of another plant together made up Count One. Evidence was also given that the eight hydroponically grown cannabis plants could be left for periods of time without human intervention, due to the hydroponic equipment being fitted with an automated system.
Also in the search, methylamphetamine paste was located in the refrigerator of the Premises, the total of which weighed 61.57 grams and contained 38.29 grams of pure methylamphetamine. This amount was made up of the following: 8.37 grams of paste containing 5.1 grams of pure methylamphetamine which was found in three press-seal bags; 14.2 grams of paste containing 9.79 grams of pure methylamphetamine which was found in a plastic tub; and 39 grams of paste containing 23.4 grams of pure methylamphetamine which was found in another plastic tub. The press-seal bags and the two tubs together comprise the subject of Count Two.
In the kitchen there were two sets of digital scales, each of which had methylamphetamine on the surface. Also in the kitchen, some small bags containing methylamphetamine were found.
In the main bedroom, which was the only room in the house that was set up as a bedroom, there was $27,015 in cash lying in the open on the floor adjacent to the bed. Also in this bedroom, there were personal items belonging to the appellant as well as a third set of digital scales, again with methylamphetamine on them.
Medication belonging to the appellant and bearing his name was located in the same refrigerator as the methylamphetamine.
Cash in the sum of $5,505, and two cheques made out to the accused in the sum of $302.81 and $13,144.60, were also located in the glovebox of the appellant’s car, which was parked under the carport of the Premises.
At the time the police arrived at the premises, the accused was lying naked on the couch in the lounge room. When he dressed he retrieved clothing from the main bedroom of the house. When the appellant was taken to the police station, additional clothing and medication belonging to the appellant was obtained from the bedroom.
In addition, there were other personal items belonging to the appellant found at the Premises. There was a photo board which was mounted on the wall between the lounge room and the kitchen. There were also documents, which included payslips, employment documentation and legal documentation in the name of the accused, in expandable folders, in the lounge room. Among these documents, there was a draft contract for the sale of the premises which listed the appellant as the prospective purchaser, as well as correspondence, dated February and April 2004, relating to the proposed sale. The appellant’s work uniform, being an ambulance officer’s uniform, was also located in the lounge room. His car was parked in the carport behind a roller door and his dog was on the Premises.
The case for the appellant, who gave evidence at the first trial, the transcript of which was tendered on retrial, was that he was only intending to stay at the premises for a couple of days and that he had no involvement with the cannabis or methylamphetamine, although he admitted that he had become aware of the cannabis on account of the smell once he went to the house. He also acknowledged awareness that there was a substance, which he assumed was methylamphetamine, in the refrigerator. The appellant denied that he was a caretaker of the property and he said he did not have any criminal intent. The appellant also denied that the $27,015 on the floor of the main bedroom belonged to him.
The lessee of the property was a Mr Troy Coote (“Mr Coote”). The appellant in his statement to police indicated that it was Mr Coote who had provided him with the keys to the property and invited him to stay there during a time while Mr Coote would be away.
The appellant gave evidence that on 26 September 2005, which was the Monday immediately prior to the police attendance at the premises, he had had a disagreement with a Mr Peter Borzumati about his dog. The appellant had shared with Mr Borzumati premises situated at 19 Vincent Street, Adelaide (“the Vincent Street premises”) since about July 2004. Following the disagreement, the appellant took his dog and left the Vincent Street premises, initially staying in his car in a car park at West Beach until Wednesday 28 September 2005.
The appellant gave evidence that on that Wednesday he was contacted by Mr Coote, who invited him to stay at the premises. Mr Coote then drove to the West Beach car park and gave the appellant the keys. After receiving the keys the appellant drove to the Premises, unpacked his personal belongings, took a shower and went to sleep in the main bedroom for a few hours. The appellant later went to the city to go out to dinner with his girlfriend and spent the Wednesday night at her house.
The appellant gave evidence that he then returned to the premises on Thursday 29 September 2005 at around lunchtime, before going back to the city to have dinner at a friend’s restaurant. The appellant then stayed the night at the premises. It was the next morning, Friday 30 September 2005, that the police arrived.
The appellant also gave evidence that he owned an apartment in Adelaide and that the tenants had fallen behind in rental payments by a few months. He explained the cash found in his car as being around $5000 cash received from the tenants for back rent. He kept the cash in the glovebox of his vehicle, and it was his intention to use this money as bond and rent money on a house for himself and his dog to live in.
Mr Borzumati gave evidence in support of the appellant. He affirmed that the appellant had left the Vincent Street premises following a dispute over the dog. Mr Borzumati also noted that the appellant had taken his photo board and a bag with some clothes, but left other things such as his bed, television and other clothes behind.
Prosecution case on Count One
As to whether the appellant had taken part in the production of the cannabis, the prosecution submitted that the Court was entitled to draw an inference from the circumstantial evidence, that the appellant had gone to the premises as a caretaker of the cannabis crop because Mr Coote was going away for a few days and that the appellant was involved in its management. The prosecution submitted that although it was unable to identify any particular step taken by the accused in relation to the production of the cannabis crop, this was not necessary to found his guilt.
The prosecution submitted that the Court could find that the appellant was intending to live in the Premises; that he knew there was a cannabis crop growing on the Premises; and that he moved into the Premises for the purposes of looking after the crop. The prosecution also relied on the appellant’s sole occupancy of the Premises, his dog being on the Premises, the presence of his photo board hanging on the wall, and his belongings being kept in both the main bedroom and the lounge room, to support the inference that the accused had moved into the Premises to look after the cannabis crop. The prosecution also submitted that it was implausible that the owner of the crop would simply invite the accused to stay at the Premises in circumstances unassociated with being a caretaker of the cannabis crop, when the crop, which was estimated to have been there for two to four months, was close to harvest.
It was submitted that the Court ought to infer beyond reasonable doubt that the accused took a step in the production of the cannabis. Alternatively, the Court ought to infer that the Premises were under his management at the relevant time and/or that he permitted the Premises to be used for producing cannabis.
Defence case on Count One
In relation to Count One, the defence submitted that the prosecution evidence did not prove that the accused did anything in relation to the cannabis crop. His knowledge of the presence of the crop and his sole occupancy of the Premises were not enough.
The trial Judge’s conclusions on Count One
The trial Judge had regard to the evidence of Mr Borsumati, who affirmed that the appellant had not been living in the Premises prior to 28 September 2005, and that during the previous two months the appellant had spent some eight days in Bali.
In conclusion, her Honour stated:[1]
55    I am not satisfied that the accused’s mere presence at the premises between the 28th of September, 2005 and the 30th September, 2005, constituted participation in the production of the cannabis crop or management of the premises for the purpose of taking part in the production of cannabis. Further, I am not satisfied that the accused’s mere presence constituted permission for another or others to use the premises to produce cannabis. I note the prosecution submission that the combination of circumstances prove that the accused moved into the premises to look after the crop and intended to live there. I have regard to the combination of circumstances relied upon by the prosecution. Those circumstances included the accused’s sole occupancy of the premises, his knowledge of the presence of the cannabis crop, that the crop was close to harvest, the nature of the accused’s belongings at the premises and the apparent intention of the accused to live at the premises.
56    Having regard to all of the evidence, I find that the prosecution have not excluded the reasonable possibility that the accused did not know about the cannabis crop before he arrived at the premises. I find that the prosecution have not excluded the reasonable possibility that the accused did not intend to assist in the production of the crop after his arrival, and that he did not do so during the next three days. I am not satisfied beyond reasonable doubt that the accused took any step in the production of the cannabis crop whilst he was at the premises. In my view, the prosecution have not excluded the reasonable possibility that the cannabis crop was being produced by others and that the accused neither agreed to participate, nor in fact participated in the production of the cannabis crop between 28 September and 30 September 2005.
57    I am not satisfied beyond reasonable doubt that the accused attended at the premises to act as a caretaker of the crop, or indeed acted as a caretaker or took any step to do so, whilst he was there.
58    I am not satisfied beyond reasonable doubt that the accused participated in the production of the cannabis crop or agreed to take any step in its production.
[1]    R v Woods [2009] SADC 107.
This conclusion and reasoning of the trial Judge was not challenged on appeal.
Prosecution case on Count Two
In regard to Count Two, the prosecution submitted that the combination of circumstances proved beyond reasonable doubt that the accused was in possession of the methylamphetamine in the refrigerator at the Premises. The prosecution relied on the appellant’s sole occupancy of the Premises; the location of the methylamphetamine near the appellant’s medication in the refrigerator; the amount of the methylamphetamine in the refrigerator; the presence of $27,015 in cash on the main bedroom floor near where the appellant lay down to sleep on the Thursday afternoon and near where he retrieved his clothing during the police attendance; and the large amount of cash in the glovebox of the appellant’s car.
The trial Judge’s conclusion on Count Two
The trial Judge specifically had regard to the appellant’s evidence that the cash on the bedroom floor belonged to Mr Coote. The trial Judge correctly directed herself that mere knowledge of and the ability to exercise control over methylamphetamine in the refrigerator was not sufficient to prove the offence. The trial Judge specifically rejected the evidence of the appellant that he was staying at the Premises because he thought that it was a good place for the dog to relax and hang out. Her Honour found “in my view, this evidence is implausible” and she added:[2]
63    Having regard to all of the circumstances, I find that the accused’s evidence about knowing that the drug was in the refrigerator but having no interest in it, is implausible. I reject beyond the reasonable doubt the accused’s evidence that he did not have a criminal intent in relation to the methylamphetamine, which is the subject of count two. I have directed myself that the accused bears no onus to prove anything.
64    I remind myself that my rejection of all or any of the accused’s evidence is not a basis to convict. He bears no onus of proof. The prosecution must prove each element of the offence beyond reasonable doubt, which includes disproving any defence put forward by the accused. I am satisfied that Mr Coote would not have left such a large amount of money on the floor of the northern bedroom, having invited the accused to stay at the premises whilst he went away for a few days, unless the accused also had a vested interest in that money.
[2]    R v Woods [2009] SADC 107.
In particular the trial Judge was satisfied that Mr Coote would not have left such a large amount of money on the floor of the main bedroom, having invited the appellant to stay at the Premises whilst he went away for a few days. The trial Judge specifically added a comment, which is the subject of appeal, to the effect that Mr Coote would not have left such a large amount of money “unless the accused also had a vested interest in that money”.
The trial Judge concluded:[3]
66 Having regard to the circumstantial evidence relied upon by the prosecution that I have identified, I am satisfied beyond reasonable doubt that the accused was in possession of the methylamphetamine in the refrigerator that is the subject of count two. I am satisfied that there is no rational hypothesis or reasonable possibility consistent with the accused’s innocence. Having regard to the amount of methylamphetamine in the refrigerator and the presence of the large amount of money on the northern bedroom floor, I am further satisfied beyond reasonable doubt that the accused was in possession of the methylamphetamine in the refrigerator for the purpose of selling it to another person. I reject beyond reasonable doubt, the accused’s evidence at the previous trial to the contrary. Once again, I have directed myself that there is no onus on the accused to prove anything. I am satisfied that there is no reasonable possibility consistent with innocence in relation to this element of the offence.
[3] R v Woods [2009] SADC 107.
It was [64] and [66] of her Honour’s reasons which gave rise to the second ground of appeal.
With regard to the issue of a reasonable hypothesis or reasonable possibility consistent with the appellant’s innocence, the trial Judge found (after referring to the amount of methylamphetamine in the refrigerator and the large amount of money in the main bedroom) that the appellant was in possession for the purposes of selling to another person, and determined that there was no reasonable possibility consistent with innocence.
The appellant argues that there had been a reversal of proof in [64]. This is denied by the respondent, who pointed out that the trial Judge in the very same paragraph, referred to the appellant not bearing an onus of proof and that the prosecution must prove each element of the offence beyond reasonable doubt, including the need to disprove any defence put forward by the accused.
Inconsistency between the counts
Grounds of appeal one and three are related. Ground one argues that the verdicts are inconsistent. Ground three impugns the trial Judge’s finding, with respect to Count Two, that the appellant’s evidence was implausible when he said that he had merely attended the premises as “a good place for his dog to relax”. It was argued that her Honour must have accepted this evidence for the purposes of Count One but did not do so for the purposes of Count Two. Thus, the chief argument of the appellant is that this was a case of factual inconsistency.

The appellant’s counsel, Ms Powell QC, strongly contended that the findings by the trial Judge were against the weight of evidence and, further, that the finding by her Honour of not guilty with regard to Count One was inconsistent with her approach in finding the appellant guilty of Count Two.
It was argued that if her Honour had acquitted with regard to Count One, then due to the many common features she should also have used the same logic and approach, to acquit on Count Two.
Ms Powell referred to her Honour’s acceptance that the appellant had nothing to do with the cannabis crop, which he did not know was present prior to coming to the Premises. Her Honour appears to have accepted this in respect of the cannabis, but did not accept the same with regard to the presence of methylamphetamine in the refrigerator and the $27,015 on the floor. It was submitted that there was not a real distinction between those three items.
Further, it was contended by Ms Powell that her Honour appeared to accept that the appellant had only been present in the house for a short period of time. She had accepted the evidence of Mr Borzumati, which confirmed that the appellant had left the Vincent Street premises on the day alleged and that he was concerned about making arrangements for his dog. Further, her Honour accepted that the appellant had only napped in the main bedroom for a few hours in the afternoon on the day that he arrived, then slept at his girlfriend’s place on the first night and slept on a couch in the lounge room on the second night. In short, the appellant did not have a presence in the house other than for a very brief period of time. It was submitted that her Honour seemed to regard this factor as persuasive in dismissing Count One, but did not seem to apply the same approach in dealing with Count Two.
Further, it was submitted that merely because the appellant had put his medication in the refrigerator did not necessarily link him to being in possession of the methylamphetamine. The appellant had admitted that he realised the plastic containers in the refrigerator contained methylamphetamine but it was submitted that merely placing his medication in the refrigerator was not sufficient to link him to the methylamphetamine. It was said that medication is often kept in the refrigerator and that it was a small refrigerator.
With respect to the money on the bedroom floor, it was submitted that the cannabis crop was in fact far more valuable than the methylamphetamine and that the $27,015 may have been related to cannabis, rather than linked with methylamphetamine. Further, it was submitted there was nothing to link the appellant with the $27,015, which was merely lying on the floor of a room in a house of which the appellant was neither the owner nor the lessee, and had only occupied for a very brief period.
In relation to the $5,505 which was found in the appellant’s car, it was submitted by Ms Powell that the appellant gave an adequate explanation to account for it being there; namely, that it was back-payment for rent in respect of an apartment owned by the appellant. It was further submitted that no attempt was made by the prosecution to rebut the explanation that the money in the car was back-paid rent. Ms Powell also submitted that the fact that the $5,505 was kept in such a discrete place, separate from the $27,015 in the bedroom, further suggests that the money in the bedroom was separate and was not in the appellant’s possession.
In short, it was argued by Ms Powell that, at its best, the evidence showed a physical proximity of the appellant to both the money and the methylamphetamine, but that those features were insufficient to prove the second count against him. Ms Powell reinforced her argument that there was no way in which her Honour was able to exclude a reasonable possibility that Mr Coote, who was accepted as being a real person, did not own both the money and the methylamphetamine or, alternatively, that Mr Coote and others may have been involved. It was submitted that Mr Coote and the appellant were friends and that Mr Coote had simply lent out his house while he was to be away for a few days, which provided a convenient place to which the appellant could go because he had previously been sleeping rough in his car with his elderly dog.
The legal principles and their application
The legal principles applicable to inconsistency are that a verdict will only be set aside if it rises to the point of establishing that the verdict is unsafe or unsatisfactory.[4] In other words, two verdicts should not be allowed to stand where, on the facts, those verdicts together represent an unreasonable conclusion by the finder of fact.[5] If verdicts can be reconciled, then convictions ought to be allowed to stand. Furthermore, appellate courts are very cautious about concluding that a finder of fact must have acted unreasonably in returning verdicts.
[4] R v Blair [2005] SASC 319, [35].
[5] R v Blair [2005] SASC 319, [41].
In this case, the appeal court has the benefit of detailed reasons for decision given by the trial Judge. The trial Judge considered each count separately, which was appropriate. While all of the evidence in the case was cross-admissible, the issues with regard to each count were not the same and the evidence did not have exactly the same relevance, significance or weight.
Having considered the appellant’s arguments carefully, I do not consider that the alleged inconsistency has been made out. The elements of the offence of assisting in the production of cannabis are very different elements to the offence of possessing methylamphetamine for sale. Furthermore, there are physical factors which differ. The cannabis was a crop growing in two rooms, which were not occupied by the appellant. The appellant had only been at the Premises for three days and the crop was able to survive for a period of up to one week without “requiring any physical top-up of water”. Thus it is possible that the appellant had no involvement with the crop as no assistance was required of him with its cultivation. In addition, there were fingerprints on one of the lamps, under which the crop grew, which belonged to Mr Coote – there were no fingerprints belonging to the appellant. Further, the crop was almost ready for harvest, but had not yet been harvested. Consequently, her Honour, in my view, correctly concluded that there was a lack of specific evidence from which she could infer that the appellant assisted with production of the crop.
Count Two was very different. It was a count in which the appellant was charged with possession of methylamphetamine for sale. It was never in dispute that, whoever was in possession of the methylamphetamine and the $27,015 on the bedroom floor was in possession for a commercial purpose. The real issue in the trial was whether or not the appellant was in possession of, and had a vested interest in, the methylamphetamine, given all of the circumstances.
The trial Judge did not rely solely on the matter of the amount of money, nor did the trial Judge rely solely on the fact that the medication of the appellant was in the same refrigerator as the drugs. Paragraph [48] of her Honour’s reasons for decision indicate that she had regard to all of the circumstances.
The features relied upon by the prosecution for proving Count Two were: the $27,015 in cash left lying on the floor of the main bedroom, where the appellant had slept and was storing his clothes and other belongings; the $5,505 in cash in his car; the presence of three sets of digital scales, each of which had methylamphetamine on the surface; the small bags and tubs in the kitchen containing methylamphetamine; the location of the methylamphetamine being alongside the appellant’s medication in the refrigerator; and the admission that the appellant saw the container and assumed that it was methylamphetamine. The only salient common factor to Counts 1 and 2 was the sole occupancy of the appellant at the time of police arrival. The combination of all of these elements strongly connected the appellant to the methylamphetamine, and because of the amount, there is a presumption that it was for sale.
Due to the legal and factual differences it cannot be said that the verdicts were inconsistent.
In addition, there was no inconsistency between the verdicts simply on the basis that the trial Judge found that it was implausible that the appellant merely attended the premises as “a good place for his dog to relax”, in the process of reasoning which lead to conviction on Count Two but made no mention of that factor in the reasoning that lead to Count One. It cannot be inferred that the trial Judge took a different view on that aspect simply because no similar comment was made. The other differences between the counts, to which I have referred, have far more relevance to the finding of guilt on Count Two but not on Count One.
It is also clear that her Honour did not reverse the onus of proof in saying, “I’m satisfied that there is no rational hypothesis or reasonable possibility consistent with the accused’s innocence”. She was simply referring to the defence put forward by the defendant that he had no connection with either the money on the floor or the drugs. The trial judge, with knowledge of the defence, was expressing her view that no other rational hypothesis or reasonable possibility was available to explain the combination of the presence of both the money and the methylamphetamine in all of the circumstances of the case. The mere fact that in that same paragraph she did not specifically refer to the other “circumstantial evidence” of which the two major elements which she referred to were clearly part, does not mean that she has applied a different onus. The latter reference to “the circumstantial evidence relied upon by the prosecution that I have identified” encompassed more than the money on the ground and the drugs in the refrigerator. She reiterated in [66] that there was no onus on the accused to prove anything, as indeed she had reiterated earlier at [64].
I do not consider that the trial Judge made any error in these respects. The verdict on Count Two was open on the evidence before the trial Judge and was not inconsistent with the dismissal of Count One.
The first and third grounds of appeal should be dismissed.
Unsafe and unsatisfactory
The appellant argues that the verdict is unsafe and unsatisfactory. In order to establish this, it is not enough simply to show that the judgment is open to criticism.[6] An appellate court is required to ask whether, on the whole of the evidence, it was open to the trial Judge to be satisfied beyond reasonable doubt of the appellant’s guilt.[7] The issue is whether the trial Judge must, as distinct from might, have entertained a doubt about the guilt of the accused. It is not sufficient to show that there was material which might have been taken by the trial Judge to preclude satisfaction of guilt beyond reasonable doubt.[8]
[6]    R v Schueard (1972) 4 SASR 36, 39; R v Weetra [2004] SASC 337, [28].
[7]    M v The Queen (1994) 181 CLR 487, 492-3; Jones v The Queen (1997) 191 CLR 439, 450-1; Chidiac v The Queen (1991) 171 CLR 432, 443-4, 452-3, 462; R v Hawkins [2003] SASC 419, [35]; R v K, GN [2004] SASC 431, [17].
[8]    Libke v The Queen (2007) 230 CLR 559, 596-7[113]; R v Jeisman [2008] SASC 266, [41].
Ms Powell argued that the evidence of the mere presence of the drugs and the money on the bedroom floor was not sufficient to prove Count Two. In this instance, the matters put forward by Ms Powell indicate, at best, a possibility that the appellant was not in possession of the methylamphetamine associated with the money on the floor. However, this is not enough. On the evidence that was before the trial Judge, it was clearly open to her to find as she did and, further, to find that the possibility alluded to by Ms Powell was not such that it must have led to the conclusion of innocence of the accused. There were many circumstances which formed part of the context of the money on the floor and the methylamphetamine in the refrigerator and the connectedness of the appellant to those items and the lack of a reasonable hypothesis that he did not have some vested interest in both the methylamphetamine and the money.
It was not a reasonable hypothesis for the $27,015 to have been left there by Mr Coote. It was scattered around the floor near the bed which the appellant had been using. It is implausible that Mr Coote, for example, would have left that amount of cash, or indeed anyone else would have left that amount of money, scattered on the floor. Further, the appellant had some $5,005 cash in his car, albeit that he gave a potential innocent explanation for that. Again, it was a large amount of cash to be just sitting in the glove box of his car.
Finally, a further matter to mention is that there were scales in various rooms which showed signs of methylamphetamine on them, which gave a greater connection between the money on the floor and the methylamphetamine. The cannabis had not yet been harvested and there were no signs of cannabis being weighed, as distinct from some in the process of being dried.
In Conclusion, I am not satisfied as to inconsistency or any error by the trial Judge in rejecting any reasonable possibility consistent with innocence.
I would dismiss the appeal on all grounds.