R v Woods - [2008] SASC 335

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WOODS
[2008] SASC 335
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
27 November 2008
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP - GENERALLY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - GENERALLY
Appeal against conviction - defendant convicted by jury verdict following a trial in the District Court of the offences of taking part in the production of cannabis and possessing methylamphetamine for sale - whether the Judge, in his directions to the jury when dealing with the accused’s version of events, misstated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt - whether the Judge properly directed the jury as to the consequences of a rejection of the evidence of the accused and his witness - whether the Judge provided an adequate direction with respect to the proper approach to be taken by the jury to a prosecution case dependent on circumstantial evidence - whether the Judge misdirected the jury when outlining the defence case concerning the charge of taking part in the production of cannabis - whether the Judge failed to adequately identify the activity of the defendant which would constitute the taking part in the production of cannabis - whether the Judge erred in ruling that there was a case to answer in respect to all counts.
Held, allowing the appeal, setting aside the convictions and remitting the matter to the District Court for retrial (per Gray and Sulan JJ, with David J in dissent): the Judge misstated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt - significant possibility that the members of the jury were, at the very least, confused about the nature and operation of the criminal onus - as the prosecution case was reliant on circumstantial evidence, it was necessary for the Judge to direct the jury that they could not convict unless satisfied that the prosecution had excluded any reasonable possibility consistent with innocence - necessary for the trial Judge to direct the Jury that in the event that they were to wholly reject the evidence given by the defendant and his witness, they still could not convict unless satisfied that the prosecution had proved each element of each charge beyond reasonable doubt.
Held, dismissing the remaining grounds of appeal (per Gray, Sulan and David JJ): Judge did not misdirect the jury as to the defence case on the production of cannabis - Judge did not fail to identify the activity of the defendant said to constitute the taking part in the production of cannabis - Judge was correct in concluding that there was a case to answer.
Controlled Substances Act 1984 (SA) s 32; Summary Offences Act 1953 (SA) s 41, referred to.
Murray v The Queen (2002) 211 CLR 193 ; Robinson v The Queen (1991) 180 CLR 531; Liberato v The Queen (1985) 159 CLR 507; R v Cerullo (2003) 141 A Crim R 114; R v Briske [2007] SASC 314; R v Jeisman [2008] SASC 266; R v Bilick & Starke (1984) 36 SASR 321; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, considered.

R v WOODS
[2008] SASC 335
Court of Criminal Appeal: Gray, Sulan and David JJ
GRAY J.

This is an appeal against conviction.
Introduction
The primary issue arising in this appeal is whether the trial Judge, in his directions to the jury when dealing with the accused’s version of events, misstated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt. Associated with this issue are two subsidiary and related questions – did the trial Judge properly direct the jury as to the consequences of a rejection of the evidence of the accused and his witness, and did the trial Judge provide an adequate direction with respect to the proper approach to be taken by the jury to a prosecution case dependent on circumstantial evidence.
Three further complaints were advanced on appeal. It was said that the Judge misdirected the jury when outlining the defence case concerning the charge of taking part in the production of cannabis, that the Judge failed to adequately identify the activity of the defendant which would constitute the taking part in the production of cannabis and that the Judge erred in ruling that there was a case to answer in respect to all counts.
Factual Background
The defendant and appellant, Scott Glenn Woods, was charged on Information with taking part in the production of cannabis contrary to section 32(1)(b) of the Controlled Substances Act 1984 (SA),[1] possessing methylamphetamine for sale contrary to section 32(1)(e) of the Controlled Substances Act[2] possessing lysergide (known as LSD) for sale contrary to section 32(1)(e) of the Controlled Substances Act, possessing 3, 4 methylenedioxymethamphetamine (known as ecstasy) for sale contrary to section 32(1)(e) of the Controlled Substances Act, and unlawful possession contrary to section 41 of the Summary Offences Act1953 (SA).[3]
[1] Section 32(1)(b) of the Controlled Substances Act 1984 (SA) provided:
(1)A person must not knowingly—
…
(b) take part in the manufacture or production of such a drug or substance
[2] Section 32(1)(e) of the Controlled Substances Act 1984 (SA) provided:
(1)A person must not knowingly—
…
(e) have such a drug or substance in his or her possession for the purpose of the
sale, supply or administration of that drug or substance to another person.
[3] Section 41 of the Summary Offences Act 1953 (SA) provided:
(1)A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
…
Before the empanelling of the jury, the prosecution entered a nolle prosequi on the count of possessing 3, 4 methylenedioxymethamphetamine (ecstasy) for sale. The prosecution conceded that a severance order should be made with respect to the count of unlawful possession.
The defendant was convicted by jury verdict following a trial in the District Court, of the offences of taking part in the production of cannabis and possessing methylamphetamine for sale. A verdict of not guilty was returned on the charge of possessing lysergide for sale.
The prosecution case was that the defendant was present at a house at Salisbury on Friday 30 September 2005 when the police attended at 8.45am. A search of the premises revealed eight hydroponically grown cannabis plants, cannabis plant material drying on a trestle table, almost 40 grams of methylamphetamine in a refrigerator, 69 tablets of lysergide (LSD) in a kitchen cupboard, $27,520 cash in the house and $5,000 cash in the glove-box of the defendant’s vehicle. It was the prosecution case that the defendant was a caretaker of the plants and drugs within the house.
The prosecution case was dependent on the jury’s acceptance of circumstantial evidence and the drawing of inferences from that evidence to establish guilt beyond reasonable doubt. The prosecution claimed to have discharged its onus of proof through the drawing by the jury of those inferences.
The defence case was that the defendant had not taken part in the production of the cannabis and was not in possession of any of the drugs in the house. The defendant gave evidence. He claimed that he had to leave shared accommodation in Adelaide earlier in the week and that he had been invited by a friend to stay at the Salisbury property. He said that he moved to the Salisbury property on the afternoon of Wednesday 28 September 2005 and that on arrival he placed his personal possessions in the lounge room, put his medication in the refrigerator in the kitchen, went into a bedroom, undressed, had a shower and then went to bed. That evening he returned to Adelaide and spent the night with his girlfriend at her home. On Thursday 29 September 2005 he returned to the Salisbury premises at about midday and stayed until about 7.00pm when he returned to Adelaide for a restaurant meal. Later that evening he returned to the Salisbury premises where he spent the night.
It is to be observed that the defence advanced a positive case. The defendant claimed that he had no involvement with any of the illicit substances at the Salisbury property, that he was not their caretaker, and that he did not have any criminal intent. He denied any involvement with the cannabis or any of the other drugs. He became aware of the cannabis when he recognised the smell once in the house. He acknowledged that he was aware there was an illicit drug in the refrigerator which he assumed was methylamphetamine. He claimed to be unaware of the LSD tablets in the kitchen cupboard and was unaware of methylamphetamine paste in a resealable bag in the cupboard. The defence did not dispute that the drugs were in the house. In short it was the defence case that the defendant had nothing to do with the illicit substances.
The Appeal – The Onus of Proof
The Judge, at the outset of his summing up, provided orthodox directions to the jury with respect to the presumption of innocence and the onus of proof. Those directions included the following:
The accused is presumed innocent until his guilt has been proven to the satisfaction of you. The burden lies wholly on the prosecution. There is a shifting onus here which I will come to later which is largely academic in this case, but subject to that, the burden lies wholly on the prosecution.
The accused does not have to prove anything. If he puts forward a defence, as he has done here, namely a denial of the offending, he does not have to prove it. The prosecution has to disprove it. The burden always lies on the prosecution.
Later during the summing up, further references were made by the Judge, again in orthodox terms, to the onus and burden of proof beyond reasonable doubt.
On appeal it was accepted by the defendant that these directions were appropriate and correct. They were, I repeat, orthodox directions. However, it was argued that other directions by the Judge undermined those orthodox directions to the point where the Judge reversed the onus of proof. Alternatively, it was said that, at the very least, the jury would have been confused about the nature and operation of the criminal onus to the extent that they saw their task as essentially involving an assessment of whether the evidence of the accused, supported by his witness, raised the possibility that the accused did not have the necessary criminal intent.
The issue for determination on this appeal may be expressed as follows – did the trial Judge, in the course of his summing up, direct the jury to a point where it is impossible to do no more than speculate as to whether the Judge’s orthodox directions on the standard and effect of the onus of proof would have prevailed over the effect of the suggested misdirections.
To understand the defendant’s complaint, it is necessary to subject the Judge’s summing up to close analysis. The impugned directions arise at three stages during the summing up – during the directions given with respect to the requisite mental elements; during the directions given with respect to circumstantial evidence; and during the discussion about the way in which the jury should go about assessing the evidence of witnesses, and, in particular, the evidence of the accused.
The Mental Element
When dealing with the charge of taking part in the production of cannabis, the Judge said:
The third element requires that it be proved that the accused took part in the production of cannabis knowingly.
…
The prosecution must prove that the accused
-      knew that what was being produced was at least an illegal drug; and
-      intended to be part of the process.
Put another way, the taking part must be accompanied by an awareness and an intention. The accused must be proved to know of and intend to be part of the process of producing an illegal drug.
Often for such a mental element, which requires a conclusion about what is in a person’s mind, there is no direct evidence. However, what a person knows and intends can often be deduced from the surrounding circumstances. For example, if I, having possession of my faculties, load a gun and fire it at you at close range, you would have no difficulty, I suggest, in concluding that I must have intended at least to do serious harm to you, if not kill you. So in that way you can draw from, all the surrounding circumstances which you find proven, to come to a conclusion about the accused’s knowledge and intention.
In this case, the accused himself admitted in his evidence, what must have been clearly obvious to him; namely, that the cannabis, an illegal drug, was being produced in those two southern bedrooms. As to whether he then intentionally took part in that production, the prosecution ask you to infer from all the circumstances surrounding his presence in the house that he was intentionally part of the process of production.
On the other hand, the defence contend that the accused was merely present and, whilst he was aware of the hydroponic production, he did not intend to participate in what was happening in those two bedrooms.
I tell you immediately, in relation to this element, if you consider:
.       that that is correct; or
.       if you consider that it is a reasonable possibility that he did not so intend; or
.       you are unable to say one way or the other;
then you will have effectively concluded that the mental element has not been proven beyond reasonable doubt.
Of course, if that is the case, because all the elements need to be proven beyond reasonable doubt, you will not be able to reach a verdict of conviction in respect of that first count.
That is all I wish to say about that third element.
[Emphasis added]
The Judge did not, either at the time of this direction or elsewhere during his summing up, direct the jury that even if they were to totally reject the defence evidence, they would still have to consider whether on all of the evidence before them, the prosecution had proved its case beyond reasonable doubt. The Judge did not further direct the jury that, as the prosecution case was dependent on circumstantial evidence, to prove the necessary criminal intent, the jury would need to be satisfied that the prosecution had excluded all reasonable possibilities consistent with innocence.
When dealing with the charge of possessing methylamphetamine for sale, the Judge said:
The other word which you will have noticed in this ingredient or this element is the word ‘knowingly’. The power and intention to exercise control over something necessarily implies that you are aware of the existence of that something. If material is planted in your pocket, in your purse, your glove box or the boot of your car and you do not know about it, that material could not be said to be in your possession in the relevant sense.
So in this case the accused said in his evidence that he was aware that there was an illicit substance, which he assumed was methylamphetamine, in the two tubs and in the press-seal bag in the fridge. Now, as I have said, ‘knowledge’ is an essential prerequisite to possession but, by itself, members of the jury, it is not enough.
The Crown contention in respect of this count is that circumstantial evidence would enable you to draw an inference that the accused was, at least, the caretaker of the drug in the fridge.
If a person came onto premises well knowing that they contained illicit drugs and he came onto the premises for the purposes of watching over the drugs, he would, I suggest to you, possess those drugs in the sense of having power over them and having the intention to exercise dominion over them.
The defence contention here, however, is that while knowing that there were illicit drugs in the fridge, the accused’s involvement did not extend beyond having that knowledge, he being a merely temporary resident at the premises.
You will not be satisfied of this element beyond reasonable doubt if
·you accept as true the evidence, of the accused, that he was merely present and no more;
·if you do not accept that as true, but accept that it could be a reasonable possibility, or
· if you are unable to come to a view about it.
Then in those instances you will not have been satisfied beyond reasonable doubt of that third element.
So in respect of that element, I ask you to keep in mind that there must be proven to be an intention to possess control or exercise dominion over the illicit substance in the fridge.
[Emphasis added]
Again, the Judge did not, either at the time of this direction or elsewhere during his summing up, direct the jury that even if they were to totally reject the defence evidence, they would still have to consider whether on all of the evidence before them, the prosecution had proved its case beyond reasonable doubt. The Judge did not further direct the jury that, as the prosecution case was dependent on circumstantial evidence, to prove the necessary criminal intent, the jury would need to be satisfied that the prosecution had excluded all reasonable possibilities consistent with innocence.
It is also necessary to set out the Judge’s direction with respect to the charge of possessing lysergide for sale, notwithstanding that a verdict of not guilty was returned by the jury. It was said by the defendant that a misdirection on this charge reinforced the earlier misdirections. On this charge the Judge said:
The prosecution contend again, in respect of [the mental element], that the proven circumstances give rise to an inference that the accused knew of and possessed the LSD in the sense of moving into and taking charge of the house as caretaker.
As in the case of the methylamphetamine charge, you will not find this element proved and, therefore, will acquit the accused of this count if you come to any of these views:
·if you are not prepared to draw the inferences sought by the prosecution about knowledge and intention;
·       if you accept the evidence of the accused is true;
·       if you accept the evidence of the accused as merely reasonably possible; or
·       if you are unable to come to a view about the matter at all.
In each of those instances, you will not have been satisfied about this particular element beyond reasonable doubt and that will cause a failure of the charge altogether.
[Emphasis added]
Further again, the Judge did not, either at the time of this direction or elsewhere during his summing up, direct the jury that even if they were to totally reject the defence evidence, they would still have to consider whether on all of the evidence before them, the prosecution had proved its case beyond reasonable doubt. The Judge did not further direct the jury that, as the prosecution case was dependent on circumstantial evidence, to prove the necessary criminal intent, the jury would need to be satisfied that the prosecution had excluded all reasonable possibilities consistent with innocence.
The Judge, at the conclusion of his summing-up, repeated his directions in respect of the element of intent in a compendious manner. That summary followed the Judge’s discussion with respect to circumstantial evidence, but it is convenient to set out the relevant extracts at this point:
You will find the accused not guilty of the three charges or any of them if you accept any one of the three propositions:
·first, if you accept as true what he said in evidence about his presence at the house;
·secondly, if you accept what he said in evidence about his presence at the house is at least a reasonable possibility; and
· thirdly, you will acquit him if you are uncertain about where the truth lies.
I have given you a direction about separate consideration so I don’t want you to take what I am about to say as cutting across that. You might take the view that the accused’s explanation of his presence in the house, in practical terms, if you accept it as true or at least amounting to a reasonable possibility, exculpates him of guilt of all three charges because it has the effect of preventing you concluding that the mental element has been satisfied in each of the three charges; that is, that the mental element has not been proven beyond reasonable doubt. So bearing in mind what I said to you about separate consideration, you may take the view that that is the practical effect of all the evidence in the case. Of course, in a way different conclusions of fact may apply to each of the three counts.
To convict the accused of the three offences or any of them, you must be satisfied beyond reasonable doubt of the elements of those considered separately.
The accused is not to be convicted on insufficient or doubtful evidence. However, if the charges or any of them have been proved, members of the jury, bearing in mind what I have said to you, then it is your duty to say so bearing in mind always that the onus is on the Crown to prove the charges beyond reasonable doubt.
[Emphasis added]

It is relevant immediately to observe that in this summary the Judge directed the jury as follows: “you will find the accused not guilty … if you accept what [the accused] said in evidence about his presence at the house is at least a reasonable possibility”. In so doing, the Judge emphasised the earlier impugned misdirections.
The complaint advanced by the defendant was that the Judge repeatedly directed the jury that when they were considering the mental element of the offences to acquit the defendant if they were to accept that his evidence, and that of his witness, gave rise to a reasonable possibility that the defendant did not have the necessary criminal intent. The substance of these directions were repeated when the Judge discussed the topic of circumstantial evidence. It was said that a direction in these terms would have diverted the jury’s attention from the obligation of the prosecution in meeting the burden of proof to exclude any reasonable possibility consistent with innocence. The acceptance of the defendant’s account was not a necessary precursor to the existence of such a reasonable possibility. It was said that it was not for the defendant to establish anything as a reasonable possibility. It was for the prosecution to exclude, particularly in a circumstantial evidence case, any reasonable possibility consistent with innocence having regard to all the evidence.
Counsel for the defendant placed reliance on the observations of the High Court in Murray.[4] When dealing with the burden of proof, Gaudron J identified the problems that arise when judicial directions leave the jury with a choice to make about accepting the prosecution or the defendant’s version of events:
Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury’s determination with respect to murder as the question whether it accepted the prosecution’s or the appellant’s version of events. That was the central or critical direction in her Honour’s summing up. And as the issue for the jury was not whether it should accept the appellant’s version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt. Accordingly, the appeal should be allowed on that ground.
[Emphasis added]
In the present case, the defendant submitted that the effect of the trial Judge’s directions was to invite the jury to either accept the prosecution version of events, being the inferences arising on its case, or the appellant’s version of events.
[4] Murray v The Queen (2002) 211 CLR 193 at 201-202 (Gaudron J). See also Gummow and Hayne JJ at [56]-[57].
Counsel for the prosecution submitted that the Judge had not reversed the onus when the impugned directions were viewed in the context of the entire summing up. Reliance was placed on the orthodox directions to the jury that the prosecution had to prove all elements of each offence beyond reasonable doubt. It was contended that the impugned directions were given in amplification of the fact the defence had asserted a positive case. It was argued that the directions of the Judge did not subvert the onus of proof but simply indicated to the jury that they did not have to accept the defendant’s positive case to acquit. It was argued that when read in context the directions of the Judge reinforced the onus of proof as being an onus being borne by the prosecution. It was further contended that the written memorandum that accompanied the Judge’s oral directions confirmed that the prosecution bore the onus of proving beyond reasonable doubt the mental element of each offence.
The Judge’s repeated directions in the present proceedings about the jury’s acceptance or non-acceptance of the defence evidence, and whether that evidence raised a real possibility of a lack of criminal intent, in my view had a tendency to deflect the jury’s consideration of the critical question – had the prosecution proved guilt beyond reasonable doubt. To put it in other words, can it be said that the prosecution, on the whole of the evidence, has excluded all reasonable possibilities consistent with innocence. Subject to one brief reference in a different context, the Judge did not direct the jury in these latter terms in the present proceedings.
A trial judge, when directing a jury, in circumstances where an accused advances a positive case, has to balance carefully what is to be said about that evidence. Plainly it is appropriate for the Judge to direct a jury that if they accept the defence case, then they will acquit. But beyond that, the question to be answered is whether, having regard to the whole of the evidence, the prosecution has proved guilt beyond reasonable doubt.
It is to be acknowledged that difficulties may arise when describing a positive defence case, to avoid using language that may infer or suggest that the defence carries an onus or burden of proof. To redress this difficulty, juries are customarily advised that if the Judge is to use any words or expressions that might suggest that there is an onus on the defence, that they are to understand that that was not intended, and that they are to further understand that there is no onus on the defence to prove anything, and that at all times the prosecution bears the onus beyond reasonable doubt. In the present case, the Judge did not advise the jury in these terms.
Circumstantial Evidence
The Judge told the jury that the prosecution case was dependent upon circumstantial evidence. He was correct to do so. In the course of the summing up, the Judge gave an extensive direction in regard to circumstantial evidence, summarising what, in the Judge’s view, was the relevant evidence to be considered, and then identifying what the Judge described as “the question for the jury”:
So the question for you here is: are you content that guilt is the only explanation and that there is no reasonable possibility that the inferences arising could indicate other than guilt. In answering what is really the one question, namely what do the circumstances indicate, you need to have regard to the evidence from the defence side, that is the evidence of the accused and the evidence of Mr Borzumati.
From the circumstances emerging from their evidence, is there a reasonable possibility that the accused was the passive house-sitter who was not intentionally involved in the production of the cannabis, nor in possession of either or both of the methylamphetamine and the LSD?
…
[Emphasis added]
The Judge then identified the question for the jury in the following terms:
What the prosecution have arraigned against the accused is the circumstantial evidence and the inferences contended to arise from it. So the question for you is whether such inferences do arise from the circumstances, and even if you are content that they do, does the evidence of the accused supported by Borzumati in part, as it does, raise the possibility that those inferences of intentional involvement are not the only conclusion indicated by the circumstances.
In short, members of the jury, if you think that what the accused has said is either true or not wholly unacceptable but is reasonably possible, you could not conclude that the inferences arising only point to guilt and so you will not have found the charges proven beyond reasonable doubt.
[Emphasis added]
These directions appear to place an onus on the defendant to raise a reasonable possibility that he did not have the requisite criminal intent. It is to be observed that these directions reinforced the effect of the earlier referred to extracts from the summing up. In those earlier directions it also appears that the Judge was casting an onus on the accused through his evidence and that of his witness, to establish a real possibility that he did not have the requisite criminal intent. One difficulty with the trial Judge’s approach is that it failed to recognise that the ultimate question for the jury was whether, on the whole of the evidence, the prosecution had proved its case beyond reasonable doubt and whether the prosecution had excluded all reasonable possibilities consistent with innocence.
In the defendant’s submission, it was necessary that the summing-up should explain clearly to the jury the following:
-that the prosecution case against the defendant could not succeed unless the prosecution proved to the satisfaction of the jury and beyond reasonable doubt that the defendant had at all material times the requisite criminal intent.
-that the prosecution case against the defendant on that issue was dependent on circumstantial evidence.
-that such a circumstantial evidence case could not succeed unless the prosecution satisfied the jury beyond reasonable doubt, that the conclusion of guilt, which the prosecution was asking the jury to infer from the circumstantial evidence placed before it on the evidence at the trial, was the only rational hypothesis available on that evidence.
-that, in so far as there had been propounded for the consideration of the jury alternative possibilities consistent with innocence, it was part of the burden of proof resting on the prosecution to refute each and every one of those reasonable possibilities.
In the present proceedings, the Judge did not direct the jury that the onus was on the prosecution to exclude any reasonable possibility consistent with innocence.
The Assessment Of The Evidence
The trial Judge gave the jury assistance on how they might assess the credibility and reliability of witnesses in the trial and weigh up the evidence in the trial. In the course of these remarks, the Judge informed the jury that they would have to assess the evidence as a whole, including the evidence of the accused. Toward the end of the summing up, the Judge addressed the evidence of the accused and said:
The accused gave evidence on oath. He elected to do so. He was not obliged to do that. He could have remained silent in answer to the charges leaving the prosecution to satisfy you of all the elements of the charges beyond reasonable doubt. He didn’t do that. He took to the witness box, like other witnesses, and exposed himself to cross-examination. He is entitled to have his evidence assessed, scrutinised and evaluated in the same way as other evidence in the case. You, I am sure, will bring an impartial judgment to bear upon it.
Immediately following this direction, the Judge directed the jury in the terms of the summary set out earlier in these reasons.
In Robinson,[5] the High Court, in the course of dealing with a challenge to aspects of a trial judge’s charge to the jury, expressly approved the charge given with respect to the burden of proof. In the course of that charge, the Judge told the jury that they could:
… disbelieve the accused and his witnesses in every word they utter from the witness-box and it would not follow that therefore he is guilty and the Crown has proved the case against him. That onus of proving his guilt is still with the Crown.
[5] Robinson v The Queen (1991) 180 CLR 531.
The High Court also noted that the trial Judge correctly reminded the jury:
[T]he onus of poof of the accused man’s guilt is at all times with the Crown; that onus is to be to the standard of proof beyond reasonable doubt; although the accused went into the witness-box and called evidence in his defence he did not undertake any burden to disprove his guilt. Remember, from start to finish the onus of proof is always with the Crown, there is no onus on the accused.
In Liberato,[6] Brennan J made observations to a similar effect in a slightly different context:[7]
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification”.
[6] Liberato v The Queen (1985) 159 CLR 507.
[7] Liberato v The Queen (1985) 159 CLR 507 at 515.
Deane J agreed with the judgment of Brennan J, and went on to consider the impact of misdirections in a summing up that also included orthodox directions:[8]
Overall, it appears to me that it is more probable than not that the learned trial judge's orthodox directions on the standard and effect of the onus of proof would have prevailed over the effect of the misdirections. It is, however, impossible to do more than speculate in that regard. There must remain a significant possibility that the members of the jury were, at the very least, confused about the nature and the operation of the criminal onus to the extent that they saw their task as essentially one of making a “choice” between the Crown evidence and the evidence called and statements made on behalf of the accused and as involving no more than a decision about whether or not, to adapt the words of the learned trial judge at one stage of his summing up, they should "believe" the complainant “on the whole of the evidence”.
[8] Liberato v The Queen (1985) 159 CLR 507 at 519-520.
The directions in this jurisdiction in cases where an accused has given evidence customarily include a statement to the effect that even if the jury disbelieve and reject an accused’s account, it does not follow that the accused is guilty as charged. The onus of proof remains on the Crown to prove, on the evidence, guilt beyond reasonable doubt. The customary direction given to the jury is that they are to assess the accused’s evidence in the same manner as they assess all other witnesses, and that the accused is not to be treated in any different way. It is the usual practice to then give a direction in the following terms or similar terms:
You should keep in mind however, at all times, that when entering the witness box an accused person has not and does not assume any onus of proof in this trial. He does not have to prove his innocence. The onus of proving the charge remains with the prosecution throughout the trial, and even if you do not accept the evidence of the accused, it does not follow that you can necessarily convict him of the offence. You need to be satisfied, at the end of your deliberations, beyond reasonable doubt, of the accused’s guilt on the basis of the whole of the evidence you have heard before you can convict him of this offence.
In the present proceeding the Judge did not give the jury a direction in these terms.
I do not propose to address the further complaints raised on the appeal, other than to say that I do not consider there to be any substance in those complaints. I do not consider that the Judge misdirected the jury as to the defence case on the production of cannabis, or that the Judge failed to identify the activity of the defendant said to constitute the taking part in the production of cannabis. I am of the opinion that there was sufficient evidence upon which a jury could convict the appellant and that the judge was correct in concluding that there was a case to answer.
Conclusion
The consequence of the trial Judge’s impugned directions, as set out earlier in these reasons, was to invite the jury to decide whether it accepted the prosecution’s or the defendant’s version of events. This consequence would have been avoided, had the trial Judge directed the jury in the terms set out in the preceding paragraphs of these reasons.
Notwithstanding the orthodox directions given by the trial Judge with respect to the presumption of innocence and the burden of proof, I consider that it is not possible to say that they would have prevailed over the effect of the misdirections. As a consequence there remains a significant possibility that the members of the jury were, at the very least, confused about the nature and operation of the criminal onus.
As the prosecution case was reliant on circumstantial evidence, it was necessary for the trial Judge to direct the jury that they could not convict unless satisfied that the prosecution had excluded any reasonable possibility consistent with innocence. Although this is not an absolute requirement, I consider that it was a necessary direction in the present case.
In addition to the above direction, it was necessary for the trial Judge to direct the Jury that in the event that they were to wholly reject the evidence given by the defendant and his witness, they still could not convict unless satisfied that the prosecution had proved each element of each charge beyond reasonable doubt.
In my view there is substance to the complaint advanced by the defendant. The repeated reference to an acceptance of the defendant’s evidence suggests that the defendant carried an onus. These statements were compounded by the Judge’s directions with respect to circumstantial evidence. In the Judge’s final summation, as earlier observed, language is used which clearly suggested that the accused carried an onus of raising a real possibility that he did not have the necessary criminal intent. The misdirection as to the onus of proof was critical, and as a consequence, there will need to be a retrial.
I would allow the appeal, set aside the convictions and remit the matter to the District Court for retrial.
SULAN J.
I have read and agree with the reasons of Gray J. I agree with the orders he proposes. I make the following observations.
The defence case on the first count was simply that the prosecution had not proved beyond reasonable doubt that the defendant intended to participate in the production of the cannabis. That is, that he had mere knowledge of the presence of the growing plants but that the evidence did not establish that he was involved in the production of the cannabis in any capacity.
The question for the jury was whether on the evidence they could be satisfied beyond reasonable doubt that the defendant had participated in the production of cannabis. The direction to acquit if the jury accepted the evidence of the defendant or considered it to be a reasonable possibility that he did not intend to participate or that they were unable to say one way or another is correct as far as it goes. The conclusion, if the jury arrived at that position, was to acquit the defendant. However, the direction fell short of what was required. What was required was an unambiguous direction that if the jury did not accept the defendant’s evidence or considered it to be a reasonable possibility, that is if the jury rejected the evidence of the defendant out of hand, that was not an end of the matter. The jury should have been directed that even if they did not accept the defendant’s evidence it did not follow that they could proceed to a verdict of guilt. They should have been directed that the onus was on the prosecution to prove the case against the defendant and that they needed to be satisfied beyond reasonable doubt on the whole of the evidence that the defendant was guilty. So, the jury should have been directed that if they rejected the defence case that does not lead necessarily to a finding of guilt. They must then consider the evidence – that is, the prosecution evidence – and ask whether the prosecution evidence satisfies them beyond reasonable doubt. The Judge did not direct the jury in that way.

The direction on the second count, although in slightly different terms to the directions on the first count, suffered the same defect as the directions on the first count. The trial Judge failed to direct the jury that the rejection of the defence case was not the end of their deliberations. In respect of the directions the Judge again failed to direct the jury that even if they did not accept the defence case that was not the end of the matter and they must then consider the prosecution evidence. Before they convict they must be satisfied beyond reasonable doubt of the defendant’s guilt on the evidence.
It is not a sufficient answer to turn to the general directions on the onus of proof which appear early in the summing up and to suggest that those directions are a cure for the deficient directions in respect of the first and second counts.
It is to be observed that in respect of the third count, the Judge added a dot point. That is, he directed the jury that “if they are not prepared to draw the inferences sought by the prosecution about knowledge and intention” then they should acquit. That direction is missing in respect of the first two counts. This highlights a material deficiency in those earlier directions. The trial Judge did not direct the jury on the first and second counts that if they were not prepared to draw the inferences sought by the prosecution about knowledge and intention then they should acquit. The directions in respect of the third count, to which I have referred, should also have included a direction that if they were not prepared to draw the inferences sought by the prosecution about knowledge and intention beyond reasonable doubt the jury should acquit. It should also have included a statement that the jury should determine whether they are prepared to draw such inferences beyond reasonable doubt after they have rejected the positive case of the defendant.
The deficiencies to which I have referred were repeated when the Judge summarised his directions. In my view that would have reinforced in the jury’s mind that they should consider whether they should accept the defence case and if they were to reject the defence case then that would necessarily lead to a conviction. That is the very problem to which the High Court alluded in Murray.[9]
[9] Murray v The Queen (2002) 211 CLR 193.
In my opinion the jury would have been left with an impression in respect of the first and second counts, where convictions followed, that if they rejected the defence evidence the result was a verdict of guilty. That reasoning is flawed. The summing up, in my view, invited the jury to reason in that way. These considerations lead to the conclusion that the appeal should be allowed and a retrial ordered.
DAVID J. This is an appeal against conviction. After a trial by jury, the appellant was convicted of one count of taking part in the production of cannabis, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA), and one count of possessing methylamphetamine for sale, contrary to s 32(1)(e) of the Controlled Substances Act. The appellant was acquitted of one count of possessing lysergide (known as “LSD”) for sale.
The appellant argues that the trial judge unwittingly reversed the onus of proof in his summing up. The appellant also argues that the trial judge erred in rejecting an application at the end of the prosecution case to direct verdicts of not guilty because there was no case to answer. I will deal with other arguments presented on appeal when considering the grounds of appeal more specifically.
The Charges and Evidence at Trial
The Charges
I set out the relevant charges from the Information:
First Count
Statement of Offence
Taking Part in the Production of Cannabis. (Section 32(1)(b) Controlled Substances Act 1984).
Particulars of Offence
Scott Glenn Woods between the 1st day of August 2005 and 30th day of September 2005 at Salisbury North, knowingly took part in the production of cannabis, a prohibited substance.
Second Count
Statement of Offence
Possessing of Methylamphetamine for sale. (Section 32(1)(e) Controlled Substances Act 1984).
Particulars of Offence
Scott Glenn Woods on the 30th day of September 2005 at Salisbury North, knowingly had methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.
Third Count
Statement of Offence
Possessing of Lysergide for sale. (Section 32(1)(e) Controlled Substances Act 1984).
Particulars of Offence
Scott Glenn Woods on the 30th day of September 2005 at Salisbury North, knowingly had lysergide (known as LSD), a prohibited substance, in his possession for the purpose of selling it to another person.
The jury found the appellant guilty of the first and second counts on the Information, but acquitted him of the third count.
The Prosecution Case at Trial
On 30 September 2005 at about 8.50 am, police attended a house at Salisbury North. The appellant was the only person present in the house. In two of the three bedrooms police discovered eight cannabis plants, which were being grown hydroponically (first count on the Information). In the refrigerator in the kitchen they located 38.29 grams of methylamphetamine which was contained in two plastic tubs and a plastic press-seal bag (second count on the Information) and in a kitchen cupboard they found a package containing 69 squares of LSD (third count on the Information).
Police found cash in the sum of $5,505 in the appellant’s vehicle, which was also at the premises. A further amount of cash in the sum of $27,015 was found in the third bedroom of the house, which was obviously occupied by the appellant.
Police found personal property belonging to the appellant in the house, including his passport, personal papers and an ambulance uniform in the lounge room, other clothes belonging to him in the bedroom and his prescription medicine in the refrigerator. There were photographs of the appellant hanging on the wall between the entrance to the kitchen and the lounge room and his dog was also in the house. Enquiries ascertained that the property was registered and the electricity accounts were rendered in the names of other people.
The evidence at trial was that the cannabis cultivation (first count on the Information) had been extensive and there were signs of previous harvesting. The methylamphetamine (second count on the Information) was located near the appellant’s prescription medicine in the refrigerator.
The prosecution case was that there was circumstantial evidence that the appellant was taking part in the production of cannabis as the caretaker, and that he was in possession of the methylamphetamine and the LSD, because in his role as caretaker of the cannabis, he also had knowledge and control over the methylamphetamine and LSD. The facts, which were the basis of the prosecution’s circumstantial case, were basically undisputed.
The Defence Case at Trial
The appellant gave evidence on oath. He told the court that he was aged 35 years and from about July 2003 had been in receipt of WorkCover payments in relation to a work injury. Before that, he was an ambulance officer. He said that since 2004, he had been residing in premises owned by a Peter Borzumati in Adelaide. The appellant said he had a dog which he had taken with him to the premises. The dog suffered ill-health during 2005, and this caused problems with Mr Borzumati. The appellant said he went to Bali for a holiday for approximately a week, leaving about the end of August 2005 and returning in early September 2005. He said that after he returned, the dog’s condition was deteriorating and that caused conflict with Mr Borzumati. This led to an argument, as a result of which, the appellant packed his belongings into his vehicle and headed to the beach. The appellant said this was the Monday morning before his arrest on Friday, 30 September 2005. He said that he spent the Monday and Tuesday nights sleeping in his vehicle in the car park next to the Henley Beach Sailing Club.
The appellant gave evidence that on the Wednesday morning, two days before his arrest, he went down to the toilet block in the car park of the sailing club and washed. He said he received a telephone call from a person (whom I will refer to as “T”), who had heard of his accommodation predicament. The appellant had known T for about five years and considered him to be a good friend. T told the appellant he was going away and insisted that the appellant stay at his house during his absence. The appellant said he had been to T’s house about six months earlier and knew where it was located. He said he subsequently met T in the car park of the sailing club and T gave him the keys to the house.
The appellant then gave evidence that he drove to the house at Salisbury North, walked into the bedroom, removed his clothes, had a shower and went to bed. He said it was about mid‑afternoon at that time. The appellant said he had put some personal medication into the refrigerator. He said that he slept at the premises until 6.00 pm, and then proceeded to town to see his girlfriend. He stayed the night at her place. On Thursday he went back to the Salisbury North house and slept until about 7.00 pm. He then went to a friend’s restaurant, where he stayed until about midnight, before returning to the Salisbury North house where he slept the night.
The appellant gave further evidence that when he was trying to sleep on the Thursday night he had smelled cannabis. He said he had seen the cannabis set‑up, as it was apparent when he got there on the Wednesday. He said that although he knew the cannabis was there and he could see and smell it, he never had anything to do with it. He said he was never involved in any way in the production of the cannabis, nor was he there for the purpose of being a caretaker of the cannabis.
The appellant said that he did not know anything about the LSD tablets found in the cupboard. He said he had never even opened the cupboard. The appellant said that when he opened the refrigerator to put his medication in it, he saw the methylamphetamine, which was contained in three plastic containers. The appellant said he did not touch the containers, but he had an idea that the substance in them was methylamphetamine. Other than that, he had nothing to do with the contents of the containers.
The appellant’s evidence was clearly that although he was present in the house, knew that there was cannabis being produced and had an idea that there was methylamphetamine in the refrigerator, that this was the extent of his knowledge and involvement, and nothing more.
In relation to the money found in the glove box of his car, the appellant gave evidence that he had purchased an apartment on North Terrace in July 2004. It had been leased for $600 per week since that time. The appellant told the court that when he returned from Bali in early September 2005, he discovered that the tenant was behind in his payments. He had attended and collected several months arrears of rent from the tenant. He said it would have been about $5,000.
The appellant also gave evidence that the $27,000, which was discovered by police in the bedroom where he slept, was not his money. He thought it belonged to T. When he slept at the premises on the Thursday night, the night before his arrest, he discovered the money under the bed, but it was not his money and he had nothing to do with it.
At trial, the appellant called Mr Borzumati as a witness. He supported the appellant’s evidence that they were residing together at his Adelaide address. Mr Borzumati remembered the appellant going for a holiday to Bali in August 2005, and that he looked after the dog while he was away. He said that he was unhappy with the state of the appellant’s dog and gave evidence that following an argument on the Monday or Tuesday before he was arrested, the appellant had taken his belongings and left.
At the end of the prosecution case at trial, defence counsel made a submission of no case to answer. That submission was rejected by the trial judge, and the correctness of that decision is one of the grounds of appeal.
The jury brought in verdicts of guilty in relation to the first and second counts on the Information and not guilty in relation to the third count on the Information. On appeal, there is no argument that the verdicts were inconsistent. Before turning to each of the specific grounds of appeal, it is important that I set out passages of the trial judge’s summing up to the jury, as the main criticism relates to some of the judge’s directions in relation to the onus of proof.
The Judge’s Summing Up
In his introductory remarks, the trial judge gave proper and unexceptional directions on the presumption of innocence and the burden of proof.
When dealing with the elements of the offences, the trial judge instructed the jury accordingly. In relation to the first count on the Information he said:
The first element requires that the prosecution prove that the cannabis was being produced. I refer you to the statutory definition in s 4 in the memorandum. Though it is a matter of fact for your determination, I would have thought that you would have no doubt that cannabis was being produced in the two southern bedrooms of the [Salisbury North] house.
The second element requires that the prosecution prove that the accused was taking part in the production. I refer you to the statutory definition of “taking part” which I have set out in the memorandum.
The prosecution case is that the accused was the caretaker. You would no doubt accept that taking care of the crop or the production of the crop would, on the face of it, be participating in the process of production, within the meaning of that definition, but merely being present by itself would not be enough, as is made clear by the third element which I now turn to.
It is the third element, I suggest to you, which is the issue for you in respect of this offence. It is what I call the mental element.
The third element requires that it be proved that the accused took part in the production of cannabis knowingly.
This element has two aspects. The word “knowingly” relates to:
·the production process; and
·the subject of what is produced.
The prosecution must prove that the accused
·knew that what was being produced was at least an illegal drug; and
·intended to be part of the process.
Put another way, the taking part must be accompanied by an awareness and an intention. The accused must be proved to know of and intend to be part of the process of producing an illegal drug.
Often for such a mental element, which requires a conclusion about what is in a person’s mind, there is no direct evidence. However, what a person knows and intends can often be deduced from the surrounding circumstances. For example, if I, having possession of my faculties, load a gun and fire it at you at close range, you would have no difficulty, I suggest, in concluding that I must have intended at least to do serious harm to you, if not kill you. So in that way you can draw from, all the surrounding circumstances which you find proven, to come to a conclusion about the accused’s knowledge and intention.
In this case, the accused himself admitted in his evidence, what must have been clearly obvious to him; namely, that the cannabis, an illegal drug, was being produced in those two southern bedrooms. As to whether he then intentionally took part in that production, the prosecution ask you to infer from all the circumstances surrounding his presence in the house that he was intentionally part of the process of production.
On the other hand, the defence contend that the accused was merely present and, whilst he was aware of the hydroponic production, he did not intend to participate in what was happening in those two bedrooms.
I tell you immediately, in relation to this element, if you consider:
·that that is correct; or
·if you consider that it is a reasonable possibility that he did not so intend; or
·you are unable to say one way or the other;
then you will have effectively concluded that the mental element has not been proven beyond reasonable doubt.
Of course, if that is the case, because all the elements need to be proven beyond reasonable doubt, you will not be able to reach a verdict of conviction in respect of that first count.
That is all I wish to say about that third element.
[Emphasis in italics appears in original quoted text; emphasis in bold and italics is mine.]
The trial judge then went on to discuss the fourth element that the prosecution had to prove – namely, that cannabis is a prohibited substance. That direction is not applicable to the appeal.
Along with the oral directions, the trial judge provided the jury with two written memoranda. Memorandum No 1 was in relation to taking part in the production of cannabis. I set out in full Memorandum No 1:
Memorandum No 1
R v Scott Glenn WOODS
Elements of Offence
Taking Part in the Production of Cannabis
(s 32(1)(b) of the Controlled Substances Act, 1984)
The following elements must be proved beyond reasonable doubt.
1.that Cannabis was being produced.
2.that the accused took part in the production of cannabis.
3.that the accused did so knowingly; and
4.that Cannabis is a prohibited substance by force of the Controlled Substances Act.
Section 32(4) of the said Controlled Substances Act, 1984 provides:
“… a person takes part in the production … of a prohibited substance … if the person:
(a) takes, or participates in, any step or causes any step to be taken, in the process of that production;
…………….”
Section 4 of the said Controlled Substances Act, 1984 provides:
“… produce in relation to a substance, means to produce by any method whatsoever, including cultivation and “production” has a corresponding meaning; …”
[Emphasis in italics appears in original quoted text; emphasis in bold and italics is mine.]
The trial judge then turned to the offence of possessing methylamphetamine for sale and with his oral directions he presented Memorandum No 2. Memorandum No 2 read as follows:
Memorandum No 2
R v Scott Glenn WOODS
Elements of Offence
Possessing Methylamphetamine for Sale
(s 32(1)(e) of the Controlled Substances Act 1984)
The following four elements but not the fifth must be proved by the Prosecution beyond reasonable doubt.
1.that the substance the subject of the charged offence was Methylamphetamine.
2.that the substance is and was at the time a drug of dependence under the Controlled Substances Act.
3.that the Methylamphetamine the subject of the charge was knowingly in the accused’s possession.
4.that the accused knew that the material in his possession was Methylamphetamine or if not aware of the precise nature of the substance knew it was material prohibited under the laws relating to illegal drugs.
The following element requires special treatment. You need to be satisfied as follows:
5.that the accused had the Methylamphetamine in his possession for the purpose of sale.
In connection with this final element, if the Prosecution proves beyond reasonable doubt that the accused was in possession of more than 2 gms of Methylamphetamine then by law it is presumed that the accused possessed it for the purposes of sale, unless he satisfies you that he possessed it for some purpose other than sale.
[Emphasis in italics appears in original quoted text; emphasis in bold and italics is mine.]
The trial judge’s verbal directions in relation to the second count were as follows:
I turn to the second offence charged of Possessing Methylamphetamine for Sale. I refer you to the second memorandum. I will give you a moment quickly to read that.
I tell you at the outset again that it is an offence against s 31(1)(e) of the Controlled Substances Act for a person, knowingly, to have in his or her possession a drug of dependence, such as methylamphetamine, for the purposes of sale.
This offence relates to the two plastic tubs on the bottom shelf of the fridge and the press‑seal bag in the fridge door, which it is agreed contained a total of 61.57 g of paste which contained 38.29 g of methylamphetamine.
So I refer you now to Memorandum No 2.
In respect of the first element, it is agreed, in exhibit P5, which you have before you, that the two tubs and the resealable plastic bag in the fridge door contained methylamphetamine. So you will have no difficulty with the first element having been proven beyond reasonable doubt.
In respect of the second element, I direct you that methylamphetamine is and was at the time declared by Parliament to be a drug of dependence and so an illegal drug. So you will have no difficulty with the second element.
It is again the third element which is perhaps the only real issue for you in respect of this charge.
The prosecution must prove beyond reasonable doubt that the accused knowingly possessed the methylamphetamine the subject of the charge. So I need to say something to you about possession, and you will forgive me if this sounds a bit obvious.
[Emphasis in italics appears in original quoted text; emphasis in bold and italics is mine.]
The trial judge then went on to give directions on the topic of possession. I need not set that out. He then continued with his verbal directions saying:
The other word which you will have noticed in this ingredient or this element is the word “knowingly”. The power and intention to exercise control over something necessarily implies that you are aware of the existence of that something. If material is planted in your pocket, in your purse, your glove box or the boot of your car and you do not know about it, that material could not be said to be in your possession in the relevant sense.
So in this case the accused said in his evidence that he was aware that there was an illicit substance, which he assumed was methylamphetamine, in the two tubs and in the press‑seal bag in the fridge. Now, as I have said, “knowledge” is an essential prerequisite to possession but, by itself, members of the jury, it is not enough.
The Crown contention in respect of this count is that circumstantial evidence would enable you to draw an inference that the accused was, at least, the caretaker of the drug in the fridge.
If a person came onto premises well knowing that they contained illicit drugs and he came onto the premises for the purposes of watching over the drugs, he would, I suggest to you, possess those drugs in the sense of having power over them and having the intention to exercise dominion over them.
The defence contention here, however, is that while knowing that there were illicit drugs in the fridge, the accused’s involvement did not extend beyond having that knowledge, he being a merely temporary resident at the premises.
You will not be satisfied of this element beyond reasonable doubt if
·you accept as true the evidence, of the accused, that he was merely present and no more;
·if you do not accept that as true, but accept that it could be a reasonable possibility, or
·if you are unable to come to a view about it.
Then in those instances you will not have been satisfied beyond reasonable doubt of that third element.
[Emphasis in bold and italics is mine.]

The trial judge then went on and described the fourth and fifth elements, which are not material to the appeal. In particular, he directed the jury appropriately as to the reversal of the onus if it was proved that the appellant was in possession of more than 2 grams of methylamphetamine. That direction is not the subject of any of the grounds of appeal.
The trial judge then directed the jury in relation to the elements of the third count on the Information. As the appellant was acquitted of that charge, there is no need to set out those directions in full. At one stage, however, the trial judge said:
As in the case of the methylamphetamine charge, you will not find this element proved and, therefore, will acquit the accused of this count if you come to any of these views:
·if you are not prepared to draw the inferences sought by the prosecution about knowledge and intention;
·if you accept the evidence of the accused is true;
·if you accept the evidence of the accused as merely reasonably possible; or
·if you are unable to come to a view about the matter at all.
In each of those instances, you will not have been satisfied about this particular element beyond reasonable doubt and that will cause a failure of the charge altogether.
I set out that passage because as the argument developed, counsel for the appellant drew a comparison between what was said there and what was said in relation to the second count on the Information.
The trial judge then dealt with the evidence and set out both the prosecution and defence cases. In summarising the defence case he said:
In particular, the defence contend that you could not be satisfied in this sense:
·in respect of count 1 you could not be satisfied beyond reasonable doubt that the accused intended to be part of the production of cannabis;
·in respect of counts 2 and 3, you could not be satisfied beyond reasonable doubt that he possessed the methylamphetamine and LSD in the sense of not only knowing about it, but having the power and intention to exercise control and dominion over it.
[Emphasis in bold and italics is mine.]
The trial judge then instructed the jury that the prosecution case depended on circumstantial evidence. He quite properly told the jury that there was no direct evidence that the appellant was the caretaker of the hydroponic crop and had possession, meaning control, of the other drugs, but that the prosecution case depended on circumstantial evidence. The trial judge’s directions on that topic were thorough, detailed and unexceptional. He carefully set out the evidence which the prosecution relied upon, and those circumstances from which the appropriate inferences could be drawn. In particular, he said:
I now need to direct you on the way you should weigh up such circumstantial evidence.
First, you need to decide what of those facts you find are established by the evidence. Then you need to consider what inferences you are prepared to draw from the facts you find established, bearing in mind the challenges by the defence.
When deciding whether you accept that a particular fact has been proven, you are entitled to take into account the totality of the evidence, that is all the items of evidence as a whole. When considering what inferences you are prepared to draw from the facts or circumstances, which you accept have been proven, you do not necessarily reject an individual circumstance because no inference can be drawn from that circumstance alone. Rather, you keep that fact in mind and consider it together with all the other facts you find established.
For instance, in this case the mere fact that the accused was present living in the house, albeit temporarily, would not, by itself, indicate that he intended to take part in the production of the cannabis or that he was possessed of the methylamphetamine and the LSD. You might say that is a neutral circumstance, but you do not cast it aside, you need to have regard to it, alongside of or with all the other circumstances you are satisfied about. That is you need to have regard to the united force of all the circumstances you find established.
Finally, I need to tell you, that in considering circumstantial evidence, you must have regard to the possibility that it might not necessarily point to guilt. Before you can be satisfied that an accused is guilty by reason of the inferences arising from established evidence, you must be satisfied that there is no reasonable possibility that the inferences arising point to other than guilt. In other words, you must be satisfied that guilt is the only explanation which arises from circumstances you find proved. Anything less than that would give rise to reasonable doubt.
So the question for you here is: are you content that guilt is the only explanation and that there is no reasonable possibility that the inferences arising could indicate other than guilt. In answering what is really the one question, namely what do the circumstances indicate, you need to have regard to the evidence from the defence side, that is the evidence of the accused and the evidence of Mr Borzumati.
From the circumstances emerging from their evidence, is there a reasonable possibility that the accused was the passive house-sitter who was not intentionally involved in the production of the cannabis, nor in possession of either or both of the methylamphetamine and the LSD?
At the conclusion of his summing up, the trial judge said the following:
You will bear in mind, members of the jury, the arguments made to you by both counsel. I won’t detail those. You make use of those as you see fit.
I have got a few more comments which will conclude my charge to you.
You will find the accused not guilty of the three charges or any of them if you accept any one of the three propositions:
·first, if you accept as true what he said in evidence about his presence at the house;
·secondly, if you accept what he said in evidence about his presence at the house is at least a reasonable possibility; and
·thirdly, you will acquit him if you are uncertain about where the truth lies.
That latter passage is one of the passages that is the subject of this appeal. I turn to the grounds of appeal.
Grounds of Appeal
Grounds 1‑5 and 7
1.In respect of Count 1, the learned trial judge erred in law in his direction to the jury upon the mental element of the offence charged in that he failed to direct them that if they were not prepared to draw the inference sought by the prosecution beyond reasonable doubt, that is that the accused was part of the process of production, then they should return a verdict of not guilty.
2.In respect of Count 1, the learned trial judge erred in law in his direction to the jury upon the mental element of the offence charged in that he directed them to focus upon whether the defence contention “was correct”, was “a reasonable possibility” or that “you are unable to say one way or another”. S.U.4.5
Such a direction reversed the onus of proof.
3.In respect of Count 2, the learned trial judge erred in law in his direction to the jury upon the mental element of the offence charged in that he failed to direct them that if they were not prepared to draw the inference sought by the prosecution beyond reasonable doubt, that is that the accused was, “at least, the caretaker of the drug (sic) in the fridge”, then they should return a verdict of not guilty. S.U.6.4
4.In respect of Count 2, the learned trial judge erred in law in his direction to the jury upon the mental element of the offence charged in that he directed them to focus upon whether the defence contention was “true … that he was merely present and no more”, was “a reasonable possibility” or that “you are unable to come to a view about it”. S.U.6.6
Such a direction reversed the onus of proof.
5.In respect of Count 2, the learned trial judge, having directed the jury that the fifth element of the offence was that “the accused had the Methylamphetamine in his possession for the purpose of sale” (Memorandum No 2), erred in directing the jury that by reason of the operation of the presumption, “I direct you that … you will find this element proved”, S.U.7.4, without at the same time reminding them that they had to be convinced beyond reasonable doubt on the prosecution case of the third identified element (that the drug was knowingly in the accused’s possession) before the fifth identified element became relevant.
…
7.The learned trial Judge erred in law in directing the jury at AB 51.8:
“You will find the accused not guilty of the three charges or any of them if you accept any one of the three propositions …”
followed by the three dot points.
It was a further misdirection to immediately follow with the direction:
“You might take the view that the accused’s explanation of his presence in the house, in practical terms, if you accept it as true or at least amounting to a reasonable possibility, exculpates him of guilt of all three charges because it has the effect of preventing you from concluding that the mental element has been satisfied in each of the three charges.”
[Emphasis in original.]
I deal with these grounds together because they represent the appellant’s submission that parts of the trial judge’s summing up to the jury had the effect of reversing the onus of proof.
Ms Powell QC, for the appellant, argues that when the trial judge directed the jury in relation to the first count as follows:
I tell you immediately, in relation to this element, if you consider:
·that that is correct; or
·if you consider that it is a reasonable possibility that he did not so intend; or
·you are unable to say one way or the other;
then you will have effectively concluded that the mental element has not been proven beyond reasonable doubt
and in relation to the second count as follows:
You will not be satisfied of this element beyond reasonable doubt if
·you accept as true the evidence, of the accused, that he was merely present and no more;
·if you do not accept that as true, but accept that it could be a reasonable possibility, or
·if you are unable to come to a view about it.
Then in those instances you will not have been satisfied beyond reasonable doubt of that third element
he, in fact, reversed the onus of proof by indicating that before the appellant could be acquitted, his evidence had to be accepted. As I understand the argument, that is to be contrasted with a further direction which must be given, and indeed was given in relation to the third count on the Information:
… you will not find this element proved and, therefore, will acquit the accused of this count if you come to any of these views:
·if you are not prepared to draw the inferences sought by the prosecution about knowledge and intention;
…
[Emphasis in bold and italics is mine.]
Ms Powell further argues that that mistake is compounded by what the trial judge said in his concluding remarks:
You will find the accused not guilty of the three charges or any of them if you accept any one of the three propositions:
·first, if you accept as true what he said in evidence about his presence at the house;
·secondly, if you accept what he said in evidence about his presence at the house is at least a reasonable possibility; and
·thirdly, you will acquit him if you are uncertain about where the truth lies.
Ms Powell argues that a combination of those passages has the unwitting effect of placing an onus upon the appellant, whereby the jury had to accept his evidence before a reasonable doubt could be raised, and it distracted from the proposition that the onus was upon the prosecution, irrespective of the defence raised. Ms Powell refers to a number of authorities, which she says criticise the use of the word “accept” when referring to the onus of proof and a defendant’s defence. In R v Cerullo[10] Prior J said:[11]
[10] R v Cerullo (2003) 141 A Crim R 114; (2003) 227 LSJS 509.
[11] Ibid 123-4.
In Murray v The Queen the High Court identified the risk of misleading juries when talking of accepting a version of events favourable to an accused in the course of directions on the burden of proof. There is no room for comparison of alternatives. Rather, juries must be clearly directed that the prosecution must prove all elements of an offence beyond reasonable doubt. This requires no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt. The issue for the jury is not whether it should accept the appellant’s version but whether the prosecution has negatived it as a reasonable possibility.
In this case, I do not think that the trial judge used the word “accept” in the way that it was used in Murray. It was not left in the sense of accepting one version of events over another. Rather, the trial judge was leaving it to the jury to consider whether they accepted a version of the facts to be a reasonable possibility on the evidence. If that were so, the jury had to acquit. I do not think that the trial judge invited the jury to decide which of two competing versions they would accept.
[Footnotes omitted]
In R v Briske[12] this Court held that the effect of the summing up was to reverse the onus of proof, because although general directions had been given correctly, the trial judge nevertheless directed the jury on three occasions in terms of “accepting the evidence” of the defendant concerning an act of consensual intercourse and charge of rape. In that matter Doyle CJ said:[13]
[12] R v Briske [2007] SASC 314 (Unreported, Doyle CJ, Anderson and Kelly JJ, 24 August 2007).
[13] Ibid [12].
In my respectful opinion this paragraph, while in the second sentence containing an accurate direction to the jury, continues to suggest that acceptance of Mr Briske’s evidence is a premise for a not guilty verdict. And this passage concluded by suggesting to the jury that the issue was whether they accepted or rejected his evidence.
In R v Jeisman[14] the direction to the jury on the charges of four counts of possessing a firearm without a licence included the following:[15]
In summary, if you accept the evidence of the accused then you will find him not guilty of these charges. Even if you consider it only a reasonable possibility that he was telling you the truth, you must find him not guilty. If, however, you do not accept all of the evidence of the accused or any of the evidence of the accused, it does not follow that you proceed to find him guilty.
As I said to you earlier, the onus is upon the prosecution to prove beyond reasonable doubt that the accused is guilty of the charges laid against him. The accused does not have to prove anything. You need to be satisfied beyond reasonable doubt, taking into account the whole of the evidence that he is guilty of the offences for which he has been charged. If at the end you are of the opinion that the accused is innocent of the offences you must find him not guilty. Equally, if on the evidence before you there remains in your mind a reasonable doubt as to the guilt of the accused or alternatively you remain uncertain where the truth lies, then the verdict must be not guilty.
When comparing that case with R v Briske, Kelly J said:[16]
The crux of the problem with regard to the trial judge’s directions in Briske, was the repetition of the phrase “If you accept the evidence…” in such a context as to have raised a real risk that the jury may have thought it was necessary to affirmatively accept or believe the evidence of the appellant, before acquitting him.
Here the phrase was used by the trial judge as a prelude to, and in the context of, reminding the jury that the accused did not bear any onus at the trial. The directions she gave as a whole on this topic were unexceptional and I do not consider there is any risk at all that the jury would have understood the judge’s remarks as inviting them to conclude that acceptance of the evidence of the appellant was an essential preliminary for a not guilty verdict.
[14] R v Jeisman [2008] SASC 266 (Unreported, Duggan, Anderson and Kelly JJ, 3 October 2008).
[15] Ibid [32].
[16] Ibid [35]‑[36].
In the present case, I am of the view that the impugned directions did not have the effect of reversing the onus of proof, nor did they have the effect of placing any onus on the appellant. Throughout the summing up, both generally in relation to the elements of the offences, and in relation to the charge on circumstantial evidence (which was further reinforced by the written directions), the trial judge made it very clear to the jury that the onus rested upon the prosecution. It is to be remembered that it was incumbent upon the trial judge to make it clear to the jury that the story told by the appellant in his evidence amounted to a defence. Without proper direction, the jury could well believe that the appellant’s presence in the house, knowing that there was a hydroponic crop in a state of cultivation and (at least) suspecting that there was methylamphetamine in a refrigerator he was using, might of itself mean that he was guilty of the charges. The trial judge had to point out clearly that what the appellant had said was, in fact, a defence. Otherwise that may not have been obvious to the jury, and there would have been a danger that the jury would convict him on his own evidence. Therefore, the direction in the trial judge’s conclusion, referred to earlier, namely:
You will find the accused not guilty of the three charges or any of them if you accept any one of the three propositions:
·first, if you accept as true what he said in evidence about his presence at the house;
·secondly, if you accept what he said in evidence about his presence at the house is at least a reasonable possibility; and
·thirdly, you will acquit him if you are uncertain about where the truth lies
has to be seen in that context. On all occasions the trial judge made it clear that if the appellant’s story was at least a reasonable possibility, the jury must acquit.
I would dismiss those grounds of appeal.
Ground 6
6.The learned trial Judge erred in directing the jury that it was the defence case that the appellant did not intend to participate in the production of the cannabis (AB 37.5), when it was the defence case that he had not taken part in the production of the cannabis. The misdirection was compounded at AB 49.6 when his Honour directed:
“... in this case the mere fact that the accused was present living in the house, albeit temporarily, would not, by itself, indicate that he intended to take part in the production of the cannabis or that he was possessed of the methylamphetamine ...”
The direction could lead the jury to reason that some future intention to participate or possess was sufficient.
[Emphasis in original.]
This was a further ground of appeal that was added during the course of argument. The appellant argues that the defence case was that he had not taken part in the production of cannabis, not that he had taken part in the production of cannabis but did so without intention. The trial judge said to the jury:
On the other hand, the defence contend that the accused was merely present and, whilst he was aware of the hydroponic production, he did not intend to participate in what was happening in those two bedrooms.
“What was happening in those two bedrooms” was, of course, the hydroponic set‑up, whereby the cannabis plants were being grown. As I understand Ms Powell’s argument, it is that the defence case was that the appellant was only present at the house, and was not thereby taking part in the production of cannabis - specifically by way of being a caretaker - as alleged by the prosecution. It was not merely a question of intention, but in fact, a question as to whether there was any participation at all. The distinction is a subtle one. The jury was clearly told the prosecution case by the trial judge, namely, that the appellant was a caretaker, and such a distinction between participation and intention could have had no effect on the jury’s understanding of events.

I would dismiss that ground of appeal.
Grounds 8‑9
8.The learned trial Judge erred in ruling that there was a case to answer in respect of all counts (T 202).
9.The learned trial Judge erred in failing or failing sufficiently to identify the activity of the appellant which would constitute taking part in the production of cannabis and failed to give the jury the assistance that they needed to apply what was capable of being sought to be inferred (if anything) to the facts of the case.
I deal with these grounds together. In relation to ground 9, the prosecution case was clearly that the activity of the appellant was that of a caretaker of the cannabis. In his summing up, the trial judge said:
The prosecution case is that the accused was the caretaker. You would no doubt accept that taking care of the crop or the production of the crop would, on the face of it, be participating in the process of production, within the meaning of that definition, but merely being present by itself would not be enough …
In my view, the trial judge has sufficiently identified the activity which would constitute taking part in the production of cannabis.
In relation to ground 8, the prosecution case was that, based on circumstantial evidence, it could be established that the appellant was at the property as a caretaker. If a case is based on circumstantial evidence, in assessing whether there is a case to answer at the end of the prosecution case, the trial judge has to view the evidence in light of the decision of this Court in R v Bilick & Starke[17] where King CJ said:[18]
[17] R v Bilick & Starke (1984) 36 SASR 321.
[18] Ibid 337.
The case against the appellant Starke was circumstantial in character. The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct “evidence” is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?
That was also confirmed in Questions of Law Reserved on Acquittal (No 2 of 1993)[19] where King CJ said:[20]
[19] Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1.
[20] Ibid 5.
I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.
[Emphasis in original.]
In my view, there was ample material for the test to be satisfied, namely:
·    the fact that the appellant was staying at the house;
·    that he was alone and there was a large quantity of drugs on the premises;
·    there was $27,015 found in the bedroom in which he was sleeping; and
·    there were all of the indicia that he had been there for some time.
In my view, the trial judge was correct in finding there was enough in the prosecution case at its strongest, allowing all inferences most favourable to the prosecution which are reasonably open to be drawn, to produce satisfaction beyond reasonable doubt in the mind of a reasonable person.
I would dismiss those grounds of appeal.
Conclusion
For the above reasons, I would dismiss the appeal.