R v Woods

Case [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…

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R v Woods [2008] SASC 335
Case
[2008] SASC 335
Decision Date

CaseChat Overview and Summary

The appeal in R v Woods was brought by Scott Glenn Woods, who was convicted by a jury verdict in the District Court of South Australia for the offences of taking part in the production of cannabis and possessing methylamphetamine for sale. The case centred on whether the trial judge misdirected the jury regarding the burden of proof, particularly concerning the prosecution's reliance on circumstantial evidence. The appeal also contested whether the judge failed to adequately instruct the jury on the proper approach to a circumstantial evidence case and whether he misdirected the jury on the defendant's version of events. The appellant argued that these alleged misdirections could have led the jury to improperly convict him based on his own evidence or the absence of his evidence, rather than the prosecution proving its case beyond reasonable doubt.

The court was required to determine if the trial judge's directions to the jury misstated the burden of proof, which could have relieved the prosecution of proving its case beyond reasonable doubt. Additionally, the court had to consider whether the judge properly directed the jury on the consequences of rejecting the evidence of the accused and his witness, and whether he adequately instructed the jury regarding the approach to be taken in a prosecution case dependent on circumstantial evidence. The court also needed to assess whether the judge misdirected the jury when outlining the defence case concerning the charge of taking part in the production of cannabis, and if he failed to identify the activity of the defendant that would constitute the taking part in the production of cannabis. Finally, the court had to decide if the judge was correct in concluding that there was a case to answer in respect to all counts.

The Court of Appeal held that the trial judge misstated the issue for determination, potentially relieving the prosecution of proving its case beyond reasonable doubt. The court found that there was a significant possibility that the jury was confused about the nature and operation of the criminal onus, particularly given the prosecution's reliance on circumstantial evidence. The court held that 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. The court also held that the judge did not adequately instruct the jury that, even if they wholly rejected the evidence of the accused and his witness, they could not convict unless satisfied that the prosecution had proved each element of each charge beyond reasonable doubt. Consequently, the court allowed the appeal, set aside the convictions, and remitted the matter to the District Court for retrial. The remaining grounds of appeal were dismissed as there was no substance to the contentions that the judge misdirected the jury regarding the defence case, failed to identify the activity of the defendant, or erred in concluding that there was a case to answer.

Orders

Orders of the court

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Background

Background to the litigation

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 thesale, 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.

Evidence

Evidence Before The Court

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]

Decision

Reasons for decision

GRAY J DAVID J
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. 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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, DAVID J

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