SARINAS v The State of Western Australia
[2014] WASCA 63
•26 MARCH 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SARINAS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 63
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 20 FEBRUARY 2014
DELIVERED : 26 MARCH 2014
FILE NO/S: CACR 194 of 2013
BETWEEN: TERRY LEO SARINAS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :McCANN DCJ
File No :IND 155 of 2013
Catchwords:
Criminal law - Application for leave to appeal against conviction - Whether direction constituted a miscarriage of justice - Possession of cannabis with intention to sell or supply - Consideration by jury as to whole of evidence used to show intention to sell or supply - Turns on its own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 7(1)(a), s 11
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr J B Prior
Respondent: No appearance
Solicitors:
Appellant: Shadgett Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against conviction.
On 19 June 2013, in the District Court, the appellant was convicted after trial of one offence of cultivation of cannabis with intent to sell or supply it to another (count 1) and one offence of possession of cannabis with intent to sell or supply it to another (count 2), contrary to s 7(1)(a) and s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), respectively.
Background
On 20 June 2012, police officers executed a search warrant at the appellant's home in Mirrabooka. Count 1 concerned a total of 36 plants growing hydroponically at various stages of maturity. Twenty of these were a few centimetres in height and approximately one week old. They were located in an ensuite bathroom. In a rear shed, police discovered two growing chambers, one of which contained five plants which were approximately three to four weeks old, the other contained ten plants which were approximately eight to nine weeks old. A single small plant was growing in a pot outside the rear shed. Count 2 concerned 572.04 g of loose cannabis leaf material found in various areas either dry or drying.
The appellant spoke to police under caution during the search. What he said was recorded on video. The video recording of the search, including what the appellant told the police, was tendered in evidence at the trial (exhibit 1). In the interview, the appellant, in substance, admitted possession of the cannabis plants and the loose cannabis. However, he denied cultivating the plants or possessing the loose cannabis with the intention of selling or supplying to another. In essence, he told the police that he was a heavy user of cannabis (he said he smoked about six cones a day) and that all of the cannabis was for his own use. With respect to the cultivation, he told the police that he only expected a small number of the cannabis plants to reach maturity, 'maybe three or four', and that he expected those plants to yield perhaps two ounces of usable cannabis each. He disagreed with the proposition put to him by one of the investigating police officers (Detective Sergeant Robson) that he could get eight ounces a plant.
With respect to the loose cannabis, he described some of it as 'rubbish'. He told the police that he did not smoke cannabis leaf material, but he took it off and used it as compost in the garden.
During the search, the police discovered a smoking implement, a cone‑piece, electronic scales, a grinder, a lighter and various clipseal bags. One small clipseal bag contained cannabis seeds. A further eight clipseal bags with remnants of cannabis inside them were located inside a lunchbox.
In addition to evidence about the search, the State adduced, without objection, expert evidence. Detective Sergeant Robson testified, based on his experience, that plants such as the ones being cultivated by the appellant were capable of yielding between 300 g and 600 g of cannabis head material, depending upon the skill and expertise of the grower. Detective Sergeant Robson said, based on the lower estimated yield, that within five weeks the appellant would have grown 4.5 kg of head material sufficient for 18,000 cones. In cross‑examination, he agreed that the potential yield depended upon many variables.
Detective Nathan Dalton testified in cross‑examination that some of the commonly found indicia of drug dealing were not found in the course of the investigation; for example, the police discovered no unexplained cash or wealth, 'tick' lists or telephone records, consistent with the sale or supply of cannabis to others. Most relevantly to count 2, Detective Dalton confirmed that, based on his experience, the most preferred part of the cannabis plant for smoking is the head (ts 83).
In re‑examination, Detective Dalton said that the common indicia of drug dealing were not always found (ts 88).
The appellant did not give or call evidence during the trial.
The sole issue at trial
The issue for the jury in each count was whether the appellant had an intention to sell or supply cannabis to another.
The State's case on this issue relied upon the presumption contained in s 11 of the Misuse of Drugs Act, which reads as follows:
11. Presumption of intent to sell or supply
For the purposes of -
(a)section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug; or
(b)section 7(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession, or to cultivate, prohibited plants of a particular species or genus with intent to sell or supply those prohibited plants or any prohibited drug obtainable therefrom to another if he has in his possession, or cultivates, a number of those prohibited plants which is not less than the number specified in Schedule VI in relation to that species or genus.
With respect to count 1, sch VI of the Misuse of Drugs Act provides that the presumption applies where the number of plants cultivated by an accused is ten or more. With respect to count 2, sch V provides that the presumption applies where the amount of cannabis possessed by an accused is 100 g or more.
Self‑evidently, the number of plants cultivated by the appellant and the amount of loose cannabis he possessed was in excess of the thresholds provided for in the relevant schedules to the Misuse of Drugs Act. Accordingly, the sole issue in each count was whether the appellant had proved, on the balance of probabilities, that he did not have an intent to sell or supply to another.
In his opening address to the jury, the appellant's counsel at trial (not his counsel on appeal) put the proposition this way:
Is it more probable that [sic] not that [the appellant] … would grow [the cannabis plants] for himself … (ts 35).
Late in the opening, defence counsel said, '[the appellant] just says that what you see and what is there is supply [sic] for him, not for anyone else' (ts 35 ‑ 36).
Immediately after the appellant's trial counsel completed his opening address, the learned trial judge spoke to the jury. He told them that in view of the admissions made by the appellant:
[T]he only issue is intent to sell or supply and the onus of proof now lies on [the appellant] to prove that all of the drugs were for his personal use (ts 36).
The proposed ground of appeal
The proposed ground of appeal reads:
His Honour made a wrong decision on a question of law in that he directed the jury that the issue to be determined by them was whether all the cannabis was for the accused's personal use or purposes, whereas the correct test was whether it was more probable than not, on the whole of the evidence, that the accused did not intend to sell or supply the cannabis to another.
The first point to be made about the proposed ground of appeal is that his Honour did not make a 'wrong decision' in his summing up. No exception was taken to his Honour's summing up. Accordingly, there cannot be a wrong decision as now alleged by the appellant. The only basis upon which the appellant's ground can succeed is if it is established that, as a result of his Honour's directions, the appellant has suffered a miscarriage of justice.
Merit of the proposed ground of appeal
The relevant law with respect to the application of the presumption in s 11 of the Misuse of Drugs Act was stated by Steytler P (with whom Pullin JA agreed) in Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 [4]. There, in the context of a case involving s 11(a), his Honour said:
Once the fact of possession of more than the specified quantity is proved beyond reasonable doubt or, as in this case, admitted, the prosecution has no other onus to discharge. The very purpose of s 11(a) of the Act is that of putting upon the accused, in such a case, the onus of establishing on the balance of probabilities that, on the whole of the evidence at the trial, he or she did not intend to sell or supply the drug to another.
The appellant submitted that he suffered a miscarriage of justice because, at times in the summing up, his Honour identified the factual issues for the jury to determine in terms of whether the appellant had proved on the balance of probabilities that all of the cannabis was for his personal use or purposes and not by reference to the precise statutory language in s 11.
It is true that his Honour did at times identify the factual issue other than by way of the statutory language, but in this case that did not give rise to any perceptible risk of a miscarriage of justice.
The appellant's counsel had himself identified the factual issue for the jury to determine in terms of whether it was more probable than not that the appellant would grow the cannabis plants for himself or whether the cannabis was for his personal use. In his summing up, his Honour made it clear that the question of whether the appellant proved that he had grown or possessed the cannabis for his personal use or other purposes was, in substance, the same as whether the appellant had proven that he had not grown or possessed the cannabis with an intention to sell or supply to another. For example, at ts 135, his Honour said:
I have already touched on the onus and standard of proof a couple of times, on the key issue in this case, the issue of intent to sell or supply, the onus of proof lies on [the appellant] on the balance of probabilities to prove that all of the drugs were for his personal use or other personal purposes. And whenever I say other personal purposes, I mean mulching the garden, throwing it in the bin, feeding it to the cat or whatever.
Again, at ts 136 and 137:
In this case, [the appellant] admits that the State has proved beyond reasonable doubt that he cultivated 10 or more plants and had a hundred grams or more of cannabis in his possession. As a matter of law that is sufficient proof that he had an intention to sell or supply the cannabis to another unless he proves to the contrary.
…
So what does unless the contrary as proved mean? The answer, members of the jury, means proved on the evidence as a whole that he did not intend to sell or supply any of the drug to another person. In other words, he must prove that all of the drug was for his personal use or other purposes.
His Honour continued at ts 137:
[I]f you are satisfied on the evidence as a whole that it is more probable than not that all of the drug was for [the appellant's] personal use or purposes then your verdict must be not guilty of the particular charge you are considering and he would be guilty of the simple offence only which would either be cultivation of cannabis or possession of cannabis.
If you are not satisfied on the balance of probabilities on the whole of the evidence that it was all for his personal use or purposes, then you will be satisfied that the State has proven guilt. In other words, that he had possession or was cultivating with the intent to sell or supply to another.
His Honour's use of the expression, 'personal use or purposes', was no more than describing the gist of the defence case. It was an expression consistent with the language used by defence counsel who took no exception whatsoever to it.
In his oral submissions in this court, the appellant's counsel observed that the evidence relevant to the appellant's intention to sell or supply to another comprised three broad categories, being:
(a)the evidence of the search of the appellant's premises;
(b)the expert testimony; and
(c)what the appellant said in his interview during the search.
The appellant's counsel submitted that his Honour's directions to the effect that the issue for the jury to determine was whether all the cannabis was for the appellant's personal use unfairly 'compartmentalised' the evidence. By this he meant that the learned trial judge focused the jury's attention only upon the statements made by the appellant in his interview and not upon the whole of the evidence (appeal ts 7).
This submission cannot be reasonably sustained. As the extracts from his Honour's summing up which I have already quoted illustrate, his Honour told the jury that the issue of the appellant's intent needed to be decided upon the whole of the evidence. His Honour explicitly directed the jury that it was not limited to a consideration of what the appellant said to the police. He emphasised the need for the jury to consider all the evidence. His Honour said:
Now, I've used those words, 'on the whole of the evidence'. You must consider the whole of the evidence in considering whether or not all of the drugs were for [the appellant's] personal use or purposes. You are not limited to what he said to the police in his video record of interview.
In other words, it is not the law that the only proof he can offer or rely on that the drugs were for his personal use or purposes must come from his own mouth. So it's not like a cricket match where he has to make a century to win the match. He does not have to win the match off his own bat. You look at all the evidence.
And a good way of getting you to think about this in practical terms is, on count 2, have a look at the photos and the video. What sort of quality of cannabis are we talking about? He says it was all for him to smoke or some of it was going to get chucked out. Well, you can act on that if you think that's probably correct.
But you can also look at the quality of cannabis and say, 'Look, is anyone ever going to use that except him? Is the only bloke that would ever be bothered smoking that stuff? Well, would even he be bothered smoking that stuff?' So you look at the whole of the evidence in considering his intention and whether he's proved what he has to prove.
So if you are satisfied, from what he told the police, that all of the drugs was or would be for his personal use or purposes, then find him not guilty of the charge you're considering. And you'll have no difficulty, of course, in finding him guilty of simple possession or cultivation, as the case may be.
But it's not just a question of whether or not you believe him. You should consider, and are entitled to consider, all the evidence. And don't ignore evidence if you regard it to be relevant and important.
Having regard to this, there was no perceptible risk that the jury compartmentalised the evidence as alleged.
Conclusion and orders
His Honour's summing up was not erroneous as claimed in the proposed ground of appeal. It has no reasonable prospect of succeeding. Leave to appeal must be refused. There being no other proposed ground of appeal, the appeal must be taken to have been dismissed: Criminal Appeals Act 2004 (WA) s 27(1), (2) and (3).
I would make the following orders:
1.Leave to appeal is refused.
2.The appeal is dismissed.
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