(The Honourable President Livesey and the Honourable Justice David)
20 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Following a trial by jury, the applicant was convicted of one count of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA), and one count of manufacture a large commercial quantity of a controlled drug, contrary to s 33(1) of the Controlled Substances Act 1984 (SA).
The prosecution case relied upon circumstantial evidence to prove the applicant’s state of mind.
The applicant appeals against her conviction on the sole ground that the verdicts are unreasonable and not supported by the evidence within s 158(1)(a) of the Criminal Procedure Act 1921 (SA). It is contended that the evidence could not exclude the hypothesis consistent with innocence that the applicant did not know what was in her car, or if she knew, did not know that the items were, or were involved in, the trafficking and manufacture of a controlled drug.
Held, (the Court) refusing permission to appeal and dismissing the appeal:
1.There was evidence upon which a properly instructed jury could find the applicant guilty. This is not a case where the jury must have entertained reasonable doubt.
2.The application raises no issue of principle nor any reasonably arguable basis upon which to impugn the jury’s verdicts.
3. On an independent review of the evidence this Court does not doubt the guilt of the applicant.
Court of Appeal – Criminal: Livesey P and David JA
THE COURT:
Introduction
By notice of appeal dated 11 August 2021 the applicant seeks permission to appeal against convictions entered on 12 July 2021 following a trial before a jury presided over by a District Court Judge.
The applicant was found guilty of:
1.Trafficking a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA); and
2.Manufacture a large commercial quantity of a controlled drug, contrary to s 33(1) of the Controlled Substances Act 1984 (SA).
The sole proposed ground of appeal is that that the verdicts…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Trimboli v The Queen [2021] SASCA 120
Case
[2021] SASCA 120
Decision Date
CaseChat Overview and Summary
The applicant, Trimboli, appealed to the court against jury verdicts of guilty on drug offences. The prosecution case was that Trimboli was in possession of, and knowingly involved in the manufacture of, a controlled substance, 4-Hydroxybutanoic acid (GHB). Trimboli contended that the evidence was insufficient to exclude the reasonable hypothesis that she was unaware of the contents of her car or their nature.
The central legal issue before the court was whether the jury's guilty verdicts were unreasonable or unsupported by the evidence, pursuant to s 158(1)(a) of the Criminal Procedure Act 1921 (SA). This required the court to determine if it was open to the jury to be satisfied of guilt beyond reasonable doubt, or if the jury must have entertained a doubt about the applicant's guilt. The court was not to retry the case but to identify any error and determine if a miscarriage of justice had occurred, respecting the jury's role as the constitutional tribunal for factual issues.
The court reasoned that a reasonable inference of innocence must be based on more than mere conjecture or the bare possibility of innocence. While circumstantial evidence must be considered in its combined effect, the appeal court's role is confined to reviewing whether the jury's conclusion was rationally open to them. The court found that the jury's verdicts indicated they were satisfied beyond reasonable doubt regarding Trimboli's possession and knowledge or recklessness, despite her denials.
Consequently, the court held that the application raised no issue of principle or reasonably arguable basis to impugn the jury's verdicts. Upon an independent review of the evidence, the court did not doubt the applicant's guilt. Accordingly, permission to appeal was refused and the appeal was dismissed.
Orders
Orders of the court
Held, (the Court) refusing permission to appeal and dismissing the appeal:
1. There was evidence upon which a properly instructed jury could find the applicant guilty. This is not a case where the jury must have entertained reasonable doubt.
2. The application raises no issue of principle nor any reasonably arguable basis upon which to impugn the jury’s verdicts.
3. On an independent review of the evidence this Court does not doubt the guilt of the applicant.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It is contended the evidence could not exclude the hypothesis consistent with innocence that the applicant did not know what had been found in her car or, if she knew, that the items were or were involved in the manufacture of a controlled substance, being 4-Hydroxybutanoic acid or “GHB”, also known as “fantasy”. It is contended that the “infirmities and shortcomings” in the evidence precluded a finding of guilt beyond reasonable doubt on either count.Circumstantial evidence: were guilty verdicts open? The applicant commences with the well-known authorities concerning proof of guilt in a case involving circumstantial evidence. Whilst considering each piece of circumstantial evidence in isolation is fundamentally flawed,[1] and it is the combined effect of the evidence that must generate the conclusion that guilt is the only rational hypothesis,[2] a reasonable inference of innocence must rest on more than mere conjecture or the bare possibility of innocence.[3][1] Dent v The Queen [2021] SASCFC 4, [101] (Kelly J).[2] Dansie v The Queen [2020] SASCFC 103, [443] (Livesey J, with whom Parker J agreed).[3] Peacock v The King (1911) 13 CLR 619, 661 (O’Connor J). The applicant overlooks, and does not address, the authorities that bind this Court when reviewing a finding of guilt made by a jury when relying upon the first limb of the common form criminal appeal provision, s 158(1)(a) of the Criminal Procedure Act 1921 (SA). It is not for this Court to try the case. The role of the appeal court is different. It is confined to identifying error and whether there has been any miscarriage of justice. It is necessary that this Court respect that the jury was “the constitutional tribunal for deciding issues of fact”.[4] [4] R v Baden-Clay (2016) 258 CLR 308, [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). That demarcation in responsibilities between the trial court and the appeal court is reflected in the way this Court must approach the jury’s verdicts, namely, by determining whether it was “open to the jury to be satisfied of guilt beyond reasonable doubt” or, by contrast, whether the jury “must, as distinct from might, have entertained a doubt about the appellant’s guilt”.[5] If it was open to the jury to be satisfied of guilt beyond reasonable doubt, then the verdict is not unreasonable. Similarly, as to whether the verdicts cannot be supported having regard to the evidence, the question is whether there was evidence from which inferences might be drawn which, if accepted and drawn by the jury, were capable of proving guilt beyond reasonable doubt.[6][5] Libke v The Queen (2007) 230 CLR 559, [113] (Hayne J, with whom Gleeson CJ and Heydon J agreed) (emphasis in original), citing M v The Queen (1994) 181 CLR 487, 492-493 (Mason CJ, Deane, Dawson and Toohey JJ).[6] See generally Dansie v The Queen [2020] SASCFC 103, [421]-[442] (Livesey J, with whom Parker J agreed).The prosecution case and the question of knowledge The facts are in a relatively short compass. The applicant’s partner was arrested on 8 May 2019 and found in possession of over 5 kilograms of GHB.
Decision
Reasons for decision
The jury’s verdicts demonstrate that they were satisfied beyond reasonable doubt about the applicant’s possession and knowledge or recklessness, notwithstanding her denials. Conclusion The applicant raises no question of principle nor any reasonably arguable basis upon which to impugn the jury’s verdicts. Out of an abundance of caution we have, nonetheless, independently reviewed the evidence, the addresses of counsel and the summing up by the trial Judge. We do not doubt the guilt of the applicant. In the circumstances, permission to appeal is refused and the appeal is dismissed.