Trimboli v The Queen - [2021] SASCA 120

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
TRIMBOLI v THE QUEEN
[2021] SASCA 120
Judgment of the Court of Appeal (ex tempore)
(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.
Controlled Substances Act 1984 (SA) ss 32, 33, 33P; Criminal Procedure Act 1921 (SA) s 158, referred to.
Dansie v The Queen [2020] SASCFC 103; Dent v The Queen [2021] SASCFC 4; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Peacock v The King (1911) 13 CLR 619; R v Baden-Clay (2016) 258 CLR 308; R v Daka [2019] SASCFC 80; R v Scarpantoni (2013) 118 SASR 131; R v Tassone [2016] SASCFC 146, considered.

TRIMBOLI v THE QUEEN
[2021] SASCA 120
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 are “unreasonable and not supported by the evidence” within the meaning of s 158(1)(a) of the Criminal Procedure Act 1921 (SA). As will appear, this was a case depending on circumstantial evidence in order to prove the applicant’s state of mind.
The applicant’s case
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.
The applicant leased a property at Glengowrie between 2 and 8 May 2019. On the last day of the lease the applicant was seen packing her car. She left some items behind. She telephoned the owner to arrange a time to collect the items left behind.
At the property were discovered a gas bottle, a stainless-steel pot with a tap (in the shower) and several medium sized drums in the backyard. Some had GHB or 4-Hydroxybutanoic acid lactone or “GBL” residue on them. After police attended at the leased property they then attended at a different property at Elizabeth South where they found the applicant with her children. Her car was outside that property. A search of the car revealed three bottles in a plastic bag in the boot of the car containing GHB, weighing over 2 kilograms. These are the subject of count 1.
A DNA analysis suggested that DNA extracted from the lid of one of the drink bottles containing GHB found in the boot of the car matched the applicant’s DNA.
Other containers were found which contained, in all, over 3 kilograms of GBL which can be converted to GHB by adding caustic soda. Containers of caustic soda were also found in the boot. These are the subject of count 2.
The applicant was interviewed twice. She admitted staying at the leased property for about a week with her children and that others attended, including her partner. She admitted that she was going back to collect someone else’s belongings but denied having anything to do with the manufacture of illicit substances. In a later interview, the applicant admitted taking things from inside the leased premises and putting them into her car, but she denied knowing what was in them.
The elements of count 1, trafficking in a large commercial quantity of a controlled drug, are as follows:[7]
1.The substance the accused had or dealt with was a controlled drug. It is accepted that GHB is declared by regulation to be a controlled drug.
2.The accused trafficked in the substance. Relevantly, to traffic means to have possession of a controlled drug intending to sell it, or knowing that another intended to do so; or taking part in the process of sale. A person takes part in the process of sale if he or she directs, or participates in or takes any step or causes any step to be taken in, the process of sale of the drug. A step in the process of sale includes storing, transporting, loading or unloading a drug when done for the purpose of sale of the drug.
3.The accused trafficked in the controlled drug knowing or being reckless that it was GHB or a controlled drug.[8]
4.The quantity of the controlled drug being trafficked was a large commercial quantity. That is defined as being 2 kilograms or more.
[7] R v Tassone [2016] SASCFC 80, [6] (Nicholson J, with whom Kelly and Hinton JJ agreed); R v Daka [2019] SASCFC 80, [80]-[81] (Parker J, with whom Kourakis CJ and Stanley J agreed).
[8] Controlled Substances Act 1984 (SA) s 33P. See also R v Scarpantoni (2013) 118 SASR 131.
Where it is proved that the accused had possession of a trafficable quantity of a controlled drug (50g in the case of GHB), it is presumed, in the absence of proof to the contrary, that the accused was intending to sell and had the requisite belief necessary to constitute the offence.
As for count 2, the elements of the charge of manufacturing a large commercial quantity of a controlled drug are as follows:[9]
1.The accused manufactured the substance. Manufacture is defined to mean to undertake any process by which the drug is extracted, produced or refined; or to take part in the process of manufacture. A step in the process of manufacture of a controlled drug includes transporting, storing, loading or unloading equipment, substances or materials when done for the purpose of manufacture.
2.That the substance manufactured was a controlled drug.
3.That the accused knew or was reckless to the fact that the substance manufactured was a controlled drug.
4.That the accused manufactured a large commercial quantity of a controlled drug.
5.That the accused intended to sell any or all of the controlled drug, or believed another intended to do so.
[9] See eg, R v Scarpantoni (2013) 118 SASR 131, [11] (Kourakis CJ and Sulan J).
There is another deeming provision: where it is proved that the accused manufactured a trafficable quantity (50g in the case of GHB), it is presumed, in the absence of proof to the contrary, that the accused had the requisite intention or belief concerning sale.
An examination of the trial evidence, the closing addresses and the summing up shows that, on count 1, the applicant’s knowledge and possession of the GBH were the only issues put into contention. The contest was over whether the applicant knew the substances were in her vehicle and, if so, whether she was in possession of the substances; and whether she knew or was reckless as to whether the substances were a controlled drug.
Similarly, on the second count, the point of contention was whether the applicant had knowledge of the GBL and caustic soda in her vehicle and, if so, whether she transported or stored the GBL and caustic soda for the purpose of manufacture; and whether the applicant knew or was reckless as to whether what was being manufactured was a controlled drug.
A number of arguments can be raised against the contention that the applicant had the requisite state of mind in respect of each count. However, there was ample evidence upon which it was open to a properly instructed jury to conclude that the applicant was in possession of the GHB, knowing it was a controlled drug; and knew of and stored or transported the GBL and chemicals in her vehicle for the purpose of manufacture, knowing that the substance to be manufactured was a controlled drug.
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.