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Siloata v The Queen

Siloata v The Queen

Case [2004] NZSC 28 17 November 2004

Jurisdiction

Unanimity

Standard of Proof

Rebuttable Presumption

Appeal

Limitation Periods

Criminal Law

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IN THE SUPREME COURT OF NEW ZEALAND
SC CRI 8/2004
FISO TOVIO SILOATA
v
THE QUEEN
Hearing:17 November 2004

Court:Elias CJ, Gault, Keith, Blanchard and Tipping JJ
Counsel:R Lithgow for Appellant

S P France for Crown

Judgment:16 December 2004

JUDGMENT OF THE COURT

A        THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS
Elias CJ and Keith J   [1]
Gault, Blanchard and Tipping JJ  [15]
ELIAS CJ AND KEITH J
(Given by Elias CJ)
[1]       Fiso Tovio Siloata was found guilty by a jury of having cannabis in his possession for the purposes of supply, an offence under s6(1)(f) of the Misuse of Drugs Act 1975. Under s6(6) of the Act, proved possession of 28 grams or more of cannabis plant raises a rebuttable presumption that possession is for the purposes of supply. The burden of rebutting the presumption is on the accused. He must satisfy the jury (or the judge, in a trial by judge alone) on the balance of probabilities that it is more likely than not that he was in possession of the drug for other, less culpable, purposes. The verdict of guilty in the present case necessarily entailed rejection of the defence contention that Mr Siloata was in possession of cannabis plant for his own use and to give to friends over the age of 18 years.
[2]       Mr Siloata appealed to the Court of Appeal on the grounds that the trial judge’s summing up to the jury was ambiguous and carried the risk that the jury may not have appreciated it had to be unanimous in rejecting the defence explanation rebutting the presumption. Crown counsel in response maintained that the directions were not ambiguous and clearly required the jury to be unanimous in any verdict returned. But, in addition, the Crown argued that, once the presumption was invoked (through the accused’s acknowledged possession of 28 grams or more of cannabis plant), the jury were properly to be instructed that a guilty verdict should be returned unless unanimously they were of the view that it was more likely than not that the possession was for a less culpable purpose.
[3]       The Court of Appeal (Anderson P, Paterson and Doogue JJ) considered that the trial judge’s direction on the possible verdicts available to the jury might have been more clearly put, but was adequate. More importantly, it accepted the alternative argument put forward by the Crown. It held:
[16]     The effect of the legislative presumption is that once the Crown has proved that an accused is in possession of a controlled drug of the specified quantity, then absent a special defence such as compulsion, a guilty verdict must be returned unless the accused should prove that possession is not for a prohibited purpose. An accused will not have so proved unless the jury is unanimously satisfied that it is more likely than not that such is the case.
[17]     It cannot be tenable that if only some of the members of the jury should be satisfied that the possession was…

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.

Continue reading Siloata v The Queen

Details

AGLC: Siloata v The Queen [2004] NZSC 28
Case: [2004] NZSC 28
Decision Date: 17 November 2004

CaseChat Overview and Summary

Fiso Tovio Siloata appealed his conviction for possessing cannabis for supply under section 6(1)(f) of the Misuse of Drugs Act 1975. Siloata argued that the trial judge's summing up to the jury was ambiguous and carried the risk that the jury may not have appreciated it had to be unanimous in rejecting the defence explanation rebutting the presumption. The Crown counsel maintained that the directions were not ambiguous and clearly required the jury to be unanimous in any verdict returned. The Court of Appeal dismissed Siloata's appeal and he sought leave to appeal to the Supreme Court of New Zealand. The appeal was allowed, and the conviction was quashed. The Supreme Court held that the requirement of jury unanimity is fundamental to the system of criminal justice and is not affected by the statutory burden of proof cast on an accused under section 6(6) of the Misuse of Drugs Act to persuade the jury that the possession is not for the purposes of supply. Section 6(6) addresses the completely distinct matter of the burden of proof of the purpose of possession. By the statute it is removed from the prosecution and placed on the accused. That statutory burden establishes a rebuttable presumption of fact, not a default verdict as a matter of law once an accused is proved to be in possession of 28 grams of cannabis plant. Those members of the jury who believe the accused has rebutted the presumption of possession for supply are required to find him not guilty. Those who do not consider that the presumption has been rebutted (including those who are left unconvinced or undecided as to whether the possession was for another purpose) are obliged to find the accused guilty. If they are not in agreement, the jury cannot deliver a verdict. The Court of Appeal was wrong in the view that jury failure to agree required a verdict of guilty once the statutory presumption came into play. The correct result of disagreement in respect of the defence case rebutting the presumption would be discharge of the jury for failure to reach a verdict.

Orders