The Queen v Siloata
[2004] NZCA 144
•14 July 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA477/03
THE QUEEN
v
FISO SILOATA
Hearing:22 June 2004
Coram:Anderson P
Paterson J
Doogue JAppearances: R M Gould for Appellant
B J Horsley for Crown
Judgment:14 July 2004
JUDGMENT OF THE COURT DELIVERED BY ANDERSON P
[1] The appellant was convicted on his trial before a District Court Judge, Judge Jaine, and a jury on one count of possessing cannabis for supply contrary to s6(1)(f) of the Misuse of Drugs Act 1975. He had previously pleaded guilty to a count of cultivating cannabis laid in the wake of a Police search of the appellant’s residential address. The cultivation was on a reasonably significant scale and involved cultivating devices such as digital timers, lighting ballasts, fans and other equipment. The cannabis was in various stages of growth ranging from seedlings to maturing plants with developing heads. In all, 110 plants were seized.
[2] The cannabis plants constitute the cannabis which the Crown alleged was in possession for the purposes of supply. No doubt the cultivation charge was laid to cover the possibility that a jury might not convict on the other count through being satisfied that possession was not for the purpose of illegal supply. It may also be observed that the Crown was not solely reliant upon the operation of the statutory presumption of possession for an unlawful purpose, there being some evidence that the appellant was contemplating a commercial return. And of course the sheer scale of the operation with its capital investment indicated a commercial operation.
Appellant’s argument
[3] The ground of miscarriage of justice is supported by arguments of an essentially semantic nature. They focus on the Judge’s directions to the jury in summing up and in response to a jury question. Those arguments may be more readily appreciated if one first examines the directions on which they are founded. In summing up he said:
The next general matter is always particularly important. In every criminal trial the onus of proving the charge rests on the Crown. In almost every criminal trial that onus rests on the Crown from the beginning of the trial until the end and it does not shift. There is no onus on an accused person to prove that he or she is innocent and there is no requirement or expectation that an accused person should give evidence or call other people as witnesses. However, this trial is one of those exceptions to the rule which I have just spoken about, when in fact the onus can shift if the Crown establishes certain things beyond reasonable doubt. But the Crown must prove the necessary elements of the charge beyond reasonable doubt. Proof beyond reasonable doubt means simply that you must be sure, you must be satisfied of it before you can convict. If you are not so sure, not satisfied, then you should acquit. But if you are sure you are satisfied, then equally you should convict. The verdict you give is to be the unanimous verdict of all 12 of you.
Now I wish to explain that exception to the general rule which I have just adverted to. I have told you that in all criminal trials the onus of proving the charges rests on the Crown. That is so here, but in these cases of possession for sale, where the Crown relies upon a presumption in the law, there is a twist to that, which, at first sight might seem a little confusing, but is really quite straightforward. Firstly the onus is on the Crown to prove three things beyond reasonable doubt. First, that the material was in the possession of the accused person. Secondly, that the material was in fact a Class C controlled drug and thirdly, that the quantity of the controlled drug was above a certain weight. In the case of a Class C controlled drug as here, that weight is 28 grams. Now you must be satisfied about possession, and to be satisfied of possession you must be satisfied that the accused had actual or potential control of the material, either alone or with others. Further, the accused knew what the material was and had the ability to control the use of it, that the accused had the intention to exercise control over the material and that the accused voluntarily accepted control of the material.
Now those issues which the Crown must prove beyond reasonable doubt should not cause you much difficulty because the accused acknowledges he was in possession of this cannabis material. He acknowledges that the weight of it was over 28 grams and you can accept from me, that cannabis is a Class C controlled drug. So you may not have difficulty with those ingredients although it is for you. The Crown must prove those things to a standard beyond reasonable doubt. That means that the Crown must prove them to the point where you are sure or satisfied that they have been established. If you are left with a reasonable doubt about any of those matters, you are not sure or satisfied about them, then you should acquit. Equally, if you have no reasonable doubt about them, then subject to what I am about to say, regarding the accused’s opportunity to rebut the presumption, you should convict.
Now if the Crown proves those three things, the law is that the accused is presumed or deemed to have the drugs for the purpose of selling them to others. In other words, if the Crown gets to that point, the case is proved. There does not have to be any evidence of actual sales or of actual intention to sell in the future. But, and this is the twist, because the presumption may work unfairly, the accused is given the opportunity to rebut the presumption, to persuade you that he had the drug for some purpose other than to sell it to others.
In considering the defence evidence about that, two principal things need to be kept in mind. He must persuade you that all of the drugs were for his own use or to give to persons over the age of 18 years, not by way of sale. If you think that only some of them were for his own use, or to be given to persons over the age of 18, other than by way of sale, that would not be good enough. The second matter to keep in mind is that the standard of proof required of an accused person is not as high as that imposed on the Crown. The standard required of an accused is what is known as the balance of probabilities. He has to satisfy you that it is more probable than not that he had all of the drugs for his own use or to give them to persons over the age of 18 other than by way of a sale. If you are satisfied that the Crown has proved beyond reasonable doubt the three elements I mentioned earlier, then as I have said, the effect of the presumption is that the accused must be found guilty, unless he satisfies you that he had the drugs for his own use, or for giving them to others over 18, other than by way of sale, and that he had the drugs for those purposes exclusively. He has not given evidence to that effect. But you are asked by the defence to reach that conclusion by way of inference from all the evidence.
I suggest there are three possible conclusions you might come to in considering the evidence. The first is that you accept the defence contention as being more likely than not to be true. If that is so he has rebutted the presumption and he should be found not guilty. The second possibility is that you do not accept the defence contention as being more likely than not to be true, and if so, he has not rebutted the presumption and he should be found guilty. Or the third possibility is that you cannot decide one way or the other whether the defence contention is more likely than not to be true. If that is so, then again, he has not rebutted the presumption, and he should be found guilty.
Now there is no direct evidence from the accused about what the accused intended to do with this cannabis, but you are asked, as I have said, to reach a conclusion about his intention, by way of inference from all the evidence. Now as a jury you are entitled to draw inferences or conclusions from facts which have been proved to you in evidence. But conclusions are not guesses, rather they are logical, reasonable and fair deductions from facts that have been proved.
In this case the accused asks you to draw the conclusion from all the circumstances, that he did not have a certain intention at the time of cultivating the cannabis, an intention to use all of it personally or to give it away to others, other than by way of a sale. It is for you to decide whether that is the appropriate conclusion to draw from all the evidence you have heard, but of course you must not speculate or guess. If the evidence would support two conclusions of similar weight, then to choose between them would be to guess, and you should not do this.
[4] After retiring for a time the jury forwarded a question in the following terms to the Judge:
Can I please have a copy of the Judge’s summing up, and especially our three possible conclusions?
[5] The Judge’s reply was that they could not have a copy of the summing up but that he would address the question, which he then did in the following terms:
I remind you that it is for the Crown to prove beyond reasonable doubt three elements, which I have spoken about; possession of a Class C controlled drug and a weight of more than 28 grams. You still have to be satisfied of that. If you have been, you then consider whether the presumption of sale has been rebutted by the accused and that is where I think you are referring to the three possible conclusions.
I firstly remind you that the standard of proof required of an accused person is not as high as that imposed on the Crown. The standard required of an accused is what is known as the balance of probabilities. He has to satisfy you that it is more probable than not, that he had all of the drugs for his own use or to give them to persons over the age of 18, other than by way of sale. Having said that to you, I then went on to suggest that there were three possible conclusions and that is what I think your note is adverting to and I will repeat what I then said to you.
I said to you that there are three possible conclusions you might come to in considering the evidence. The first is that you might accept the defence contention as being more likely than not to be true. If that is so, he has rebutted the presumption and should be found not guilty. The second possible conclusion, is that you do not accept the defence contention as being more likely than not to be true, and if that is so, he has not rebutted the presumption and he should be found guilty. The third possible conclusion is that you cannot decide one way or the other whether the defence contention is more likely than not to be true. If that is so, then again he has not rebutted the presumption and he should be found guilty. That is all I want to say in relation to the note.
[6] Counsel for the appellant pointed out that in paragraph [14] of the summing up the Judge had said:
…the accused asks you to draw the conclusion … that he did not have a certain intention at the time of cultivating the cannabis, an intention to use all of it personally or to give it away to others, other than by way of a sale.
[7] Counsel submitted that far from asking the jury to draw the conclusion that he did not have a certain intention at the time of cultivating the accused was asking the jury to find that he did have that particular intention.
[8] Next, whilst not taking issue with the correctness of a standard direction, given by the Judge in the course of summing up, about three possible conclusions, counsel questioned the appropriateness of such a direction. She also pointed to the slightly different terminology used by the Judge in answering the jury’s question. In the course of summing up the Judge had said “The first [conclusion] is that you accept the defence contention…” whereas in answering the jury question the Judge had said “The first is that you might accept the defence contention…”. Counsel’s argument is that the answer to the jury question might have conveyed that the defence position was inherently less worthy of belief than that indicated by the second and third possibilities. But more particularly, in counsel’s submission, the answer to the jury is flawed by a failure once more to refer to the need for unanimity.
[9] In counsel’s submission the way the question was answered, including the absence of reinforcement of the need for unanimity, carries the risk that the jury may not have been unanimous in the view that the appellant had not discharged the statutory onus. In the absence of a unanimity direction in connection with the examination of possibilities, she said, there is an inherent ambiguity. The standard direction could convey to the jury that unless they all agree with a possessor’s attempted rebuttal the possessor must be convicted, whereas there could be another situation, namely a disagreement as to the verdict because the jury is not unanimously of the same view in relation to the cogency of rebuttal. In short, she submitted, the usual direction is unsafe. And in the circumstances of this case and if the correct position is that the appellant ought not to have been convicted unless the jury unanimously rejected the probability of his explanation there will have been a miscarriage of justice.
The Crown arguments
[10] The Crown submitted that given the brevity of the trial, the tenor of the summing up as a whole, the obviousness of the single issue and the respective positions of the Crown and the accused, there is no realistic prospect that the interpolation by the Judge of the word “not” could have misled the jury. Nor could the Judge’s answer to the jury’s question have seemed to indicate any view as to credit.
[11] As to any ambiguity of the direction about unanimity in respect of an attempted rebuttal of the statutory presumption of possession for an unlawful purpose, the Crown submitted that this could not have been a matter that caused the jury any difficulty. The Judge’s directions emphasised the need for a unanimous verdict and the verdict must be taken to have been unanimous. There was no reason to think that the jury was not asked the routine and inevitable question, after delivery of verdict, “is that the verdict of you all”.
[12] In any event, in counsel’s submission, the correct legal principle is that once the presumption is invoked a guilty verdict must be returned unless the jury unanimously considers it more likely than not that the drug possessed by an accused is not for a proscribed purpose.
Discussion
[13] The semantic arguments are meritless quibbles. In fairness to counsel we remark that they were not pressed inappropriately in argument.
[14] Warranting rather more consideration is counsel’s submission that the directions about rebuttal of the statutory presumption could mislead or confuse a jury as to when the appropriate verdict is guilty or not guilty.
[15] The relevant parts of s6 Misuse of Drugs Act, as applicable to cannabis, read (with emphasis added) as follows:
s.6 – Dealing with controlled drugs
[1] … no person shall:
(d)supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or
(e)sell, or offer to sell, any class C controlled drug to a person of or over 18 years of age; or
(f)have any controlled drug in his possession for any of the purposes set out in paragraphs (d) or (e) of the subsection
[5] For the purposes of paragraph (e) of subsection (1) … if it is proved that a person has supplied a controlled drug to another person he shall until the contrary is proved be deemed to have sold that controlled drug to that other person.
[6] For the purposes of paragraph (f) of subsection (1) … a person shall until the contrary is proved be deemed to be in possession of a controlled drug for a purpose set out in … paragraph (d), or paragraph (e), as the case may require, of that subsection if he is in possession of …
(e) … 28 grams or more of cannabis plant as described in the Third Schedule of this Act …
[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 more likely than not for other than a proscribed purpose, an accused will escape conviction through a disagreement. That would negate the effect of the statutory presumption. It would mean that the Crown would first have to satisfy the jury, unanimously and beyond reasonable doubt of the facts which involve the presumption, and would then have to satisfy the jury unanimously and on the balance of probabilities that such possession was for a proscribed purpose. An accused could never be convicted if the Crown should fail on the second limb of this hypothesis.
[18] The correct position is that the Crown has to prove the facts which invoke the presumption and if it does an accused must be convicted unless the accused proves to the unanimous satisfaction of the jury that it was more likely than not that such possession was not for a proscribed purpose.
[19] The Judge’s discretion adequately conveyed the correct legal position, and of course it must be the case that the jury was unanimous in its conclusion of guilt. But we question the desirability of expressing the position in terms of three possibilities, as the direction in fact given did. It is unnecessary and as the jury question shows is less than clear.
[20] A more appropriate direction would put the position in terms of two, not three, possibilities. It would say that if, and only if, the Crown satisfies the jury unanimously, and beyond reasonable doubt, that an accused was in possession of the alleged controlled drug, and that it was of the quantity referred to by the Act, the jury must return a guilty verdict unless it is then satisfied, unanimously, that it is more likely than not that the accused was in possession for a purpose other than those prohibited by the Act. Such a direction would, of course, be articulated in terms of the actual drug, amount, and alternative purpose suggested by an accused.
Decision
[21] We are not satisfied that any of the matters raised on behalf of the appellant has occasioned a miscarriage of justice. The appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington
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