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Court of Criminal Appeal 23 July 2002

R v WILSON

[2002] NSWCCA 288

Drugs
CRIMINAL APPEAL APPEAL FROM CONVICTION CULTIVATION OF CANNABIS PLANTS CIRCUMSTANTIAL EVIDENCE REASONABLE HYPOTHESIS WHETHER CONVICTION WAS UNSAFE

Citation: R v Wilson [2002] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 23 July 2002
Judges: Sheller JA, Bell J, Carruthers AJ

Background

The appellant was the occupier of a residential property in Bulli. Following the execution of a search warrant in October 2000, police found items associated with a step in the manufacture of methylamphetamine, as well as 87 cannabis plants on the premises. The appellant was present at the time along with three other people.

The Crown charged the appellant with knowingly taking part in the manufacture of methylamphetamine (under s 24 of the Drug Misuse and Trafficking Act 1985) and with cultivating cannabis plants (under s 23(1)(a) of the same Act). The appellant pleaded not guilty to both charges. The matter was tried without a jury before Judge Goldring in the District Court, who convicted the appellant on both counts.

The appellant did not give or call evidence at trial. His defence advanced the hypothesis that any manufacturing step had taken place off the premises, which were used merely for storage, and that the cannabis plants belonged to another person who was coming to collect them.

  • Whether the trial judge correctly applied the reasonable hypothesis test in a circumstantial evidence case, specifically whether an alternative hypothesis inconsistent with guilt had been adequately considered and rejected.
  • Whether the trial judge failed to give adequate reasons for his findings, as required under s 17 of the Criminal Procedure Act 1986.
  • Whether the conviction on the manufacturing charge was unreasonable or unsupported by the evidence.
  • Whether there was sufficient evidence to support the conclusion that the appellant had tended or nurtured the cannabis plants, as required to establish "cultivation" under the Act.

Decision

On the manufacturing charge, the Court of Criminal Appeal acknowledged that the trial judge had not perfectly articulated the applicable principle regarding circumstantial evidence. However, the Court was satisfied that, in substance, Judge Goldring had correctly approached the task. The judge had proceeded on the basis that conviction was not open if a reasonable hypothesis consistent with innocence remained available. The Court found the evidence, taken cumulatively, left it open to conclude beyond reasonable doubt that the manufacturing step had occurred on the premises, and that the storage hypothesis could properly be rejected as not reasonable on the evidence.

On the reasons ground, the Court applied the High Court's decision in Fleming v The Queen (1998) 197 CLR 250, finding that the trial judge had provided sufficient reasons. No failure to comply with s 17 of the Criminal Procedure Act 1986 was established.

On the cultivation charge, the Crown's expert gave evidence that the 87 cannabis plants were in very good condition, with full water cells, healthy root systems showing recent growth, and upright leaves. Fertiliser suitable for hydroponic cultivation was also found on the premises. The Court found this evidence, including the need for regular watering at least two to three times per week, was more than sufficient to support the conclusion that the plants had been tended and nurtured by the appellant, notwithstanding his claim that they belonged to a third party.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In a circumstantial case tried without a jury, the correct standard requires that no rational hypothesis inconsistent with guilt remains available before a conviction can be entered. While the trial judge expressed the principle imperfectly, the Court of Criminal Appeal confirmed that the substance of the approach, not merely its verbal formula, will be assessed on appeal.
  • Under the Drug Misuse and Trafficking Act 1985, an occupier who "suffers or permits" a step in the manufacturing process to occur on their premises takes part in manufacture, even without direct physical participation in that step.
  • "Cultivation" under the Act includes tending or nurturing. The presence of healthy plants requiring regular moisture and nutrient supply, combined with fertiliser found on the premises, constituted ample evidence to satisfy that element beyond reasonable doubt.
  • An alternative hypothesis advanced by a defendant without evidentiary support may properly be rejected as unreasonable where the cumulative weight of the Crown's evidence points firmly to guilt. Following Shepherd v The Queen (1990) 170 CLR 573, the probative force of evidence may be assessed cumulatively.
  • No error in reasons was established. The trial judge's findings, while expressed briefly, were sufficient to meet the obligations imposed by s 17 of the Criminal Procedure Act 1986, consistent with Fleming v The Queen.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), 24, 3, 6
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 17

Cases
- Plomp v The Queen (1963) 110 CLR 234
- Fleming v The Queen (1998) 197 CLR 250
- Shepherd v The Queen (1990) 170 CLR 573