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Court of Criminal Appeal 4 May 2018

Berton v R

[2018] NSWCCA 81

Drugs
CRIMINAL LAW CONVICTION APPEAL OFFENDER TENDING PLANTS SUFFICIENT EVIDENCE AVAILABLE

Citation: Berton v R [2018] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 4 May 2018
Judges: Hoeben CJ at CL; Rothman J; Button J

Background

The appellant was convicted by a jury in the Campbelltown District Court of cultivating 55 cannabis plants by enhanced indoor means, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The plants exceeded the commercial quantity threshold of 50 plants and were found growing hydroponically inside a partitioned machinery shed on a rural property at Rossmore. A co-offender, who occupied the house on the same property, pleaded guilty to the same offence.

The appellant had negotiated and signed a commercial lease over a portion of the shed, paid rent and utility bills associated with the shed, and was identified by the property owner as the person who arranged the tenancy. No fingerprints or DNA connecting the appellant directly to the hydroponic setup were obtained, largely because investigating police mistakenly destroyed most items before testing them.

The appellant sought leave to appeal his conviction on the sole ground that the jury's verdict was unreasonable and could not be supported by the evidence.

  • Whether the verdict was unreasonable and unsupportable under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
  • Whether the circumstantial evidence was sufficient to establish, beyond reasonable doubt, that the appellant was a party to a joint criminal enterprise to cultivate cannabis
  • Whether individual pieces of circumstantial evidence that were not each proved beyond reasonable doubt could, in combination, sustain the conviction

Decision

Hoeben CJ at CL, with Rothman J and Button J agreeing, concluded that the conviction was well open to the jury and that the verdict was not unreasonable. The court applied the standard from SKA v The Queen (2011) 243 CLR 400, confirming that the appellate task is not merely to ask whether a jury could have convicted, but whether it should have. The absence of direct forensic evidence linking the appellant to the grow operation did not, on its own, render the verdict unsafe.

The court identified a substantial body of circumstantial evidence connecting the appellant to the enterprise. He negotiated the lease under a false pretext (claiming the shed would be used for furniture storage), paid substantial rent and utility costs, held the electricity account for the shed in his company's name, had the co-offender's contact details recorded in a notebook found at the premises among cannabis cultivation instructions, and paid the telephone account for the co-offender's residence. The co-offender had previously worked for the appellant, but there was no ongoing legitimate employment relationship to explain this financial arrangement.

Hoeben CJ at CL observed that the most compelling inference was the inherent implausibility of the appellant committing significant ongoing expenditure to lease space he and his company ostensibly needed, without ever attending to check why it was not being used for his stated business purposes. The far more probable inference was that the appellant knew precisely what was occurring at the premises.

Rothman J added, in a brief concurrence, that while some individual facts underlying the inferences were not each proved to the criminal standard in isolation, the cumulative weight of the evidence left open no other reasonable hypothesis than the existence of a joint criminal enterprise between the appellant and the co-offender.

Orders Made

  • Leave to appeal granted
  • The appeal is dismissed

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the appellate standard requires an assessment of whether the jury should have convicted, not merely whether it could have, consistent with SKA v The Queen (2011) 243 CLR 400.
  • Circumstantial evidence need not individually satisfy the criminal standard on each discrete factual inference; it is the cumulative effect of the evidence that the court assesses when determining whether guilt is established beyond reasonable doubt.
  • Sufficient evidence existed to support a jury finding of participation in a joint criminal enterprise, even in the complete absence of forensic evidence, where financial, documentary, and testimonial evidence formed a coherent and compelling pattern.
  • The destruction of potential forensic evidence by police did not automatically render a verdict unreasonable; the court examined what evidence remained and whether that evidence was capable of sustaining the conviction.
  • A party to a joint criminal enterprise may be convicted of an offence even where another person is the one physically tending the prohibited plants, provided the evidence establishes the requisite agreement and participation.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)

Cases:
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Gillard v The Queen [2003] HCA 64; 219 CLR 1
- Dickson v R [2017] NSWCCA 78