R v ARROL No. SCCRM-99-42 Judgment No. S293 [1999] SASC 293

Court of Criminal Appeal: Doyle CJ, Duggan & Wicks JJ

1 DOYLE CJ I agree with the reasons given by Wicks J for the orders made by the court on 21 May 1999.

2 DUGGAN J I agree with Wicks J that the appeal should be allowed and the conviction set aside.

3 The fact that the appellant's fingerprint was found on the outside of one of the bags, the fact that the appellant knew a Michael O'Neil whom he met in Queensland and the fact that a telephone call had been made to a mobile phone service leased to a Michael Patrick O'Neil from the home of the appellant's mother seven days before the consignment of the drugs, were all matters which were appropriate to take into account in determining whether the prosecution proved its case. It was the function of the jury to consider these items of evidence in their combined effect. However when the evidence is considered in this manner it cannot be said that the only rational inference to be drawn from it is the guilt of the appellant.

4 WICKS J In this matter the appellant appeals against a conviction entered in the District Court on 25 February 1999 for taking part in the sale of cannabis contrary to s 32(1)(d) of the Controlled Substances Act, 1984. Particulars of the offence are that the appellant, between 1 October 1997 and 15 November 1997 at Adelaide knowingly took part in the sale of cannabis to another person.

5 On 14 November 1997 an unidentified person, but not the appellant, left a travel bag at the Franklin Street Greyhound Bus Depot for consignment to one M O'Neil in Queensland. The consignment note recorded:

6 Mr Colin Jacobi, the counter supervisor at the terminal, was on duty at the counter and served the man with the travel bag. Mr Jacobi became suspicious of the bag because it was very light and was locked, which, in his experience, was unusual for freight. He also noticed a strong smell of perfume or aftershave on the bag.

7 Mr Jacobi determined not to send the bag on to Brisbane on the next bus but held it back and called the police.

8 He described the man who brought the bag to the depot as being about six feet tall with short and thinning sandy coloured hair. It appears that such description clearly did not answer that of the appellant.

9 In this case, nothing is heard of A. Mason, the alleged consignor of the travel bag. We do not know whether he or she exists or whether the name and address given are fictitious. As far as I can see the matter was simply not canvassed in evidence. There was evidence as part of the Crown's case that the appellant resided at 33 Koongarra Crescent, Munno Para.

10 Following the call by Mr Jacobi, the police attended accompanied by a dog trained to respond to the scent of cannabis and other drugs. The dog immediately identified the bag in question. It was opened and 14 packages of cannabis were discovered. Each lot of cannabis was found placed first in an ordinary plastic shopping bag, then in gladwrap and then in a plastic bag which was vacuum sealed.

11 The travel bag was collected and taken to the Adelaide Police Station where its contents were photographed and the cannabis unpacked and weighed. The cannabis was repacked and the bag handed to the Fingerprint Bureau for analysis. The analyst concerned found a fingerprint relating to the appellant's right middle finger to be identical to a fingerprint which was located on the outside of one of the plastic vacuum sealed bags.

12 The appellant was arrested on 30 April, 1998, some five months after the events to which I have referred. When arrested, he gave his address as 33 Koongarra Crescent, Munno Para.

13 Evidence given by an employee of Telstra established that there was a telephone service for the Munno Para address and that the service in question was leased in the name of one, Mary Arrol, the appellant's mother, between 1 November 1997 and 1 December 1997. She also gave evidence that there was a telephone service leased to Michael Patrick O'Neil of 9 Brett Avenue, Browns Plains, Queensland, 4118 for the period 1 October 1997 to 20 November 1997. The evidence also established that the telephone account in respect of the service leased to Mary Arrol showed that on 7 November 1997, seven days prior to the attendance of the unidentified man at the Greyhound Bus Depot, a call was made to a mobile phone service No 041 7737 034 leased to Michael Patrick O'Neil of 9 Brett Avenue, Browns Plains, Queensland, 4118. This number differed from that on the consignment note. There is no evidence that the two M. O'Neils are the one and the same person.

14 On the Crown case, the only piece of evidence against the appellant was the fingerprint on one of the plastic bags which had been vacuum sealed. All the fingerprint established was that the appellant had handled the plastic bag in question at some time. There was nothing in the Crown case to link the fingerprint with the consigning of the travel bag to Queensland on 14 November 1997.

15 The only other piece of evidence to be considered was the phone call from the appellant's home in Munno Para to the home of a Mr O'Neil in Queensland. On the Crown case there was the bare fact of a phone call having been made; it is not known who made it. In the circumstances, in my opinion, the telephone call proves nothing. The consignment note on the case is of no assistance. The identity of "A. Mason" is not known. The name may be fictitious. The sender's address may also be fictitious. An inquiry does not appear to have been made. The bag was to be collected by one M. O'Neil. No address for M. O'Neil is given but a mobile phone number appears on the consignment note. No evidence was given as to the subscriber of the number concerned.

16 A "no case" submission was put but the learned trial Judge ruled that there was a case to answer.

17 The case proceeded before the jury and the appellant gave evidence in his defence. He admitted to being a regular smoker of cannabis purchased on the black market. In doing so, he often handled the plastic bags in which the cannabis was being offered for sale. He said that the bags remained with the vendor whether a sale was made or not and as such could have his fingerprints on them. In response to a question as to how his fingerprint came to be on the plastic bag, the appellant replied:

"I'm not actually sure how my fingerprint got on this bag here, but the only way I can think is from purchasing and smoking and looking at a lot of bags. That's the only way I can really come to terms of a fingerprint on a bag."

18 The appellant denied any connection between the fingerprint and the sale or consignment of cannabis to M. O'Neil.

19 In evidence, the appellant admitted that he knew a Michael O'Neil from the time when he worked as a crowd controller at hotels in the northern suburbs of Adelaide in 1996 and 1997. He said they were acquaintances. He saw Mr O'Neil in Queensland when he travelled there looking for work some time before 1997.

20 In giving evidence the appellant was asked whether he had made the phone call from his mother's home at Munno Para to Mr O'Neil in Queensland. He said that he could not recall doing so. The only other person living in the house at the time was his mother and he admitted that she would have had no reason to make such a call.

21 The appellant was charged with taking part in the sale of cannabis. To succeed in respect of that charge there would need to be some link established between the appellant and the events which happened at the Greyhound Bus Depot on 14 November 1997 or, alternatively, some link between the M. O'Neil on the consignment note and the M. O'Neil residing at Browns Plains in Queensland. In fact, on the evidence as it stands, there is none.

22 In this matter several grounds of appeal were advanced on behalf of the appellant. One of such grounds was that the verdict of the jury was unsafe and unsatisfactory. In the circumstances the one piece of evidence which might tend to implicate the appellant in the sale of the shipment of cannabis was the fingerprint. In my view, that on its own was not sufficient evidence to a enable the conviction to stand.

23 This matter came before the Court of Criminal Appeal on 21 May 1999. After hearing argument, the Court was unanimously of the opinion that the appeal should be allowed on the ground that the conviction was unsafe and unsatisfactory. The Court ordered that the appeal be allowed, that the conviction recorded in the District Court be set aside and that a verdict of acquittal be substituted. The Court intimated that reasons would be published. These are my reasons.