Re Warren Stephen Foster v R [1982] FCA 2; (1982) 61 FLR 440 (11 January 1982)

FEDERAL COURT OF AUSTRALIA

Re: WARREN STEPHEN FOSTER
And: THE QUEEN [1982] FCA 2; (1982) 61 FLR 440
No. ACT G39 of 1980
Criminal Law - Appeal - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.(1), Blackburn(2) and Ellicott(3) JJ.

CATCHWORDS

Criminal Law - Possession of cannabis for the purpose of supply - Appeal against conviction - Accused unrepresented at trial - Duty of trial Judge to Ensure Fair Trial - Admission of oral confessional statements - Advice to Accused where he carries Onus of Proof under Statute - Absence of Clear Directions to Jury - New Trial.

Poisons and Narcotic Drugs Ordinance 1978, ss.4, 5.

Federal Court of Australia Act 1976, s.28.

Criminal Law - Accused unrepresented at trial - Conviction - Possession of cannabis for purpose of supply - Duty of trial judge to ensure fair trial - Confessional statements - Onus of proof - Rights of accused - Advice to be given to accused - "For the purpose of supplying" - Directions to jury - Appeal - Whether new trial to be ordered - Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.), ss. 4, 5 - Federal Court of Australia Act 1976 (Cth), s. 28.

Appeal - Criminal law - Accused unrepresented at trial - Conviction - Duty of trial judge to ensure fair trial - Confessional statements - Onus of proof - Rights of accused - Advice to be given to accused - Directions to jury - Whether new trial should be ordered - Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.), ss. 4, 5 - Federal Court of Australia Act 1976 (Cth), s. 28.

Statutes - Interpretation - "For the purpose of supplying" - Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.), s. 4(3). The appellant was convicted in the Supreme Court of the Australian Capital Territory of having had in his possession cannabis for the purpose of supplying the substance to another person, an offence under s. 4(3) of the Poisons and Narcotic Drugs Ordinance 1978. Section 4 of the Ordinance provides, inter alia, that a person who has in his possession more than 100 grams of cannabis "shall, unless the contrary is proved . . . be taken to have the substance in his possession for the purpose of supplying the substance . . .". The appellant's appeal against his conviction was grounded in part upon an alleged misdirection of the jury by the trial judge.

Held: Per curiam allowing the appeal and ordering a new trial - (1) It is the duty of the judge to give a legally unrepresented accused all such advice and explanation as is necessary for a fair trial.

MacPherson v. The Queen [1981] HCA 46; (1981) 55 ALJR 594, applied.

(2) In a trial in which the accused is unrepresented, the judge must ascertain whether the Crown evidence includes any allegations of confessional statements by the accused, and, if it does, he must explain to the accused the law about admissibility of confessional statements.

(3) The trial judge did not make clear to the accused that the accused had the right to challenge the admissibility of the police evidence by requiring a voir dire, cross-examining the police witnesses, and adducing evidence tending to show that any confessional statements made by him were not voluntary.

(4) The jury may have been left in a state of confusion about the right of the accused to disprove the statutory inference to be drawn from the possession of more than 100 grams of cannabis, and the burden and standard of such proof.

(5) The court was satisfied that these circumstances could reasonably be supposed to have influenced the result of the trial.

Duff v. The Queen [1979] FCA 83; (1979) 39 FLR 315, applied.

HEARING

Canberra, 1981, October 6; 1982, January 11. 11:1:1982
APPEAL

The accused appealed to the Full Court of the Federal Court of Australia against a conviction in the Supreme Court of the Australian Capital Territory.

The appellant appeared in person.

I.A. Bermingham, for the respondent.

Cur. adv. vult.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.
E.F. FROHLICH

ORDER

1. The appeal be allowed.

2. The verdict and judgment of the Supreme Court the Australian Capital Territory be set aside.

3. The matter be remitted to the Supreme Court for a new trial.

DECISION

I have had the advantage of reading in draft the reasons and conclusions of Blackburn and Ellicott JJ., and I agree with them that there should be a new trial, substantially for the reasons they have given. I shall only add a few remarks of my own.

There is no doubt that in most cases an accused who acts for himself at a trial is at a serious disadvantage. A not uncommon feature is that the language of his questions may show or suggest to a jury his guilt of part at least of what is alleged against him. His address to the jury may be misguided, or fail to deal with important aspects of the charge. An accused can obtain adequate legal representation if he wishes it. In my view it is desirable that at a pre-trial stage the situation should be explained to him, if necessary by the court, and, within proper limits, he should be encouraged to accept the assistance of a lawyer. Not only does the fact that an accused is unrepresented present difficulties for himself at his trial, it also does so for the court, in a number of ways. One problem is that by the time the trial judge does all that is required of him to protect the accused's position, he is in grave danger of appearing partial.

When this appeal came on for hearing we suggested that the appellant may wish to have legal representation, but he said that he was "quite happy" to proceed.

In the present case, the accused wanted to convey to the jury two principal considerations:

(a) that he should not in any way be regarded as a criminal simply because he grew, kept and used marihuana, and shared its use with visiting friends;

(b) that some things the police witnesses said were untrue, particularly as to aspects of what they did and in part of their recounting of what he had said.

In regard to the last point, he objected, among other matters, to the way in which they had collaborated to produce the same account in their evidence. At the trial, he gave evidence and was cross-examined. He then expressly admitted having and keeping marihuana on his premises. In the appeal before us the main, but not the sole ground was that summarised in (a) above.

With this background it may be thought unduly solicitous of the interests of the appellant, and to show excessive concern for established procedures, if this appeal is allowed and a new trial ordered. Examination discloses, however, that his trial was defective in material respects. It is important to bear in mind that he was convicted of "possession for the purpose of supplying", whereas there was available an alternative verdict of simple "possession", with which, in the circumstances, the jury did not have to deal.

The alleged confessional material was oral. It came in the police evidence by stages, in accordance with the progress of events at and after the police search. There was no written confession. To cope comprehensively with the admissibility of the statements may have required several voir dire hearings. For myself, I do not favour the laying down of rigid rules as to the way in which a judge should go about tackling such a situation; circumstances are so various, and rigidity can lead to injustice, either to prosecution or defence. In the circumstances of this case, however, I am clearly of the view that the judge should have explained the position carefully to the accused. It seems inevitable that this would have led to a voir dire hearing or hearings. The major dispute may have turned on the question whether the accused understood all that the police witnesses said to him, and whether they correctly understood and noted what he said. The accused also complained of their behaviour, and called a witness in support of his allegations. In his evidence at the trial he pointed to some matters relative to the use of force and of threats and an inducement. If there had been a voir dire hearing the trial judge may possibly have rejected at least some parts of the alleged confession. The possibility was real and not merely theoretical. As a new trial is to be ordered, I will say nothing further on the matter.

Other matters affecting the trial which have been developed in the reasons of Blackburn and Ellicott JJ were:

(a) the absence of an early explanation to the accused of the operation of s.4(4) of the Poisons and Narcotic Drugs Ordinance 1978 and of the onus of proof he carried under that sub-section; and

(b) the absence of a clear direction to the jury in respect thereof.

These matters were of importance in securing to the accused a proper trial, according to law.

In my opinion the appeal should be allowed, and the verdict and judgment set aside.

I have given some attention to the question whether, instead of ordering a new trial, we should under s.28(1)(e) of the Federal Court of Australia Act 1976 substitute a verdict of guilty of the offence under s.5(1) of the Poisons and Narcotic Drugs Ordinance 1978. This was the alternative verdict which I have already mentioned as being available (see s.4(7) of the Ordinance). There are practical and sensible reasons for adopting such a course. I have in mind, in particular, that the case was not regarded as a particularly serious one by the judge, who released the appellant on a recognizance which included provision for the payment of a penalty of $500, that nearly two years have already elapsed since the events in question, and that some months at least are likely to pass before a fresh trial can take place. The cost in money and time and the strain of a new trial are also not to be ignored. As I have already noted, the appellant has agreed that he had and kept marihuana in his home. He did not dispute at his trial, or before us, that he had a prescribed traffickable quantity of it, or that there was evidence that he did. He did not however make any express concession as to amount.

Section 5(1) is not simply premissed on "possession" as is s.4(3), because s.5(3) provides that "lawful authority" is a defence. Also, in order to determine sentence under s.5, a decision has to be made as to whether there were 25 grams or more of cannabis in the possession of the appellant.

Section 28(1)(e) gives power to order that "a verdict of not guilty or other appropriate verdict" be entered. However, we were not asked to apply the paragraph in the way mentioned. We have not heard submissions on its scope. There is room for argument whether this is a case in which we can or should apply it. I am therefore of the view on the whole that we should simply order a new trial. It will be open to the prosecution to rely only on the s.5 offence (which is punishable summarily) if it wishes.

The verdict and judgment should be set aside and a new trial ordered.

The appellant was convicted of an offence under s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978, namely that he had in his possession a controlled substance, cannabis, for the purpose of supplying the substance to another person. The provisions of the Ordinance are such that this offence may be proved by evidence in the ordinary way; but there is also a special method of proof. If it is proved that the accused had in his possession a quantity of the substance which exceeds what is called the "traffickable" quantity (which in this case is 100 grams) the accused is taken to have had it in his possession for the purpose of supply to other persons, unless he proves the contrary; the standard of proof required for this latter purpose being of course the standard of proof on the balance of probabilities. There is a further statutory provision that, on this charge, the jury may convict of the lesser offence of having the controlled substance in possession.

The accused pleaded not guilty and insisted on defending himself. It appears from the transcript that throughout the trial his principal concern was to persuade the Court and the jury that, irrespective of the provisions of the law, the possession and use of cannabis "was not a crime". Before this Court the accused at length maintained the same attitude. For brevity, I will refer to this contention by the crude phrase "the moral argument". On this ground the appeal cannot possibly succeed. In the notice of appeal there are several other grounds which the appellant argued before this Court, which are equally untenable. There is, however, one ground which requires serious consideration. It is expressed somewhat inadequately in the notice of appeal in two successive paragraphs, as follows:

"4. The trial Judge erred in law in directing the jury as to the lawful meaning of the words in the indictment: 'for the purpose of supplying the substance to another person' (P102 of transcript);

5. The trial Judge erred in law in failing to direct the jury as to the lawful meaning of supply and in failing to direct the jury in respect of evidence which may have or tended to rebutt the provision of the Poisons and Narcotics Ordinance 1978 deeming the accused to be in possession for the purpose of supplying to another person (PP102/106/107)"

The substance of this ground was the contention that possessing cannabis for the purpose of offering it on social occasions to one's own guests and friends, to be smoked by them at the time when it is so offered, is not, within the meaning of s.4(3) of the Ordinance, possessing it for the purpose of supply to other persons. For brevity, I again resort to a crude phrase, and refer to this as "the social argument". The learned trial judge did direct the jury on this question, and it may well be that his direction was correct; but the significance of mentioning it here will be apparent later.

There are two aspects of the trial which in my opinion call for the very anxious consideration by this Court of whether the verdict should be set aside, notwithstanding that they were not made grounds of appeal and only incidentally appeared in argument before us. These matters were, first, whether the question of the admissibility of certain evidence adduced by the prosecution was explained to the appellant so that he might have the opportunity of showing that the evidence should be rejected; and secondly, what appear to be certain misdirections in the learned judge's summing up.

I deal with these matters separately in the first place, though their effect in combination is what has to be ultimately considered.

There was ample evidence that the appellant had cannabis in his possession; he did not dispute it. The principal question in issue was the question whether he had it in possession for the purpose of supply to other persons. The evidence against the appellant was that of four police officers who visited a house where the appellant lived, found certain things there, and had conversations with the appellant both at the house and afterwards at the police station. The only other prosecution witness was an expert, an analytical chemist who gave evidence of the nature of the substance in question.

The first of the police officers was Detective-Sergeant Craft, who gave evidence of finding the cannabis at the house, and of some conversation with the appellant and others at the house. In cross examination, the appellant put to him that the details of the conversation of which he had given evidence in chief were not correct, but the witness insisted that they were correct.

The next witness was Detective-Senior Constable Beck, who gave evidence of the visit to the house and of conversation which occurred there. She also gave an account of a conversation between another police officer, Senior Constable Lewis, and the accused, which took place at the police station. This conversation included the following passages:

"Detective Lewis said 'What was your intention in growing the plants?'

He said 'Use them like vegetables, smoke it, give it to people. I give lots of grass to people. I don't put any value on it.'

Detective Lewis said 'Did you intend to sell any of the cannabis?'

He said 'I trade it, I don't sell it. I traded some marijuana the other day and got some hay in return. I suppose in one way that's selling.'"

A further passage was this:

"Detective Lewis said 'What were you going to do with the cannabis that was located at your premises?'

He said 'Smoke it, give it to my friends, trade it and grow some more.'"

The appellant cross-examined this witness by way of suggesting to her that the account she had given of the events at the house was incorrect in several details. The appellant also put explicitly to her that her notes of the conversation between Detective Lewis and himself at the police station were incorrect and that they recorded what she preferred to hear rather than what was actually taking place. She denied this.

The next police witness was Detective-Senior Constable Lewis, who gave similar evidence of the events at the house and the conversation at the police station. In the course of discussion on the question whether the witness should be allowed to refer to notes, the appellant made clear that the police evidence was totally different from the evidence he would himself give; and said that "the police would have no reluctance in perjuring themselves". The appellant in cross examination put to the witness that what he had said was "a misrepresentation of the truth" and the witness replied that what he had said was the truth. The appellant did not challenge the evidence in detail.

The next police witness was Detective-Senior Constable Crawford. He had been present at the occasion when the police visited the house where the accused was. In cross examination the appellant asked him only whether he recalled assaulting the appellant in the laundry of the house, and he said that he did not.

The final police witness was the analytical chemist.

The appellant gave evidence on oath, in the course of which he gave an account of the police visit to his house which was substantially different from that of the police. According to the appellant, there was a discussion between himself and the police officers about the rationality and morality of the laws which make cannabis a prohibited drug. According to the appellant he tried to "point the facts of the matter" to Detective-Senior Constable Crawford, but the latter replied by way of shouting "Shut up. We know your type." The appellant continued:

"I responded by saying that was very unfair as he did not know me at all. This infuriated him and he raced at me striking me in the face with his fist and raising his knee, striking me in the genital organs. His face was close to mine and conveyed an expression of malice and he shouted again to shut up."

Later the appellant said that when Wayne Hartridge, a friend of his who was present, returned with Senior Constable Manning, the appellant could see that Hartridge had been hit in the face and was very upset. The appellant said that Constable Manning had said to him before the party left for the police station "You just wait" and shook a closed fist at him. Detective-Senior Constable Crawford had said

"We know what to do with smart-alecks. Just tell us what we want to know."

The appellant said that at the police station Senior Constable Lewis said to him that he should tell the police what they wanted to hear, and they would then release him on bail as he was concerned for his daughter. The appellant went on to give an account of some of his answers to Senior Constable Lewis; it is not necessary to set these out in full, but it is enough to say that they suggested, without saying explicitly that the accused customarily made cannabis available to his friends and those in whose company they smoked it.

The appellant was then cross-examined by counsel for the prosecution, as follows:

"Is it correct then, Mr Foster, on 4 January 1980, at that address, 16 Euroka Street, you did have the cannabis that you have heard given in evidence earlier this morning? --- Yes. Certainly not in the quantities suggested by yourself.

But it was in the form, in the exhibits, the David Jones Bag and the Milo tin and growing in the back yard? --- Yes.

And you were smoking a cannabis cigarette when the police arrived? --- I was.

And it is correct that you were growing that for your own use? --- It is.

And also for the purpose of giving some away to people from time to time? --- In the normal act of smoking it which is participated in by thousands of people in this community it is normally shared between people.

And also trading it for other items such as hay? --- I made that statement totally with tongue in cheek, your Honour. I do not make a business of trading in marihuana".

Wayne Hartridge then gave evidence for the defence, giving an account of the visit to the house which was similar to that given by the appellant. He said, in addition, that the appellant was smoking a marijuana cigarette and that Senior-Constable Crawford grabbed it from his hand and knocked the flying embers on the appellant's daughter's arm; which burned her arm. Later, the witness said that one of the police officers

"seemed to get quite upset with Warren (the appellant) because I heard thumping noises coming from the laundry. Warren then asked why he had been hit and strongly objected to the police behaviour . . . I saw Constable Crawford pinning Warren in a corner and I assumed that he was hitting Warren."

The witness also said:

"Constable Manning was also very abrupt and quite arrogant and was violent while he was there. Constable Crawford was also violent while he was there."

The appellant then addressed the jury. Most of his address consisted of an explanation at length of the moral argument to which I have referred. However, he also pointed out that his testimony and that of Hartridge varied from what the police had said.

On this evidence, it was obvious that the appellant had had cannabis in his possession. It is important to notice that apart from the evidence given by police officers of what the appellant had said both at the house and at the police station, the only evidence that the appellant had had the cannabis in his possession for the purpose of supply to other persons was the answers of the appellant himself in cross examination, and some of what he said in giving his evidence in chief (from which inferences might be drawn). It follows that the evidence of the police officers was of great importance. If that evidence was for any reason inadmissible, the evidence of the appellant's purpose was fairly slight. In this respect this case resembles MacPherson v. The Queen, to which I refer below.

At no stage during the trial did the learned trial judge inform the accused that he might challenge the admissibility of the police evidence, or that he might contend that in the exercise of the judge's discretion, that evidence ought not to be admitted. When the learned judge heard the accused's evidence that violence had been used, and that he was encouraged to tell the police what they wanted to hear and that he had had suggestions made to him that bail depended on whether he did so, the learned judge must be taken to have considered for himself whether the confessional evidence was admissible, or whether it should be excluded in his discretion, and to have decided both those question in favour of the prosecution, without saying anything about it. I would not say indeed I could not possibly say - that the evidence was inadmissible because not voluntary, or that it should be excluded in the trial judge's discretion. But it seems to me, with respect to the learned trial judge, that the opportunity of challenging the admissibility of the evidence, or of arguing that it should be rejected in the exercise of the judge's discretion, was never explained, much less actually offered, to the accused.

In my opinion, the unanimous decision of the High Court in MacPherson v. The Queen (unreported, 4 September 1981) shows that the manner in which the confessional evidence was treated by the learned trial judge in the case before this Court was erroneous. It is no answer to this proposition to say that the possibility that the confessional statements might not be voluntary, or that they should be excluded on the ground of unfairness, became apparent only when the accused cross examined the police witnesses, or when he and Hartridge gave evidence. In my opinion it follows from MacPherson v. The Queen that when a judge is conducting a trial in which the accused is unrepresented, he must before the trial begins ascertain whether the Crown evidence includes any allegations of confessional statements by the accused, and if it does, he must explain to the accused the law about the admissibility of confessional statements, and the procedure whereby the question of the voluntariness of the statements, or the question whether they should be excluded in the judge's discretion, is determined.

In this case the appellant did not have these matters explained to him. Had this been done, the evidence tending to show that the confessional statements were not voluntary, or that they should have been excluded, might have been much more detailed and weighty; at any rate, the judge would have given express rulings on these questions.

Moreover, it must follow from what the High Court said in MacPherson's case - that the duty of the judge is to give an unrepresented accused all such advice and explanation as is necessary for a fair trial - that the judge should explain to the accused the further relevance of the evidence about the circumstances of the confessional statements, namely that it may affect the weight and value of the confessional statements if admitted: Basto v. The Queen [1954] HCA 78; (1954) 91 C.L.R. 628.

It seems to me, therefore, that the conduct of the trial was unsatisfactory in these respects.

I now proceed to examine the learned judge's summing up.

At some stage in the summing up the jury should have had explained to them the two separate ways in which they could possibly be satisfied that the accused had cannabis in his possession for the purpose of supply to other persons. These two ways were of course the normal way in which by being satisfied on the evidence of all the necessary facts beyond reasonable doubt, they could find the accused guilty of an offence against s.4(3). The other way - which could operate either independently, or cumulatively upon the normal method of proof - was by their being satisfied that the accused had in his possession more than 100 grams of the drug, and by the accused failing to satisfy them on the balance of probabilities that the purpose of such possession was not that of supply to other persons. The explanation to the jury of this right of the accused, to rebut the statutory presumption by evidence involving a different onus of proof, is not easy, but was surely essential to the sufficiency of the summing up in this case.

With due respect to the learned judge, I cannot feel satisfied that his summing up was sufficient in this respect. It was not until a very late stage in the summing up that the learned judge referred to the right of the accused to rebut the statutory presumption by proof on the balance of probabilities that the purpose of his possession of the drug was other than that of supply to other persons. At the stage when - having, apparently, substantially completed his summing up - he asked the accused, and counsel for the Crown, whether they wanted him to put anything else to the jury, not only had he not referred to this matter but he had said several times, in effect, that the commission of the offence was established by proof of the possession of more than 100 grams. In response to the learned judge's invitation, the accused asked him to put to the jury the moral argument which the accused had so often used during the trial. His Honour correctly explained to the jury that this argument was irrelevant, but went on immediately to say -

"If you are satisfied that he knew he had that material, knew consciously that he had it, if you are satisfied that it was cannabis, if you are satisfied in either event that it was more than 100 grams, in the alternative less than 100 grams, then you must find him guilty. If you are not so satisfied you must find him not guilty."

I fear that the jury may either have been confused by this, or have understood it in a sense which makes it a misdirection.

The jury then retied. Immediately afterwards, counsel for the Crown pointed out to his Honour that what he had said to the jury may well have left them with the belief that once the jury found that there were 100 grams of cannabis in the possession of the accused, they had no alternative but to find him guilty of possession for the purpose of supply, and that the accused could prove the contrary. What follows in the transcript is not easy to understand. It is possible that the learned judge misunderstood the point which counsel for the prosecution was trying to make, and thought that it was a reference to the social argument as I have described it; or it is possible that the transcript may have become accidentally truncated at this point. At any rate, the jury returned and the learned judge said:

"If you are satisfied that he made that sort of supply, that is, that he had it to give to friends or had it for the purposes of giving it to friends, then you may be satisfied that he had it for the purpose of supplying the substance to another person or other persons and contrary would not be proved."

The accused then asked his Honour to explain to the jury that in one of the answers which according to the police he had given them, in which he had said

"I traded some marijuana the other day and got some hay in return"

he had been referring to cannabis other than that which was the subject of the charge. The learned judge said to the jury

"You should (not) ignore this question of the hay, but what you can take into account is the purpose which he told the police he had the cannabis for."

The word "not" which I have put in brackets, is possibly an error in transcription. The learned judge proceeded to refer the jury to what, according to the police, the accused had said was his purpose in growing the cannabis plants which were the subject of the charge, namely

"I use them like vegetables, smoke it, give it to people. I give lots of grass to people. I do not put any value on it."

The learned judge went on

"If you take that as indicating what the situation was you may take it that he had the cannabis in his possession for supplying it to other people."

His Honour then said to the jury

"All these questions are matters of fact. If you do not accept that he said that to the police, of course, you may not be satisfied as to the purpose for which he had it. You may not be satisfied that even though he had in excess of 100 grams, he had it for the purposes of supplying it to other people. But it is a question for proof to the contrary. If you are satisfied that he had this marijuana but that he did not have it for supply to other people because of the evidence which has been placed before you, then you may be satisfied or may not be satisfied rather that he had this material for the purposes of supply. If he did not have it for the purpose of supply but are satisfied that he had possession of it, you must find him not guilty of the first count and find him guilty on the alternative count only."

This is certainly the first point at which the learned judge mentioned to the jury that the appellant might satisfy them that the cannabis he possessed was not for the purpose of supply to other persons, and it should be noted that he did not explain the standard of proof on the balance of probabilities, nor did he say that what he had earlier said about the effect of proof of possession of more than 100 grams had to be understood in the light of what he was now telling them.

At this point the jury again retired. The learned judge appears to have still been in doubt whether he had properly and clearly directed the jury, and he discussed with counsel for the prosecution and with the accused certain evidence of the police and whether the accused had explicitly denied saying certain things which were attributed to him by the police evidence.

His Honour then recalled the jury once again, and addressed them as follows:

"Ladies and gentlemen, I am a little concerned that I have not directed you as clearly as I might have on the question of the possibility of lawful authority or the fact that Mr Foster did not have the cannabis, if you find that he had it, in his possession again if you find he had possession of it, for the purpose of supply and I just say to you this, the law provides that if you find that Mr Foster had more than 100 grams of cannabis then unless he proves that he did not have it for the purposes of supplying it to another person or to other persons, that is the first thing, or that he had lawful authority to have the substance in his possession then he shall be deemed to have had it for the purposes of supplying it to another person or persons and hence assuming all the other things are found proved by you he would be guilty of the offence charged. Now, he only has to prove either of those things on the balance of probabilities. He only has to prove to you that he had lawful authority to have the substance in his possession on the balance of probability. If you imagine the scales of proof as being level like that and proof on the balance of probabilities to be just the slightest tipping, a feather would do it, in his favour, that is enough. The balance of probabilities would be in his favour.

And similarly contrasted with the question of proof beyond reasonable doubt and one side of the scales must go right down and cannot possibly get up again, with a feather's weight on you can imagine just a sort of shivering up and down, as it were. Now, he only has to prove either of those things on the balance of probabilites and if he does he discharges the burden on him. He discharges that burden if he satisfies you of the probability that he had lawful authority to have the substance in his possession. I think I would have to tell you that there is no evidence at all that he had lawful authority to have the substance in his possession, no attempt has been made, as one understands the evidence, to prove that to you at all, but still it is a matter for you to decide. And the second question is has he satisfied you that he did not have it for the purpose of supplying. Now, on that the evidence given by Constable Lewis and by Constable Beck was in the following terms:

What were you going to do with the cannabis that was located on your premises? --- Smoke it, give it to my friends, trade it and grow some more.

And in reply to a question in cross-examination when he was asked what he proposed to use it for he said: "Well, in the circles" - and I paraphrase roughly because I have not got the exact transcript and I am subject to correction if I am wrong, but I think this fairly paraphrases it - he said, "In the circles of the society of which marihuana is used or cannabis is used it is usual for it to be given to other people in the circle." Is that fairly put, Mr Foster?

THE ACCUSED: Well, it is, your Honour.

HIS HONOUR: And then in those circumstances it is a matter for you to decide whether that constitutes a sufficient admission when it is coupled with the other admissions made to the police that he did have it for the purpose of supply or trade in the sense in which it was used in that phrase. I would ask you again to ignore completely that question of trading for the hay as having nothing whatsoever to do with this particular case.

Now, against that Mr Foster asks you to accept not the version that the police have given to you, but to accept the version that he and Mr Hartridge gave you. Now, if you are not satisfied to accept what the police have said, and remember that they have got to establish beyond reasonable doubt that he had it for the purpose of supplying it to other people, even though there is this deeming provision, I withdraw that. If they establish to you that what - if you are satisfied that what was said by them was true then you may be satisfied that he had it for the purpose of supplying it to other persons.

If on the other hand you are not satisfied, you have some doubt about that and you have just got to be satisfied on the question of probabilities, if you are not satisfied about that and the questions raised by Mr Foster in his evidence and by Mr Hartridge in his evidence, either alone or together, cause you to have a doubt as to whether he had it for the purposes of providing it to other people, then he has satisfied you on the balance of probabilities or at least sufficiently in these circumstances.

It is not so much a question of just a single doubt, but a question of whether you are satisfied, ever so slightly, that he had the - that he did not have it for the purposes of supplying it to other people and the evidence in relation to that must come from him and from Mr Hartridge. But if those two together satisfy you on the balance of probabilities, this slightest weighing down, that he did not have it for the purpose of supplying it to other persons well then you must acquit him of the major charge and go on to consider the lesser charge."

I think, with due respect to the learned judge, that this was the first time he had put to the jury two matters: first, that there were two ways of arriving at the conclusion that the accused had the cannabis in his possession for the purpose of supply, and secondly, the correct effect of the "100 grams" provision and the onus of proof on the accused in disproving the statutory inference. I cannot feel satisfied that the passage I have last quoted amounts to a satisfactory direction, in the absence of any express indication that it was to be taken as superseding what had been said before.

I have anxiously considered what the effect of all this should be on the decision of this Court. As shown by the Federal Court in Duff v. The Queen [1979] FCA 83; (1979) 28 A.L.R. 663, at p.674, the vital question for this Court is whether the error of law, misdirection, or the like, occurring at the trial could, or could not, reasonably be supposed to have influenced the result. The onus of showing that the error could not reasonably be supposed to have had that consequence is on the Crown. In this case, the errors which in my opinion occurred may be summarized as follows.

First, the learned trial judge did not make clear to the appellant that the appellant had the right to challenge the admissibility of the police evidence by requiring a voir dire, cross-examining the police witnesses, and adducing evidence tending to show that any confessional statements made by him were not voluntary. Had the appellant taken this opportunity, the learned judge might have rejected the confessional statements either as inadmissible, or in the exercise of his discretion. Had this occurred, the case against the appellant would have been much weaker. In the second place, the jury may, I believe, have been left in a state of confusion about the right of the accused to disprove the statutory inference to be drawn from the possession of more than 100 grams of cannabis, and the burden and standard of such proof.

If these two matters are considered in conjunction, I cannot say that I am satisfied that they could not reasonably be supposed to have influenced the result.

I would, therefore, set aside the verdict, and order a new trial. The Crown may like to consider whether in all the circumstances it will rely only on the charge of possession under s.5 of the Ordinance.

Warren Stephen Foster (the appellant) was charged with having in his possession on 4 January 1980 a controlled substance, cannabis, for the purpose of supplying it to another person. The charge was brought under s.4(3) of the Poisons and Narcotics Drugs Ordinance 1978 (A.C.T.). At his trial before a Judge and jury of the Supreme Court of the Territory he was convicted and the trial Judge, Kelly J. without passing sentence upon him ordered that he be released on his own recognisance in the sum of $1,000 to be of good behaviour and on condition that he pay to the Commonwealth a penalty in the sum of $500 to be paid by fortnightly instalments of $10.00 each.

The appellant has appealed to this Court against his conviction. At the trial and before this Court the appellant appeared in person apparently of his own choice.

The notice of appeal raises a number of grounds, one of which claimed that the trial Judge had failed to exercise a discretion to exclude evidence against him on the ground that it was obtained oppressively and unfairly. The other grounds of appeal I shall refer to later in these reasons.

Section 4(1) to (7) of the Ordinance provides:-

"4.(1) In this section, "controlled substance" means a substance that is a Schedule 8 substance or a Schedule 12 substance.

(2) A person who supplies a controlled substance to another person is guilty of an offence.

(3) A person who has a controlled substance in his possession for the purpose of supplying the substance to another person or to other persons is guilty of an offence.

(4) In proceedings for an offence against subsection

(3), a person who has in his possession a quantity of a controlled substance, being a quantity that exceeds the prescribed traffickable quantity for that substance, shall, unless the contrary is proved or the person proves that he had lawful authority to have the substance in his possession, be taken to have the substance in his possession for the purpose of supplying the substance to another person or to other persons.

(5) An offence against sub-section (2) or (3) is punishable upon indictment.

(6) A person who commits an offence against sub-section (2) or (3) is punishable, on conviction -

(a) if the offence is committed in relation to a substance other than cannabis - by imprisonment for a term not exceeding 25 years or a fine not exceeding $100,000 or both such imprisonment and fine; and

(b) if the offence is committed in relation to cannabis - by imprisonment for a term not exceeding 10 years or a fine not exceeding $4,000 or both such imprisonment and fine.

(7) Where, on the trial of a person for an offence against sub-section (2) or (3), the jury is not satisfied that the person is guilty of the offence charged but is satisfied that he is guilty of an offence against sub-section 5(1), the jury may find the person not guilty of the offence charged but guilty of an offence against sub-section 5(1), and the person is liable to be dealt with by the Supreme Court accordingly."

For the purposes of sub-s. (4) the "prescibed traffickable quantity" in relation to cannabis is 100 grams and it seems to have been common ground at the trial that, in this case, the cannabis in question exceeded that quantity.

It also appears that the appellant did not dispute that he had cannabis in his possession. However, one matter that was in issue was whether he had it in his possession for the purpose of supplying it to another person. The prosecution evidence in relation to this consisted of certain alleged admissions alleged to have been made by the appellant to police officers shortly before he was charged.

Section 4(4) of the Ordinance, it will be noted, places on the defendant in a case where the amount exceeds the "prescribed traffickable quantity", the onus of proving that he did not have the substance in his possession for the purpose of supplying it to another person or to other persons. This he must prove on the balance of probabilities.

No advice was given by the trial Judge either at the commencement of the trial or during the trial to the appellant regarding his rights to challenge an alleged voluntary confession or as to the onus which he, the appellant, bore, in the event of the quantity of cannabis in question exceeding 100 grams, of satisfying the jury that he did not have it in his possession for the purpose of supplying it to another person or to other persons.

Since the trial was concluded in this matter the High Court, in MacPherson v. The Queen (4 September 1981 - not yet reported), has expressed views as to the responsibility of a trial Judge to advise an accused person who is not represented at his trial, particularly, with regard to confessions. In that case the accused was charged with murder and the police relied on certain alleged oral admissions made by the accused. During the course of the evidence it became clear that he contested the truth of the police evidence and the voluntariness of the confessional statement.

Gibbs C.J. and Wilson J. in a joint judgment, after referring to well established principles relating to the admissibility of confessional statements said this:-

"The Judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law. He must accordingly exclude evidence tendered against the accused which is not shown to be admissible. Particularly if the accused is unrepresented, once it appears that there is a real question as to the voluntariness of the confession tendered by the Crown, the Judge must satisfy himself that the confession was voluntary, and if, as will usually be the case, this can only be done by holding a voir dire, he must proceed to hold a voir dire even if none is asked for."

Later in their judgment their Honours said:-

"If a voir dire is held the accused has the right to cross examine the Crown witnesses and to give and call evidence himself. Of course, he is not bound to avail himself of that right. There is no limited category of matters regarding which a Judge must advise an unrepresented accused - a Judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial. And although no doubt some accused persons refuse the offer of legal representation for tactical reasons, an accused does not become disentitled to a fair trial because he has declined, and even perversely declined, an offer of legal assistance".

Mason J. in his judgment said:-

"There will be cases in which a doubt arises whether the voluntariness of a confession is an issue, especially cases in which the accused is unrepresented. Then it is for the trial judge to resolve that doubt by clarifying the position".

Having in mind, what occurred at the trial in the present case it is helpful to consider what was said by Mason J. of the facts in MacPherson's case:-

"To my mind the questions put by the applicant in cross-examination of Ebrill, the first of the police witnesses to give evidence, should have alerted his Honour to the possibility that voluntariness of the confessions was an issue. The applicant in fact objected to Ebrill's evidence. If confirmation was needed - and I do not think it was - it was provided by the cross-examination of later police witnesses which indicated that the applicant was alleging pressure on the part of the police. It is not enough now to say, having regard to the subsequent course of events at the trial, that there was some doubt whether the applicant was raising the voluntariness of the statements. If the trial Judge had a doubt on this point he should have resolved it by clarifying the applicant's position. The question should have been resolved there and then because it involved the admissibility of the evidence."

As to the duty of the trial Judge where the accused is unrepresented his Honour said:-

"Giving full weight to the adversary character of a criminal trial and the difficulties of advising the accused who is not represented, I nevertheless consider that the trial Judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. Once an issue as to the voluntariness of the confession arises fairness to the accused suggests that he should be acquainted with his right to a voir dire hearing. If he is left in ignorance of it he loses a valuable opportunity of testing the admissibility of the evidence, an opportunity which is often availed of by counsel for the accused. A trial in which a Judge allows an accused to remain in ignorance of fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as fair".

Brennan J. expressed his view on the matter in the following passage:-

"But there is, of course, a distinction between telling the players how to play and telling them the rules of the game. If the distinction is not observed, and an unrepresented accused is kept in ignorance of the rules, the procedural rules which are designed to protect an accused and to ensure a fair trial become a trap, for an unwitting failure to make objection would avoid the judicial duty to control the admission of evidence . . . . . . . . It may well be necessary for a trial Judge of his own volition to hold an inquiry on voir dire in order to rule upon the admission of a confession in evidence . . . . . An accused who elects to defend himself forfeits none of his rights thereby. If he has not had a trial according to law, his intransigent refusal to accept legal representation is no ground for dismissing his appeal either under the proviso or otherwise. The absence of legal representation imposes a heavier burden upon the trial Judge and denies an accused the assistance of an advocate who can usually present an accused's case more effectively than the accused himself; but it is a circumstance which is entirely neutral on appeal except in so far as it is relevant to the fairness of the trial . . . . . whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the Judge's duty to ensure that the trial is fair. That duty does not require, indeed it is consistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case".

In conclusion his Honour said:-

"In the present case one can surmise that the accused would have objected to the admission of the confessions allegedly made to the police but one cannot know whether a voir dire would have revealed any grounds for rejecting the tender of any of the police confessions. It may be that the confessions would have been admitted in their entirety. However, that may be, the procedure adopted was defective and the trial was not had according to law."

In the light of these expressions of principle and what happened at the trial in that case their Honours quashed the conviction and ordered a new trial.

In order to appreciate the effect of this decision in this case, it is necessary to set out portions of the evidence and summing up. A number of police officers gave evidence at the trial. This related to the events which took place when they searched the appellant's house and allegedly found the cannabis, some of which was growing in his garden. A conversation took place at the house at which, it was alleged, the appellant was warned and asked certain relevant questions. He was subsequently taken to police headquarters and there the interrogation continued but it is alleged that before this happened he was asked whether he understood whether the warning he had been given earlier still applies and he said "Yes". Detective Constable Beck gave evidence of being present and making notes of the conversations after they had both concluded. Part of the conversation she alleged took place was as follows:-

"Detective Lewis said 'What was your intention in growing the plants'. He said 'Use them like vegetables, smoke it, give it to people. I give lots of grass to people. I don't put any value on it.' Detective Lewis said 'Did you intend to sell any of the cannabis?' He said 'I trade it I don't sell it. I traded some marihuana the other day and got some hay in return. I suppose in one way that is selling'."

Subsequently in the conversation she says the following took place:-

"Detective Lewis said 'What were you going to do with the cannabis that was located at your premises'. He said 'Smoke it, give it to my friends, trade it and grow some more'."

And later:-

"Detective Lewis said 'Are you prepared to make a handwritten statement about these matters'. He said 'I thought that's what I'm doing now'. Detective Lewis said 'What I mean is that would you like to make a handwritten statement which would be handed to the Magistrate in court'. He said 'No, I'll only make my own statement and address it to the court'."

Detective Beck was cross-examined by the appellant. He asked her a series of questions which included the following:-

"You mentioned that you pushed me through the door. Is that correct?-----That is correct.

And later:-

"Well, your recollection is then that on me being reluctant to let you in because you were not prepared to show me the warrant, you felt inclined to shove me out of the way of the door?-----I did not shove you out of the way, I pushed you out of the way".

Further on, in his cross-examination of her, he asked:-

"You said that you transcribed the conversation that was taking place between myself and Brian Lewis?-----Bruce Lewis. Yes, that is correct. I made handwritten notes of the conversation between Detective Lewis and yourself.

So this would have constituted a statement would it not that I was asked to sign------No it was explained to you. I believe you were a little confused at the time as well. When you were asked if you would like to make a handwritten statement I think the answer you gave inferred to me anyway that you assumed that what I was writing down was the statement that you were being asked to sign and it was then explained to you that you could have an opportunity to sit down and write out your own statement in your own handwriting and that would have been handed to the Magistrate in court if he so desired to take that course of action and you declined to do so stating that you were going to make your own statement or present it to the court yourself.

I put it to you that it was inferred that I should agree to what I had supposedly, what you are suggesting I supposedly said at police headquarters which I said would be invalid as I considered that my words were being twisted around anyway and that you were taking notes of what you were preferred to hear rather than what was actually taking place?-----I made no notes of the conversation exactly as it took place."

After Detective Beck, Detective Constable Bruce Lewis gave evidence. He exhausted his recollection and asked to refer to his notes. The following exchange then occured between his Honour and the appellant:-

"His Honour: Do you have any objections?

The Accused: Your Honour, I object on the basis that the statements made by the police which they admit quite openly were made in collaboration the stories are identical word for work down to where the difference between myself saying 'yes' and 'yea'. I would suggest that we not waste the time of the court by hearing an identical story, I wish not to question the police evidence any more but merely to present my own story of what happened. I think we are only repeating the same story over and over again that has been admitted was made in collaboration so there is not three stories so much as one story, your Honour.

His Honour: Do you suggest the stories are wrong? I want to understand.

The Accused: I suggest they differ totally from the statement of the event that I will present.

His Honour: All right. Perhaps you had better just test out some of the at least part of it. The Accused: I can see no point, your Honour. I did this at the preliminary hearing and it seemed apparent that the police would have no reluctance in perjuring themselves and the reason that I can ascertain that this is the case is that the constables that are conspicously absent today, Constable Manning and Constable Crawford, who acted most improperly on that day are not here to give evidence and that the story was later conveniently later arranged and collaborated to present a picture of me being an uncouth and unco-operative person and the police are fulfilling their function in a civil manner which is my statement and the statement of Mr Wayne Hartridge who was present that day will suggest otherwise. I cannot see any point in asking Bruce any further questions in relation to questioning his evidence your Honour."

The appellant did subsequently question Detective Constable Lewis and the following question was asked:-

"You seem a little nervous. That would not be because the statement that you have given is in fact a misrepresentation of the truth---- No the statement I have given is the truth."

Detective Constable Crawford who was present when the premises were searched also gave evidence and was questioned by the appellant. The following questions were asked:-

"Constable Crawford, you did not repeat the same story that had been repeated by the other Police Constables. You took a very low profile then at 16 Euroke Street on the Friday in question? ------I was there, yes.

Do you recall assaulting me in the laundry of my home?----No I do not".

The appellant, after being advised by the trial Judge gave evidence on oath. In the course of his evidence he said:-

"I tried to ascertain why the police personally found it possible to condemn my action by enforcing this law. . . . . . they avoided my questions and just said they were doing their job and that the law was the law. I tried to point out the facts of the matter to Alan Crawford whilst in the laundry but he did not want to listen. He shouted, 'Shut up we know you're type'. I responded by saying that was very unfair as he did not know me at all. This infuriated him and he raced at me, striking me in the face with his fist and raising his knee striking me in the genital organs. His face was close to mine and conveyed an expression of malice and he shouted again to shut up. I returned to the loungeroom to avoid any further confrontation with Alan Crawford. . . . . . . . . I was now most disturbed and I watched through the window as the police trampled my tomatoes to pull out some of the hemp plants growing in the garden. . . . . . Lindy was arrested, as well as myself, but not Wayne, whom Constable Manning took to the bathroom to search as Wayne wanted to go to the toilet. Whilst they were in there I heard somebody being punched. When Wayne returned with Constable Manning I could see he had been hit in the face and was very upset. I felt outraged but controlled myself to prevent any further conflict. Constable Manning said to me before we left for the police station 'You just wait' and shook a closed fist at me. 'We know what to do with smart alecks. Just tell us what we want to know Alan Crawford had told me before we left'."

He says they were then taken to the police station and gave the following evidence of what took place there:-

"When we arrived I was taken away from Lindy and placed in an interview room where eventually I was interviewed by Constable Lewis. I was told that I should tell them what they wanted to hear and they would release me on bail as I was concerned for my daughter. He asked me who cared for the plants and I told him that I had and that my daughter also cared and loved plant life as well and we had tendered the gardening of all sorts of plants since she was a baby. He then asked why I had grown the plants and I told him that I grew them to use, which was why I grew all the other variety of fruits and vegetables and herbs. He then asked me had I in the past ever sold any cannabis. I told him no, but if he wanted to think me a trafficker I told him that all people who smoked marihuana shared it among themselves and normally the act of smoking it was shared with other people and I also added that a good friend of mine had been given some marihuana a few weeks earlier and in appreciation had brought me some hay for mulshing the strawberries as I did not own a car to get it. I told him that I lived a simple life and was only interested in supplying my own needs and was not really interested much in money anyway".

The appellant gave no evidence of having been warned by the police. He was cross-examined but was not asked about it nor was his version of the conversation challenged where it differed from the police version.

The following questions and answers were given in cross examination:-

"And you were smoking a cannabis cigarette when the police arrived-------I was.

And it is correct that you were growing that for your own use-------It is.

And also for the purpose of giving some away to people from time to time?------In the normal act of smoking it which is participated in by thousands of people in this community it is normally shared between people.

And also trading it for other items such as hay?---- I made that statement totally with tongue in cheek, your Honour. I do not make a business of trading in marihuana.

The appellant called a friend, Wayne Thomas Hartridge, who was present at his home when the police were searching it. He gave his account of the events and in the course of it said:-

"Warren was asked to accompany some of the officers towards the back door. Warren was talking to the police in the laundry and asked him why they were busting him and what they thought of marihuana personally and what their motives were for being in the drug squad. One of the officers seemed to get quite upset with Warren because I heard thumping noises coming from the laundry. Warren then asked why he had been hit and strongly objected to the police behaviour. I stood up to see what was happening to Warren at the back door and at the same time I asked if I could go to the toilet and asked if one of the officers could watch me because the toilet was right next to the back door where this incident was taking place. I saw Constable Crawford pinning Warren in a corner and I assumed it was he who was hitting Warren. I was told to sit down again and that I was to be searched before - Sergeant Craft then directed Constable Manning to search me in the bathroom and Constable Beck to search Lindy in the main bedroom. In the bathroom Constable Manning told me to take off my shirt and show him my arms."

The evidence was then objected to and his Honour said it was not relevant to which Mr Hartridge replied "It relates to me being assaulted by the police". His Honour then stated:-

"That is a different matter altogether than the matter with which the court is dealing".

As a result of this interchange the evidence which Hartridge apparently wished to give about being assaulted by the police was not given.

The accused then chose to address the jury. No address was given by the Crown and his Honour summed up. In the course of his initial summing up his Honour gave no direction to the jury as to the meaning of the word "supplying" in s.4(3) of the Ordinance. As to the effect of the accused having more than 100 grams of cannabis in his possession, his Honour said to the jury:-

"Now if he has more than 100 grams of cannabis in his possession the law is that he is deemed to have had that in his possession for the purpose of supplying it to another person or to other persons, so you do not have to work out in this case whether he did in fact intend to supply it to other persons or to another person. The law says conclusively that if he has more than 100 grams of cannabis in his possession he is deemed to have that quantity for the purpose of supplying the substance to another person or to other persons."

And later

"Now if you are satisfied about those things, you may be satisfied that there was cannabis found in the possession of Mr Foster, you may be satisfied that there was an amount found in excess of 100 grams, and in those circumstances, you may be satisfied of the elements of the charge as it is placed before you."

Later, his Honour said:-

"You are concerned only with the question of whether he did possess more than 100 grams of cannabis on the day in question 4 January 1980. If he did and you are satisfied of all the elements necessary beyond reasonable doubt your duty is to convict him."

In what I have termed his initial summing up the learned trial Judge did not refer to s.4(4) of the ordinance or to the fact that, if the weight of cannabis exceeded 100 grams, it placed the onus on the accused to prove, on the balance of probabilities, that he did not have the cannabis for the purpose of supplying it to other persons. Nor did His Honour refer to the evidence relevant to that particular matter.

This was referred to by the Crown Prosecutor after the jury retired and as a result the jury was called back. His Honour said to them:-

"If you are satisfied that he made that sort of supply, that is that he had it to give to friends or had it for the purposes of giving it to friends then you may be satisfied that he had it for the purpose of supplying a substance to another person or other persons and the contrary would not be proved. . . . . . . .

All these questions are matters of fact. If you do not accept that he said that to the police, of course, you may not be satisfied as to the purpose for which he had it. You may not be satisfied that even though he had in excess of 100 grams he had it for the purposes of supplying it to other people but it is a question for proof to the contrary. If you are satisfied that he had this marihuana but that he did not have it for supply to other people because of the evidence which has been placed before you, then you may be satisfied or may not be satisfied rather that he had this material for the purposes of supply. If he did not have it for the purpose of supply but are satisfied that he had possession of it, you must find him not guilty of the first count and find him guilty on the alternative count only.

The jury retired again.

Apparently his Honour felt that what he had said to the jury was not as clear as he would have liked and after discussing it with counsel and the appellant, recalled the jury again. In the course of instructing them his Honour said:-

"Now, on that the evidence given by Constable Lewis and by Constable Beck was in the following terms:

What were you going to do with the cannabis that was located on your premises?---Smoke it, give it to my friends, trade it and grow some more.

And in reply to a question in cross-examination when he was asked what he proposed to use it for he said: "Well, in the circles" - and I paraphrase roughly because I have not got the exact transcript and I am subject to correction if I am wrong, but I think this fairly paraphrases it - he said, "In the circles of the society of which marihuana is used or cannabis is used it is usual for it to be given to other people in the circle." Is that fairly put, Mr Foster?"

In response to this the appellant said:-

"Well, it is, your Honour."

And then in those circumstances it is a matter for you to decide whether that constitutes a sufficient admission when it is coupled with the other admissions made to the police that he did have it for the purpose of supply or trade in the sense in which it was used in that phrase. I would ask you again to ignore completely that question of trading for the hay as having nothing whatsoever to do with this particular case.

Now, against that Mr Foster asks you to accept not the version that the police have given to you, but to accept the version that he and Mr Hartridge gave you. Now, if you are not satisfied to accept what the police have said, and remember that they have got to establish beyond reasonable doubt that he had it for the purpose of supplying it to other people, even though there is this deeming provision, I withdraw that. If they establish to you that what - if you are satisfied that what was said by them was true then you may be satisfied that he had it for the purpose of supplying it to other persons.

If on the other hand you are not satisfied, you have some doubt about that and you have just got to be satisfied on the question of probabilities, if you are not satisfied about that and the questions raised by Mr Foster in his evidence and by Mr Hartridge in his evidence, either alone or together, cause you to have a doubt as to whether he had it for the purposes of providing it to other people, then he has satisfied you on the balance of probabilities or at least sufficiently in these circumstances. . . . . .

----------------

But if those two together satisfy you on the balance of probabilities, this slightest weighing down, that he did not have it for the purpose of supplying it to other persons well then you must acquit him of the major charge and go on to consider the lesser charge".

The jury then retired and subsequently returned a verdict of guilty.

This analysis of what took place at the trial indicates that the alleged voluntary confession may well have played a vital role in the jury's decision to find the appellant guilty of possession for the purpose of supply. The way in which his Honour finally summed up gave them a choice between accepting the police evidence of the appellant's alleged confession (in which event they may be satisfied of his having it for supply) and the appellant's and Hartridge's evidence (in which event they might be satisfied that he did not have it for that purpose).

It is also apparent that the appellant made it clear at an early stage that he did not accept the police version of what he had said when he put to Detective Beck a question asserting that they had twisted his words. In answer to the Judge during Detective Lewis' evidence he inferred that the police were perjuring themselves. He also suggested in cross-examination and gave evidence on oath that he had been assaulted by the police and thought he heard Mr Hartridge being assaulted by police. Mr Hartridge sought to give evidence of his being assaulted but his Honour, wrongly in my view, rejected that evidence.

It is equally clear, as I have already said, that at no stage did his Honour advise the appellant of his obligation to prove, on the balance of probabilities, if the amount in question exceeded 100 grams, that he did not have it in his possession for supply to another person or other persons.

In my opinion the appellant, being unrepresented, the trial Judge failed in his duty to advise him properly of his rights. In the circumstances of this case I think he was bound, as the High Court found the trial Judge to be in MacPherson's Case, to advise the accused as to his rights in relation to the alleged voluntary confession. Indeed, the circumstances of this case relevant to this question are not really different in substance to those in MacPherson's Case. In each case the accused's rejection of police evidence became obvious when that evidence was being given.

The duty to advise the appellant on this matter may not have arisen at the commencement of the trial but I think it obviously did after the appellant made it clear during his cross-examination of police that he challenged their version of what he said at his home and at the police station. At that stage the trial Judge, in my view, had a duty to advise the appellant of his rights and also a duty to satisfy himself of the admissibility of the confession by taking evidence on the voir dire. He did not do this and for this reason alone I think the conviction should be quashed and a new trial ordered.

In addition I think the trial Judge failed in his duty to ensure a fair trial of the appellant in not advising him of his obligation, if the weight of cannabis exceeded 100 grams, to prove, on the balance of probabilities, that he did not have the cannabis for the purpose of supply to another person or other persons. This duty arose certainly when it became apparent that the Crown was alleging that an amount in excess of 100 grams was found in the appellant's possession. If the appellant had clearly understood the onus that lay upon him he would perhaps have clarified his evidence as to what he intended to do with the cannabis in question and this may have affected the outcome. It is not possible to say, with certainty, of course, what he would have done or whether he already understood it, but this is not to the point. Questions of shifting onus are complex enough for lawyers. Where the onus shifts in a criminal trial, an unrepresented defendant surely should be advised about it, if he is to have a fair trial. For this reason also I am of the opinion that the conviction should be quashed and a new trial ordered.

At the hearing of the appeal, the appellant relied on a number of other grounds. He claimed that the Ordinance in relevant respects, was invalid because it was not for the peace, order and good government of the Territory and offended s.116 of the Constitution. He also claimed that the trial Judge erred in summing up in directing the jury that it had a duty to convict if the elements of the offence were proved.

Similar arguments were put to the trial Judge and he rejected them. In a sense it is unnecessary for me to deal with them. I should perhaps say however that in my opinion the law is clearly valid, it is a law for the peace, order and good government of the Territory as that phrase has been interpreted. Nor does it offend s.116 of the Constitution.

The appellant alleged that there are many people who do not observe the law by smoking cannabis publicly but yet are not prosecuted and that therefore parts of the Ordinance are not properly enforced and that he personally is being discriminated against. Whatever may be the position as to the prosecution of people who have cannabis in their possession, I have no reason to think that the law is not being enforced where it is, as in this case, thought that the person charged has a controlled substance such as cannabis in his or her possession for the purpose of supplying it to another person. In any event, lax enforcement of a particular law does not affect the validity of the law, or, except perhaps in extreme cases, the duty of the Courts to enforce it. In my opinion therefore, this argument has no substance.

A question of real significance to the offence charged, is the meaning of the word "supplying" in s.4(3) and (4) of the Ordinance. In the light of my previous finding it is not necessary to deal with it. However, I would observe that the section requires that the "purpose of supplying" must relate to the controlled substance in question of which the person has possession. In my view that purpose can be one of a number of purposes a person has in relation to the particular substance. I also think that the word "supplying" can cover cases where the controlled substance is not only sold or bartered but also where it is provided to other people. A more difficult question is whether such provision would include a case where a person grows marihuana at his home and shares it with friends who visit. If there is a re-trial of this matter, this question may or may not arise depending on the evidence before the jury. If it does the trial Judge will no doubt have to direct the jury in relation to it. Because it depends on the nature of the evidence I do not think it desirable to express a view about it at this stage.

In my opinion, for the reasons already stated, the conviction should be quashed and a new trial ordered.