Anderson v The Queen

[1993] HCATrans 58

...

.

•

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A25 of 1992

B e t w e e n -

AUGUSTINE ANDERSON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J

DAWSON J

TOOHEY J

Anderson 1 12/3/93

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 1993, AT 1.50 PM

Copyright in the High Court of Australia

MR B.R. MARTIN, QC:  May it please the Court, I appear with

my learned friend, MR J.R.E. LISTER, for the

applicant. (instructed by Jon Lister)

MS A.M. VANSTONE:  I appear with MS R.C. GRAY for the OPP.

(instructed by the Crown Solicitor for South

Australia)

DEANE J: Yes, Mr Martin.

MR MARTIN:  I trust the Court has a copy of the outline that

we provided some time ago?

DEANE J: Yes, Mr Martin, we will just take a moment to

refresh our minds. The cases tend to get a little

bit confused with one another.

MR MARTIN:  Thank you, Your Honour. In our submission,

there are two matters worthy of the grant of

special leave. The first matter of general

importance concerns the admissibility of evidence

given by a detective based partly on hearsay

material, and partly on very limited experience,

following a plea of guilty to the production of
cannabis, production in the sense of cultivation.

That evidence was given upon the issue of the purpose for which the cannabis was cultivated.

That also involves the interpretation of section 6 of the Criminal Law (Sentencing) Act 1988 (SA).

The second matter concerns an issue of

importance to this particular applicant. It is the

applicant's submission that there was a failure by

the Court of Criminal Appeal to independently

assess the evidence in accordance with correct

principles, in effect, that the onus of proof was

reversed. It is our submission that the onus, in

the particular instance, rested on the Crown to

prove a commercial purpose. Whether through

misunderstanding of the issues that were before the

sentencing judge, or whether a misapplication of

principle, the Court of Criminal Appeal in fact

reversed the onus, in our submission.

If I may deal with that second area first. I

am not sure whether the Court is familiar with the

relevant legislation - - -

DEANE J:  You can take it that we have all read sections 31,

32 and 45a.

MR MARTIN:  Thank you, Your Honour. The Court will

appreciate therefore, that pursuant to section
32(6), the applicant, if he sought to bring himself
within that section and hence attract the lesser

penalty of $500, bore the onus of establishing that

Anderson 12/3/93

the cultivation, or the production as it is called,

was solely for his own smoking or consumption.

DEANE J:  Now, as the Chief Justice said, your client did

not rely on subsection (6) before the sentencing

judge. That is so, is it not?

MR MARTIN: That is correct, Your Honour.

DEANE J: Which means for the present argument, I suppose

the starting point is, who bore the onus of

establishing a simple cannabis offence under 45a?

MR MARTIN: That is so. In our submission, the onus clearly

rested upon the Crown to establish that there was a

commercial purpose, if the Crown wished to avoid

the application of section 45a. There is nothing

in the legislation which would reverse the normal

onus of proof as it has been held in South

Australia, the onus to prove aggravating

circumstances rests upon the Crown.

DEANE J: But is not the position this, that section 45a was

directly or was irrelevant directly to this

sentencing process, because there had been no expiation procedure, and subsection (7) says:

Non-compliance with subsection (2) does not

invalidate a prosecution.

The relevance of section 45a - and I am stating,

but I am really asking you - the relevance of

section 45a was that your client could call in aid

circumstances where, if it were in fact a simple
cannabis offence and if the procedure which should

have been followed in that event had been followed,

the approach laid down by the Full Court was that

he should be subjected to the pecuniary penalty to

which he would have been subjected if the correct

procedure had been followed. Is that not the

situation?

MR MARTIN: That is correct, Your Honour.

DEANE J: Well, then, was it not incumbent on him to prove

that it was a simple cannabis offence?

MR MARTIN:  In our submission, not so and, with respect, we

would suggest that the Full Court in South

Australia has generally taken the view that, in

that circumstance, the onus rests upon the Crown to

prove the commercial element which, of course, is

an aggravating circumstance attaching to the

particular offence.

Anderson 3 12/3/93

If I may go back to the offence pursuant to

section 32, there would be a range of penalties,

obviously, applicable according to the purpose for

which the cannabis was produced. That is a range
within the specified maximum of, I think it was,

$4000, 10 years, or both.

Now, it is accepted, in our submission, that

if the Crown wished to prove, in the normal course,

an aggravating circumstance such as a commercial

purpose, the burden clearly rests upon the Crown to

do so and, in South Australia, to do so beyond

reasonable doubt, although that test is not

universally applied throughout Australia.

DEANE J:  You are referring to a commercial purpose as

distinct from subsection (6) circumstances.

MR MARTIN:  Yes, I certainly am. Now, that principle

clearly translates, in our submission, to section

45a, that if the Crown wished to prove that there

was a commercial purpose, in other words, to negate

the circumstances that would give rise to the

application of section 45a, then the burden rested

upon the Crown to do so. And, in the normal course

of events, it would seem that the Full Court in

South Australia has taken that view.

I do not think there is anything in the two

cases that dealt with the matter - that is

Offord v Reg and Reg v Mitropoulous - nothing in

those cases to suggest otherwise and it may be that

it can be inferred from Reg v Pickett and Post, a

case on my learned friend's list, that it was

accepted that if the Crown wanted to prove a

commercial element the burden rested on the Crown

in the normal course of events to do so.

TOOHEY J:  Does that mean, Mr Martin, that absent some

reference to section 45a or some evidence on the

part of the Crown aimed at proving the non-

existence of a simple cannabis offence, the onus is

then on the Crown to make good what?

MR MARTIN:  In order to prevent the operation of section

45a, to establish the commercial purpose in order

that what I will call the normal range of penalties

pursuant to section 32 would apply.

TOOHEY J: That, as it were, assumes the existence of a

simple cannabis offence, unless the Crown

establishes facts which take the offence out of the

definition.

MR MARTIN: That is the inevitable result, if Your Honour

pleases. In the normal situation, if we take away

section 45a for a moment, if the Crown did not have

Anderson 4 12/3/93

evidence to establish a commercial purpose, the

sentencing would have to occur on the basis that
the purpose of the offender was unknown. That was

the effect of the decision in Reg v King, the

Victorian decision in (1979) VR. The Crown sought

to establish the commercial purpose as an

aggravating circumstance, failed to do so, left

then in the situation where - I am sorry, it was

the other way around; my apologies.

It was the applicant, the offender, who sought

to bring in the lower penalty, failed to do so, but

the court held that that did not in itself

establish a commercial purpose, the end result

being that he had to be sentenced on the basis that

his purpose was unknown. That is the normal

situation if one ignores section 45a. The

existence of 45a has the necessary implication with

it that it applies unless the Crown proves there

was a commercial purpose. That is the end result

of the existence of that section.

Your Honour Justice Deane is looking at King's

case. It was pages 404 to 406 where this issue was

dealt with about the failure. Once the applicant

had failed, it did not mean a fortiori that the

Crown had proved a commercial purpose; the Crown was still left to do so. If it did not, then the

applicant's purpose was unknown.

TOOHEY J: 

It is not quite so easy to apply that sort of

reasoning to section 45a though, is it, because of
the very curious nature of the section which

envisages a.notice being given by the prosecution
which, if given, has the effect of, as it were,

converting the offence into something attracting a
lesser penalty. That is the way it works.

If the onus is cast by the Crown - perhaps we

will avoid the use of the word "onus" for the

moment, but it is for the Crown to give a notice

under section 45a before the lesser penalty is
attracted.	If the Crown does nothing by way of

notice, the absence of a notice not invalidating

the prosecution, your submission is that it is

still incumbent upon the Crown to establish that

there has not been a simple cannabis offence.

MR MARTIN·: That is so, Your Honour, and we would say, with

respect, that that was accepted by the Full Court,
by implication at least, in Offord and

Mitropoulous.

DEANE J:	Can you show us that that was so.
MR MARTIN:	I think I covered myself, Your Honour, by

saying, "at least by implication". In Reg v

Anderson 12/3/93

Mitropoulous, (1991) 161 Law Society Judgment

Scheme page 121, the whole procedure that occurred

before the sentencing judge is described at

pages 121 and 122.

DEANE J:  We do not seem to have that, Mr Martin.

MR MARTIN:  I apologize. If I may briefly explain. The

appellant had been convicted, contrary to

section 32. He gave evidence on oath about his

purpose; swore that his whole purpose was to
produce it for his own personal use; and the Court

of Appeal observed that His Honour was not prepared

to find that there was a commercial purpose, and
the whole case seems to have proceeded on the basis

that it was for the Crown to establish the

commercial purpose.

TOOHEY J: But that is really to establish circumstances of

aggravation, is it not?

MR MARTIN: Well, in our submission, it was not. It was the

applicant, in that case, attempting to establish

either that 32(6) applied, or that it was a case of

a simple cannabis offence pursuant to section 45.

It was the applicant attempting to establish it,

but everyone proceeded on the basis that it was for

the Crown to prove a commercial purpose to prevent

section 45 applying. I will just check in Offord's

case, 56 SASR 98, which is the case that set this

procedure in motion, that is the concept of $150

expiation fee being the appropriate penalty. The

Chief Justice dealt with it at page 101 and said, about point 3:

The question which has to be decided, is

whether the subject offences are simple

cannabis offences.

I perhaps have to acknowledge he did not

specifically deal with the onus of proof arising in

that circumstance.

TOOHEY J: But even that notion of "simple cannabis

offence", certainly that is the language of the

statute, but there is some difficulty even with

that, because there is no offence as such, is

there? I mean a "simple cannabis offence" is a

concept that is defined, for the purposes of
section 45a, but the person is not charged with a

"simple cannabis offence", as I read the

legislation.

MR MARTIN:  That is so, Your Honour. May I suggest that

this very discussion raises the questions, of

course, of the approach taken in Offord and

Mitropoulous, and highlights the need for the grant

Anderson 6 12/3/93

of special leave so that the matters can be aired

in full, and Your Honours have raised the question

of the onus of proof, and it can be seen from the

way this case was conducted that those at first

instance, that includes the sentencing judge, the

Crown and the applicant's counsel, all proceeded on

the basis that the burden rested upon the Crown to

prove the presence of a commercial element to avoid

the operation of section 45a.

We agree it is an unusual situation but it is

the effect of the legislation in view of the

interpretation placed upon it by Offord and

Mitropoulous.

TOOHEY J:  How do you say, Mr Martin, that that adoption of

that view operated to your disadvantage. I take it

you say it did not deprive your client of the

opportunity to give evidence, but it removed, on a

false footing, the necessity perhaps for him to

give evidence?

MR MARTIN:  If the Full Court is right, it certainly removed

it on a false footing. It did not disadvantage him in the sense that his case now is that the onus did

rest upon the Crown. What we put to the Court is

that when the matter reached the Full Court, in the

main judgment His Honour Justice Olsson treated the

case as if it was one pursuant to section 32(6)

where the onus rested upon the applicant, and in

his consideration of the adequacy of the evidence

to support the finding of the learned sentencing

judge, His Honour approached it with those

incorrect principles in mind, namely, the onus, he
believed, was on the applicant. Therefore, in that

situation, the applicant has not been given what he

was entitled to, namely, the independent assessment

of the evidence in the light of the correct

principle, namely, the burden was on the Crown to

prove the commercial element.	So that is his
complaint before this Court.

DEANE J:	Now, the Chief Justice did not do that, did he?
MR MARTIN:	We accept, Your Honour, that the Chief Justice

began by getting the issue correctly. He said,

having explained at page 22 of the appeal

transcript, the situation with respect to sections

31 and 32. His Honour then, from line 20, went on

to explain the expiation procedure, and the fact
that the Full Court has held that in that

situation, if it had been complied with expiation

fee of $150 would have resulted, if it is a simple

cannabis offence, properly classified as that, then

that is the penalty appropriate in the

circumstances. His Honour said at the top of

page 23:

Anderson 12/3/93

If there is a dispute as to facts relevant to the question whether the circumstances come within the definition of "simple cannabis offence" so as to found the exercise of the

discretion in accordance with Offord and

Mitropoulous, that dispute must be resolved by

oral evidence in the usual way.

We would suggest that His Honour meant "in the

way"
usual as applying to any dispute of facts. accepted that the burden is on the Crown.

His Honour went on to say:

It seems to me that that is what occurred in

the present case. The appellant made no

attempt to discharge the onus under section

32(6).

We accept that His Honour the Chief Justice in his

words addressed to principle did not reverse the

onus. However, His Honour went on to say, at the

bottom of the page:

For the reasons given by Olsson J, I think

that the learned judge came to the correct

conclusion.

The difficulty with that is, in our submission, that His Honour Justice Olsson was approaching it

from the wrong perspective, and that is the

difficulty that taints the judgment of the

Chief Justice, because Justice Olsson did not make

the independent assessment, having in mind that the

burden was on the Crown.

DAWSON J:  Mr Martin, just a small thing. Where is the

penalty for a simple cannabis offence when the

expiation notice has not been complied with.

MR MARTIN:  The Full Court held that if the expiation notice

had been complied with, the fee would have been

$150. In that situation, if the offending truly

amounted to no more than that, then that was the

appropriate penalty. It is not laid down - - -

DAWSON J: There is nowhere anything which says if the case

goes on, the expiation notice having not been

availed of, the penalty is $150.

MR MARTIN:	Nowhere at all. Only that as far as the sentencing judge's discretion is concerned, he
should apply that penalty as if the expiation
notice had been complied with.

Anderson 8 12/3/93

DAWSON J: What happens if I get an expiation notice and

say, "I am not going to do anything about it", and

the prosecution goes ahead?

MR MARTIN: That is the risk then that the -

DAWSON J:  I get a section 32 penalty then, do I?

MR MARTIN: Correct. That is so, Your Honour.

TOOHEY J: But your argument, Mr Martin, would seem to go so

far as to say that where there is a prosecution for

an off~nce arising out of the possession of

cannabis, then if the prosecution chooses, for good

reason or otherwise, not to invoke the procedure

under section 45a, it is nevertheless incumbent on

the prosecution to establish that there has not

been a simple cannabis offence in order to attract

a penalty other than the penalty provided by

section 45a.

MR MARTIN: That is our argument, Your Honour. It may

not - - -

DAWSON J:  So if either of the prosecuting authorities say

this is not a simple cannabis offence and I go

ahead under section 32 and I fail - I do not have

to. The onus under section 32 is on the defendant

to prove it was not of commercial cultivation, is

it not?

MR MARTIN:  No, Your Honour. In our submission, if the

offender wishes to avail himself of the lesser

penalty in section 32(6) which is cultivation for

his own smoking, then the onus is on him. However,

if the Crown wished to avoid, in effect, the

operation of section 45a, it is for the Crown to

prove there was a commercial purpose.

DAWSON J: And cultivating for your own purposes, for your

own smoking, and commercial purposes, are two

different things, you say?

MR MARTIN:  Yes, Your Honour, and cultivating for your own

purposes and perhaps to supply to friends,

socially, would not amount to a commercial purpose

but it would prevent the operation of section 32(6)

because section 32(6) refers to your own smoking.

DAWSON J: Yes, I follow.

MR MARTIN: Totally limited.

TOOHEY J: It is a fairly shattering result from

section 45a, and you may be right in the

construction you place upon it, but the sort of

Anderson 9 12/3/93

circumstances that give rise to a simple cannabis

offence are circumstances, at least in some cases, that are peculiar to the offender, namely, that it

is not for commercial purposes. And yet, a failure

by the prosecution to exclude section 45a, on your

argument, will lead to no greater penalty than that

that would have been applicable had section 45a

applied.

MR MARTIN: That is the inevitable consequence of the way

the legislation is framed.

TOOHEY J: And this all arises from a section which really

seems to be designed to bring into force some sort

of procedure. It is not an offence creating

section. It is not even a penalty creating

section, except indirectly, where the notice is

given.

MR MARTIN:  It is a procedure clearly designed to divert out

of the criminal justice system those very minor offences, as seen by Parliament, in relation to

cannabis. There can be no argument about that. On

the other side of the scale, the Full Court has

taken the view, correctly, we would say, that if

the authorities have failed to follow that

procedure, the offender who appears in court, and

where it is truly classified as a simple cannabis

situation, that offender should not be penalized by

having to face a greater penalty because the

prosecution did not follow the correct procedure in

the first place.

TOOHEY J:  So long as you wrap up in that proposition, as I

think you have to, that it is incumbent upon the

Crown to exclude the existence of a simple cannabis

offence.

MR MARTIN:  That is so. We would wrap that up, and we would

say that specific legislation is required to

reverse the onus of proof to change such a

fundamental principle within the criminal law, even
within the sentencing process.	And there are no

such words appearing in this statute that would

justify an interpretation along those lines.

If I may deal with the way Justice Mullighan

dealt with the matter, page 47. It is at the

beginning of his judgment that His Honour really

went on to discuss section 6 of the Sentencing Act

and the admissibility of Detective Ford.

His Honour then addressed, from page 49 line 15

onwards, the issue of whether there had been any

unfairness to the appell~nt, as he said:

because of the Crown having accepted that it

bore the onus of proving certain matters with

Anderson 10 12/3/93

the possible consequence that the accused did

not give evidence.

His Honour then went on to deal with

section 32(6) and the onus being a persuasive onus

on the balance of probabilities, at the bottom of

page 49.	Then at page SO, line 23, His Honour
said:
Whilst it is true that, in a sense, the

Crown accepted an onus of proof which was not

cast upon it by law -

and His Honour is here saying they are dealing with

32(6), the Crown did not have the onus -

and that it incorrectly took the view that

supply to others in a non-commercial way,

would avail the appellant of lesser penalty,

it is difficult to see how that intimation

caused any unfairness to the appellant. The

Crown wanted to establish a commercial purpose

perhaps so as to prove that the offence was

not a simple offence as defined ins 45a.

So His Honour appears to come back to the correct

view that the onus was on the Crown in that type of

situation, section 45a.	Then we go to 52 where
His Honour concluded:

The incorrect appreciation of where the onus lay in all of the circumstances did not

result in unfairness -

So His Honour was clearly addressing his remarks to

a belief that it was a section 32(6) matter, not a

section 45a.

DEANE J: Did the Full Court have the transcript of the

sentencing proceedings in the district court before

it that we have before us?

MR MARTIN:	I would assume so, but I must confess I would have to rely upon counsel who was present. Yes,
Ms Vanstone tells me they did.
DEANE J:	Was it a reserve judgment?

MR MARTIN:  Yes, it was. The hearing date was 15 September;

judgment was delivered on 10 November 1992. We

must say the Chief Justice clearly understood that

it was not a section 32(6) situation, but for some
reason Justices Olsson and Mullighan did not

appreciate that.

DEANE J: Yes, except the Chief Justice says:

Anderson 11 12/3/93

For the reasons given by Olsson J, I think

conclusion. that the learned judge came to the correct

But if one analyses Justice Olsson's reasons in the
context of the order that he thought was

appropriate at the end of his judgment, he seems to

have concluded that the learned judge was not

beyond reasonable doubt. justified in finding that there had been proof

MR MARTIN: That remains a little uncertain. That may well

be the view that His Honour reached, but he did not

say so in express terms. I think what he was

saying, with respect, is - - -

DEANE J:  On one approach that is implicit in his view, that

because the case had been fought below on what he

saw as the wrong basis, the whole thing had

miscarried and there should be a new sentencing

procedure.

MR MARTIN:  He did say at page 45 that it was the

misapprehension as to the onus of proof that may

have led the appellant not to have_ called evidence,

and here he was now saying, "Well, in fact the onus

was not on the Crown; it was on the appellant. If

the appellant had appreciated that, he may well

have chosen to give evidence." That is why the

whole procedure was unfair.

We would say that is correct, that if,

contrary to our submission, the onus was on the
appellant to bring himself within section 45a, then

the proceedings before the sentencing judge did

miscarry. The appellant was under a

misapprehension as to whether he bore the onus.

DAWSON J: Could I stop you there, Mr Martin: If you put

yourself in the shoes of a person charged with

producing cannabis and you know that the police are

alleging that it is produced in commercial

quantities and is not produced solely for your own

purposes, what would you do? Do you say to

yourself, "Look, I don't have to prove or disprove

the question of commercial quantities." Do I let

the thing run up to the point where it is then

said, "Well, this is not a simple cannabis

offence", and then do I say, "Now I have a choice
of going into the box under section 32(6) and

satisfying the court that I produced the cannabis

solely for my own smoking or consumption"? There

should be two stages to it, should there not?

MR MARTIN:  That is one way of approaching it, Your Honour.

That would give the - - -

Anderson 12 12/3/93

DAWSON J: Otherwise you would not know where you were.

MR MARTIN:  That would give the applicant the benefit of two

stages. We acknowledge that.

DAWSON J:  He has to have the benefit of the onus of proof

on the Crown in relation to one situation,

recognizing that he bears the onus on the balance

of probabilities in another situation - - -

MR MARTIN: That is so.

DAWSON J:  - - - and the two situations are not entirely

unrelated.

MR MARTIN:  We agree with that. They are not entirely

unrelated, but they are, in that sense - - -

DAWSON J: Different.

MR MARTIN: - - - different, yes. At the first stage the

Crown bears the onus.

DAWSON J: Well, when I say not unrelated, the evidence

would be likely to be the same sort of evidence in

relation to that.

MR MARTIN:  It would be and, of course, an accused or a

convicted person is entitled to stand back and say,

"Well, the Crown should prove the commercial

purpose", and he is entitled to say, "I elect not

to give evidence and rely upon the inadequacy of

the Crown case."

DAWSON J: But he then must be given an opportunity to get

himself out of section 32, or at least not out of

it completely, get himself into section 32(7).

MR MARTIN: That is so, Your Honour. That is exactly

correct, in our submission. I do not know whether

the Court wishes me to deal with His Honour

Justice Olsson, but it is quite plain that

His Honour was dealing with, as he saw it, a

section 32(6) situation. That is apparent if one

begins at page 27 at the bottom of the page,

beginning at about line 24. He said:

The dispute which arose between the

appellant and the Crown related to whether or

not the crop had been produced for a

commercial purpose. The Crown argued that it

had, and the appellant contended that he had

merely cultivated it for his own personal use.

Then he said it was for the appellant to bring

himself within that, and at the top of page 28 -

Anderson 13 12/3/93

the appellant bore the onus -

then at line 8 -

total misapprehension of the provisions of the

Act, counsel for the Crown accepted the onus.

At line 20:

In reality ..... the Crown did not bear any such

onus ..... This was not a case to which the

reasoning of R v Mitropolous applied so as to

invoke a need to consider the concept of

section 4Sa ..... unless and until, pursuant to

subsection (6) of section 32 of the Act, the

appellant demonstrated that the plants had

been cultivated solely for his own

consumption.

The end result of that, in our submission, is a

complete reversal of the onus as it applies to

section 45a.

And that reasoning, if the Court pleases, permeates

the whole of His Honour's judgment, and

effectively, at page 28, His Honour was saying,

contrary to the judgment in King's case to which I

referred earlier, if the appellant fails to

establish that it was cultivation for his own use,

pursuant to section 32(6), a fortiori the Crown has

established a commercial purpose so as to prevent

the operation of section 45a.

DEANE J: Yes, I follow what you say. There are two things

that you have not persuaded me on and that is - I

am not saying I think you are wrong - but it is not

self-evident to me that the fact that the Crown has

to prove commercial purpose, if it relies on it as

a circumstance of aggravation, necessarily means

that the Crown has to disprove simple cannabis

offence if the accused relies on section 45a.

The second thing is:  I have not seen anything

in what you have taken us to that conveys to me the

impression that the Court of Criminal Appeal has

taken the approach that the Crown has to prove that

it is not a simple cannabis offence in a case where

the section 45a procedure has not been followed.

MR MARTIN:  Your Honour, in answer to the first proposition,

we would say that consistent with the accepted

principles that in the absence of legislation that

makes it clear that the onus is reversed - - -

DEANE J: But this is not aggravation. What is involved

here is an accused saying, "Stop, this was a

section 45a simple cannabis offence". The Crown

Anderson 14 12/3/93

did not follow that procedure. Subsection (7) says

that does not stop this prosecution, but since this

was a simple cannabis offence, it would be unfair

and unjust to impose a heavier penalty than if the

Crown had followed that procedure.

MR MARTIN:	Yes, Your Honour.
DEANE J:	Now, in that context, I really am not saying what

you are putting is wrong, but it is far from clear

to me that it is not for the accused to establish

on the balance of probability that the Crown has,

or the prosecution authorities have, not acted in

accordance with their duty and that, as a

consequence, he by way of side benefit should be

sentenced by reference to what would have happened

if they had.

MR MARTIN:  Your Honour, we would say in answer that

whenever an applicant, an accused person, puts up

submissions in mitigation, if those mitigating

factors are a reasonable possibility then the

burden is cast upon the Crown to negate them beyond

reasonable doubt, and if a prisoner in this

instance puts up in mitigation, "This was nothing

in reality but a simple cannabis offence" then, in

accordance with accepted principle, the burden

stays with the Crown to negate that beyond

reasonable doubt. And might we say to the Court

that certainly it is our understanding -

DAWSON J: But, you see, it is not like that. It is a

peculiar section.

MR MARTIN:	Yes, it is, we acknowledge that.
DAWSON J:	And it does not create an offence at all.
MR MARTIN:	No.
DAWSON J:	And it really only goes to sentence, because what you said to me was, "If you do not avail yourself
of the section, even though you have been an
expiation notice, you are under section 32, that is the only offence".

MR MARTIN: That is so. But our answer would be,

Your Honour, that you put up a mitigating

circumstance, "This was nothing but an offence

which involved - - -

DAWSON J: That is what it is, it is a mitigating

circumstance -

MR MARTIN: That is fine.

Anderson 15 12/3/93

DAWSON J:  - - - and in sentencing who has to prove the

mitigating circumstances?

MR MARTIN:  With respect, if the Crown want to negate a

mitigating circumstance, in South Australia the

burden rests upon the Crown to negate it beyond

reasonable doubt. On the papers on the material

before the Court, if it is a reasonable possibility

that there was the absence of a commercial element

that is a mitigating circumstance, but the Crown

wants to prove or to have a sentence on the basis

that there was a commercial element, leave aside

section 45a for a moment, then the practice in

South Australia is that the Crown must prove the

existence of the commercial element beyond

reasonable doubt.

DEANE J: So, if an accused says, "Yes, I stole the money

but I gave it all to the St Vincent de Paul

Society", the Crown has to prove beyond reasonable

doubt that he did not give it all to the St Vincent

de Paul Society?

MR MARTIN: That is correct, Your Honour, that is the

accepted practice in South Australia, and it goes

back to Stehbens case. Now, the Crown may prove

that, of course, simply by reference to the sworn
depositions, by reference to the sheer incredulity

of the story, or the normal processes of reasoning.

However, it has been accepted since Reg v Stehbens,

14 SASR 240 at 245 and 246, that the burden rests

upon the Crown.

TOOHEY J: But that is a different situation, is it not? Is that not by reference to the evidence that has been

led?

MR MARTIN:  That is so but, Your Honour, we can go back to

Maitland and Vasey - which are not on the list,

there are quite ancient cases - where the practice

in South Australia has been that the court is

entitled to rely upon the sworn depositions, and

give weight to those sworn depositions in its

process of arriving at the facts of the matter.

TOOHEY J: Yes. I thought in answer to Justice Deane the

illustration was of something said by way of

mitigation by counsel for the convicted person.

MR MARTIN:  Yes.

TOOHEY J: In many jurisdictions, if that mitigating

circumstance is not accepted by the Crown, the

trial judge will require evidence of it.

MR MARTIN:  He may do. He may say to an accused person, "I

do not accept that on the face of the material

Anderson 16 12/3/93

before me now, I have the sworn depositions to the
contrary" et cetera. So, it depends upon the
material that is then before the judge. That does

not affect the fundamental proposition - and I

acknowledge that this is not the case in Victoria,

nor is it the situation in Queensland - but in
South Australia, if a factor in mitigation is

presented, and the Crown wish the court not to
accept that, it is the burden that rests on the

Crown to negate it beyond reasonable doubt. That has been the practice in South Australia.

Now, we say it follows therefore, that if this

applicant said to the court, "The circumstances

were, there was no commercial element", and the

answer to that is from the Crown, "Yes, there was",

the Crown bore the onus to prove that there was.

That would apply irrespective of 45a, but because

section 45a exists, if the Crown fails to prove it,

it has a consequence with respect to penalty.

TOOHEY J:	I have a lot of trouble, as we all do obviously, with section 45a, but if a failure to give an
expiation notice does not invalidate what
subsection (7) describes as "a prosecution", which
presumably means a prosecution for a simple cannabis offence, although no such offence exists as an offence.
MR MARTIN:	A prosecution for production, which in the

circumstances amounted to no more than what is now

classified - - -

DAWSON J: A prosecution under section 32?

MR MARTIN:  32, that is right.

TOOHEY J: Well then, if no notice is given, there is

nothing that the offender can expiate.

MR MARTIN: That is so.

TOOHEY J:  The prosecution is not aborted by reason of the

failure to give a notice, so what is it that can

bring the penalties under an expiation notice into

force? I mean, nothing has caused them to come

into existence.

MR MARTIN:  The first matter is, the absence of a commercial

purpose. Just a normal mitigating circumstance.

If there is no commercial - - -

TOOHEY J:  No, I am sorry, I have not put the question

clearly. The payment of the $150 that you spoke of is an expiation in response to an expiation notice,

is it?

Anderson 17 12/3/93

MR MARTIN:  Yes.

TOOHEY J: If an expiation notice is not given, any

prosecution that is launched is not thereby avoided

or affected.

MR MARTIN: That is so.

TOOHEY J: What is it that can then bring the $150 into

existence as an appropriate penalty?

MR MARTIN: Considerations of fairness is probably the

underlying factor, and that was the view taken by

Offord, Mitropoulous. charge under section 32, if there is an absence of

the Full Court in and in

a commercial element, those circumstances, had they

been known to the prosecution, or accepted by the
prosecution, would otherwise have resulted in an

expiation procedure.

Considerations of fairness require that the

offender not be unfairly prejudiced by the fact
that the prosecution, for whatever reason, chose
not to follow the expiation procedure when it

should have done so.

Therefore, the appropriate penalty, said the

Full Court, in the exercise of the sentencing judge's discretion, should be the same as if the

expiation procedure had followed. So, it is

considerations of fairness.

DAWSON J:	On the other hand, if the expiation procedure is followed, notwithstanding all that the prosecution
proves is a "simple cannabis offence" in the sense
there is no commercial purpose, he is still within
section 32 and has to bring himself within
subsection (6).

MR MARTIN: Sorry, if - - -

DAWSON J: 

If the expiation notice is given and the accused

does not avail himself of it, even though all that
the prosection proves is a "simple cannabis

offence" he still has to bring himself within

section 32(6).

MR MARTIN: 

No, that would not follow, in our submission.

It means he may not have availed himself of it, for

one reason or another, but if when the matter gets

to court the prosecution failed to establish a

commercial purpose, he is back to the expiation

level of penalty anyway, on considerations of

fairness.

Anderson 18 12/3/93

DAWSON J: No, no. At that stage he might not have proved

that it was solely for his own use.

MR MARTIN:  Now that is section 32(6).

DAWSON J: Yes, that is what I am saying. He is thrown back

on to - - -

MR MARTIN:  The first step would be, Your Honour, he

declines to accept the expiation notice; the charge

proceeds under 32; having got to court, the burden

would still rest on the crown to prove that there
was a_ commercial purpose. If the Crown failed to

prove it, you would be back, really, where you

started; the $150 fee would be applicable - the

expiation.

DAWSON J:  Why?

MR MARTIN: Because, in that situation, the Full Court has

said, considerations of fairness mean -

DAWSON J:  I am not sure that they would.

MR MARTIN: Well, the Full Court may take a different view

in that situation and say, "Well, you had your

choice; you declined, therefore the sentencing

discretion is at large.

DEANE J: They might say, though, "You should not be

penalized for having denied your guilt and adopted

that approach".

MR MARTIN: Quite so. That might also be - can we suggest,

with respect, that it is more theoretical, we hope,

than practical, because the $150 expiation would

be - - -

DAWSON J: Yes, I do not suggest it is theoretical, but it

does help in the analysis.

MR MARTIN:  Yes, it does. I accept that, Your Honour. I do

not think I can advance it any further, other than
to suggest that the very concern which the Court is
expressing does, in our submission, point to the
importance of the matter and the fact that it
warrants the grant of special leave in itself. If

I may go back to the first issue; that was the

admissibility of Detective Ford - - -

DAWSON J:	Do you really want to press that?
MR MARTIN:	I appreciate that Your Honour has had a long

day. May we suggest this, that there is a conflict

between Gardner's case, in Queensland, and

Marinovich, on the admissibility of this sort of

evidence, where the detective concerned has only

Anderson 19 12/3/93

very limited experience and most of his knowledge,

particularly about prices -

DEANE J: But this aspect does not really raise any great

question of principle unless you can succeed in

your argument that section 6 of the Criminal Law

Sentencing Act was not applicable, and then

succeed, if we are dealing with principle, in

somehow getting the strict rules of evidence, as

distinct from a pretty wide discretion, applicable

to evidence on sentencing.

MR MARTIN:  Yes, I suspect I detect some concern that an

attempt to suggest section 6 was not applicable

would be somewhat futile.

DAWSON J: But there is nothing left to determine but

sentence. He has pleaded guilty.

MR MARTIN: That is so.

DEANE J: And indeed, as you have progressed to the extent

that you have on section 45a, on one approach you

have been regressing in getting out of section 6, I

would have thought.

MR MARTIN:  Your Honour, I think, even at this late hour on

a Friday I can take a hint and I - - -

DEANE J:  No, we have all the time that is necessary.

MR MARTIN:  I accept that, Your Honour. What we wanted to

put to the Court was, of course, that the mere
existence of the words that "the court is not bound

by the rules of evidence", if taken literally,

would allow anything in at all and, in a matter

where it is as crucial as the evidence was in this

case, in our submission, the section should be read

so as to exclude the admissibility of hearsay

material.

DEANE J: Is there real conflict, of significance, about the

quantity of cannabis that could be expected from,

what was it, 32 or 34 female plants, was it not?

MR MARTIN:  No, that was the evidence of Mr Pearman and

there was no contest on that issue. The evidence

we are concerned with is that of Detective Ford who

gave evidence of not just matters associated with

the illicit drug trade but of the prices that could

be expected to be received in various situations.

DEANE J: But it is obvious that the sentencing judge did

not take much notice of that.

Anderson 20 12/3/93

MR MARTIN: Well, His Honour the sentencing judge said that

that defined the parameters for him.	So that is
the extent to which he used it.

DEANE J: But would there be really genuine dispute about -

I mean, there were some large assumptions, that if you cultivate 34 cannabis plants they all grow to

maturity and so on, but making all those

assumptions, would there be any real dispute about

the parameters there? They struck me as being not

quite as high as I might have expected. Mind you,

I have no personal knowledge.

MR MARTIN:  I do not think I should be able to comment on

that either. We accept that there clearly had to

be some parameters and that His Honour treated the

evidence with care but what we put to the Court is

that the importance of it is in two respects:

one, can a detective give evidence, in effect

expert evidence, while basing his views primarily

on hearsay material, and that is the conflict

between Gardner and Marinovich, and there is a

clear conflict between those two cases. That in itself raises an important question of principle

that is of importance throughout the country, not

just South Australia. And the second matter is,

precisely the limits of section 6 and what hearsay

material can or cannot be admitted on crucial

issues pursuant to section 6.

DAWSON J:  You could not lay down any rules about that; it

is what the court finds helpful or could find

helpful.

MR MARTIN:  We would suggest, with respect, that would be

too wide; that the view should be taken of that

section that on matters that are crucial, such as

these were, that hearsay material should not be

admitted. Now, that, in essence, is the

proposition that we would put.

TOOHEY J:  Mr Martin, could I just ask you about the

practical side of this.	Your client was sentenced
to 12 months imprisonment?

MR MARTIN:	Yes, I think that is correct.
TOOHEY J:	On 23 July 1992, according to page 59 of the

application book.

MR MARTIN:  Yes, there were some other

TOOHEY J: Then he was caught up in an earlier suspended

sentence, apparently.

MR MARTIN: That is so.

Anderson 21 12/3/93

TOOHEY J: So, so far as the sentence itself is concerned,

it now being March, was there an automatic

remission?

MR MARTIN:  He was given a non-parole period of 18 months.

TOOHEY J: But that seems to be in relation to the

composite -

MR MARTIN:  The totality, that is so.

TOOHEY J: That is the totality.

MR MARTIN:  Yes. So that the 18 months applies to the

totality. The non-parole period.

TOOHEY J:	So he is still in prison?
MR MARTIN:	Would you pardon me, I will just get some

instructions on that. My instructions are that he

is either still in prison or is eligible and may

have been released recently on .home detention, but

we are not sure. If the Court pleases.

DEANE J:  The Court is of the view that the questions

relating to admissibility of evidence do not

involve any matter of general principle appropriate

to attract a grant of special leave to appeal to

this Court.

Accordingly, the application for special leave

to appeal is refused in so far as it relates to

those questions.

Ms Vanstone, we would now like to hear you on

the section 45a problem.

MS VANSTONE:  Thank you, Your Honour. If the Court pleases.

In my submission the special leave application

should be refused for two reasons. The first is

because the finding made by the learned sentencing

judge was made on the basis of the criminal

standard beyond reasonable doubt. Because of that,

in my submission, it is not appropriate to

investigate whether some lesser standard applied.

DEANE J: Well, can we just seek to understand the Crown's

position. There was an appeal to the Court of

Criminal Appeal from the trial judge's decision

that commercial purpose had been established beyond

reasonable doubt?

MS VANSTONE:	Yes, Your Honour.
DEANE J:	Now, what did the Court of Criminal Appeal do

about that?

Anderson 22 12/3/93

MS VANSTONE: Well, the court examined the reasoning

underlying the decision.

DEANE J: What did Justice Olsson say about whether the

trial judge's finding that commercial purpose had

been established beyond reasonable doubt was

justified or not? I cannot see anything in his

judgment that addresses the question.

MS VANSTONE:  Not in as many words, in my submission.

DEANE J: But that seems to have been ultimately one of the

main rounds of appeal.

MS VANSTONE:  Your Honour, if I could take the Court to

page 44 of the transcript. This of course is at a

stage in the judgment where His Honour has reviewed

all the relevant evidence and at line 26 His Honour

said:

the only logical inference to be drawn was
that the appellant would have sold at least a

portion of the crop for his own commercial

benefit.

And His Honour reiterated that view on page 45 in

the first paragraph.

I accept that His Honour does not say that

that finding was properly made beyond reasonable

doubt using those words but, in my submission, to

say that there was only one logical conclusion is

really tantamount to saying that the criminal

standard was met.

DAWSON J: But was that in circumstances where what had to

be considered first of all was whether there was a

simple cannabis offence and, thereafter the accused

was given no opportunity, as I understand it, to

try and establish that he came within

section 32(6)?

MS VANSTONE: In my submission, that is not quite correct,

Your Honour. Could I take the Court to section 45a

for a moment. My submission as to this section is

that it enacted a diversion scheme, as Mr Martin

said, a scheme attempting to divert people out of

the criminal justice section. In my submission,

once the police determine not to follow the

provisions of that section, or if they do issue an

expiation notice and it is not paid, then that

section dies away, and it only has the most limited

relevance ultimately - - -

DAWSON J:  What if the court finds that it was a simple

expiation offence and the accused was not given the

chance of expiating the offence?

Anderson 23 12/3/93

MS VANSTONE:  That is the one area where it does -

DAWSON J: Then it operates as a mitigating factor in

relation to penalty, a very strong mitigating

factor to the extent that it prescribes the

situation and prescribes the maximum penalty.

MS VANSTONE:  Not as a matter of law, if Your Honour

pleases.

DAWSON J: Well, it is laid down in a case.

MS VANSTONE:  Yes, in Offord's case, Your Honour.

DAWSON J: Cases lay down law, do they not?

MS VANSTONE:  Not as a matter of interpretation of a

statute, if Your Honour pleases, but I accept that

Offord's case says that as a matter of fairness if

an offender brings himself within section 32(6) and

he has borne the onus of proof in doing so, then as

a matter of fairness, rather than facing the $500

maximum penalty provided by 32(6), he should be

assessed as if he had been given an expiation

notice.

TOOHEY J:  It might have been better not to have used the

words, "simple cannabis offence", because it

suggests that there is such an offence. Really,

this, as you seem to be putting it, Ms Vanstone, is
that section 45a creates an administrative

procedure. If it is not followed it is not

followed.

MS VANSTONE: That is right, if Your Honour pleases.

TOOHEY J: That is the end of it.

MS VANSTONE: That is right. Could I take the Court to the

words of subsection (2):

Subject to this section, if a person ..... is	alleged to have committed a simple cannabis
offence, then before a prosecution is
commenced, an expiation notice must be given.

The prescribes the only circumstance in which 45a

can have any true operation.

DAWSON J: Then that leaves it entirely in the hands - if

you give it that construction - of the prosecuting

authority.

MS VANSTONE: That is so, Your Honour.

DAWSON J: That is monstrous, is it not?

Anderson 24 12/3/93

MS VANSTONE:  Your Honour, ultimately it will not make much

difference, in my submission, because of Offord's

case.

DAWSON J: Because of the case, and that is why the

Full Court decided on this case as they did,

presumably. It is just not acceptable otherwise.

MS VANSTONE:	No, but it is only a difference between a maximum penalty of $500 and $150, in my submission,
because if a police officer is minded to issue an expiation notice, then he must have a good idea, he
must be satisfied, that the offence is one
involving no commercial element.

Similarly, if the same evidence goes to a

court, then clearly the offender will be able to

bring himself within section 32(6).

DEANE J: But what if, as here, one possible defence would

have been, "I was growing that cannabis for myself,

the people who lived in the house with me, and the

odd people who came to a party at the house". That

would be a simple cannabis offence within 45a and

could not be brought within 32(6).

MS VANSTONE:  If the facts were found to be those,

Your Honour, I accept that that would not bring the

offender within 32(6) but he would be penalized at

the bottom of the scale of penalties available.

DEANE J:  Can I take you back to what I asked you. I see

the force of what you say about Justice Olsson's

judgement. How did Justice Mullighan, on your submission, deal with the question whether the

learned trial judge had been in error in finding,

beyond reasonable doubt, that there was a

commercial purpose?

MS VANSTONE: Again, perhaps His Honour does not meet that

particular issue in terms of the standard of proof.

DEANE J:  Does he say anything that even addresses that

issue?

MS VANSTONE: At page 51, line 11, His Honour said:

At the end of the Crown case the appellant

could rely on any weaknesses in the Crown case

or he could give evidence about the crucial

matter which was peculiarly within his own

knowledge.

DEANE J:  No, but you see, His Honour had defined the

question as the section 32(6) question, that is,

"solely for his own purpose". Now, as I follow it,

if one were going to reach a conclusion in favour

Anderson 25 12/3/93

of the applicant here, it would not have been

"solely for his own purpose" so much as "not for a

commercial purpose". That is, with this quantity

it was inevitable, you would think, that he would

be likely to share it round with some of his

friends.

MS VANSTONE:	He would certainly have plenty - - -
DEANE J:	Non constat that he was going to go out and sell

it. Now, where does His Honour address that

question, which is the section 45a question?

MS VANSTONE:  As to section 45a His Honour agreed, in the

first paragraph of his judgment, with the

observations of the Chief Justice, and then on the

second paragraph he agreed with Justice Olsson as

to the other matter, the section 6 on the expert

evidence matter.

DEANE J: But His Honour does not seem to have addressed the

question whether the finding of 45a, exclusion of

simple cannabis offence beyond reasonable doubt,

was justified.

MS VANSTONE:  No, Your Honour. In my submission that just

was not an issue. It was not a matter of the Crown

excluding "this is a simple cannabis offence".

DEANE J:  I follow that if you say that what Mr Martin has

said as to onus is wrong, and you do say that, do

you?

MS VANSTONE:  Yes, Your Honour. Our submission is there was

no onus on the Crown to prove that this was not a

simple cannabis offence.

DEANE J: So, the case before the learned sentencing judge

was conducted on an entirely wrong footing?

MS VANSTONE:  Not necessarily, Your Honour. There are two

aspects to it. There was, in my submission, an

onus on the accused if he chose to utilize

subsection (6) and that -

DEANE J: But Mr Martin has agreed subsection (6) has got

nothing to do with this case.

MS VANSTONE:  Of course, Justice Olsson said that the only

way that the offender could bring himself to the
expiation level of penalties was via

subsection (6), having discharged the onus.

DAWSON J:  You see, really it boils down, what Mr Martin

says, is section 45a provided a mitigating

circumstance because the accused was entitled to

say this was a simple cannabis offence, and having

Anderson 26 12/3/93

said that, on the evidence the Crown would be

obliged to establish that it was not beyond
reasonable doubt, because the Crown has to disprove
mitigating factors beyond reasonable doubt, if they

are alleged.

MS VANSTONE:  Of course, I say that is incorrect, but I will

not interrupt Your Honour.

DAWSON J:  What is incorrect?

MS VANSTONE: That the Crown does not have to disprove

mitigating circumstances beyond reasonable doubt,

and I dispute that that decision of Stehbens is

authority for that. Could I just explain that the

hearing before the learned sentencing judge was

not, necessarily, one that proceeded on incorrect

issues because there were two issues at stake,

potentially. One, whether the offender could bring

himself within subsection (6) or, if you like,

within section 45a, although, of course, I say that

was not a live issue, but, on the other hand, the

issue was whether the Crown would choose to prove,

as an aggravating feature, that this man must have

had the cannabis, grown it for sale. Not because

that related to the wording of section 45a but
simply as a feature of aggravation relating to the

circumstances of this case.

DEANE J:  But let us just go back. I take you to page 23 of

the book. You disagree with what the Chief Justice

says in the paragraph in the middle of that page,
because what His Honour says is 32(6), without the
window. Obviously he did not rely on it because

the difficulty of proving the cannabis was all for his own smoking or consumption. The only question

was section 45a, that is, whether the facts came

within the definition of simple cannabis offence.

Now, if that is right, where did

Justice Mullighan address that only question, or if

it is wrong, I do not see why it is wrong.

MS VANSTONE:  Your Honour, I do not think Justice Mullighan

did address that question, he simply contented

himself with agreeing with the Chief Justice.

DEANE J:  But he has not agreed with the Chief Justice. He

has agreed with the analysis, but he has said
nothing about whether or not the learned sentencing

judge was correct in concluding that section 45a

had been disproved beyond reasonable doubt.

MS VANSTONE:  No, I accept that. Your Honour, could I just

go back to that passage in the judgment of the

Chief Justice at page 23, line 16:

Anderson 27 12/3/93

The only question was whether the facts came

within the definition of "simple cannabis

offence" -

In my submission, it is implicit in the judgment

that what His Honour was there saying was that the

only question was whether the offender could prove

on the balance of probabilities that he came within

that definition, because His Honour had already

dealt with the matter of onus on the previous page.

I accept that it is not without some doubt inasmuch

as the wording His Honour used perhaps was not as

clear as it might have been but, in my submission,

it has to be read that way.

If I could just go back to that point about

the hearing before the Chief Justice, in my

submission, both parties were trying to achieve

their own end; the applicant trying to bring
himself within the definition of "simple cannabis

offence", though offering no evidence, and the

Crown trying to prove an aggravating circumstance:

commercial use. Just coincidentally, section 45a

focuses on that aspect as well.

I accept that the Crown has to prove that

circumstance of aggravation, that proof lies on the

Crown, and that was why the hearing proceeded in

that way. That being the case, in my submission

the appellant had a hearing which was conducted in
the most favourable circumstances for him. At

worst, the onus was on the Crown beyond reasonable

doubt, but perhaps the Crown took on a greater onus

than it needed to. But for whatever reason, the

Crown set itself the highest hurdle and the applicant failed to raise a reasonable possibility

in that environment.

So, in my submission, it does not now become

him to say, "Well, if the task had been made harder

for me at the primary hearing I might have tried

what he is now saying. harder", which is essentially, in my submission,

DEANE J:  I can see the force of that, but is not the

problem this: that what you say would go almost

all the way if the Court of Criminal Appeal had

said, "Well, we now have to consider whether the

learned trial judge, the sentencing judge, was

justified in finding that the Crown had established

commercial purpose beyond reasonable doubt". But, that seems to be precisely what Their Honours have

not said.

MS VANSTONE: Well, I cannot add to what I have already

said, that Justice Olsson did not use those words,

but said as much.

Anderson 28 12/3/93

DEANE J: But he does not seem to have treated it as a

relevant question.

MS VANSTONE:  He does not either say that clearly the onus

was discharged on the balance. He does not pitch

it at either standard, in my submission. But in

using the terms he does, and in giving the evidence

the close analysis which His Honour did, then

clearly the words he uses do indicate satisfaction that it had been properly proven. Could I move to

the other reason why I say that special leave

should not be granted.

If the Court pleases, the legislation with

which these points are concerned has now changed

very materially, and the consequence is that the

ambit of this decision is now confined to charges

concerning very small numbers of plants.	The
changes are to section 32(6).	I am not sure

whether the Court has the later legislation before

it, but the change is this, that an extra criteria

TOOHEY J: Sorry, can you tell us when it came into force?

MS VANSTONE:  Yes, Your Honour, 26 September 1991.

TOOHEY J: Well, we have - I have for instance, a reprint, I

must say it is the reprint I have been working on,

as at 10 September 1992, and I also have another

reprint of an earlier date. Sorry, there is

another one - that is the original Act of 1984.

MS VANSTONE:  The wording is very similar. I wonder whe.ther

I could take the Court to it, just in case

Your Honour Justice Toohey has overlooked the

additional element which is now placed in it. It

now reads, and has since the date I mentioned:

Where a person is found guilty of an offence

involving cultivation of not more than the

prescribed number of cannabis plants, and the	court is satisfied that the person cultivated
the plants solely for his own smoking or
consumption, the person is liable to a penalty
not exceeding $500.

So now he must not only bear the onus of proof he

formerly bore, but he must also have had not more

than the prescribed number of plants, and that

number is 10 or less.

DEANE J: Well that is, what are we talking about, 32(6)

or -

MS VANSTONE: That is 32(6), Your Honour, and there has been

a similar change in relation to section 45a.

Anderson 29 12/3/93

TOOHEY J: Well 45a was not in the 1984 Act as originally

enacted, was it, Ms Vanstone?

MS VANSTONE:  No, it was enacted in 1986 and operated from

30 April 1987, but there was a change to it, in

particular to section 45a(8)(d), which was effected

by the same Act, I think, which changed 32(6), and

again was proclaimed on 26 September 1991.	(d) now
reads:

an offence arising out of the cultivation of

not more than the prescribed number of

cannabis plants.

And again regulations prescribed 10 plants or less

as the relevant number. So now there is conformity

between the offender's task, in bringing himself

within 32(6), as compared with the expiation

amount.

DEANE J: Except 32(6) is still harder.

MS VANSTONE:  Yes, that is right, Your Honour. The

regulation provides that more than 10 cannabis

plants cannot be a "simple cannabis _offence".	One
could still prosecute someone under section 32

where they only had one or two plants, providing

one had other evidence. So now, what I submit was

a drafting anomaly as between the old section 32(6)

and the old section 45a(8), has been removed and,

as I mentioned, all those changes came in in

September 1991. They were already in force when the Court of Criminal Appeal examined this matter. The state of the criminal list in South Australia is a very satisfactory one and the result of that is that it will only be the vary occasional case

that will now be determined under the old

provisions. So, in my submission, that may be a

reason which would incline the Court not to grant

special leave on this aspect of the matter.

DEANE J:  The problem in this case is the problem of the

administration of justice in that if the Court of Criminal Appeal, or the majority - I am not sure.

If the position be that the applicant in truth bore

the onus and the Court of Criminal Appeal or the

majority have dealt with the case on that basis, he

has lost his appeal by reference to an issue which

he was never called upon to face. In the context

of not being called upon to face that issue he

elected not to call evidence.

On the other hand, if the sentencing judge be

correct and the 45a onus lay on the Crown to prove

beyond reasonable doubt, it would seem that at

least Justice Olsson and Justice Mullighan dealt

Anderson 30 12/3/93

with the appeal on the wrong basis as to onus of
proof.

I appreciate the sentences you point to in Justice Olsson's judgment to, in effect, say even

if he had thought it was beyond reasonable doubt he would have upheld the decision. But is that really good enough from the point of view of, say, the

administration of justice?

MS VANSTONE: In my submission, as I have attempted to put

before, it cannot be that the applicant has lost a

chance which was fairly open to him when the Crown

set out and succeeded in meeting a higher standard.

I accept that in a sense that does not answer the

question as to whether the Court of Criminal Appeal

have properly undertaken their own assessment of

the evidence, but when one looks at

Justice Olsson's painstaking review of that

evidence, in my submission there can scarcely be

any doubt that his decision was well justified.

DEANE J: Yes, I follow that. That rests only - and I am

not suggesting it is not enough - that rests only
on the view that His Honour's reference to the only
logical inference equates a statement ttproof beyond

reasonable doubttt.

MS VANSTONE: Well it does, against a background that he was

dealing with 68 or 70-odd plants, and evidence that

the crop would have been worth at least $20,000.

So in a sense, to say that that was the only logical conclusion is saying a great deal, in my

submission. If the Court pleases.

DEANE J: Thank you, Ms Vanstone. Yes, Mr Martin.

MR MARTIN:  Just a couple of matters if I may. As far as

the change in the legislation is concerned, it is
apparent that the onus of proof is still a live

issue and that these matters may well rear their

heads again in the South Australian courts. In any

event, that overlooks the issue that Your Honour

Justice Deane has succinctly put a moment ago about

the question of the administration of justice,

which is the main point upon which the application

is based.

DEANE J: Yes, except there is considerable force in

Ms Vanstone's interpretation of what Justice Olsson

said.

MR MARTIN:  That was page 44 to which she referred. Of

course, that was in the context of line 25 -

in absence of other suasive evidence to the

contrary -

Anderson 31 12/3/93

and it was also in the context of His Honour

examining the evidence with the burden of proof in

mind as having rested upon the applicant. That

fundamental error, in our submission, negates the

reasoning of His Honour and takes him a long way

from any finding, even implicitly, that these

matters were proved beyond reasonable doubt.

DEANE J: Yes, except if you go to the top of page 45:

In those circumstances it appears to me

that, not only was the learned Chief Judge
well entitled, on the state of the evidence

before him, to come to the ultimate conclusion

which he expressed -

The ultimate conclusion on one approach was

commercial purposes being proved beyond reasonable

doubt.

MR MARTIN: That was the ultimate conclusion of the judge,

yes. But His Honour goes on to say -

when the situation is viewed objectively, that

was the only logical conclusion to which he

could have come. It lay within the province

of the appellant to persuade him otherwise.

In our submission, that incorrect view of the burden of proof permeates His Honour's entire approach to the evidence and, in our submission,

the net result of that is that the applicant has

not had that to which he is entitled, a proper

consideration of the evidence with that correct

principle in mind. If the Court pleases.

DEANE J: There will be a grant of special leave to appeal

in this matter. The grant, of course, is limited

by the earlier limited refusal of special leave.

AT 3.21 PM THE MATTER WAS ADJOURNED SINE DIE

Anderson 32 12/3/93