Gandy v The Queen - [1990] HCATrans 149

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B55 of 1989
B e t w e e n -
SUSAN ANN GANDY
Applicant

and
THE QUEEN
Respondent

Application for special
leave to appeal

BRENNAN .J
DEANE J
DAWSON J
GAUDRON J

McHUGH J

Gandy

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 28 JUNE 1990, AT 11.03 AM

BlT 4/1/CM

28/6/90

MR S.E HERBERT:

May it please the Court, I appear for the applicant. (instructed by the Public Defender)

MR M•J. BYRNE: May the Court please, I appear with my
learned friend, MR D.C. BOYLE, for the respondent.
(instructed by the Director of Prosecutions)

MR HERBERT: Your Honour, in the outline I state what I
submit to be the question that the Court must
determine and make this submission that it is of
sufficient importance that special leave ought to

be granted. The factswhich give rise to it are
these: the applicant, a heroin addict, traded in
heroin and was convicted by a jury for the offence
of carrying on the business of trafficking in
heroin against section 5 of the DRUGS MISUSE ACT.
A summary of the evidence which she gave and which
was therefore available for the consideration of the
jury is to be found at the bottom of page 93 of the application book. In evidence in-chief she
was asked by her own counsel:
"What do you say to the allegation that you
are carrying on the business for reward,
corrrrnercial profit?--There was no corrrrnercial
profit. All profits went into my arm. The
money I made I used, it went into my arm or
paid for the groceries for the children.
There were no v,ast fortunes out there.
Basically I did it for the heroin itself.
I would prefer to have the heroin than the
money. If I ever made any money, it was to
buy heroin so I could use it."

BRENNAN J: That was a pretty broad proposition, was it not,
when combined with the fact that there were profits
made on some transactions which were used for
ordinary living expenses.

MR HERBERT: At page 73 and 74 of the application book it
becomes apparent that she on occasions and in
particular at page 74 she might get$50
from her movement of one street gram of heroin.
She might pay $350 for it and sell it for

$400 . She was a social security recipient
at the time and that is to be taken, in my
submission, with her evidence that essentially
any money that came from this traffic was merely
incidental to her great need to satisfy her
addiction and that that was the guiding force of
all of her trading. The Court of Criminal Appeal
dealt with the question on the footing upon which
I have submitted and that is to be found,
Your Honours, at page 181 of the application book.
At page 21 the judgment of Mr Justice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gandy v The Queen

Details

AGLC: Gandy v The Queen [1990] HCATrans 149
Case: [1990] HCATrans 149
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Ms Gandy, had been convicted by a jury of carrying on the business of trafficking in heroin, contrary to section 5 of the Drugs Misuse Act. The dispute centred on whether Ms Gandy's activities constituted "carrying on the business" for "reward" as defined by the Act, given her evidence that any profits were primarily used to fund her heroin addiction.

The central legal issue before the High Court was whether the "reward" contemplated by section 5 of the Drugs Misuse Act could include payment in kind, specifically the receipt of heroin itself, rather than monetary profit. This question arose from Ms Gandy's defence that her trafficking activities were driven by her addiction, with any financial gains being incidental and used to purchase heroin for personal consumption or to cover essential living expenses.

The Court of Criminal Appeal had determined that the applicant's status as a heroin addict and the fact that she received drugs rather than money was irrelevant to the question of whether she carried on the activities for a reward of a commercial character. The reasoning applied was that the nature and purpose of her activities remained commercial, regardless of the form of remuneration or the underlying motivation for engaging in them. This interpretation meant that an addict trading to sustain their habit could be found guilty of the offence.

Orders