Gasmier v The Queen - [2020] SASCFC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
GASMIER v THE QUEEN
[2020] SASCFC 16
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Lovell)
5 March 2020
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
Appeal against conviction for trafficking in cannabis, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the Controlled Substances Act), following a trial by judge alone in the District Court of South Australia.
Police located 10.8 kilograms of mixed cannabis in a green and wet condition in the appellant’s home, which he testified that he stole from a grow house. It was estimated by police that once completely dry, the cannabis head would weigh no less than 1.32 kilograms. The appellant had been charged with trafficking in a commercial quantity of cannabis, contrary to s 32(2) of the Controlled Substances Act, which offence required proof that the appellant intended to sell one kilogram or more of the cannabis. The Judge acquitted the appellant of that charge but was satisfied that the appellant had intended to sell at least 250 grams of the cannabis and convicted the appellant of the statutory alternative of trafficking.
The appellant appeals on two grounds:
1. That the Judge erred in finding him guilty of trafficking by bartering on the basis of his own testimony that he intended to share the cannabis with his friends in the expectation that they might, on other occasions, reciprocate his generosity.
2. That the Judge’s conclusion, that the appellant intended to sell at least 250 grams of cannabis, lacked cogency.
Held per curiam, granting permission to appeal on ground 2 and allowing the appeal on both grounds:
1. The Judge was wrong to find that, on the appellant’s testimony evidence, he intended to barter and exchange.
2. The Judge’s reasons for finding that the appellant did intend to sell at least 250 grams of the cannabis do not support that conclusion. The erroneous finding must necessarily have affected the Judge’s assessment of the appellant’s credibility. There has, therefore, been a miscarriage of justice.
Controlled Substances Act 1984 (SA) ss 4, 32, 33I, 33R; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1, referred to.
R v Gasmier [2019] SADC 103, discussed.
Fleming v The Queen (1998) 197 CLR 250; Douglass v The Queen (2012) 86 ALJR 1086, considered.

GASMIER v THE QUEEN
[2020] SASCFC 16
Court of Criminal Appeal: Kourakis CJ, Nicholson and Lovell JJ

THE COURT: The appellant, Mr Gasmier, appeals against his conviction for trafficking in cannabis contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the Controlled Substances Act). The appellant had been charged with trafficking in a commercial quantity of cannabis contrary to s 32(2) of the Controlled Substances Act, which offence required proof that the appellant intended to sell one kilogram or more of the cannabis.[1] On his trial by judge alone, the Judge was not so satisfied and acquitted the appellant of that charge. However, the Judge was satisfied that the appellant had intended to sell at least 250 grams of the cannabis found in his possession and convicted the appellant of the statutory alternative offence of trafficking in cannabis contrary to s 32(3) of the Controlled Substances Act, pursuant to the power conferred by s 33R of the Controlled Substances Act.
[1] Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1.
The essential circumstances of the offence may be briefly stated. On 7 July 2017, police found 10.8 kilograms of mixed cannabis head leaf and stalk in a green and wet condition in the two-storey home occupied by the appellant, his partner, SD, and SD’s mother, YD. The cannabis was found in several rooms on the ground floor. YD, who was the owner of the home, lived predominately on the second storey. Of the cannabis found, 5.22 kilograms was female flowering head. Police estimated that once completely dry, the cannabis head would weigh no less than 1.32 kilograms. The market value of the cannabis head was between $6,000 and $12,000.
The appellant testified that, acting on a tip-off, he stole the cannabis from a grow house in the western suburbs. The Judge found the appellant to be an unconvincing witness and rejected that account as inherently improbable. However, there was no evidence that the cannabis was grown in YD’s house.
There are two primary grounds of appeal. First, the appellant complains that the Judge wrongly found him guilty of trafficking by bartering on the basis of his own testimony that he intended to share the cannabis with his friends in the expectation that they might, on other occasions, reciprocate his generosity (ground 1). The appellant contends that merely holding a hope that his friends might, in turn, share their cannabis with him is not a sale, in the extended sense of bartering or exchanging the cannabis. That contention should be accepted. Barter and exchange requires a reciprocal commitment to participate in the exchange, which is absent in the sharing described by the appellant.
However, the Judge also inferred that the appellant intended to sell at least 250 grams of cannabis from the quantity of cannabis and the surrounding circumstances of the appellant’s possession. The appellant challenges the Judge’s conclusion on the grounds that his Honour’s reasons lacked cogency (ground 2). That submission too should be accepted; the circumstances from which the Judge inferred an intention to sell are, at least, intractably neutral.
There is yet a further complication. The Judge made his findings labouring under the misapprehension that conviction of an offence against s 32(3) of the Controlled Substances Act required proof that the appellant intended to sell at least 250 grams of the cannabis. That is not so. An offence is committed against s 32(3) of the Controlled Substances Act when cannabis in any quantity is sold or intended to be sold. Moreover, s 32(5) of the Controlled Substances Act provides that a person in possession of 250 grams or more of cannabis is presumed to have an intention to sell at least some of the cannabis in his or her possession. Accordingly, on the statutory alternative of simple trafficking contrary to s 32(3) of the Controlled Substances Act, because possession of more than 250 grams of cannabis was admitted, the only issue for the Judge was whether or not the appellant’s testimony satisfied him on the balance of probabilities that he did not intend to sell any of the cannabis. The Judge did not address that question directly, deciding (unnecessarily) instead, and without relying on the presumption, that the evidence proved that the appellant did intend to sell at least 250 grams of the cannabis. Unfortunately, the Judge’s reasons for so finding do not support that conclusion. The erroneous finding must necessarily have affected the Judge’s assessment of the appellant’s credibility. A verdict in a criminal trial by judge alone may be set aside as a miscarriage of justice, or on the ground that it is not supported by the evidence, when the reasons given do not support the Judge’s conclusions.[2] There has, therefore, been a miscarriage of justice, the appeal must be allowed and a new trial ordered on the charge of trafficking contrary to s 32(3) of the Controlled Substances Act.
[2] Fleming v The Queen (1998) 197 CLR 250 at [26]; Douglass v The Queen (2012) 86 ALJR 1086 at [45]-[48].
We elaborate on our reasons below.
The Controlled Substances Act
Section 4 of the Controlled Substances Act defines ‘traffic’ to mean to sell a drug, have possession of a drug intending to sell it or taking part in the process of sale. The section defines ‘sell’ to mean to sell, barter or exchange, or offer or agree to sell, barter or exchange or expose for sale, barter or exchange. The last limb of the extended definition appears calculated to catch those occasions when police interrupt negotiations before a price has been agreed and the intention to sell is fully formed. However, it would seldom be necessary to rely on it when the presumption is enlivened.
Section 32 of the Controlled Substances Act relevantly provides:
32—Trafficking
(1)A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty: $1 000 000 or imprisonment for life, or both.
(2)A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—
(i)if the offender is a serious drug offender—$500 000 or imprisonment for life, or both; or
…
(3)A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—
(i)if the offender is a serious drug offender—$75 000 or imprisonment for 15 years, or both; or
(ii)in any other case—$50 000 or imprisonment for 10 years, or both;
(b)     for an aggravated offence—$75 000 or imprisonment for 15 years, or both.
…
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)     in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b)     in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
The legal effect of s 32(5) of the Controlled Substances Act is not to relieve the prosecution of the burden of proving the elements of a trafficking offence beyond reasonable doubt, but to provide a presumption, in aid of that proof, which operates unless and until it is rebutted by proof, on the balance of probabilities, to the contrary. It should be noted that the two limbs of the presumption in subparagraphs (a) and (b) correlate with the ways in which a drug may be trafficked: taking part in the process of sale and selling or having possession intending to sell, respectively. Secondly, the presumptions as to purpose, belief and intention apply to sale of the drug the person is ‘alleged’ to have trafficked. It appears, therefore, that the presumption applies to so much of the drug alleged in the charge which is proved to have been in the defendant’s possession.
The Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) provide, in Schedule 1, that two kilograms of pure cannabis is a large commercial quantity, and one kilogram of pure cannabis is a commercial quantity, for the purposes of ss 32(1) and (2) of the Controlled Substances Act respectively. The trafficable quantity of cannabis for the purposes of s 32(5) is prescribed to be 250 grams of pure or mixed cannabis.[3]
[3] Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1.
Gratuitous supply
The Judge’s reasons for finding that the appellant intended to barter or exchange some of the cannabis appear in the following paragraph:[4]
[43]Here of course there was no evidence of growing or of the quality of the cannabis and yet Mr Gasmier’s own evidence was that he proposed to share it ‘between friends’ and between the people in the house. It was in fact his expectation that ‘shared between friends’ this quantity of cannabis would last for between six and nine months. He volunteered that he proposed to ‘distribute cannabis to a small circle of social friends … on the expectation that it comes back to me at some point, return favour we’ll call it’. This constitutes an admission of at least ‘barter’ and ‘exchange’.
(Footnotes omitted)
[4] R v Gasmier [2019] SADC 103 at [43].
In cross-examination, the appellant was reminded of his evidence‑in‑chief in which he said that the cannabis found by the police was for smoking by ‘people in the house and friends’. There then followed this exchange in which the appellant gave the answer relied upon by the Judge:[5]
[5] T124.
Q.For no return whatsoever.
A.Well, on the expectation that it comes back to me at some point, return favour we’ll call it.
Q.But absolutely -
A.Absolutely no monetary gain whatsoever.
Q.I suggest that that is a lie.
A.Well that’s your suggestion, I suggest it’s not.
Q.You say that you have never sold any cannabis ever.
A.No, I have no drug trafficking conviction next to my name whatsoever since the day I was born.
Q.I’m not asking whether you have convicted of it.
A.No, I have never had no accusations of it either if that helps you.
(Emphasis added)
It is to be remembered that barter or exchange is part of the extended definition of ‘sell’ for the purposes of s 4 of the Controlled Substances Act. That context is significant. Moreover, gratuitous supply of a controlled drug (other than cannabis) is criminalised by s 33I of the Controlled Substances Act. In that statutory context, the words barter or exchange must be construed to require a commitment, by way of undertaking, understanding or arrangement, if not contract, to make payment in kind for what is received. The appellant’s evidence did not go that far. He gave evidence of no more than a hope that others would follow his example and share their cannabis with him.
It is helpful to illustrate the point by reference to an analogous common, and lawful, social practice. A person who visits a neighbour with a bottle of wine, in the hope that if the neighbour were to repay the visit he or she would not come empty handed, does not barter or exchange his or her bottle of wine. Indeed, even a common acceptance that it is good manners to reciprocate falls short of the mutual commitment necessary to constitute a barter or exchange. The appellant’s evidence did not show that his friends shared a common understanding that, on accepting cannabis offered by another, they assumed an obligation to reciprocate in kind. Accordingly, the Judge was wrong to find that, on the appellant’s testimony evidence, he intended to barter and exchange.
An alternative basis for conviction?
As we have seen, the appellant emphatically denied that he intended to sell the cannabis. He testified that he was a very heavy user of cannabis, and that his intention was to store the cannabis to smoke it himself and share it with friends. He estimated that the cannabis may last about a year if he were to use it himself, but, if shared between friends, between six and nine months. The appellant gave evidence that ‘dope cures over time’ and ‘tended to … get better’. A police officer with some experience in cannabis cultivation, and its use by others, agreed that cannabis could be stored for a substantial period of time.
The Judge accepted that the appellant was a heavy user of cannabis. The Judge also observed that there were no indicia of sale found in the home such as tick lists, multiple telephones, telephone call records, packaging material or cash. In our view, the absence of those indicia does not tell strongly against an intention to sell because the cannabis was, when the police found it, still wet and therefore not in a saleable condition. The Judge nonetheless found that the appellant would sell some of the cannabis for the following reasons:[6]
[40]A highly significant consideration is that there was a complete lack of the indicia of trading in cannabis. There were no ‘tick lists’, multiple telephones, telephone call records, deal bags, scales or cash money, to name the most common attributes of trafficking in drugs. There is not one jot of evidence that the cannabis was grown on the premises and in fact the evidence is otherwise. Even so, it is difficult to accept that he would not sell at least some of the cannabis. Although Mr Gasmier spoke of storing it under stable conditions for as long as 12 months, it was likely to degrade progressively over the course of time. More significantly, whilst he retained possession of such a relatively large quantity, he remained vulnerable to detection for a more serious offence than might otherwise be the case if he kept just enough for his short to medium term consumption. In addition there was the obvious difficulty of concealing so much without detection. It is clear that whatever else YD tolerated, it was not extended to allowing cannabis consumption within the house. When she became aware Mr Gasmier had earlier in the year grown a single plant in a pot at the rear of the house, she immediately ordered its removal. It follows that she would hardly have permitted a large storage drum full of cannabis to remain about the house where it was because of its size, vulnerable to detection.
[41]From these combined materials it can be inferred that Mr Gasmier was intending to sell at least some cannabis according to the wider sense defined that is sell, barter or exchange, so the question to what extent is proven beyond reasonable doubt?
(Footnotes omitted)
[6] R v Gasmier [2019] SADC 103 at [40].
We do not find the reasons given by the Judge for finding that the appellant intended to sell at least some of the cannabis persuasive. Indeed, they do not support his Honour’s conclusion at all. First, there was no evidence that the cannabis was likely to degrade over a period of 12 months. On the contrary, as we have seen, the only evidence was that it could be kept for a substantial period of time, and, in the appellant’s opinion, that it would improve. Secondly, the appellant would be no more vulnerable to detection for a serious offence of possession of a trafficable quantity of cannabis by storing it than he would be offering it to others for sale. Finally, the evidence did not show that the appellant would find it difficult to conceal several kilograms of dried cannabis. The appellant’s evidence was not that he would store the cannabis in ‘a large storage drum’. He spoke of storing it in a plastic sealable cereal drum. Plainly enough, a large drum would not have been required for the several kilograms of cannabis left after the cannabis had dried. Nor is it at all likely that YD would have objected to the storage of that much cannabis. YD’s evidence was that she knew that the appellant was a heavy smoker of cannabis and the only restriction she imposed was that he not smoke in the house but smoke in the shed instead. YD could hardly have thought that the appellant was buying the cannabis on a just-in-time basis. It is likely that she knew, or would at least accept, that he would store cannabis required to meet his future, as well as his immediate, needs.
Whither the presumption?
As we observed at the outset, it was not necessary for the Judge to determine how much cannabis the appellant intended to sell because there is no minimum prescribed quantity for the purposes of s 32(3) of the Controlled Substances Act. Moreover, it is at least arguable that when the presumption is enlivened, it applies to the whole quantity of the drug proved to be in a defendant’s possession.[7]
[7] For reasons which are not clear, the trial of Mr Gasmier proceeded on the prosecution concession that the presumption was only that the defendant intended to sell some unknown portion of the drug, and that it remained for the prosecution to prove how much.

The Judge’s reasons for finding that the appellant intended to sell at least 250 grams of the cannabis were as follows:[8]
[46]There is every reason to doubt the reliability and credibility of Mr Gasmier. The evidence of SD is approached with some caution since she has an interest in the favourable outcome for him. There nevertheless remains a reasonable possibility Mr Gasmier may not have sold as much as 1 kg, or expressed in another way, as much as 20 per cent of this illegally obtained moist cannabis.
[47]By the same token, when it comes to the alternative charge under s 32(2) of the Controlled Substances Act, Mr Gasmier is deemed to have a trafficable quantity in his possession for the purpose of sale, which in this case is by comparison merely 250 g. In that event all the prosecution is left to prove is that he intended to sell at least that much, or again expressed in another way, approximately 5 per cent of 5.2 kg of moist cannabis material, or a dry weight of 66 g, which is just over two imperial ounces. Given the circumstances of the case, there can really be no reasonable doubt about that. One way or another, based on his own evidence, Mr Gasmier proposed at the very least a combination of barter and exchange, bringing him within the statutory definition of ‘sell’. In addition to that, for the reasons articulated above there can be no reasonable doubt of his intention to sell some as well.
(Footnotes omitted)
The Judge’s reference to the ‘reasons articulated above’ must be those reasons which are given in [40] which is set out above. We acknowledge that it is extremely unlikely, particularly having regard to the first sentence in [46], that, if the Judge had addressed directly the relevant question, he would have found the appellant’s evidence that he did not intend to sell any of the cannabis persuasive. However, the Judge did not do that. Rather, he found positively that the appellant had intended to sell at least 250 grams of the cannabis. That conclusion, once reached, necessarily entailed the rejection of the appellant’s evidence. However, for the reasons previously given, the Judge’s reasons for doing so are not cogent. There is, therefore, no alternative but to conclude that there has been a miscarriage of justice.
[8] R v Gasmier [2019] SADC 103 at [46]-[47].
Conclusion
We would grant permission to appeal on ground 2, and allow the appeal on grounds 1 and 2. Accordingly, we set aside the conviction entered into at the District Court and order that there be a new trial.