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…

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 Gasmier v The Queen

Details

AGLC: Gasmier v The Queen [2020] SASCFC 16
Case: [2020] SASCFC 16
Decision Date: 5 March 2020

CaseChat Overview and Summary

This case concerned an appeal by Mr Gasmier against his conviction in the District Court for drug trafficking offences. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issue before the Full Court was whether the District Court Judge had erred in finding that Mr Gasmier intended to sell at least 250 grams of cannabis. This finding was crucial for establishing guilt under the relevant provisions of the Controlled Substances Act. The appeal also raised the question of whether a miscarriage of justice had occurred due to the Judge's reasoning.

The Full Court acknowledged that while it was unlikely the District Court Judge would have found Mr Gasmier's evidence of not intending to sell persuasive, the Judge had not directly addressed the relevant question. Instead, the Judge had positively concluded that Mr Gasmier intended to sell at least 250 grams. However, the Full Court found that the reasons provided by the District Court Judge for rejecting Mr Gasmier's evidence were not cogent. Consequently, the Full Court concluded that a miscarriage of justice had occurred.

The Full Court granted permission to appeal and allowed the appeal. The conviction entered in the District Court was set aside, and a new trial was ordered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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