Lapic v Police No. DCCRM-02-45 - [2003] SADC 87

LAPIC v POLICE
[2003] SADC 87
Judge Sulan
Criminal

Anita Lapic, the defendant, is charged with possessing cannabis for sale. Particulars of the offence are that on 19 October 2001 at Enfield she knowingly had cannabis, a prohibited substance, in her possession for the purpose of selling it to another person. The prosecution allege that the offence involved in excess of 2 kilograms of cannabis.
The defendant pleaded not guilty and the trial commenced on 31 March 2003. A late application was made for trial by judge alone. Mr Mancini who appeared for the defendant informed the Court that he had discussed the question of trial by judge alone with his client, and he had then forgotten to raise it with her again, until just prior to trial. He candidly admitted that he had overlooked obtaining detailed instructions from his client within the time required for making an election. Mr McEwen who appeared for the prosecution did not oppose the application. I extended the time for the application to be made, dispensed with the rules and ordered trial by judge alone.
I was informed by counsel that if the Information were amended to allege possession for sale or supply the defendant would plead guilty, and there would then be a disputed facts hearing on the question of whether she possessed cannabis for sale or possessed it for supply. In R v Hoang[1] the Court of Criminal Appeal decided that possession of cannabis for sale or supply is one offence. The question which might remain is whether a person possessed the drug for sale or for supply. That is a question to be determined by the judge.
[1] (2003) 83 SASR at 254
Mr McEwen submitted that it was open for me to proceed in that way. The prosecution case was that the defendant possessed cannabis for sale. Mr Mancini informed me that his client admitted possessing the cannabis in question, but she denied she possessed it for any commercial purpose. She admitted that she intended to supply some of the cannabis to her father. I therefore embarked upon a disputed facts hearing.
The Facts
The prosecution case is that police attended at premises at 2A Turnbull Avenue, Enfield at about 5.00pm on Friday, 19 October. The defendant was home and when police entered the premises they saw a room (the rear bedroom) which had been set up as a hydroponically-operated growing room for cannabis. In the main bedroom they found four small money bags containing cannabis head and a brass pipe in a drawer. In the rear bedroom they observed six small ballasts, two large ballasts, six light shades, six light globes, a set of electronic scales and nine bags containing dry cannabis head. These items were seized. Photos were taken of the premises. Police searched the premises. They also seized a number of documents. Constable Jamieson gave evidence of having taken possession of the various items I have described, including numerous documents. A field receipt was prepared and…

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.

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Details

Case: [2003] SADC 87
Decision Date: 6 June 2003

CaseChat Overview and Summary

The defendant, Anita Lapic, was charged with possessing cannabis for sale, with particulars of the offence stating that on 19 October 2001, at Enfield, she knowingly had cannabis, a prohibited substance, in her possession for the purpose of selling it to another person. The prosecution alleged that the offence involved in excess of 2 kilograms of cannabis. The defendant pleaded not guilty and the trial commenced on 31 March 2003. The court was required to decide whether the defendant was in possession of cannabis for the purpose of sale. The court considered the evidence presented by the prosecution, including the presence of hydroponic equipment, the manner in which the cannabis was packaged, and the presence of scales in the room. The court also considered the defendant's evidence, which was that she grew the cannabis for personal use and to supply to her father. The court found the defendant's evidence to be unconvincing and rejected her explanation that the cannabis was for personal use. The court concluded that the defendant was in possession of cannabis for the purpose of sale. The court's reasoning was based on the evidence presented, including the manner in which the cannabis was packaged and the presence of scales in the room, which led the court to the conclusion that the cannabis was packaged and weighed specifically for the purpose of wholesale sale. The court also found the defendant's explanation for the presence of the scales unconvincing and rejected her explanation that it was for weighing nutrients. The court found that there was no reasonable hypothesis consistent with the conclusion that the cannabis was not grown for sale. The final orders of the court were not stated in the text.

Orders