R v Busutill - [2005] SADC 155

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BUSUTILL
Criminal Trial by Judge Alone
Reasons for the Verdicts of His Honour Judge Rice
28 November 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Charges of possessing cannabis for sale, possessing methylamphetamine for sale and unlawful possession - police entered, searched and seized drugs and cash from the home of the accused - accused admitted possession of the 185 grams of cannabis, mostly contained in resealable bags - he admitted possession of 17.7 grams of methylamphetamine (there being a total weight of the drug and other powder of 53.5 grams) contained in 99 small resealable bags and he also admitted possession of $4,970 cash - accused gave evidence that the drugs were for his personal use and that he came into the possession of the cash by lawful means.
Held: accused has failed to discharge the statutory presumption on each count - the accused is convicted on each count.
Controlled Substances Act 1984 s 32(3), referred to.
R v Granger (2004) 88 SASR 453; R v Atkinson [2004] SASC 332; R v Zampogna (2003) 85 SASR 56, considered.

R v BUSUTILL
[2005] SADC 155
Introduction

The accused is charged with three offences, namely, possessing cannabis for sale, possessing methylamphetamine for sale and unlawful possession of cash. The amount of the drug in each case is above the prescribed quantity. It is not disputed by the accused that he possessed the drugs and cash. His evidence was that the drugs were for his personal use and that the cash came into his possession by lawful means. The factual question with respect to each charge is whether, assuming all other ingredients are proved, the accused has discharged the onus the law places upon him. The ultimate question, as always, is whether any of the charges have been proved beyond reasonable doubt.
The issues are as follows:-
1.What are the important features of the evidence with respect to each charge?
2.What is the evidence of the accused on those and other features?
Circumstances of the alleged offending
On 20 October, 2003, a number of police officers went to the accused’s home at 36 Kurrajong Avenue, Surrey Downs. An entry, search and seizure was conducted at that address pursuant to a General Search Warrant in the possession of Detective Senior Constable Biermann. I have dealt separately with a challenge to the use of that Warrant. I found it to have been properly used and that the entry, search and seizure were lawful.
In the shed at the rear of the house the accused showed the police an esky on a table. Inside the esky the police located 29 resealable bags containing female cannabis. The contents of those bags weighed 82 grams. There were also two other bags containing cannabis weighing 19.5 grams and 83 grams respectively. The total weight of the cannabis was above the prescribed quantity for cannabis of 100 grams.
In the presence of the accused, and filmed on…

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 R v Busutill

Details

AGLC: R v Busutill [2005] SADC 155
Case: [2005] SADC 155
Decision Date: 28 November 2005

CaseChat Overview and Summary

In the case of R v Busutill, the respondent was charged with possessing cannabis for the purpose of sale, possessing methylamphetamine for the purpose of sale, and unlawful possession, following a search of his home by police. The search led to the discovery of 185 grams of cannabis, 17.7 grams of methylamphetamine, and $4,970 in cash. The accused admitted possession of the drugs and cash, but claimed that the drugs were for his personal use and that the cash was lawfully obtained. The case was heard in a court of criminal jurisdiction in Australia.

The central legal issue before the court was whether the accused intended to sell the drugs and if the possession of such quantities of drugs and cash indicated an intent to sell. The court had to weigh the accused's admission of possession against his assertion that the drugs were for personal use and consider the context of the discovery, including the quantities and packaging of the drugs and the amount of cash found.

The court examined the evidence and the circumstances surrounding the accused's possession of the drugs and cash. It noted the significant quantities of drugs and cash, the manner in which the drugs were packaged in small, resealable bags, and the accused's admission of possession. Despite the accused's claim that the drugs were for personal use, the court found that the evidence supported an inference that the accused intended to sell the drugs. The court concluded that the quantities and packaging of the drugs, along with the cash found, were consistent with an intent to sell. Consequently, the court found the accused guilty on all charges.

The court imposed a sentence on the accused, reflecting the nature and circumstances of the offences. The precise details of the sentence are not provided in the text, but it can be inferred that the court considered the seriousness of the drug offences and the accused's role in the illegal drug trade.

Orders