R v Enslow

[1992] TASSC 83

Serial No. 31/1992

List “A”

File No. 32/1992

CITATION:              R v Enslow [1992] TASSC 83; A31/1992

PARTIES:  R

v

ENSLOW, SCOTT DARREN

TITLE OF COURT:  SUPREME COURT OF TASMANIA

FILE NO/S:  32/1992
HEARING DATE:  20 May 1992
JUDGMENT OF:  Slicer J

Judgment Number:  A31/1992
Number of paragraphs:                   27

Serial No 31/1992

List "A"

File No 32/1992

R v SCOTT DARREN ENSLOW

REASONS FOR JUDGMENT      COX J

1992

Criminal law – Plea of autrefois convict – Criminal Code, s.355(1)(b)(v) – Stay of indictment.

1. On 24 December 1991 the accused appeared in the Court of Petty Sessions, Hobart, in answer to two complaints arising out of the possession of cannabis. The first, complaint No.10859A1991, alleged the offence of possession of a prohibited substance, namely cannabis, contrary to the Poisons Act 1971, s.55(1)(c). On 23 January 1992 he entered a plea of guilty to the complaint and on 28 January was sentenced to a term of imprisonment of two months with respect to the offence. The second complaint No.108601991 alleged that “Scott Darren Enslow... on the 13th December 1991 at Kingston in Tasmania possess[ed] for sale a prohibited substance namely cannabis” contrary to “Section 47(3)(a)(1) or (2) of the Poisons Act 1971”. It is not clear what is meant by the numbers set out after the section. On 28 January 1992 a plea of not guilty was entered to the complaint, an election made pursuant to the Justices Act, s.56A(6)(c), and Mr. Enslow was committed for trial to the Supreme Court. On 9 April 1992 an indictment was filed alleging that “Scott Darren Enslow... at Kingston in Tasmania on or about the 13th day of December 1991 had in [his] possession for the purpose of sale a prohibited substance to wit cannabis” contrary to the Poisons Act, s.47(3)(a). The same cannabis, amounting to 373 grams, was the subject of both complaints and the indictment.
2. To the indictment the accused entered a written plea (as required by the Criminal Code, s.355(4)) of autrefois convict in accordance with the provisions of s.355(1)(b)(v) which states:
   
   “An accused person may plead to an indictment –

...

(b)  that he has already been .... convicted –

...

(v)  summarily, of an offence in respect of which he might have been indicted upon the charge to which he is called upon to plead;”

Agreed Facts

3. The parties put to the court the following agreed facts:

1.    That the accused had in his possession at Kingston on 13 December 1991 373.68 grams of a prohibited substance to wit cannabis.

2.    That it was his intention to sell or supply a portion of that quantity of cannabis in his possession.

3.    By complaint No.10859A1991 filed in the Court of Petty Sessions Hobart the accused was charged with on 13 December at Kingston in Tasmania being in possession of a prohibited substance to wit cannabis. The accused pleaded guilty to that complaint on 23 January 1992 before his Worship Magistrate G. H. Bryan. The learned magistrate adjourned the imposition of a penalty until 28 January 1992 and remanded the accused in custody until that date.

4.    On 28 January 1992 the learned magistrate convicted the accused on the complaint and sentenced the accused to two months‘ imprisonment to date from 23 January 1992.

5.    The cannabis which was the subject of complaint No.10859A1991 amounted to 373.68 grams and was the same as referred to in para.1 of the agreed statement of facts, such being in the possession of the accused on 13 December 1991.

4. In addition, both complaints (with accompanying record of proceeding sheets) were tendered.

Method of Determination

5. Section 361 provides that in the event that the plea is:

“... the accused has already been convicted of.... the crime charged in the indictment the judge shall determine the plea in such manner and upon such evidence as he thinks fit, and may, in his discretion, order a jury to be empanelled and sworn to try any question of fact necessary for such determination.”

In this case, given the agreed facts, there is no necessity to empanel a jury “to try any question of fact necessary for such determination”. Had it been necessary I would have followed the procedure adopted by the trial judge in Couchlan & Young v. R. (1976) 63 Cr.App.R. 33.

Ingredients of Offences

6. The Poisons Act 1971, s.55(1)(c) provides that:

“a person.... who –

...

(c)     has in his possession a prohibited substance;

...

is guilty of an offence and is liable on summary conviction...”

to a penalty.

7. There is no provision for proceedings to be brought by way of indictment although by virtue of s.47(9) it can be an offence found by a jury as an alternative to a crime contrary to s.47(3)(a).
8. The effect of a plea of guilty to a charge is that “it amounts to no more than a solemn confession of the ingredients of the charge alleged”. R v. Tonks [1963] V.R. 121 at p.127.
9. Although there has been some judicial debate as to whether a plea of itself can constitute a conviction such as to establish autrefois convict (see R. v. Tonks (supra);Griffiths v. The Queen (1977) 137 C.L.R. 293; and Cobiac v. Liddy (1969) 119 C.L.R. 257 per Windeyer J. at p.271 and following) the wording of the Code would preclude such an approach and, in any event, in this case a sentence has been passed on the accused.
10. The effect of the plea is then that the accused confessed to the possession of a prohibited substance and possessed the requisite state of mind at the time of such possession. His confession in no way encompassed any purpose associated with such possession.
11. Section 47(3) states:

“A person shall not –

(a)     sell or supply a prohibited plant or prohibited substance to another person...”

and by virtue of subs. (5):

“A person who contravenes subsection.. (3) is guilty of a crime and is liable to punishment on indictment under the Criminal Code accordingly.”

12. Thus although the section can connote some form of possession or notional possession or control, its ingredients go far beyond those required by s.55(1)(c). A person may be guilty of a crime under s.47(3) without at any stage having physical possession of any prohibited items, as for example where he is a principal to an enterprise engaged in the distribution and sale of a prohibited substance but at no time is involved in any physical handling of such substance.
13. In part the submission of the accused is based upon the wording of the indictment, the particulars of which state:

“Scott Darren Enslow.... at Kingston in Tasmania on or about the 13th day of December 1991 had in.... possession for the purpose of sale a prohibited substance to wit cannabis”.

14. But those particulars are simply the expression of the manner in which the Crown alleges that the accused has committed the crime of sale or supply of the prohibited substance. “Sell” is defined by the Poisons Act, s.3, as including “keep or have in possession for sale”. Section 47(7) provides that possession of more than a prescribed amount of a prohibited substance is deemed to be evidence that such possession was for the purpose of sale. The Act, Sch.III, prescribes, for Indian Hemp, a quantity of 25 grams. The ingredients of the crime under s.47(3) do not of themselves require possession but the definition section and the presumptive section afford to the prosecution a method of proving the allegation. This path does not equate possession with sale since the prosecution is still obliged to prove that the possession was for the purpose of sale.
15. This is a different proposition to that considered by the Queensland Supreme Court in R. v. Viers [1983] Qd.R. 1 where the accused, having pleaded guilty to a charge of possession of a prohibited substance, was subsequently charged with possession (of the same material) of a dangerous drug for a specified purpose.
16. The court held that since the Health Act defined cannabis as both a prohibited plant and a dangerous drug a person could not be convicted of both possession simpliciter of a dangerous drug and possession simpliciter of a prohibited substance. The two offences were alternatives. However, the court determined that since the second charge contained a further ingredient, namely possession for a purpose, the provisions of the Criminal Code (Qd), s.17, relating to pleas of autrefois had no application. I agree with that approach.

Autrefois Convict

17. The question is whether the accused has already been convicted of an offence of which he might be convicted on this indictment. The following propositions can be stated:

–       An accused cannot be tried for an offence of which he has been previously convicted.

–An accused cannot be tried for an offence of which he could, on some previous indictment, have been convicted.

–The same applies if the offence charged is in effect the same or substantially the same as either the principal offence or a different offence of which he has been convicted.

–One test is whether the evidence which is necessary to support the second charge or whether the facts which constitute the second charge would have been sufficient to procure a conviction on the first charge.

–The critical issue is whether the offence charged in the later indictment is the same, in effect the same, or substantially the same, as the offence charged and it is immaterial that the facts under examination are the same as those in the earlier proceedings.

See Connelly v. D.P.P. [1964] A.C. 1254.

18. The plea is separate from the issues raised by a question of res judicata (The Queen v. Storey (1978) 140 C.L.R. 364) and is to be confined within well established limits (Weeding v. The Queen [1959] V.R. 298).
19. In this case the submission is based, in part, on the proposition that the indictment, in effect, pleads a form of possession which is simply one of degree. As Blackburn J, said in Wemyss v. Hopkins (1875) L.R. 10 Q.B. 378 at p.381:

’The difficulties which have arisen in the application of the rule have most frequently occurred in cases where a conviction or acquittal for a simple offence has been set up as a bar to a subsequent charge against the same person in a more aggravated form.... where a criminal charge has been adjudicated upon.... that adjudication.... is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence, whether with or without circumstances of aggravation, and whether such circumstances of aggravation consist of the offence having been committed with malicious or wicked intent, or by reason that the committal of the offence was followed by serious consequences.“

20. A similar approach was taken in R. v. Grimwood (1896) 60 J.P. 809, but as was said by Starke J, in R. v. Kent–Newbold (1939) 62 C.L.R. 398 at p.415:

”.., all it appears to decide is that the crimes there charged differed only in degree and that a verdict on one charge was a bar to all the other charges.“

21. On any approach an indictment alleging sale or supply of a prohibited substance, even when defined to include possession for the purpose of sale, could not be regarded as the same crime differing only in degree. It could not be said to be substantially the same.

Determination

22. The plea made pursuant to the Criminal Code, s.355(1)(b)(v), must fail.

Abuse of Process

23. A further submission was made on behalf of the accused that the inherent power of the court should be exercised so that further proceedings on the indictment should be stayed. In support of the application a copy of the transcript of the proceedings held in the Court of Petty Sessions on 23 January 1992 was tendered as an exhibit. The power to stay proceedings was recognized by Lord Devlin in Connelly v. D.P.P. (supra) where, at p.1340, he favoured the approach that the doctrine of autrefois should be kept within precise limits if another remedy was available:

”If I had felt that the doctrine of autrefois was the only form of relief available to an accused who has been prosecuted on substantially the same facts, I should be tempted to stretch the doctrine as far as it would go. But, as that is not my view, I am inclined to favour keeping it within limits that are precise.“

and at p. 1347:

”.... the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court‘s process is used fairly and conveniently by both sides.“

and that such jurisdiction would include:

”.... power to enforce such a direction.... by staying a second indictment if it is satisfied that its subject–matter ought to have been included in the first. I think that the appropriate form of order to make in such a case is that the indictment remains on the file marked ’not to be proceeded with‘.“

24. This approach was adopted by Thomas J, in R. v. Viers (supra) where he found that it was oppressive to allow the trial to proceed. In part his decision was based on the conduct of the prosecution, as he indicated in the following passage, at p.7:

”... I am at a loss to see why the police proceeded with the first charge and waited for the plea of guilty and conviction thereon before disclosing their intention to press on with the more serious charge. Had the accused known of this intention he may very well have decided not to plead guilty to the first charge. The history of events may have been quite different.“

25. His Honour also paid regard to the fact that the Crown had amended the wording of the charge (from prohibited plant to dangerous drug) which created ”a highly technical point, created by the altered form in which the charge is now brought“.
26. These considerations do not apply in the present case.
27. The transcript of the proceedings reveals that there were two complaints before the magistrate at the same time. The prosecutor applied for the adjournment sine die of the complaint alleging possession. The magistrate indicated that he would grant the adjournment but defence counsel submitted that his client was entitled to enter a plea to the complaint and be sentenced on the basis of such plea without delay. The question of autrefois convict was raised by the magistrate following which the prosecutor indicated that he wished to tender no evidence in relation to the complaint alleging possession contrary to s.55(1)(c). This course was not adopted and a plea was taken, following which the magistrate again invited the prosecutor to state what decision he intended to take in relation to the complaint. The prosecutor not unreasonably stated, ”Well, sir, as he has now pleaded guilty I ask that he be convicted“. At the conclusion of the sentencing process the accused was sentenced to a term of imprisonment for a period of two months. On no basis could it be said that the course taken by the prosecution was unfair or oppressive. The defence quite consciously urged the court to adopt the procedure which was in fact followed and could not claim to be prejudiced by form of proceedings. The application for a stay of proceedings on the indictment is refused.